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South Africa & World

South Africa In The Pursuit Of Justice And The Rule Of Law

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The Acting Chief Justice,
cnr Queen and Sam Hancock / 1 Hospital Street,
Constitutional Hill,
Braamfontein,
JOHANNESBURG

 

Email: Slingers@concourt.org.za martin@concourt.org.za

 

 

Attention: The Honourable Mr. Justice Raymond Zondo

 

 

RE: SOUTH AFRICA – IN THE PURSUIT OF JUSTICE AND THE RULE OF LAW

 

 

1. My name is Dr. Cleopus Sanangura, an adult male businessman who is a resident of South Africa.
2. I have been following with keen interest the dispute and conversations that were sparked by Hon. Lindiwe Sisulu’s opinion piece.
3. I was encouraged with your position that the absence of any specific judgments in the opinion piece was fatal and confirmed your apt conclusion as follows:

 

 

 

“I expect that as we move on, there will be more attacks on the judiciary and that the judiciary must be ready for these attacks. It seems to that, hardly a month – or about a month after judiciary day, Miss Sisulu has launched a completely unwarranted on the judiciary and has heaped insults on the judiciary.”
4. I also echo your sentiment that insulting judges on the basis of their race or other attributes is no different to apartheid by any other name or description.
5. I have encountered bad black and white judges alike in the Courts under your jurisdiction.
6. I was also encouraged to be an active citizen and not to abdicate my duty to ensure that the rule of law is protect and the constitution is respected and defended without favour or prejudice. You correctly stated as follows:

 

 

“We accept that we may be criticized but we say criticism should be fair and have a proper factual basis, but this is not criticism, it is an insult to the justices of the Constitutional Court, the judges of the Supreme Court of Appeal, the judge’s president of the various divisions of the high court and all the African judges.”

 

 

CASE-BASED CRITICISM OF THE JUDICIARY – CASE NUMBER 2006/20235

 

7. This is case that I was called in as a witness in a dispute that involved a company that I worked for, Southern Asbestos Sales (Pty) Limited (SAS), a company duly incorporated and operating in terms of the laws of South Africa.

 

8. The company was involved in the business of the invoicing and collection of sales proceeds on behalf of its principal, SMM Holdings Private Limited (SMM), a wholly owned subsidiary of a UK-registered company that was duly incorporated and operating in terms of the laws of Zimbabwe, SMM Holdings Limited (SMMH).

 

 

 

9. The ultimate shareholder of SMM and SAS was a South African citizen of Zimbabwean heritage, Mr. Mutumwa Mawere.

 

10. The relationship between SAS and SMM prior to May 6, 2004, was as described below:

 

 

11. EIM is the lawyer who represented SMM before and after 6 September 2004. Although it was not in dispute that SAS was an agent of SMM and was paid a percent of the sales proceeds due to SMM, the version that was presented to court and which the Learned Judge, Willis J (as he then was) is completely from tot the facts known to me.

 

 

12. The judgment per Willis J that delivered on 11 October 2012 was in favour of a creature described as a limited liability juristic entity yet the authority to litigate in South Africa was not preceded by any recognition of the Administration, a creature of a foreign statute, to represent the former company before state capture.

 

13. Clearly the control and management of SMM was divested by an act of state and despite the authority challenge having been asserted not only in this matter, all the SA judges were at one in finding that they lacked title to interrogate the authority conferred on the Administrator pursuant to a law that is draconian and ultra vires the SA constitution, SADC Treaty and Protocol and international law.

 

14. The list of judges is long but it is worth naming some of them given your interest in facts:

 

 

I. EPSTEIN – CASE NUMBER 05/2257

a. With respect to authority, set out below is what the Acting Judge concluded:

b. I am sure you will agree that in terms of the Cross Border Insolvency Act 2000, a foreign representative of a company that is registered outside South Africa is bound to comply with the provisions of this Act that was applicable at the material time.

 

 

c. It is worth highlighting that fact that a foreign representative is defined as a person or body, including one appointed on an interim basis, authorized in foreign proceedings to administer the reorganization or the liquidation of the debtor’s assets or affairs or to act as a representative of the foreign proceedings. The Learned Judge had no title to entertain an application launched on the authority of an unrecognized foreign representative who had a duty to apply for leave to commence proceedings against SAS in South Africa.

