Judges Chinamora and Makonese face tribunals

The Judicial Services Commission (JSC) has recommended that President Emmerson Mnangagwa sets up a tribunal to determine Chinamora’s suitability to hold office in terms of section 187 of the constitution. The JSC has also recommended that Justice Martin Makonese of the Bulawayo High Court be brought before a tribunal.

The NewsHawks understands that a rescue mission is underway for Chinamora to save him from the chop.

Some government officials, particularly from the Ministry of Justice, however, want Chinamora rescued from the chop. Those behind the plot want him to be found guilty of a lesser offence and get away with a mild reprimand, if the tribunal finds him not fit to continue holding office.

A senior Ministry of Justice official told The NewsHawks that corrupt government officials want to use corrupt means to rescue Chinamora from corruption allegations.

“Following the recent suspension of the two judges, the JSC has recommended to Mnangagwa that he should appoint a tribunal to investigate Chinamora and Makonese to ascertain the veracity of allegations of misconduct and corruption against them,” a Ministry of Justice source said.

“The tribunal can either clear them if they are innocent or recommend their dismissal if found guilty.

“However, there are some senior government officials who are manoeuvring to ensure that Makonese be found guilty, while Chinamora must be rescued through a slap on the wrist; a mild reprimand because he is seen as pro-system. To save him, they will compile his previous judgments favouring the system to plead his case to be spared dismissal. Imagine using corrupt means to save a judge accused of accusation. That shows corruption is deeply rooted everywhere and in all facets of society and the state, including the judiciary. This is a reflection of the current state of  affairs in the country; the state of the nation.”

Chinamora is seen as pro-government, hence some officials feel he should be rescued from the tribunal at all costs.

He has made what are seen as pro-government rulings, the latest being the one contradicting a landmark ruling by Justice Jacob Mafusire, who determined that Statutory Instrument 70 of 2015 and other legislation used by the Reserve Bank of Zimbabwe with support from the ministry of Finance was unconstitutional.

Mafusire ordered the Central Africa Building Society (Cabs) to pay US$142 000 to local architects Penelope Douglas Stone and Richard Harold Stuart Beattie after their money was converted into local currency following the passing of SI 70 of 2015.

Cabs was also ordered to pay interest at the rate of 5% per annum from 28 November 2016 — when the money was converted – to the date of payment.

The ruling has far-reaching implications for many individuals, organisations and companies whose money was converted into bond notes or RTGS because of SI 70 of 2015 and other predatory legislation.

Stone and Beattie own a company trading as Stone/Beattie Studio Partnership and had their savings eroded following the passing of the “illegal laws.”

Their victory followed a protracted legal battle which started in 2019.

In the landmark ruling, Mafusire set aside part of the law which led to conversion of the duo’s money into local currency.

He also granted the order ruling that the Finance minister and the Reserve Bank had improperly interfered with the contractual rights and obligations between the couple and their banker, Cabs, in breach of the constitution.

Cabs, the Reserve Bank of Zimbabwe (RBZ) and Finance minister Mthuli Ncube were cited as first, second and third respondents respectively.

The judge also criticised the government over its ever-changing policies, saying the haphazard scenario needed to be explained clearly to the banking public in case they found themselves in a similar situation as the architects.

“Before this court, the third respondent (Ncube) has not provided some further insights into the thought process behind the implementation of the measures above, particularly the split of people’s bank balances into Nostro FCAs and RTGS FCAs.

“The modalities of the whole process of creating Nostro FCAs and RTGS FCAs and the simultaneous separation of already existing bank balances into USD and RTGS, depending on the source of the deposits, is not properly explained.

“The second and third respondents allege that it was left to the individual banks to use the Know Your Customer (KYC) principles and trace the source of the deposits that had flowed into the individual customers’ accounts. But the first respondent has not explained how it actually did it. If the nameless currency was co-mingling with the genuine USD, then perhaps only the banks and the monetary authorities themselves knew.

“What all this analysis boils down to is that the second and third respondents, in effecting the currency reforms aforesaid, breached one of the constitutional tenets of good governance as set out in s 3(1)(h) of the Constitution. A government must not make, let alone implement arbitrary decisions,” said the judge.

