LOVEMORE Madhuku, a professor of law representing Harare automobile tycoon Farai Matsika (pictured) in a constitutional case in which he is seeking leave to appeal a Supreme Court judgment in favour of his cousin Moses Chingwena, the Croco Motors Holdings boss, says the Constitutional Court has not struck off the roll his client’s matter as wrongly reported in the media, but instead postponed it.
JONATHAN MBIRIYAMVEKA
Said Madhuku: “The correct legal position is that the Constitutional Court has removed from the roll or simply postponed the case of our client because the Supreme Court judgment concerned is not yet out; five months later. There is a huge difference between removing and striking off a case from the roll. Removing from the roll means postponing, while striking off means expunging.
“The Supreme Court ruled against our client, but said that judgment and reasons will follow later. However, the judgment is not yet out, so ConCourt said it can’t proceed without that. By consent the parties postponed the matter. This means we will have to wait for the judgment and then go back to court, probably around May.
“Because of that, there was no substantial hearing on merits, so we requested postponement which was granted by consent, although defence wanted our client to pay costs, which was rejected. In short, the case was postponed pending release of the Supreme Court full judgment for us to proceed to have the case heard on merits.”
The case, number CCZ60/22, was set down for hearing on 20 March. It was Matsika, Fairgold Investments (Pvt) Ltd versus Moses Chingwena, Moses Tonderai Chingwena Family Trust, Croco Holdings (Private) Limited and 36 others worth US$100m. Chingwena and Matsika are related; they are cousins and grew up living together in the same house in Harare.
Eight years after their acrimonious fallout over the ownership of a busines empire worth more than US$100 million, Matsika has not given up fighting to salvage value from his 25 years of sweat and toil. Matsika left the company amid a bitter boardroom wrangle.
Since then, he has been battling in court to walk away with something. He says it is not just about value or money, but also justice, respect and peace. He wants closure on the issue. Yet when Matsika lost his last battle in the Supreme Court last year against Croco Motors after his appeal was declined — like many of his previous attempts — for lack of jurisdiction, it looked like he had reached a dead end.
However, he never gave up, taking the case to the ConCourt. Now he has a chance to be heard at the apex court where he is demanding his pound of flesh and justice. Chingwena has been in the driving seat all along, winning the previous battles.
The lower courts have ruled in his favour, but this has made Matsika unhappy as he thinks that judges have been misdirecting themselves and lacked fairness. Matsika and his company are represented by Madhuku, while the other parties have Chagonda, Masamba and Bera on their side.
After losing a series of cases — the last one being in October last year — Matsika filed a constitutional case seeking leave to appeal, which he believes is of huge public interest and has reasonable prospects of success.
Prior to his last defeat, he had filed an appeal in the Supreme Court following the dismissal of his other challenge at the same court in a case in which he was fighting Chingwena over the control of Croco Holdings after a High Court ruling against him. Supreme Court Justices Elizabeth Gwaunza, Joseph Musakwa and Hlekani Mwayera presided over the case.
In another ruling, Supreme Court Justice Chinembiri Bhunu upheld High Court Justice Owen Tagu’s judgment against Matsika, saying he had put nothing before the courts to prove his 30% ownership claim of Croco Holdings, which is at the heart of the matter.
Matsika had adduced documents before the court which he said proved his case, but they were dismissed amid allegations of forgery. Bhunu ruled it was Matsika’s obligation to convince the court he owned 30% of Croco Holdings, but it was clear he had submitted “doctored documents” which made it difficult for him to be believed.
However, the FaraMatsi boss insists the documents are authentic and prove he owns 30% of Croco Holdings. Matsika believes his case has not been handled professionally, competently and on merit since he has no doubt Chingwena had given him 30% of the company, hence the ConCourt appeal to seek leave to challenge the Supreme Court judgment.
The application, handled by Madhuku, is premised on a constitutional argument regarding the interpretation of section 176 of the constitution, with the applicants — Matsika and his company Fairgold Investments (Pvt) Ltd — contending that the section in question gave the full Supreme Court the power and jurisdiction to review and correct decisions of individual judges in chambers.
The respondents in the case are Chingwena and 38 entities linked to him and Croco Holdings, showing how big the company and its subsidiaries have become. Croco Motors — synonymous with Chingwena and Matsika — is the flagship subsidiary of Croco Holdings which it owns 100%.
Among other business lines, Croco Motors operates Ford, Mazda, UD Trucks, KIA, Eicher and Volvo franchises. The company is also a dealer for Nissan, Datsun, Toyota, Higer and Yutong. Croco Motors’ key product segments are new vehicles and approved used vehicle sales, automobile service and sale of spare parts and accessories.
Other value-added services offered include tyre fitment, wheel alignment, wheel balancing and rhino lining. Key divisions are Croco Ford and Mazda, Croco Nissan and Croco Toyota, Croco Commercial Auto Body Centre and Pitstop).
Croco Motors has operations in Harare, Bulawayo, Masvingo, Chiredzi, Selous, Mutare and Victoria Falls. Further, during the course of previous proceedings before the court a quo, Matsika and his company invoked section 175(4) of the constitution and sought to request a referral of two constitutional issues to the ConCourt.
The two constitutional questions that the applicants requested the court a quo to refer to the ConCourt are: Whether or not section 176 of the constitution of Zimbabwe gave jurisdiction to the full court to review judgments of individual or single judges in chambers; and whether or not section 25(3) of the Supreme Court was constitutional to the extent to which it is interpreted to prohibit an application for review by the full court of a judgment of a single judge in chambers.
Matsika and his company say the Supreme Court did not act appropriately when it refused to allow him to file a written application for referral to the ConCourt under section 175(4) of the constitution, and instead ordered them to make an oral application in the process.
The oral application was made, but was also dismissed, with full reasons to follow. On the merits of the review application, the Supreme Court held that it had no jurisdiction in the matter, and particularly that section 176 of the constitution did not give it jurisdiction to review decisions of its individual judges in chambers.
Matsika’s application is made in terms of Rule 32 of the ConCourt Rules 2016 for leave to appeal the whole judgment of the Supreme Court handed down by Gwaunza, Musakwa and Mwayera in Harare on 19 October 2022, incorporating an order handed down on 17 October 2022 declining a request to refer the matter to the ConCourt.
“The applicants are litigants within the contemplation of Rule 32(2) of the Constitutional Court Rules, 2016, in that they were applicants in the Supreme Court in SC 30/22,” Matsika’s application says.
“The application in SC 30/22 raised constitutional issues. It was an application for review by the full court of a judgment of a single judge in chambers, the judgment by the single judge being judgment No. SC 144/21. The application was filed in terms of section 176 of the constitution of Zimbabwe as read with section 6 of the Supreme Court Act (chap 7:13).” Matsika is basically seeking leave to appeal in terms of Rule 32 of the ConCourt Rules of 2016, which means it is game-on with Chingwena.