 

 

d. It is also important to note that in terms of the said Act, foreign proceedings are defined as collective judicial or administrative proceedings in a foreign state, including interim proceedings pursuant to a law relating to insolvency in which proceedings the assets and affairs of the debtor are subject to control or supervision by a foreign court, for the purpose of reorganization or liquidation. Set out below is an extract from the Act dealing with the statutory limitations imposed upon any foreign representative of a company.

 

 

e. Notwithstanding the above, Epstein AJ as he was then, refused to be bound by the law of SA and completely and deliberately ignored the fact presented to the Court that the Appointment of SMM’s Administrator was not preceded by any foreign judicial proceedings but by a barbaric and draconian process involving extrajudicial and extra-parliamentary methods.

 

f. As a consequence, even the President of Zimbabwe is grateful that judges like Epstein aided and abetted in SA in justifying the expropriation of assets using the facts that occurred in South Africa.

 

g. I was employed by SAS at the material time as confirmed in my evidence before Willis J as follows:

 

h. I lost my job as a direct consequence of this travesty of justice with the complicity of a judge who in terms of the constitution was supposed to protect SAS and its stakeholders including employees and shareholders among many others.

 

 

i. I would like to believe that you would not want to be associated with a judge who would openly undermine the rule of law by asserting invented rights acquired by an act of a foreign state without the involvement of parliament and the judiciary in the name of justice.
j. I am sure you will agree that the existence and validity of this judgment undermines the integrity of the justice system and the associated public confidence on the independence and impartiality of the courts.

 

 

k. It may very well be the case that a judge like Epstein AJ was promoted and his career is unblemished because the system of justice administration is systemically flawed to give a person like me any confidence that justice is a binding promise in SA.

 

 

l. I draw your attention to another bizarre finding by Epstein J on paragraph 50 as follows:

 

 

i. It is clear from the above that in order to make a predetermined finding, Epstein AJ had to import facts that were not pleaded by the purported Applicant, SMM, and he effectively reversed Fevner AJ’s judgment without the dispute regarding the validity of another court’s judgment being placed before him.

 

 

ii. In order for the Learned Judge to make the following finding, he needed the Buying Agreement to be valid notwithstanding the fact that another court had made a finding that the Buying Agreement was in truth and fact, an agency agreement, as SMM never sold and delivered asbestos to SAS:

iii. It is not in dispute that Epstein AJ created a contractual nexus between SMM and SAS allowing for SAS to be liable for the principal amount involved in the trade rather than SMM’s customers being liable for such.

 

 

II. WEPENER AJ CASE NUMBER: 2006/20467

 

 

15. The second matter was presided by Wepener AJ (as he was then) and the Applicant was a creature of statute ostensibly using the SA courts to assert rights that were political in nature and nothing to do with a company as a creature of law.

 

 

a. As will be noted below, the application was launched by SMM challenging the decision of the Master of the High Court who had admitted, as proved, claims submitted by other creditors of SAS.

 

 

b. The issue of SMM’s authority to litigate in this dispute and as expected, the Learned Judge made the following finding notwithstanding the fact that in Zimbabwe, SMM had purportedly been reconstructed and a new interim board had been appointed yet the Administrator who term should have ended with the issuance of shares to the state remained in control.

 

 

c. The Learned Judge in order to make a ruling had to conclude that he was not able to find SMM as a reconstructed company notwithstanding the fact that in terms of the law that created the authority of the Administrator to represent SMM, only a reconstructed company can issue shares to new shareholders whose debts would have been converted into equity pursuant to the implementation of a reconstruction scheme formulated by the Administrator and approved by the Minister and not the company’s shareholders and creditors.

 

 

d. The Learned Judge was made aware that the Ministerial order that gave the authority to Ministerial appointee to be the Administrator of SMM and related entities was confirmed by a Zimbabwean court in violation of the doctrine of separation of powers as follows:

 

 

III CAMPBELL AJ – CASE NUMBER 9367/07

 

 

16. The presiding judge was Campbell AJ (as he was then). He was sked to determine the following questions:
a. Whether the rights and freedoms created pursuant to the provisions of the Reconstruction of State-Indebted Insolvent Companies (Regulations) Statutory Instrument 187 of 2004 and the subsequent law enacted to grandfather the Regulations, the Reconstruction of State-Indebted Insolvent Companies Act, 27 of 2004 (the expropriation laws) should be recognized and enforced in SA.

