HARARE – Patrick Zhuwao, the Empowerment Corporation (Private) Limited (EC) managing director, has accused Jane Mutasa and other shareholders opposed to the company’s disposal of its 40 percent Telecel Zimbabwe stake, of perjury and approaching the courts with dirty hands.
This also comes as the Indigenous Business Women’s Organisation (IBWO) president’s bid to stop the $20 million transaction through an urgent chamber application now rests in the hands of a handwriting expert, who is this week expected to clarify the fiery businesswoman and her Selpon Investments (Selpon)s’ role in the ex-deputy minister’s appointment as EC boss.
In a hard-hitting response to Mutasa’s High Court appeal, Zhuwao, not only makes the point that the applicants were fully aware of his July 2013 appointment, but were guilty of “moral obliquity” also arising from the fact her family investment vehicle had seized IBWO’s nine percent shareholding in EC.
“The applicants contend that the appointment of… Zhuwao as managing director… is irregular and they have gone further to seek relief by way of a declaratory order with respect to the appointment… The perjury committed by the applicant is completely staggering in its proportion…,” he said, adding the parties “does not disclose this fact to the court that there is any such resolution and wants the court to proceed” as if that does not exist.
“The language used by the applicants (Mutasa and Selpon), is so strong, in its determination to jettison a truth and such conduct cannot be countenanced. Litigants who come to the court with the intention to mislead the court should be punished and deliberate telling of falsehoods in court should never be condoned,” Zhuwao said.
“The court is a court of justice, and justice is rooted in fairness and equity and where a litigant comes to court, trashing all the rules of fair-play, there must be consequences.”
Specifically, the ex-deputy minister says Mutasa had signed off the two-year-old EC resolution on behalf of IBWO, while her son Terence had represented Selpon and after which press announcements were made.
Apart from railing at the former Telecel chair and her associates’ “utter dishonesty”, Zhuwao also said the applicants were guilty of moral obliquity and dirty hands.
“The summary nature of… an interdict demands… utmost good faith, and put the court in a position of confidence. In addition to the points… already taken, the perjury already established completely destroys and decimates any semblance of honesty, good faith and bona fides necessary to see the court granting relief,” the defendant’s lawyers Mutamangira and Associates said, adding in “adjudicating disputes the courts should not walk away the fool”.
Crucially, Zhuwao makes the point that even if Mutasa was to succeed in her application or claim, she had chosen a wrong platform to air her shareholder grievances, inappropriately benefitted from IBWO’s scrip and still accept that she is a minority shareholder, who “cannot detain those with control of the company from progressing with the proposed transaction of disposing of the 40 percent interest”.
“The dirty hands principle is very much part of our law, it is not limited to situations of statutory illegality and other such easily identifiable violations,” the ex-Zanu PF legislator said.
“The dirty hands principle punishes all people that come to court dripping in moral obliquity in that all conduct which may be frowned upon, such as dishonesty, fraud, and other such violations, are sufficient to cause the courts to withhold its jurisdiction,” he said, adding it will be shown that Mutasa and Selpon were “never intended to benefit from the shares that were offered to IBWO in their personal capacities”.
While the appellants contend that James Makamba’s Kestrel Corporation had systematically stolen their shares, Zhuwao queried Selpon’s claim to an 8,7 percent share of the IBWO scrip or allotment and declares that the EC shares were never paid for anyway.
“It is clear in terms of the… applicants’ own version that their claim… derives from having improperly acquired the shares intended for IBWO, they make no secret of this claim so much such that… applicants are guilty of moral obliquity in that shares intended for the benefit of ordinary… (IBWO members) now sit in their private portfolios as personal assets on the unsubstantiated claim…” he said.
“The shares were not intended to be paid for in the first place… and a party who comes to court confessing to have misappropriated shares intended for the community should not be assisted by the court,” Mugabe’s nephew said, adding any ruling in their favour would “perpetuate or sanction an illegality”.
Assuming the court was not persuaded to throw out the application then there is a “fundamental non-disclosure relating to what should have been a candid disposition” as to Mutasa, Selpon and Magamba Echimurenga’s own version of events at EC.
While earlier reports on the internecine Telecel fights have shown that the war veterans’ investment front and Philip Chiyangwa’s Affirmative Action Group had sold their shares, the opposing affidavit also says that Andrew Ndlovu was precluded — through an earlier court ruling — from acting on behalf of the former fighters’ organisation in 2003.
“It must follow that the applicants’ are not bona fide and are mala fide to the extent of their reluctance to relate to the court at least on their version, what the appropriate ownership structure of the EC must look like,” Zhuwao said, adding their motive of pursuing the case was “precisely because their own claims are seriously tainted by an attempt to legitimately deprive the right holders in the EC”. daily news