The role of public office bearers in a constitutional democracy Continued…

  1. [10:13 AM, 10/20/2016] +263 77 735 0451: Mmm
  2. [10:25 AM, 10/20/2016] Gandanga: [06:31, 10/20/2016] GANDANGA: Topic….

Good morning cdes. Allow me to ask what is our understanding of the role of public office bearers in a constitutional democracy? Is Zimbabwe a constitutional democracy?

  1. [09:05, 10/20/2016] Lucy Matibenga: Hallo mwanakomana. How are you?
  2. [09:05, 10/20/2016] GANDANGA: So so amai
  3. [09:06, 10/20/2016] GANDANGA: What’s your take on that issue?
  4. [09:25, 10/20/2016] Lucy Matibenga: To tell you the truth some of us are from the past and may not be useful in these modern debates. Our Zim situation is so overwhelming to the extent that some of these issues don’t mean anything. The main aim is to work out how to get out of the dungeon where zanu has put us.

However I am keen to follow the debate on the groupoffice_bearers

  1. [09:55, 10/20/2016] GANDANGA: Thanks fir your response. I should like to believe that the past has no memory but the future is shaped and defined by our choices and actions

We all live in the present and the challenges we face today know of no senior or junior.

We are all facing limited choices in a post-colonial order.

I am inspired by your record and as one one of our legendary actors in the union movement, I look up to you for guidance.

The reason I asked the question is that I am a member of an NGO called Friends of SMM.

We have had numerous discussions on the facts and circumstances of SMM some of which you may be familiar with.

We are at a stage where we are debating the promise and limitations of a constitutional democratic order hence the question.

It is for this reason that I am responding to you position that your purpose is focused on the inanimate ZANU-PF and not on the specific actions and decisions that have undermined the promise of prosperity.

Is it ZANU-PF that is the enemy and not the actors. In our review of the SMM matter we see real footprints of actors and not the party as an entity.

Without your guidance, we may miss key issues and points of attack.

  1. [10:04, 10/20/2016] Lucy Matibenga: I see. The context is well understood now. I will think about it. It’s unfortunate we live in an environment where people are angry because one of us madhara has ruined the lives of the people. Uyu we 92 years uyu. Saka we feel the anger some of us and in turn also begin to feel hopeless.
  2. [10:16, 10/20/2016] GANDANGA: We have refused in FOSMM to refuse to accept that one old man can limit the aspirations of the majority. The SMM matter has shown us a different glimpse into our public power has been used since independence and how our obsession with Mugabe has limited our capacity to bring to book many culprits who are clothed with state power but have undermined the hopes of many.
  3. [10:22, 10/20/2016] Lucy Matibenga: True cde.
  4. [10:24, 10/20/2016] GANDANGA: Can I add u to the FOSMM group as well
  5. [10:28 AM, 10/20/2016] Gandanga: Help me welcome honorable mama Matibenga into the group
  6. [10:30 AM, 10/20/2016] Lucy Matibenga: I feel honoured cdes.
  7. [10:30 AM, 10/20/2016] Tinashe Mpasiri: Hon Matibenga, welcome to the bank of knowledge
  8. [10:30 AM, 10/20/2016] MD Mawere: Welcome
  9. [10:31 AM, 10/20/2016] Lucy Matibenga: Thank you
  10. [10:35 AM, 10/20/2016] Stanley: Welcome
  11. [10:58 AM, 10/20/2016] Tinashe Mpasiri: Friends, we are going on air at 11:00(CAT) The conversation being on The Role of Public Office Bearers focus on Zimbabwe. Tune In The1873fm.com
  12. [11:00 AM, 10/20/2016] Tinashe Mpasiri: Would like to thank Tapuwa Chitambo aka Gandanga for his contribution to the platform. The question he has raised has initiated the conversation on radio
  13. [12:52 PM, 10/20/2016] Tinashe Mpasiri: https://soundcloud.com/the-1873-network-962541670/the-role-of-public-office-bearers
  14. [12:53 PM, 10/20/2016] Tinashe Mpasiri: the conversation on The Role of Public Office Bearers that was aired at 11:00 on the1873fm.com
  15. [1:11 PM, 10/20/2016] Norman Mukandagumbo: 10 Identification of culpable persons
  16. (1) If, in the course of compiling a statement under section 9, the administrator is of the opinion that any past or present director of the company or other person who it appears to the administrator was knowingly a party to the carrying on of the business of the company—

(a)   recklessly; or

(b)   with gross negligence; or

(c)   with intent to defraud any person or for any fraudulent purpose;

or that a fraud has been committed by any person in the promotion or formation of the company, the administrator may direct that any person who is or has been a director or officer of the company or has taken part in the promotion or formation of the company shall attend before him or her on a day and at a place he or she shall appoint for that purpose and be publicly examined as to the promotion or formation or the conduct of the business of the company or as to his or her conduct and dealings as director or officer thereof.