 

 

b. Whether the litigation authored by a creature of statute pursuant to a law that is ultra vires the SA constitution should be stayed pending the determination of the constitutional questions that arose from the recognition of the authority of a creature of state to represent a captured company.
c. Setting aside all the judgments that recognized and enforced the rights asserted on behalf of a foreign government through its agent, the Administrator, in SA.

 

 

d. With respect to the recognition of a foreign law that offends, public policy, he reasoned as follows:

e. It is worth highlighting what Gauntlett SC stated in the matter:

 

 

f. It is not in dispute that the litigation in SA against Mr. Mawere’s companies by the Administrator had the effect of enforcing the rights acquired from a Ministerial order made in circumstances that offend public policy in SA.
g. In the final analysis, the Learned Judge dismissed the application as set out below:

 

IV GOLDSTEIN CASE NUMBER 2006/19777

17. On 17 July 2007, Goldstein J granted an order to SMM that offends logic, common sense and reason.
18. The relationship between SMM and SAS was that of a principal and agent.

 

a. Notwithstanding, the principle that an agent cannot be sued for goods sold and delivered by the principal, in this unusual matter, judgment was granted in favour of SMM in foreign currencies.

 

b. The absurdity of this judgment is self0-evident in that no asbestos was ever sold and delivered to SAS and the default risk was borne by SMM at all material times.
c. The lawful currency of SA is the Rand and it was unlawful for a South African company to receive goods for value denominated in foreign currencies.

 

 

 

d. This judgment was then used by the GOZ to confirm liability culpability of SAS in terms of the Reconstruction Laws.
e. It will be clear from the judgment amounts that the Administrator without the leave of court reduced the amount of the alleged SAS indebtedness by an illegal setoff as follows:

 

 

f. In relation to the US$4.3 million purportedly recovered by the Administrator in relation to CFI, the Administrator stated as follows in his culpability reports:

“The amounts withheld from SMM’s export proceeds by SAS, net of amounts recovered by the Administrator through the acquisition of the CFI shares, are currently being claimed from SAS in liquidation, in South Africa.”
g. The illegality of the above construction would have been obvious to any independent and impartial judge, yet Goldstein J allowed the fraud in the conduct.

 

 

h. SMM under the control sought and obtained an order that led to the liquidation in SA of SAS yet the Administrator in Zimbabwe recovered US$4.3 million outside the liquidation process and used the SA courts to condone this self-help scheme that is inimical to the rule of law.

 

 

i. The Administrator should have filed a claim on behalf of SMM and allowed the liquidators to recover the alleged diversion of funds rather than a foreign representative taking an asset that it claimed to have been in the possession of SAS, as the right holder, and then proceed to substitute the liquidators appointed in SA by the courts.

 

 

j. A fatally defective order was, therefore, granted by a judge in SA.
k. With respect to the contractual relationship between SMM and SAS, one of the joint liquidators who testified during the Willis J trial proceedings, Mr. Norman Klein stated as follows:

 

 

l. It follows that SAS was entitled to a commission of 4.25% and as such could not be liable for the principal amount as per the judgment.

 

V: FRAUD ON THE COURT BY BCLR AND ENS AFRICA

 

 

19. From the above, it is not in dispute that absent the facts and circumstances of the divestment of the shareholder of SMMH of its control and management of SMM, the series of litigations that occurred in SA could not have taken place.

 

20. The draconian law was authored in Zimbabwe and the rights acquired because of it, were asserted and enforced in SA with the complicity of the SA courts.

 

21. It is easy for you to see the extent of the rot that would allow professional legal practitioners to have the audacity of manipulating facts solely to get paid for the judgments they fraudulently sought and obtained under the guise of pursuing a bona fide cause.

 

 

Indebtedness to Petter and a Fraudulent Cause.

 

22. I only became aware of the Willis J judgment a year after it was granted. I was shocked by how Willis J had intentionally and knowingly manipulated my evidence.

 

23. During trial, I had stated as true and fact that SAS was at risk at the time of the cession. AA Mines owed Petter money. I said that the cession agreement had been devised to enable SAS to pay to Petter what the company already had received in goods but was unable to pay because of interventions by the government of Zimbabwe since they had already started the campaign to criminalize Mr. Mawere.

