A CHINESE investor, under siege from alleged corrupt individuals including government officials, is threatening to ditch the US$40 million Hwange Coal Gasification Company (Pvt) Limited (HCGC) after losing coke worth approximately US$2m in five days in alleged corrupt activities.
In a case involving several individuals accused of name-dropping, especially President Emmerson Mnangagwa’s name and other government officials, HCGC lost coke worth US$1,8 million after the deputy sheriff from Hwange besieged the company premises on Tuesday this week.
The HCGC is a joint venture created out of a build-own-operate and transfer agreement between the Hwange Colliery Company Limited (HCCL) and Taiyuan Sanxing Company Limited from China. The Chinese company holds a 75% stake with the remaining 25% held by the colliery company operating a coal plant.
However, the Chinese investor, Guo Feng, is threatening to withdraw from the project after losing the coke following a provisional court order by High Court judge Justice Never Katiyo confirming an interim order issued in favour of Philcool Investments (Pvt) Ltd in 2022.
Philcool was armed with a provisional order granted in its favour by Justice Katiyo on Monday to allow the company to remove 5 800 tonnes of coke from HCGC’s processing plant “but without any interference or hindrance from the police”.
HCGC dismissed the provisional order as fake saying it was never cited in any court processes.
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HCGC recently filed an urgent High Court application to stop the seizure of its coal, but to no avail as its former business partner allegedly managed to make off with the coke.
Sources this week told NewsDay Weekender that Shepherd Tundiya, representing Philcool Investments, on June 18 this year obtained an irregular and defective judgment from Justice Katiyo.
“The judgment so obtained arbitrarily determined Phil Collins Investments should be allowed to load 5 800 tonnes of coke from Hwange Coal Gasification Company premises.
“The High Court order is a provisional order which has got a return date. A provisional order is not a final order; it needs confirmation at law in order to take effect.
“According to the High Court rules of 2021, a High Court order to be enforceable needs a writ of execution, otherwise it is of no effect,” the sources said.
They further said the order obtained by Philcool Investments cited the Minister of Home Affairs and the police as respondents and not allowed to interfere.
“Such a ruling is not only seemingly absurd, but incompetent as police have jurisdiction and a mandate to maintain law and order at any time,” they said.
The sources accused Philcool Investments and the Deputy Sheriff of the High Court in Victoria Falls of destroying a precast wall using a hired front-end loader to gain entry on June 20 this year.
The next day, the Deputy Sheriff and Philcool Investments personnel had loaded around 80 truckloads with a market value of US$560 000.
HCGC lawyers filed an urgent chamber application for rescission on June 20 and it was duly stamped at the High Court of Zimbabwe.
The Deputy Sheriff was served and he was also served by the HCGC Harare-based lawyer by email.
“Despite being served, the Deputy Sheriff has refused to stop the loading and police have acted as bystanders despite reports of theft and assault of Chinese supervisors at the Hwange Coal Gasification plant,” they said.
HCGC is disputing the granting of the order, arguing that it is irregular that it allowed Philcool to take 5 800 tonnes of coke when the company was not cited as a respondent.
“The provisional order was granted without setdown being held and the nature of the provisional order is final and irreversible (once the coke is taken away, Philcool would never return it).
“The order seeks to enforce another court order HC7708/22 that is already overtaken by events. Moreover, it altered the original order HC7708/22 to give Philcool the right to take HCGC’s coke, which is not even included in the original order.”
By Thursday this week, Philcool, with the assistance of the Deputy Sheriff, had loaded 7 500 tonnes, about 1 700 tonnes above the prescribed limit of 5 800 tonnes as stated in their court order.
“Today, they loaded a further 13 trucks, which means that they have loaded an extra 390 tonnes, making the excess loaded tonnage 2 090 tonnes and they are still loading,” the sources said.
They added that HCGC had lost coke worth US$1 841 000 when the trucks stopped loading the coke.
“The Deputy Sheriff had no writ of execution and yet Rule 69 of the High Court rules of 2021 says a court order can only be enforced with a writ of execution or writ of delivery.
“The fact that the Deputy Sheriff had no writ of execution made the whole execution illegal and unlawful. The audi alteram partem (listen to the other side) rule implies that a person must be given an opportunity to argue their case.
“There was also no basis as to how the 5 800 tonnes were arrived at. It was just a figure plucked from the air. As HCGC, we did not have an outstanding debt with Philcool Investments. We ceased dealing with Philcool Investments in February 2018, that is in business terms,” the sources said.
HCGC has since written a letter of complaint to Judicial Services Commission (JSC) secretary Walter Chikwanha requesting an investigation into the conduct of the deputy sheriffs Dumisani Muposi and Gamuchirai Siwardi.
“Our understanding is that the sheriff cannot enforce a court order without a writ of execution. Also a notice has to be given for the intended removal. We further understand that the sheriff cannot enforce a court order at night,” Guo said in the letter to Chikwanha.
He said the order used did not exist.
“It is certainly not the order by consent issued by Justice Katiyo on November 17, 2022. Even if it is the first (Justice) Katiyo order, the order was already overtaken by events since the order was an interim order pending the resolution of case number HC7489/22 which was resolved by Justice Msithu on 20 January 2023,” he said.
Guo said Muposi also failed to show them the order issued on November 5 2022 he claimed was enforcing.
“But he insisted the coke had to be removed from our plant as ‘it’s an instruction from head office the order can be corrected later, but execution needs to be done today’.
“It seems to us the sheriff is not acting per his lawful mandate or any court order, but he was looting coke from us following his boss’ instruction only,” Guo said.
HCGC said operations had been disrupted and shut down as Muposi instructed to block loading of their clients’ trucks allowing his vehicles to be loaded with coke.
“The entrance to the plant was blocked by a non-registered truck that was hired by the sheriff and our request to allow our client’s trucks to load was refused by the Deputy Sheriff,” the company said.
Meanwhile, workers at HCGC have also written to the Office of the President and Cabinet in Hwange highlighting the challenges at the company.
“A similar incident occurred in 2022, where a group of illegal (sic) thugs seized our plant and stole the company’s coke and coking coal,” the workers wrote.
“It has caused a great loss for our company. Unfortunately, we are now facing the same situation again. Recently, a group of thugs forcefully broke through our walls and illegally removed our coke.
“They are still loading our stock as we speak. As ordinary workers, our wish is to have stable jobs and incomes to support our families.”
They expressed concern that the company would be left with no stock.
“Our coke ovens had already been forced to shut down in the past due to power cuts. Now, with our coke stock being taken away, how can we receive our deserved wages or packages?
“As far as we know, a sheriff came with a provisional court order for 5 800 tonnes of coke, allowing a 10-day response period. Legally, provisional orders cannot be enforced immediately.”
They said their Chinese supervisors had also been assaulted.
“We have reported to the police several times, but this gang has not been stopped,” they said.
Muposi yesterday refused to comment on the allegations referring all questions to his lawyers.
Chikwanha was not answering his calls at the time of going to print.