The applicant is a company
incorporated in terms of the laws of Switzerland. The respondent is the
Administrator of SMM Holdings (Pvt) Ltd, an entity under reconstruction, he
having been appointed on 6 September 2004, the day a Reconstruction Order was
issued in relation to SMM Holdings (Pvt) Ltd.
In pursuance of his duties,
as the ...
The applicant is a company
incorporated in terms of the laws of Switzerland. The respondent is the
Administrator of SMM Holdings (Pvt) Ltd, an entity under reconstruction, he
having been appointed on 6 September 2004, the day a Reconstruction Order was
issued in relation to SMM Holdings (Pvt) Ltd.
In pursuance of his duties,
as the appointed Administrator of SMM Holdings (Pvt) Ltd, the respondent
entered into an agreement of purchase and sale with the applicant on 9 October
2009 in terms of which he sold certain Chrome Mining claims belonging to SMM
Holdings (Pvt) Ltd known as Mashava Area “E” for a sum of US$4,350,000=. The
respondent complied with all the procedural requirements, including securing
the authority of the Minister of Justice and Legal Affairs, to sell and
transfer the mining location and was duly paid the purchase price. Although the
mining claims were subsequently registered in the name of the applicant, which
even commenced operations, the mining location was soon claimed by a third
party, one Takundwa Mjumi who used every means at his disposal, including
enlisting the services of the Zimbabwe Republic Police to arrest the
applicant's employees on site, approaching this court laying a claim to the
same mining location, and generally preventing the applicant from enjoying the
benefit of what it had purchased.
Believing that SMM Holdings
(Pvt) Ltd was in breach of the Sale Agreement, in particular the warranty
against eviction, it having failed to obtain value despite having paid the full
purchase price, the applicant says it opened lines of communication with the Administrator
with a view to reaching an out of court settlement but this was rebuffed. When
that effort failed, the applicant applied to the Administrator in terms of
section 6(b) of the Reconstruction of State–Indebted Insolvent Companies Act
[Chapter 24:27] by letter dated 3 August 2012 written by its legal
practitioners, seeking the Administrator's leave to commence legal proceedings
against SMM Holdings (Pvt) Ltd for the cancellation or confirmation of the
cancellation of the Sale Agreement and a refund of the purchase price.
That application was met
with a deafening silence from the Administrator who did not see the wisdom of
responding to the application in any form. Despondent and bereft of any sense
of solution, the applicant approached this court by court application filed on
1 February 2013 seeking an order in the following terms:-
“IT IS ORDERED THAT:
1. Section 6(b) of the
Reconstruction of State Indebted Insolvent Companies Act [Cap 24:27] be and is
hereby declared to be in contravention of s18 of the Constitution of Zimbabwe
and is therefore null and void.
2. Alternatively, the
applicant be and is hereby granted leave, in terms of s6(b) of the
Reconstruction of State Indebted Insolvent Companies Act, to institute any
action or proceedings in any court or tribunal of competent jurisdiction in
Zimbabwe against SMM HOLDINGS (PRIVATE) LIMITED (under reconstruction) to claim
payment of US$4,350,000= or part thereof together with interest at the
prescribed rate of 5 per cent per annum and costs of suit or any other relief
available to the applicant at law.
3. The respondent be and is
hereby ordered to pay the costs of this application only in the event of it
opposes (sic) this application.”….,.
What I am required to
decide therefore is whether this court has jurisdiction to strike down current
legislation; whether the Constitutional issue of whether section 6(b) of the
Reconstruction of State Indebted Insolvent Companies Act [Chapter 24:27] has
already been decided by the Constitutional Court and therefore res judicata;
and finally whether the applicant is entitled to leave to sue the respondent.
