Court name
Supreme Court of Zimbabwe
Case number
SC 67 of 2007
Civil Appeal 158 of 2005

Mawere v Minister of Justice, Legal and Parliamentary Affairs (SC 67 of 2007, Civil Appeal 158 of 2005) [2008] ZWSC 67 (10 September 2008);

Law report citations
Media neutral citation
[2008] ZWSC 67







REPORTABLE ZLR (65)








Judgment
No. SC 67/07


Civil
Appeal No. 158/05








MUTUMWA
DZIVA MAWERE v THE MINISTER OF JUSTICE,
LEGAL & PARLIAMENTARY AFFAIRS








SUPREME
COURT OF ZIMBABWE


CHEDA JA,
GWAUNZA JA & GARWE JA


HARARE,
JULY 17, 2007 & SEPTEMBER 11, 2008









A P de Bourbon SC, for the appellant



E I Manikai, for the respondent









CHEDA JA:







The appellant is a businessman currently residing in the Republic
of South Africa. The respondent is the Minister of Justice,
Legal
and Parliamentary Affairs in the Zimbabwean Government and is
responsible for the administration of the Prevention of Corruption

Act [Cap 9:16] (“the Act”).







On 9 July 2004, the Minister, by notice in the Zimbabwean
Government Gazette Extraordinary
, declared the appellant to be a
Specified Person in terms of s 6 of the Act.







About 17½ weeks after the above notice, the appellant
applied to the High Court for condonation for the late filing of
the
application for review and for the order declaring him to be a
specified person to be set aside.







The order that the appellant sought was as follows -




  1. Condonation be and is hereby granted for the late filing of the
    application for judicial review.



  2. The decision of the respondent declaring the applicant to be a
    specified person in terms of s 6 of the Prevention of Corruption
    Act
    [Cap 9:16] published in the General Notice 345A of
    2004 in the Government Gazette Extraordinary of 9 July 2004
    be reviewed and is hereby set aside.



  3. The respondent shall pay the costs of this application.




ALTERNATIVELY




  1. It is declared that the respondent exceeded his powers in terms of s
    6 of the Prevention of Corruption Act [Cap 9:16] when
    he issued a notice published in General Notice 345A of 2004 in the
    Government Gazette Extraordinary of 9 July 2004 declaring the
    applicant to be a specified person for purposes of the Prevention of
    Corruption Act [Cap 9:16].



  2. It is declared that the applicant is under no lawful impediment in
    respect of his property in Zimbabwe.



  3. The respondent shall pay costs of the application.








The High Court in its judgment no. HC 11951/04 dated 11 May 2005,
after careful consideration of the reasons for the delay in filing

the application, granted condonation to the applicant, proceeded to
deal with the main application and dismissed it with costs.







This appeal is against the High Court’s decision dismissing the
application for review.




In his heads of argument the respondent raised the points in
limine
that the appeal should be dismissed on the basis that the
appellant has no locus standi to appear before this court,
more particularly:







1.1. The appellant is a specified person and has not obtained the
authority of the investigator to launch this appeal; and









    1. The appellant is a fugitive from justice.









Locus Standi



The appellant launched the application at the High Court in order to
challenge the specification by the respondent and has appealed

following the High Court’s dismissal of the application.







In his submission the specification was wrong and that is why he is
challenging it.







It is a legal requirement that a person who is specified should first
seek authority from the investigator before engaging in any

transactions that affect his estate.







Section 10 of the Prevention of Corruption Act provides as follows:



“10. Transactions by specified persons



  1. Subject
    to this section a specified person shall not –



    1. expend
      or in any way dispose of any property, or


    2. enter
      into any contract for the disposal of any property; or


    3. operate
      any account with any bank building society or financial
      institution;


    4. increase
      his indebtedness or adversely affect his estate; or


    5. ….


    6. Perform
      any act as an agent of a company or partnership that is also a
      specified person without the approval of the investigator
      assigned
      to the specified person or otherwise than in accordance with any
      condition imposed by the investigator.








without the approval of the investigator assigned to that specified
person.







  1. No
    person shall do anything referred to in subs(1) for, or on behalf of
    a specified person, without the approval of the investigator

    assigned to that specified person or otherwise than in accordance
    with any conditions imposed by the investigator






  2. Any
    transaction carried out in contravention of subs (1) or (20 shall be
    void and where any property has been transferred as a
    result of any
    such transaction, the investigator may, on behalf of the specified
    person, recover any such property by proceedings
    in any court.”








