HARARE – The Supreme Court this week said it would soon hear embattled business tycoon Mutumwa Mawere’s constitutional application challenging the appropriation of his companies by government.

Chief Justice Godfrey Chidyausiku said the court needed time to go through various records and documents related to the case before the hearing. He did not give a date for the commencement of the matter.

He postponed hearing the case saying some of the documents were filed with the court as late as last Thursday morning.

Lawyers representing Mawere and respondents in the matter concurred that the court could not deliberate on the matter on the same grounds and conceded that the latest documents had been filed out of time. Generally, the court needs a week to go through records before sitting.

Mawere is challenging the constitutional validity of the Reconstruction of State-Indebted and Insolvent Companies Act and alleged lack of fairness in the actions and decisions taken by SMM administrator Arafus Gwaradzimba and Justice Minister Patrick Chinamasa in appropriating his companies.

Gwaradzimba and Chinamasa are cited as the first and third respondents, respectively. Lawyer Edwin Manikai and President Robert Mugabe are also cited as respondents.

Mawere’s lawyer, Advocate Adrian de Bourbon, argues that the Reconstruction Act permits the state to expropriate property “without notice, payment of fair compensation or judicial oversight” in violation of rights provided for under the Bill of Rights in the country’s supreme law. He further argues that the law denies aggrieved parties access to the courts.

Mugabe was cited as a respondent because he used his Presidential Powers (Temporary Measures) Act in September 2004 to empower Chinamasa to place any company under reconstruction if the minister believes “for any other reason” that the firm would likely not repay a credit accessed from public funds.

De Bourbon further argues that a reconstruction order issued against a company is “deemed to have been issued in relation” to every associate company of that company and “every company not formally associated with the company”.

The Constitution of Zimbabwe states that “ . . . no property of any description or interest or right therein shall be compulsorily acquired except under the authority of law”.

But the respondents’ lawyers argued that Mawere cannot be entitled to the same rights as a resident Zimbabwean.

The lawyers argue that Section 11 of the Constitution does not give Mawere “fundamental rights enshrined in the constitution,” adding, “one has to be in Zimbabwe ”.

The lawyers further argue that Mawere is not a Zimbabwean citizen but a South African according to his pronouncement.

The respondents argued: “The application itself is not clear on precisely which provisions of the constitution it claimed have been violated and this evident from the draft order. There is also reference in the body of the application to the provisions of Section 16, Section 18 (9) as well as Article 3 of the constitution.

They are bland allegations of breach through discriminations such as made in paragraph 208 and the incredible 236 which equates the reconstruction law to “NAZI” of the founding affidavit but which appear not to have been followed through in terms of the order sought.”

The respondents’ lawyers further argued that the provisions of the Reconstruction Act are consistent with the declaration of rights and do not conflict with Section 16 and 18 of the constitution.

Mawere was accused of externalisation of funds out of Zimbabwe without exchange control authority. SMM Holdings Ltd, Zimre Holdings, Schweppes Zimbabwe Ltd and CFI Holdings Ltd were controlled by Mawere before a reconstruction order was issued. – ZimOnline