In their application, Stone and Beattie sought an order that Exchange Control Directive No. R120/2018 issued by the Reserve Bank is unconstitutional and invalid as it violates section 71 of the constitution.

They also argued that the conversion of their US$142 000 to RTGS142 000 was unconstitutional and invalid as it violates section 71 of the constitution and also applied for an order that Cabs should pay them US$142 000.

Stone and Beattie also submitted that the Exchange Control Directive No. RT120/2018 is grossly unreasonable and ultra vires section 35(1) of the Exchange Control Regulations, SI 109 of 1996, and is invalid.

The judge ruled the conversion was illegal before he also slapped the respondents with costs.

However, hardly a fortnight after the ruling, Chinamora made a surprise ruling which contradicted Mafusire’s findings, leaving a local pensioner, Duncan Hugh Cocksedge, counting his losses after his US$179 000 bank balance domiciled in a Cabs account was wiped out after being wholly converted to local currency through the government’s controversial Exchange Control Directive RT120/2018.

Duncan had approached the High Court seeking redress, but his application was thrown out by Chinamora.

Chinamora’s ruling was a stark departure from that of Mafusire who had determined that some sections relied on by Cabs were in breach of the national constitution and contractual obligations between the applicant and the first respondent.

Justice Chinamora averred that it was not for the courts to change “political questions”.
The judge also said the regulation of banking activities to achieve economic stability and protect the banking public were the prerogative of the executive.

“Put differently, how the government makes policies aimed to achieve monetary stability and incentivise the generation of foreign exchange in the national interest is a political question, best left to the politicians.

“Courts in this jurisdiction are familiar with the political questions doctrine and how to deal with a case where this arises.

“No basis exists, in my view, for not deferring to the minister who made the policy decision on behalf of the Executive.”

He also said Cocksedge had not shown his court that the deposit in his account was realised from offshore or foreign currency cash deposits.

He added: “The applicant has not shown that the provisions of the Exchange Control Directive RT120/2018 and the Finance (No.2) Act 2019 are not laws of general application.
“As a result, I do not find any merit in the applicant’s argument, and am inclined to dismiss his application.”

Cocksedge’s claim was for reimbursement of his US$179 541 by Cabs.

He also wanted an order nullifying the Exchange Control Directive No. R120/2018 and the court to declare the provisions of section 22 (1) (b) (d) and (e) of the Finance (No.2) Act 2019 unconstitutional in that they violate sections 71 and 56 of the constitution.

At all times, he had a bank account with Cabs (first respondent) and as of 5 December 2016, the balance in his account was US$179 541.45.On 4 May 2016, the Reserve Bank of Zimbabwe (RBZ), cited as the second respondent, made a policy announcement that it was going to introduce an export incentive in the form of bond notes.

Prior to that, the RBZ had issued bond coins to complement the multi-currency system.
The policy statement dated 4 May 2016 said the RBZ had acquired a US$200 million foreign currency export facility to cater for the hgh demand for foreign exchange and provide an incentive facility of up to 5% on all foreign exchange receipts, including proceeds from tobacco and gold sales.

Further to the policy statement, through an Extraordinary Government Gazette, the President enacted the Presidential Powers (Temporary Measures) Amendment of the Reserve Bank Act.

Conscious of loss of value on his account, Cocksedge wrote to Cabs on 6 December 2016 asking the bank to preserve his account and not to deposit any more funds.

He wrote again on 2 June 2020 demanding payment of US$179 541.45 but the payment was not made.

In his alternative claim, Cocksedge said the conduct of the RBZ and the Finance minister was “unlawful, grossly unreasonable and irrational”.

He said the changes in law, effectively amount to unlawful and unconstitutional expropriation of value. Consequently, he submitted that these actions violated the provisions of sections 56 (1) and 71 of the constitution of Zimbabwe.

Cabs did not dispute that Cocksedge had deposited US$179 541.45 before February 2023.
The bank said its banking services are regulated by the RBZ, adding that it had no disputes with the latter.

The bank also argued that it never made a secret or undue profit from Cocksedge’s deposit but was also affected by the changes in the economy and the monetary environment.

Cabs refrained from commenting on the unlawfulness or constitutionality of the Exchange Control directive and said if the court were to find that payment was to be made to the applicant in US dollars, it should be indemnified by the RBZ and the minister.