The appellant is a specified person in Zimbabwe, not in the Republic
of South Africa. The above restrictions can only apply to
his assets
in Zimbabwe and not in the Republic of South Africa.







It has not been shown that in instituting this appeal while he is in
the Republic of South Africa, he is expending on any of his
assets
which are in Zimbabwe.







Any assets which he may have in South Africa are not affected by the
above provision. The investigator has no jurisdiction over
the
applicant’s assets which are not in Zimbabwe.







Accordingly, this Court cannot hold that he has no locus standi
to launch the appeal in this court in the absence of evidence
suggesting that he is expending or disposing of assets in Zimbabwe.







In addition, it is a moot issue whether he can be deprived of his
constitutional right to challenge an administrative decision
such as
the above in a court of law to test its correctness. For example if
such authority was refused by the investigator the
appellant would
have a right to appeal if it was unreasonably refused.







Fugitive from Justice



The other point in limine raised by the respondents is that
the appellant is a fugitive from justice and should not be allowed to
use the justice machinery
for his protection.







The Shorter Oxford English Dictionary defines fugitive as “one
who flees or tries to escape from danger, apt or tending
to flee,
given to or in the act of running away”.







There is evidence to show that the appellant left Zimbabwe sometime
ago and is now a citizen of the Republic of South Africa.
There is
no evidence to show that he deliberately put himself beyond the reach
of the law. There is no evidence to show that
he intended to go
into hiding when he left Zimbabwe. It may well be that he was aware
of some unlawful acts on his part when he
left Zimbabwe, but there is
no evidence to link his departure from Zimbabwe with the acts that
led to his specification.







For this court to hold that he is a fugitive from justice it would
have to be shown that he left Zimbabwe with the intention
to flee and
deliberately put himself beyond the jurisdiction of this court to
avoid any legal action that night be brought up against
him, or that
he is in hiding within the jurisdiction of Zimbabwe.







(See William Peter George Sylow v The State HH-136-02 and
other cases cited therein).







The appellant was specified when he was already a citizen of the
Republic of South Africa.







I therefore cannot hold that the appellant falls under the category
of a fugitive from justice.







The fact that an attempt was made to arrest and bring him to
Zimbabwe and that he is now avoiding coming to Zimbabwe does not
make
him a fugitive from justice.







No person can be compelled to leave his country of residence and
citizenship in order to go and subject himself to the jurisdiction
of
another country to face any legal action in that country.







I therefore come to the conclusion that the appellant cannot be
denied a hearing on that basis.







WHETHER THE SPECIFICATION SHOULD BE SET ASIDE



Section 6 of the Act reads as follows:



Power of Minister to Specify Persons







  1. Where
    the Minister, on reasonable grounds suspects that any person –









    1. by
      theft, fraud or other unlawful means has caused the
      misappropriation or loss of property of the State, a statutory
      body,
      a local authority or any other person; or










    1. has
      received property from the State, a statutory body, a local
      authority, or any other person whether directly or indirectly,
      in
      contravention of any law, or as a result either direct or indirect
      of the action of any person who has caused misappropriation
      or loss
      such as is referred to in paragraph (a); or









    1. has
      accepted or obtained any benefit, advantage or profit corruptly or
      in circumstances that amount to an offence in terms of
      this Act, or
      Chapter IX (Bribery and Corruption of the Criminal Code);









    1. is
      associated with or has been party to any transaction whatsoever
      with any other person who has done anything referred to in

      paragraph (a), (b) or (c) and as a result of such association or
      transaction, may be liable to the State, a statutory body,
      a local
      authority or any other person for any claim or proceedings in
      respect of any property or be liable to have the transaction
      set
      aside, and is satisfied that it is in the national interest to do
      so, he may, by notice in the Gazette, declare such person to
      be a specified person.”









The grounds upon which the application was brought before the High
Court were that:



“(a) The applicant only became aware of the specification in
mid-September as he is not normally resident in Zimbabwe and
no order
was served on him personally;







  1. The
    respondent breached the rules of natural justice in failing to
    afford the applicant a hearing prior to declaring him to be
    a
    specified person;








  1. The
    respondent had ulterior motives for the declaration;








  1. The
    respondent did not have the jurisdictional facts to entitle him to
    exercise his discretionary power to declare the applicant
    to be a
    specified person;








  1. The
    Prevention of Corruption Act does not have extra-territorial
    application, and creates no crime or conduct that has
    extra-territorial
    effect.”