 

24. Notwithstanding my evidence, Willis J intentionally distorted this to read on paragraph 93 that I had said that the purpose of the cession agreement was to divert funds that SAS owed to SMM.
25. The relationship between SMM and Petter was described in a deposition by Mr. Moyo who was a witness for SMM during the trial when he stated as follows:

 

 

26. It only dawned on that the Learned Judge had corruptly manipulated my evidence. I then approached the Chairman of ENS, Advocate Bothma, and attorney Kirsty Simpson believing that as officers of the Court, they would agree that the judgment in favour of SMM was a fraud and ought to be reversed.

 

 

27. Should you require evidence supporting my averments, I would be obliged to furnish you with the correspondences in this regard.

 

 

28. What is critical is that in SMM’s Particulars of Claim, there is material concealment of the fact that SMM owed Petter an amount equivalent to about R26 million as confirmed by the CFO of the company at the material time, Mr. James Karidza:

 

29. The above was a sworn statement made by Mr. Karidza to the Zimbabwe Republic Police (ZRP), who had found jurisdiction to investigate the affairs of SAS, a South African company. This exposes the blatant disregard for the sovereignty of SA by Zimbabwean authorities who engineered this scheme.

 

30. Notwithstanding the above admissions, it was SMM’s SA lawyers who changed the stance on the truth by stating that SMM denied any liability and indebtedness to Petter in order to sustain a claim based on the premise of fraud against Mr. Mawere.
31. The lawyers involved knowingly and intentionally participated in this fraud solely to affirm the baseless allegations against our company.

 

 

 

32. It is worth highlighting the attack on the Courts of South Africa was authored in the minds of the architects of this demonic plot to use the Courts and executive power to obtain control of a group of companies as some part of a political game.
33. It is the complicity of the SA courts that has worried me enough to write this letter in the hope that you are serious about reforming a system that lacks integrity.

 

34. I am sure you will agree that a proper reading of the contents on paragraph 94, will assist in getting a proper perspective that for this fraud to work, there was an orchestrated and coordinated plan involving some of the judges to close the door to justice using the court system.
35. You may not be aware that Advocate Bothma and Ms. Young were part of a purported Commission of Inquiry that was convened in Zimbabwe to investigate the affairs of Peter and SAS among other companies solely to assert the illegal right of the GOZ to create a nexus with SMM.

 

 

36. The creature that engaged prestigious firms like BCLR and ENS was certainly not a company but an organ of the GOZ.
37. It is not clear how much money was diverted from the fiscus to prosecute this matter suffice to say that is not a small amount.

 

38. With the complicity of the SA judiciary, this wasteful expenditure will never be subjected to a scrutiny and the people involved in SA will remain unpunished and untouchable.
39. I did lodge complains against both the attorney who prosecuted the matter that I was involved as a witness. Both were exonerated.

40. You will easily see through the sham this was using public funds. It is not surprisingly that the verdict was predetermined.

 

 

41. You will note above that although Willis J accepted my evidence that the claimed amount had been paid in the ordinary course of business prior to the signing of the cession agreement, he imported his own facts when he alleged fraudulently that I had confirmed the allegations in paragraph 6.7 of SMM’s amended particulars of claim as being correct. For your benefit. On paragraph 6.7, is stated as follows:

42. It follows from the above that the attorneys who prosecuted the matter in behalf of SMM, were fixed with constructive knowledge that SMM was indebted to Petter and more importantly the allegations levelled against Mawere that he had orchestrated a fraudulent scheme using the cession court order was malicious and fraudulent.

43. It is my contention that no lawyer worth his salt would have the audacity to openly prosecute a fraudulent claim unless they control the system including judges in the process.

 

44. I am that the Willis J judgment was appealed initially to the Supreme Court of Appeal (SCA) and then finally to the Constitutional Court and both applications were dismissed.

 

 

VI: MAKUME JUDGMENT – RESCISSION OF THE WILLIS J JUDGMENT

 

45. This was a rescission application based on common law and on the basis that it was fraudulently obtained.
46. At the core of the dispute was an allegation that I subscribe to that the claim was based on a fraudulent misrepresentation that it was common cause that the effect of the cession court order was to permit the diversion of funds by SAS to Petter.

 

47. No evidence was available to adduce and this lack of facts was known but with the help of the court the burden of proof was switched to the Defendants.

 

 

48. The witnesses who were brought to court by SMM had no knowledge of the financial affairs of SAS to assist the court in arriving at any determination of the dispute in the interests of justice.

 

49. Against this backdrop, when I read Makume J’s judgment, I was personally demoralized and came to the inescapable conclusion that either the judges were captured or they just disliked Mawere.

