BY SYNDEY KAWAZA
GLOVES are off in the court battle where a Harare man has challenged President Emmerson Mnangagwa’s appointment of Patrick Chinamasa as director and chairman of Air Zimbabwe.
Mnangagwa has risen to the challenge with his lawyers, Dube and Manikai filing opposing papers on Friday and describing the application as incompetent and stillborn.
Tichaona Mupasiri filed a Constitutional Court application on December 17 citing Mnangagwa and prominent lawyer Edwin Manikai as the first and second respondent respectively.
Mnangagwa appointed Chinamasa to head the Air Zimbabwe board in June 2019 and Mupasiri says the appointment was wrong and unconstitutional.
In his application, Mupasiri said Chinamasa’s appointment was unconstitutional as control of the company was vested in an administrator appointed by the minister of justice pursuant in the operation of the Reconstruction of State-Indebted Insolvent Act 2005.
Mupasiri says in his founding affidavit that no relief was being sought from Manikai as he is cited to assist the court in determining the matter in the interest of justice.
He said at the core of the application was Mnangagwa’s actions to the affairs of SMM Holdings (Private) Limited (SMM), Air Zimbabwe (Private) Limited (Air Zim) and Hwange Colliery Company (HCCL).
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He further argued that his application was concerned about the holding of public office bearers to account for their conduct and ensuring that Mnangagwa’s conduct was subject to public scrutiny and interrogation.
In his opposing papers, Mnangagwa argued Mupasiri should have challenged the validity of the Reconstruction Act if he believed it was unconstitutional.
Mnangagwa said the application was incompetent as it related to his alleged conduct before he became President.
“A substantial portion of the application relates to the alleged conduct of second respondent, a private citizen. The alleged conduct of second respondent cannot be relied upon in an application of this nature,” he said.
“The object behind the application is to query certain acts that validly took place in terms of the law. Some of the acts queried stem from valid judgements of the court or have at least received the imprimatur of the courts. A person with such acts cannot bring this kind of application.”
Mnangagwa also argued that Mupasiri had no locus standi to vindicate the cause of SMM as he neither identified himself as a shareholder nor officer of the company.
“In an attempt to conceal the purpose of the application, the deponent calls to aid the circumstances of Air Zimbabwe Holdings (Private) Limited and those of Hwange Colliery Company. He, however, fails to establish his interests in those entities and does not show what cause of theirs he wishes to vindicate,” he said.
Mnangagwa accused Mupasiri of relying on impermissible hearsay evidence.
He said Chinamasa, Air Zimbabwe and Hwange Colliery Company should have been given the opportunity to place their own positions before the courts.
“A fair amount of averments are also made of and concerning the Minister of Justice, Legal and Parliamentary Affairs. All these ought to have been joined to these proceedings,” he said.
Mnangagwa argued that SMM was reconstructed pursuant to a legal process and the reconstruction was confirmed by an order of court.
“As will be apparent upon a consideration of the court records, SMM was indebted to the state. That was the basis for the reconstruction and nothing more,” he said.
Mnangagwa denied that he had anything to do with the reconstruction of SMM and was not even the relevant minister at that stage.
“The laws applied against Air Zimbabwe are valid, binding and extant. So too are all steps taken pursuant to such laws. I welcome a challenge to these laws. Before the challenge comes and indeed before the laws are struck down as being unconstitutional, my government will apply them,” he argued.
“I did not place Hwange under reconstruction. The minister involved in taking that decision exists and ought to have been joined to these proceedings.
“Given that I did not place Hwange under reconstruction, the question of a potential breach by me of my constitutional obligations cannot and does not arise out of Hwange’s placement under reconstruction.”
Manikai also called the allegations salacious and false.
“For the record, I deny each and every allegation made against me as being false. In a record number of cases, the court has found, whether directly or indirectly, in favour of the validity of the placement of SMM under reconstruction. There will be no need for me to justify a course that has already been upheld by the courts,” he said.