The respondent, in his affidavit, denied the allegations made by the
appellant.







The appellant was at sometime a citizen of, and resident in,
Zimbabwe. He has filed papers to support his argument that he is
no
longer a citizen of Zimbabwe and that the Act does not apply to him.







The Act is intended to deal with matters where the Minister has
suspicion against any person.







“Any person” would include the appellant or any
registered company. The Interpretation Act [Cap 1:01], s 3
defines a person to include any company incorporated; or any local or
other similar authority. It is irrelevant whether
a person is a
resident or citizen of another country as long as that person has
done one of the things mentioned in s 6(1) of the
Act. His companies
are incorporated according to the laws of Zimbabwe.







If the Minister on reasonable grounds suspects that the appellant has
been involved in activities that have resulted in any loss
to the
State or other persons or institutions in which the State has a
direct interest he can specify that perso. The appellant
cannot
avoid being investigated simply because he is not a citizen or
resident of Zimbabwe. There is nothing to prohibit investigating
the
activities of a person simply because he resides outside Zimbabwe.







Specification of a person under the Act is simply a declaration. It
is neither an arrest nor detention. It is a declaration that
is made
in order to facilitate an investigation.







The appellant complains that the specification was made without
notice to him. The purpose of the specification is to facilitate

investigations. It is not a conclusion or declaration that the
person has committed any offence or crime. It is only after the

investigations that a conclusion can be reached as to whether the
person specified has engaged in any unlawful activities that
have
caused any loss to the State or other persons.







Even if it is accepted that the specification of a person may have
serious implications the argument that the appellant should
have been
notified first is not reasonable in the circumstances. It would
defeat the whole purpose of specification if a person
were to be
informed that it was intended to investigate him as this would give
the person an opportunity to take whatever action
he could to
frustrate the intended investigations.







The person specified is given an opportunity under s 8(c) of the Act
to give any explanation on the matters concerned when he is

questioned by the investigator.







Section 9 of the Act also gives the specified person the opportunity
to present his position on being examined by the investigator.
In
other words, the person is given the opportunity of a full hearing.
Specification is not a final action against the person
concerned.







In any case the report of the investigation is kept secret and does
not prejudice the appellant by any publicity at that stage.







Once the Minister has received the investigator’s report he may
either confirm the specification and take any other action
that he
thinks fit, or cancel the specification. This means also that if the
report absolves the specified person of any wrong
doing, the Minister
may revoke the specification.







The specification is a provisional step taken by the Minister and
does not in any way stand as proof that any offence or wrongdoing
has
been proved against the specified person.







There is no good reason for claiming that a person should first be
warned that he will be investigated as this would defeat the
whole
purpose of investigation.







There is no provision in the Act for the Minister to warn or give
notice to the person concerned before investigating him.
Accordingly,
the Minister cannot be ordered to issue such a warning
first which is not provided for in the Act. The claim that the
specification
offends against the rules of natural justice cannot be
sustained since if the Minister sees it fit to cancel the
specification,
he can do so after a report is made to him.







The submission made, that the appellant should have been heard first,
is akin to saying that a person reasonably suspected of committing
a
criminal offence by a police officer should not be arrested unless he
is first heard. This would render nugatory the criminal
justice
process. The same may be said in the instant case.







The manner in which the specification was made was therefore in
accordance with the law and cannot be said to be invalid. It was

clearly within the Minister’s powers.







The case of Holland & Ors v Minister of the Public
Service, Labour & Social Welfare
1997 (1) ZLR 186 (SC)
referred to by the appellant refers to three fundamental requirements
of natural justice to which a person
directly affected by an
impending inquiry is entitled, that is -




  1. the right to have notice of the charge or complaint;



  2. the right to be heard;



  3. the right to be given the opportunity to adequately state a case in
    answer to that charge or complaint.








All the above provisions were met in this case in that the
specification was published in the official Government Gazette
and was intended to facilitate an investigation. The specified
person was to appear for a hearing before the investigator at which

the appellant could present his case following any issues raised
against him or any complaint that would be made.







What the appellant suggests is that even before an investigation was
made he should have been warned of the suspicion and impending

investigation. There is no such right in the Act. The specification
is not different from any other provisional orders made in
our Courts
where it is feared that investigations may be jeopardised if prior
warning is given to the person involved.







It is sufficient that the appellant is informed by the notice
declaring him as a specified person that investigations are to be

carried out against him and that he is eventually afforded an
opportunity to present his case.