 

50. Below are some of the excerpts from his judgment:

51. It is clear that from the onset, he already had formulated an opinion to dismiss the appeal.

 

 

52. Below he asserts as true and fact that the liquidation was opposed by Mawere when Mawere was not involved as a litigant. SAS was represented by its former director, Mr. Mariemuthu, but the Learned Judge exposes himself openly that the rights and freedoms of SAS were not applicable yet corporate law is founded on the principle of limited liability.

 

53. It clearly evident from the above that juristic entities in SA would be referred to as the Mawere companies when in truth and fact, Mawee had no direct shareholding in SAS and Petter.

 

54. As a former employee of SAS, I can confidently state that SAS was not indebted to SMM as determined fraudulently by the courts.

 

55. Below is an extract of a letter dated 12 April 2006 written by the Joint Liquidators of SAS confirming that SMM had furnished them with a list of debtors from its customers. This confirms that SAS was not an agent yet the basis of the claim against SAS was in respect of goods sold and delivered. This was a fraud on the courts in that all the role players knew that SMM’s relationship with SAS could never result in a claim for goods sold and delivered.

 

56. Below is a copy of a letter written by the Administrator to its customer in which he advised the customers that under no circumstances should payment of any monies be effected to either SAS or Petter Trading and that monies due to SMM should be paid to SMM’s Zimbabwean bank account.

 

 

57. The hypocrisy although self-evident may not be so obvious to casual observer. SAS was selling asbestos on behalf of SMM and the claim established and confirmed by Goldstein J and Epstein J was based on a clear fraudulent representation that SAS was a buyer of asbestos and it then sold the product as a principal.

 

 

58. Epstein J based on evidence procured outside the doors of court, determined that SAS was a Buyer pursuant to an Agreement that he unilaterally and arbitrarily authenticated using his privileged position.
59. As a consequence, the alleged claim as at 31 March 2004 was the one that was abused in order to induce the Courts to grant the reliefs sought.

 

60. The SA courts were used to deliver injustice yet the justice system has failed for the last 18 years to protect justice in relation to this matter.

61. Below is an email written by one of the affected sub-agents of SMM who were under pressure to stop paying to SAS what they owed in relation to asbestos sold and delivered to them.

 

 

62. In terms of the said email, the customer did acknowledge that SAS was owed money on behalf of SMM but the government was interfering.

 

63. This evidence was deliberately concealed from the court solely to obtain a judgment in favour of the GOZ who were the Administrator’s bosses.

 

64. The evidence was in the possession of the Administrator as I had taken steps to inform him when he was appointed that SAS could only remit to SMM what it would have collected from SMM’s customers.
65. The fact that the Courts were used to prosecute this criminal project is mind boggling especially having regard to the high esteem the SA judges are held not only in Africa but worldwide.

 

66. It is also worth highlighting that after the takeover of SMM by the GOZ, the contents of the fax below are instructive:

 

67. I am informed that my colleague, Ms. Janice Greaver, did write a letter raising the above issues addressed to the former DJP Mojapelo. Her letter was responded to by Sutherland J who was acting at the time.
68. He told her to mind her business and was so arrogant that as members of FOSMM, there was merit in bringing this matter to the attention of the President.

 

 

69. President Ramaphosa and Minister Patel both refused and failed to even acknowledge the letter let alone to respond to it.
70. We then launched an application to the Court as set out below:

 

CONCLUSION

 

 

71. I trust that the above will help you in understanding why some people like me are angry with the conduct of the judiciary.
72. You can imagine the costs the obvious corrupt judiciary imposes on innocent people.

 

 

73. It is regrettably now law that a rogue African state can enforce rights acquired through the abuse of state power in the forum country like South Africa with judicial activism.

 

74. I had expected the courts in SA to be impartial and independent but regrettably the experiences that are not limited to this matter are galore.

 

75. This is meant to respond to your challenge that evidence-based discourses are in the interests of building an inclusive South Africa.

 

 

Should you require any clarification, I will be more than happy to oblige?

Finally, I think you will agree that this matter ought to be in the public domain to raise awareness on the centrality and importance of the justice under rule of law.

We may disagree but this story is a wake not only to you but the general citizenry that unless we step up to the plate as active citizens, the very people we expect to respect, obey, uphold and defend the constitution could be the barbarians at the gate of justice and rule of law.
Yours Sincerely,

 

 

Robert Tapfumaneyi