Kamushinda fights subpoena
The former SME Bank director argues that a “wholesale delegation” of the powers of the High Court to a commissioner is impermissible.
CATHERINE SASMAN
Zimbabwean Enock Kamushinda filed court documents last week in an attempt to stave off a subpoena to appear before a commission of inquiry into the raided SME Bank.
He made the court application on his own behalf and that of Metropolitan Bank of Zimbabwe and World Eagle Investments, of which he is a director and shareholder.
The commission was constituted by an order of the High Court on 16 February and advocate Natasha Bassingthwaighte was appointed as the commissioner.
The commission is to investigate the dealings and transactions between the SME Bank and South African-based VBS Mutual Bank, Tulive Capital, Asset Movement Financial Services, DMA Consultants, Transparency.com and Rawford Offshore.
Kamushinda said he was subpoenaed on 12 March to appear before the commission on 14 March. The commission sat on 14 March but was postponed, with no date for its resumption given.
At that point Kamushinda sought legal opinion on the propriety and legality of the commission and the subpoena.
Kamushinda argues that the subpoena was issued unlawfully.
In terms of the High Court order, the commission is to summon Tawana Mumvuma (former CEO of the SME Bank), Joseph Banda (former finance manager), Mauwane Kotane of Mamepe Capital, Nhlanhla Muduzi of VBS Mutual Bank, and the directors and proprietors of Tulive Capital (Pty) Ltd, Asset Movement Financial Services, DMA Consultants, Transparency.com and Rawford Offshore.
“I am not one of the persons specifically mentioned,” Kamushinda contends, arguing that a subpoena for his appearance before the commission was not specifically authorised by the High Court.
The court order stipulates that the commissioner can summon further persons if it appears such persons are “capable of giving evidence” regarding the dealings of the SME Bank with those entities the commission can summon.
Kamushinda contends that his subpoena was issued before any evidence could be presented to the commission.
He further argues that liquidators David Bruni and Ian McLaren know that the missing N$200 million was paid to Mamepe Capital and VBS Mutual Bank and onward to other entities.
The liquidators contended that the transfer of this money was done without authority since it exceeded the SME Bank’s internal authority limits.
“That which needs to be know[n] appears already to be know[n] to Bruno and McLaren,” Kamushinda contends.
He also calls for the High Court order of 16 February to be set aside, arguing that a secret hearing would not have any identifiable benefit to the creditors of the SME Bank.
“[The] liquidation order is the subject of an appeal. If the final order of liquidation is set aside on appeal (and I contend that there is a strong prospect that it will be), then all of the costs of the commission would be wasted and (most probably) not recoverable from Bruni and McLaren or anyone else,” Kamushinda says in his founding affidavit.
Kamushinda further argues that the High Court could not have delegated its powers in an inquiry to Bassingthwaighte, saying it is an “impermissible wholesale delegation” of the powers of the court.
Zimbabwean Enock Kamushinda filed court documents last week in an attempt to stave off a subpoena to appear before a commission of inquiry into the raided SME Bank.
He made the court application on his own behalf and that of Metropolitan Bank of Zimbabwe and World Eagle Investments, of which he is a director and shareholder.
The commission was constituted by an order of the High Court on 16 February and advocate Natasha Bassingthwaighte was appointed as the commissioner.
The commission is to investigate the dealings and transactions between the SME Bank and South African-based VBS Mutual Bank, Tulive Capital, Asset Movement Financial Services, DMA Consultants, Transparency.com and Rawford Offshore.
Kamushinda said he was subpoenaed on 12 March to appear before the commission on 14 March. The commission sat on 14 March but was postponed, with no date for its resumption given.
At that point Kamushinda sought legal opinion on the propriety and legality of the commission and the subpoena.
Kamushinda argues that the subpoena was issued unlawfully.
In terms of the High Court order, the commission is to summon Tawana Mumvuma (former CEO of the SME Bank), Joseph Banda (former finance manager), Mauwane Kotane of Mamepe Capital, Nhlanhla Muduzi of VBS Mutual Bank, and the directors and proprietors of Tulive Capital (Pty) Ltd, Asset Movement Financial Services, DMA Consultants, Transparency.com and Rawford Offshore.
“I am not one of the persons specifically mentioned,” Kamushinda contends, arguing that a subpoena for his appearance before the commission was not specifically authorised by the High Court.
The court order stipulates that the commissioner can summon further persons if it appears such persons are “capable of giving evidence” regarding the dealings of the SME Bank with those entities the commission can summon.
Kamushinda contends that his subpoena was issued before any evidence could be presented to the commission.
He further argues that liquidators David Bruni and Ian McLaren know that the missing N$200 million was paid to Mamepe Capital and VBS Mutual Bank and onward to other entities.
The liquidators contended that the transfer of this money was done without authority since it exceeded the SME Bank’s internal authority limits.
“That which needs to be know[n] appears already to be know[n] to Bruno and McLaren,” Kamushinda contends.
He also calls for the High Court order of 16 February to be set aside, arguing that a secret hearing would not have any identifiable benefit to the creditors of the SME Bank.
“[The] liquidation order is the subject of an appeal. If the final order of liquidation is set aside on appeal (and I contend that there is a strong prospect that it will be), then all of the costs of the commission would be wasted and (most probably) not recoverable from Bruni and McLaren or anyone else,” Kamushinda says in his founding affidavit.
Kamushinda further argues that the High Court could not have delegated its powers in an inquiry to Bassingthwaighte, saying it is an “impermissible wholesale delegation” of the powers of the court.
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