Response to ‘How Temba Mliswa seized my company’
By William Eckem Sithole
Chivanhu chinoti: “Mbudzi kuti ibarire pavanhu, kuti itandirwe imbwa”, literally translated to “When a person exposes his vulnerability, he secretly hopes that society will assist and protect him, during such period he is otherwise incapacitated”.
The interview How Temba Mliswa seized my company FEBRUARY 3, 2014 makes sad reading. What makes the story especially sad is our (society’s) shallow and artificial fixation with the gory news.
We love to hear how somebody has fallen on hard times, clucking our tounges in simulated sympathy and immediately expecting the news conveyor belt to bring another instalment of another person’s misfortunes (ad infinitum). Some of the reading public are competent to assist our brother who has had his life seriously disrupted by lawless, greedy people, with the active connivance of a discredited judiciary.
From my reading of Mr. Westwood’s story, the following salient points emerge.
1. Mr. Westwood and one Hammarskjold Banda were the shareholders of the company commonly known as Benbar/ Tromps. This Mr. Banda had secured employment for his wife, Brendaly Banda with the company and she was responsible for Finance and Administration.
2. In or around December 2009, Mr. Westwood, acting on his own and unbeknown to his other shareholder, Hammarskjold Banda (who apparently was in South Africa), suspended Brendaly Banda, austenibly to conduct a forensic audit of the company’s finances.
3. In apparent retaliation, on 18 December 2009, Hammarskjold and his wife ran the company payroll and awarded themselves and their cousin a Christmas bonus. They must have done this in the company of Temba Mliswa, who had addressed the workers in the presence of Mr. Westwood and is alleged to have said “I now own the company this murungu has nothing to do with this company anymore, in line with indigenisation so, don’t question me or none of you will see your wife and children again!” Thereafter, Themba and people acting under his direction and control destroyed property and company documents and records. I can only infer that the destruction of the company documents and records permanently stopped the forensic audit from taking place.
4. It would appear that a report was made to the police. The police investigated the case, leading to a criminal trial of fraud against Themba Mliswa and some co-accused. From the interview, it is apparent that Mr. Westwood was and is still of the conviction that Temba Mliswa and Hammarskjold Banda perpetrated a fraud on the company.
From Mr. Westwood, we gather that Hammarskjold Banda had entered into a private agreement with Temba Mliswa, wherein he purported to transfer his (Banda’s) shares in the company to Temba Mliswa, without following the procedures laid out in the Companies Act and also specified in the company’s Articles of Incorporation and Memorandum of Association. Because the procedures were not followed, Mr. Westwood therefore is convinced, a case for fraud is made out.
5. The trial Magistrate, His Worship Mr. Katiyo, in his ruling, addressed a slightly different cause of action. He wrote… “In my view Westwood felt threatened by the accused. If the big names were mentioned, they were meant to instil fear and not misrepresentation. Instilling fear does not amount to fraud.”
Now if Mr. Westwood relied on the Companies Act to make out his case for fraud and the Magistrate dismissed the case for fraud on the basis that fear does not constitute misrepresentation, the case may have been wrongly decided and Mr. Westwood would be within his rights to ask the Magistrate to explain why he (the Magistrate twisted his case from what it was, to what the Magistrate wanted it to be. I hope Mr. Westwood can prove that he submitted his case for fraud based on the Companies Act. A complaint statement to the Police, the trial record, anything to show that he did make that submission.
If such proof exists and depending on Mr. Westwood’s willingness to lay a complaint, we may have a test case on holding the Judiciary to account. It does not matter that the Magistrate could still have dismissed the case after showing that still, had he met the case head-on, he could have dismissed it still because the state had not proved the five essential elements needed to prove fraud, these being
(i) a false statement of a material fact,
(ii) knowledge on the part of the defendant that the statement is untrue,
(iii) intent on the part of the defendant to deceive the alleged victim,
(iv) justifiable reliance by the alleged victim on the statement, and
(v) injury to the alleged victim as a result.
What matters is the fact that the context of the case was deliberately changed. This would be sufficient to take the Magistrate on for violation of his oath of office. Trying to nail him on the basis of corruption, relying only on the fact that he bought a US$12 000 car on a monthly salary of US$200 per month is bound to be problematic.
Unless you have irrefutable proof in the form of bank records showing money moving from Mliswa to the Magistrate or a video recording showing Mliswa giving the magistrate the bribe or unimpeachable witnesses, you will struggle, for it may well be that the Magistrate/ Judge who will have to try one of his own will be sympathetic to his colleague and demand absolute proof (96% Confidence level) instead of reasonable proof (85% Confidence level).
However, it may well be that Mr. Westwood did not make submission to the magistrate that he was relying on fraud as espoused in the Companies Act and that the magistrate correctly decided the case. Then, I am afraid that Mr. Westwood’s problem may lie elsewere. Mr. Westwood has been supporting a small army of lawyers. Are they (the lawyers) who advised Mr. Westwood to proceed by way of a criminal action, to wrest back company control, which clearly had been wrongfully and unlawfully taken from him?
Does the Company’s Act have provision for fraud proceedings as adverted to by Mr. Westwood. Do the lawyers share Mr. Westwood’s conviction that the conduct of both the Magistrate and the Prosecutor was shady and unbecoming of their offices. What efforts have they made in the last four years to have Mr. Westwood reinstated into the full and actual control of his company? Why are their efforts not yielding fruit.
Mr. Westwood’s story is particularly painful, for, he has lost his life investments. We can not as blacks, justify such criminality and greed on the basis that White people dispossessed our grandfathers of a few cows and a small piece of land over a century ago. We must tell the thieves who do such heinous acts that, “Yes colonialism was bad and we suffered because of it. BUT, PLEASE DO NOT GO ABOUT STEALING OTHER PEOPLE’S PROPERTY IN MY NAME.”
We must, as a society, help those whose lives have been destroyed by the bullies and thieves masquarading as national leaders. Law students, where are you? You still have a name to make and this is an ideal platform for you. Retired Judges, academics, prosecutors and lawyers, what are you doing? Are you going to keep silent while you watch your profession being destroyed by chartarlans? Is this the knowledge that you passed on to your successors?
As I have said, in earlier instalments, we are expecting leadership from those in the legal profession. But if you are unwilling or unable to lead, then us, the victims will reluctantly carry the torch. Do not cry when we take the torch with us into the deep pool.
William Eckem Sithole is a victim of what he says is “justice gone to the dogs”. He is currently based in South Africa. He can be contacted on e-mail at [email protected]