I therefore do not agree that a failure to give appellant a hearing
before the specification is a breach of his constitutional
right.







The appellant alleged that the respondent acted with an ulterior
motive. This is denied by the respondent.







The appellant says the respondent acted after attempts to arrest him
and extradite him from South Africa had failed. This clearly

highlights the fact that there was a suspicion by the Minister
against the appellant which necessitated more investigations which

could be best dealt with after specification and appointment of an
investigator.







The respondent has also been criticized for taking action against the
appellant without any jurisdictional facts.







However, the respondent’s affidavit shows that certain
information had been made available to him concerning the activities

of the appellant and his companies.







In South African Defence of Aid Fund & Anor v Minister of
Justice
, 1967(1) SA 31, CORBETT J as he then was, held that a
jurisdictional fact is a fact the existence of which is contemplated
by the
legislature as a necessary pre-requisite to the exercise of
the statutory power.







At page 35 of the above judgment he went on to say:-



“Two points remain to be mentioned. As I have already
indicated an exercise of the power granted by sec. 2 (2)

involves two decisions. The first of these consists of the State
President being satisfied upon one or more of the matters listed
in
paras (a) to (e) and constitutes the jurisdictional fact. The second
consists of the decision to exercise the power, the jurisdictional

fact having been found to exist. Once it is clear that the
jurisdictional fact did exist, then it is difficult to see upon what

grounds the further decision to exercise the discretionary power to
declare the organization unlawful could be challenged in a
Court of
law: but, inasmuch as plaintiff’s case does not touch upon this
aspect of the matter, it is unnecessary to pursue
this point. The
second point arises from the fact that the power under sec. 2 (2) is
exercised by the issue of a proclamation.”







This case also makes the point at p 37 that the right to exercise a
discretionary power is made dependent upon the existence of
a
jurisdictional fact and that jurisdictional fact consists of the
repository of the power satisfying himself, subjectively speaking,

upon certain matters.







In this case the Minister had before him information concerning
externalization of foreign currency from Zimbabwe using SMM (Pvt)

Ltd, a company that is owned or controlled by the appellant. The
minister also had information before him that SAS, the South
African
company in which the appellant has an interest had for a long time
failed to remit to AA Mines, a division of SMM, its
export proceeds
thereby prejudicing the mines of the necessary working capital and in
addition failing to meet its obligation.







What is expected of the Minister in this situation is not necessarily
the truthfulness of what is alleged. It is sufficient if
the
Minister, upon whom the power is conferred by the statute, is
satisfied after careful consideration of the matter that the

jurisdictional facts do exist.







The question whether the information is true or not can only be dealt
with properly when the matter is investigated and the appellant
is
afforded an opportunity to be heard.







I do not consider that the jurisdictional facts that the Minister
relies on in such a situation need to be concrete or proved facts.







All that is required, in my view, is that they be facts on which the
Minister can form an opinion.







See Minister of the Interior v Bechler & Ors, 1948 (3) SA
409 at p 442.







In Tefu v The Minister of Justice & Anor, 1958 (2) SA, it
was pointed out, (on p67) that what was expected of an officer in
making a decision on whether an organization
may be declared unlawful
was that he be satisfied of certain conditions, or that he forms an
opinion.







There is no requirement at this stage for the allegations to be fully
proved.







The respondent has listed the following cases in his heads of
argument which show that legal process has been instituted against

the appellant and his companies.




  1. Steelmet (Zimbabwe) Pvt Ltd vs FSI Trading Proprietary Limited
    2006/27875 South African High Court



  2. SMM (Pvt) Ltd vs Southern Asbestos Sales (Proprietory) Ltd,
    2005 JOL 14902(W)



  3. Afaras Mtausi Gwaradzimba (in his capacity as the
    Administrator of SMM Holdings (Pvt) Ltd & SMM Holdings (Pvt)
    Ltd vs Africa Resources Limited, Mutumwa Dziva mawere & 2 Ors

    2005HPC 0306 (Zambian High Court)








An attempt had even been made to have the appellant arrested and
brought to Zimbabwe. There is even at this stage, a need to
investigate the appellant’s activities for possible
prosecution. There is therefore no merit in the submission that the
Minister had no jurisdictional facts.







There is no requirement for the Minister to state the grounds for
specification in the notice or to give the basis of the suspicion.







When the appellant is invited for a hearing the grounds of
specification are presented in detail and discussed with him.







This is a proper opportunity for a fair hearing before the
investigator. There is no basis for complaining that he is not
afforded
a hearing.







