BY NQOBANI NDLOVU
Exiled businessman Mutumwa Mawere has filed a Constitutional Court application seeking the recusal of Justice Rita Makarau in a case where the constitutionality of the Reconstruction of State-Indebted Insolvent Companies Act is being challenged.
Yesterday, I made an appearance b4Justice Makarau2determine2 applications in the matter under Case#CCZ34/21 – MUPASIRI v PRES MNANGAGWA&MANIKAI per:1. Application4leave2intervene2. Application4Makarau JCC's recusal. The recusal will be heard on Thurshttps://t.co/vQbz9R8K7V
— Mutumwa (@mmawere) February 27, 2022
The Act enacted in 2004 resulted in the hostile takeover of Mawere’s Shabanie Mashava Mines (SMM) Holdings and its subsidiaries by the government.
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Government later appointed an administrator, Arafas Gwaradzimba to oversee the operations of the companies.
The law was enacted by the late president Robert Mugabe to allegedly protect SMM from legal action and the attachment of the company’s property by local and foreign debtors.
But shareholders have said the takeover of the companies was political.
In an application filed on February 24 for the recusal of Makarau in the case, Mawere, who is a self-actor, said the judge was conflicted and played a crucial role on the enactment of the Act that he described as a ‘vehicle for looting.’
A week ago Mawere filed a notice of intervention in a case where a Harare man Tichaona Mupasiri dragged Mnangagwa to the ConCourt over his role in the crafting of the Reconstruction Act.
“I wish to state at the outset that this is a very difficult application for me and the intervening parties and everything that I say hereunder is said with respect to the Honourable presiding judge, this Honorable Court and the judicial system of our country.
This is an application for the recusal of the Honorable Justice Makarau,” Mawere submitted.
“Makarau presided over the matter under under case number HC12064/05 in re: SMM Holdings Limited vs the minister of Justice Legal and Parliamentary Affairs (herein referred as MOJ) in which the decision of the MOJ to reconstruction order in relation to SMM Holdings private limited was sought by the Second Intervening Party in this application to be reviewed and set aside.”
Mawere, SMM Holdings Limited, Africa Resources Limited, Africa Construction Limited, Tap Building products limited, Friends of Shabanie Mashava Mines Trust are listed as intervening parties one to six respectively.
“The application was dismissed.
“It is worth highlighting that notwithstanding the constitutional implications inherent in the dispute, Makarau refused to determine the matter on merits on the basis that she was satisfied that the fact that the application was launched out of time, she had no duty to determine the application in the interests of justice,” Mawere added.
“As a consequence, an order that was issued by a member of the executive branch of government was endorsed notwithstanding that the applicant was not afforded the opportunity to make representations to the court prior to its confirmations by Justice (Lawrence) Kamocha.”
Mawere submitted that Makarau was conflicted to preside over the legality of the Reconstruction Act.