(2)  An administrator shall for the purposes of this section have the power of summoning and examining witnesses, administering oaths, requiring the production or delivery of documents, punishing defaulting or recalcitrant witnesses in terms of subsections (3) to (9), and allowing costs and expenses to witnesses.

(3)  If anu person who has been summoned under subsection (1) fails to appear in answer to the summons or if that person fails to remain in attendance at the examination, the administrator at the examination may issue a warrant authorising any member of the police to apprehend that person and to bring him or her before the administrator.

  1. [1:13 PM, 10/20/2016] Norman Mukandagumbo: does this act still recognise ……the right to appear and tried before an impartial court, right to silence, right not to incriminate oneself, seperation of powers etc?
  2. [1:13 PM, 10/20/2016] MD Mawere: This is in relation to the reconstruction act
  3. [1:14 PM, 10/20/2016] Norman Mukandagumbo: (6) If a person summoned in terms of subsection (1) appears in answer to the summons but fails to proudce any book or document which he or she was summoned to produce or if any person so summoned refuses

(a)   to be sworn by the administrator; or

(b)   to answer fully and satisfactorily any question lawfully put to him or her;learn

the administrator may issue a warrant committing that person to prison until he or she has undertaken to do what is required of him or her.

  1. [1:15 PM, 10/20/2016] Norman Mukandagumbo: these are extracts from the RECON ACT
  2. [1:16 PM, 10/20/2016] Norman Mukandagumbo: i herby invite everyone to discuss……….to argue for and against
  3. [1:16 PM, 10/20/2016] MD Mawere: Norman. Your unpacking of the reconstruction act has been helpful and in the course of my discussions with other members it occurred to us that we may need to locate Chinamasa’s actions and decisions in the framework of the domain of constitutionalism.
  4. [1:17 PM, 10/20/2016] MD Mawere: I am sure you are aware that on 26 August 2004 a specification order was issued in respect of SMM by Chinamasa and it may help to debate the legality, morality and constitutionality of this decision.
  5. [1:18 PM, 10/20/2016] Norman Mukandagumbo: (7) If a person who has been released from prison after having undertaken in terms of subsection (6) to do what is required of him or her fails to fulfil his or her undertaking, the administrator may recommit him or her to prison as often as may be necessary to compel him or her to do what is required of him or her…………………………does the constitution legalise such unwaranted power?
  6. [1:19 PM, 10/20/2016] MD Mawere: We can climb the legal and moral mountain step by step. I don’t know whether you agree with the approach.
  7. [1:21 PM, 10/20/2016] Norman Mukandagumbo: l do agree with what you are saying….this is why l have selected some extracts from the RECON ACT……..for us to determine whether these limitation of constitutional rights is warranted……….in a democratic society
  8. [1:25 PM, 10/20/2016] Adv. Thuto Mavula: The act finds itself in conflict with the supreme law and resembles a disregard of the rule of law in that it takes away the role if the judiciary and places it squarely under an agent of the Executive. Hence this erodes the doctrine of seperation of powers. Denying the summoned person a right to a fair trial before an impartial tribunal or court of law
  9. [1:25 PM, 10/20/2016] MD Mawere: Before the birth of the reconstruction act, the Prevention of Corruption Act was used to limit the rights of directors and shareholders. You will note that corporate entities were specified. I was specified on 9 July 2004. An Investigator was appointed for me on 13 August 2004. Statutory Instrument were used by the Minister. The issue is whether these actions were driven by ulterior motives or not. However, we can’t get into the mind of the Minister but can review the actions in relation to what is expected of a public Officer.