The Act says various transactions referred to in s 6 of the Act are
prohibited. These include expending or disposing in any way
any
property, entering into contracts to dispose of property, operating
any account with a bank, increasing any indebtedness which
affects
his estate and other types of business transactions.







Once the Minister had a reasonable suspicion about some of the
appellant’s activities he was entitled to ensure that the

appellant was stopped from engaging activities. The appellant cannot
be heard to argue that he should have been warned first then
left to
engage in such actions freely during the investigations.







The appellant argued that he has a distant relationship with these
companies mentioned in this matter, yet at the same time he

complains:



“that the actions of the respondent are having a detrimental
effect on me, and that the activities of the respondent and
those he
has appointed are directly impacting on my business in South Africa
and elsewhere in the world.”











He could not complain of being under any impediment in respect of his
properties in Zimbabwe if the specification did not affect
any
transactions with these businesses or companies.







No company of his in South Africa or the rest of the world was
specified other than those in Zimbabwe with which he admits to having

a relationship. His submission that he has no assets in Zimbabwe
except a house, is clearly contradicted by himself in his detailed

reference to the share holdings of the companies in Zimbabwe. In
fact through his holding companies he owns all the companies
referred
to in Zimbabwe.







The fact that those companies are run by boards does not make much
difference to their ownership.







The respondent has, in his affidavit, detailed certain matters in
which legal processes have been instituted against the appellant
in
Zambia, South Africa and the United Kingdom. Proof of these matters
is irrelevant at this stage. What is important is that
the
circumstances provided a basis for the Minister to specify the
appellant so that investigations can be carried out.







The information given to the Minister that the appellant was also
wanted on charges of externalizing funds and fraud, further
strengthens the grounds on which the Minister acted.







On the basis of these facts, the argument that the Minister had no
jurisdictional facts is devoid of merit, more so when the appellant

himself has disclosed his position regarding all the companies he
controls in Zimbabwe through his Holding Company.







It is significant also to note that the appellant is actually cited
by name in one of the cases which is Atara Mtausi Gwaradzimba
(in his capacity as the Administrator of SMM Holdings (Pvt) Ltd) and
SMM (Pvt) Ltd v African Resources Limited
, Mutumwa Dziva
Mawere
& 2 Ors 2005 HPC 0306 (Zambian High Court).
(my underlining)







In his replying affidavit, the appellant admits being a director of
SMM Holdings. The appellant also admits that he has three
bank
accounts in Zimbabwe. This contradicts his denial of assets in
Zimbabwe.







In summary, the following facts are clear from the record:-



1. The appellant does have assets in Zimbabwe in the form of a house,
bank accounts and companies he owns through some holding
companies.



2. There are allegations of fraud and externalization of funds.



3. There are pending cases involving several companies owned by him
through his holding companies.



4. His relationship with these companies is not denied.



5. He has resisted coming or being brought to Zimbabwe to assist in
the investigations of the allegations.



6. There are facts which entitled the Minister to have a suspicion
against him for the purpose of specifying him in terms of the
Act.







The Act makes the provision for specification, then investigation,
and the Minister simply cancel the specification if he sees
fit after
the investigation and hearing.







While the appellant contends that the Act has no extra-territorial
effect, the Act simply declares a person as specified. The

specification is not an arrest or a matter for a court trial. It is
only naming a person specified and that investigations be
carried out
against that person.







There is no basis for alleging ulteria motives when it is clear that
some wrongful conduct on the part of the appellant and his
companies
is alleged.







The lifting of the corporate veil was done partly by the appellant
himself in his admission of being the sole owner of the holding

companies that control the companies in Zimbabwe. The appellant
cannot accuse the court a quo for doing so.







In specifying a person who is outside the country I do not
understand the provisions of the Act to be spreading its jurisdiction

outside Zimbabwe, but simply that such specified person, whether in
or outside Zimbabwe, is prohibited from engaging in any transactions

concerning his affairs or assets in Zimbabwe.







I do not understand the specification to prohibit dealings with
assets that are outside Zimbabwe.







I am therefore unable to find that the Minister exceeded his powers,
but find that he acted according to the Provisions of the
Act.







I therefore come to the conclusion that there is not merit in the
appeal and it is dismissed with costs.











GWAUNZA JA: I agree











GARWE JA: I agree











Costa & Madzonga, the appellant’s legal
practitioners



Civil Division of the Attorney-General’s Office, the
respondent’s legal practitioners