  10. [1:26 PM, 10/20/2016] Adv. Thuto Mavula: The companies act or companies codes of conduct regulated their conduct if I am not errring
  11. [1:26 PM, 10/20/2016] MD Mawere: Agreed. But before the birth of this Act as repugnant as it may seem to be, Chinamasa must have had some facts to rely upon to use discretionary Powers given to him.
  12. [1:27 PM, 10/20/2016] Adv. Thuto Mavula: From the facts his authority flowed from the Presidential decree which brought about the Recon SI
  13. [1:28 PM, 10/20/2016] MD Mawere: For the Minister to use the discretionary Powers in the PCA, he must have had been fixed with some valid and legitimate facts that the most optimal course of action was to invoke the power to specify
  14. [1:28 PM, 10/20/2016] Norman Mukandagumbo: were these power not abused…to exhibit disfavour towards one perceived as an enemy………the poweres were mearnt to be lawfully discharged..(criminal abuse of office)
  15. [1:31 PM, 10/20/2016] Adv. Thuto Mavula: And he sought or relied on the transactions between SAS, Petter and SMM as the cause of action for the Recon Proceedings
  16. [1:32 PM, 10/20/2016] MD Mawere: They also happen to be the same facts used to get me arrested and for extradition application
  17. [1:34 PM, 10/20/2016] MD Mawere: Let us link the cession and cession Court order to the jurisdictional facts that must have informed the use of the PCA
  18. [1:36 PM, 10/20/2016] Norman Mukandagumbo: why were you despecified in terms of the PCA? @MDM
  19. [1:37 PM, 10/20/2016] MD Mawere: After an investigation was done and completed
  20. [1:38 PM, 10/20/2016] Norman Mukandagumbo: @MDM what was the outcome of those investigation if you still remember?
  21. [1:38 PM, 10/20/2016] MD Mawere: No corruption
  22. [1:39 PM, 10/20/2016] MD Mawere: No facts existed to justify the specification
  23. [1:40 PM, 10/20/2016] MD Mawere: https://www.google.co.za/url?sa=t&source=web&rct=j&url=http://www.zbc.co.zw/index.php/news-categories/business/7079-mawere-de-specification-above-board-perm-sec&ved=0ahUKEwink4qPpunPAhWsJsAKHfMSBxAQFggjMAM&usg=AFQjCNGY3E36cD3aFOphARXTw4Qy9O5jyw&sig2=5GQGAJi_fzc8u7HN6-A63w
  24. [1:40 PM, 10/20/2016] Adv. Thuto Mavula: Who investigated
  25. [1:41 PM, 10/20/2016] MD Mawere: The police
  26. [1:41 PM, 10/20/2016] MD Mawere: They came to South Africa with the anti-corruption unit plus Interpol
  27. [1:45 PM, 10/20/2016] Norman Mukandagumbo: is the Rocn Act an extension of the PCA……..@Thuto
  28. [1:46 PM, 10/20/2016] MD Mawere: No they are separate pieces of legislation
  29. [1:47 PM, 10/20/2016] Adv. Thuto Mavula: They are separate
  30. [1:48 PM, 10/20/2016] MD Mawere: The Recon Act creates its culpability test
  31. [1:49 PM, 10/20/2016] +263 77 735 0451: Madam Matibenga, great to get u aboard.
  32. [1:49 PM, 10/20/2016] Norman Mukandagumbo: Preamble for the RECON ACT: To provide for the reconstruction of State-indebted companies and associate companies that are unable to repay credits made to them from public funds, or in respect of whose liabilities the State has issued any guarantee that has become due; to provide for appointment and functions of administrators of companies under reconstruction;  to provide for formulation and implementation of schemes of reconstruction in respect of such companies; to amend the Prevention of Corruption Act [Chapter 9:16]; and to provide for matters connected with or incidental to the foregoing.

ENACTED by the President and the Parliament of Zimbabwe.

  1. [1:49 PM, 10/20/2016] MD Mawere: The strange thing is that on 26 August 2004 SMM was not state indebted but miraculously became indebted on 3 September when the regulations were published without notice
  2. [1:51 PM, 10/20/2016] MD Mawere: You are still ahead of the timeline. Can we finish the PCA and acts purportedly done in its name and spirit
  3. [1:52 PM, 10/20/2016] Norman Mukandagumbo: l wanted clarity regarding the relationship btwn the two acts………..as to which one takes precedent over the other…….or do the operate in parrallel
  4. [1:54 PM, 10/20/2016] MD Mawere: It is a question that we need to resolve whether two laws can render one subsidiary and another superior
  5. [1:55 PM, 10/20/2016] MD Mawere: Can two laws operate concurrently for the same events and facts?
  6. [1:58 PM, 10/20/2016] Norman Mukandagumbo: in criminal law………usually the charges would read to say………..as read to gether with……..section…..
  7. [1:59 PM, 10/20/2016] MD Mawere: But there is no such thing. Which law then becomes operative
  8. [2:00 PM, 10/20/2016] Norman Mukandagumbo: l do believe that statutes cannot operate that way………….the cause of action should b from one act………….
  9. [2:00 PM, 10/20/2016] MD Mawere: 👍👍
  10. [2:00 PM, 10/20/2016] Adv. Thuto Mavula: I think the intention was for the two to compliment each other to achieve the result. Because you will notice charges for MMs specification where brought under the PCA and the company was specified thru Recon Act
  11. [2:01 PM, 10/20/2016] Adv. Thuto Mavula: Remember our discussion on whether the PCA applied to artifiacial persons or not. Where we found that the interpretation excluded artificial persons. Hence SMM would have escaped alleged culpability .
  12. [2:02 PM, 10/20/2016] Adv. Thuto Mavula: I meant it in the sense if how it happened not “complement” in a legal way
  13. [2:02 PM, 10/20/2016] Norman Mukandagumbo: but f that is allowed………..then the essential elements of a cause of action would b drawn from more than 1 acts…….just to build a case……
  14. [2:03 PM, 10/20/2016] MD Mawere: No the specification was on 26 August 2004 and Recon reg on 3 September. Where would be the connection?
  15. [2:03 PM, 10/20/2016] Norman Mukandagumbo: each statute normally defines a complete cause of action……..absence of one element from the facts invalidates the cause of action
  16. [2:04 PM, 10/20/2016] Adv. Thuto Mavula: Its not allowed but it was made possible by having the SI which was letter passed into Law
  17. [2:05 PM, 10/20/2016] MD Mawere: How so? Where are the facts?
  18. [2:06 PM, 10/20/2016] Norman Mukandagumbo: @MDM……..so you mean that as of 26 August 2004, investigation shows that there is no case to answer…………..suprisingly on 3 September……..u now have a case
  19. [2:07 PM, 10/20/2016] MD Mawere: I mean Specification was done in terms of the PCA and not Recon Act
  20. [2:08 PM, 10/20/2016] Norman Mukandagumbo: ok then
  21. [2:18 PM, 10/20/2016] Adv. Thuto Mavula: Let’s look at

PCA s2(d) in relation to a specified person

Recon Act S3 specifically lists artificial persons ie corporate bodies as the subject of specification.

You get the point I ma trying to make in so far as the 2 acts are concerned? Their reach in so far as their subject is?

  1. [2:20 PM, 10/20/2016] MD Mawere: It is a fact that when the specification order was issued the Recon Act was not born.political-corruption
  2. [2:21 PM, 10/20/2016] Norman Mukandagumbo: “Any person” would include the appellant or any registered company.

The Interpretation Act [Cap 1:01], s 3 defines a person to include any company incorporated; or any local or other similar authority. It is irrelevant whether a person is a resident or citizen of another country as long as that person has done one of the things mentioned in s 6(1) of the Act. His companies are incorporated according to the laws of Zimbabwe………………………..CHIDYAUSIKU……….J

  1. [2:21 PM, 10/20/2016] Adv. Thuto Mavula: What then happens when the Recon Act comes into the picture is an amendment to s15,s282 and s37 of PCA to align it with the provisions of the Recon Act
  2. [2:21 PM, 10/20/2016] Norman Mukandagumbo: SC 67/07…………PCA
  3. [2:22 PM, 10/20/2016] Adv. Thuto Mavula: When was the SI in terms of the Predential decree gazetted?
  4. [2:24 PM, 10/20/2016] Adv. Thuto Mavula: This was a matter of Judicial Interpretation of which otherwise may be interpreted differently by another bench but not in the balck and white in the Act…is it not so?
  5. [2:28 PM, 10/20/2016] Norman Mukandagumbo: @Thuto…………its suprising how a company can be found guilty of corruption…….divorcive of its directors
  6. [2:32 PM, 10/20/2016] Norman Mukandagumbo: if we were to adopt Chidyausiku’s defination of a person in terms of the PCA……….what absurdity will arise then
  7. [2:43 PM, 10/20/2016] MD Mawere: Bizarre

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