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Masiyiwa fights defamatory suits in South Africa

Telecommunication magnate, Strive Masiyiwa is embroiled in a legal suit, after dragging three compatriot for defamation in a matter relating to the origins of Econet Zimbabwe and its relationship with TS Masiyiwa Holdings (Private) Limited.

Masiyiwa, a London based Zimbabwean businessman and the founder and Executive Chairman of diversified international telecommunications, media and technology group Econet Wireless, on the 13th May 2019 filed an application with South African High Court, Gauteng local Division, Johannesburg with Econet South Africa as the First Applicant, Econet Wireless Zimbabwe Limited as Second Applicant, Econet Global PTY LTD (Mauritius) as Third Applicant and Strive Masiyiwa himself as the Fourth Applicant.

The matter cites Rutendo Benson Matinyarare as the First Respondent, Mutumwa Dziva Mawere as second while third is Pardon Gambakwe. The application seeks an order in the following terms:
5.1 The respondent be indicted from publishing in any form, any defamatory matter, including innuendo, and any injurious falsehoods of and concerning the Applicants, their business and/ or any of the Applicants’ products or services (collectively “defamatory matter,”

5.2 The respondent immediately remove from publication all and any forms of defamatory matter including without limitation from publication via video posts, comments or statements of any media or internet site/s including but not limited to www.youtube, www.gambakwe.com and www.facebook.com (collectively “all media”); and 5.3 The Respondents be ordered to refrain from publishing whether directly or indirectly, all and any defamatory matter on all media.

In his affidavit signed on 24th April 2019 at Sandton Police Client Service Center in South Africa, Dr Kuzozvirava Shumba said this matter involves a factual and legal dispute in relation to the origins of a company called, Enhanced Communications Networks (Private) Limited (Econet Zimbabwe), and its relationship with a company called TS Masiyiwa Holdings (Private) Limited (TSM), a company in which he (Shumba) was represented as a shareholder holding 2.4 percent of its issued share capital per Prospectus, a copy which was attached.

Shumba also reiterate that it is significant that Strive Masiyiwa who is fixed with the knowledge about the issues in dispute chose to hide behind Douglas Mboweni (CEO Econet Wireless Zimbabwe Limited) who purports to have been authorized to represent him in this matter by virtue of a confirmatory affidavit. Shumba also said it is his contention that this application fits into Masiyiwa’s known strategy of hiding his fraud using parties that have no knowledge of the facts that they put before the courts.

Douglas Mboweni on behalf of the Applicants alleges that the following constitute defamatory statements in relation to the affairs of the applicants;
“Mutumwa Zviva Mawewere (Second Respondent) claims that Strive Masiyiwa’s court application to interdict the investigations that Mr. Mawere was heading in relation to corruption allegations that some officers working for First Mutual Life (FML) especially in respect of an unauthorized investment of Z$180 million that resulted in Masiyiwa gaining control of Econet on the back of a contribution by TSM Private Limited (TSM), a company in which Mr. Masiyiwa and his wife, Tsitsi, held about 67. 5% shares in.”

“The article clearly suggest that material falsehoods were included in the relevant prospectus and it is clear from the article as a whole that the allegation is being levelled that the process was tainted and designed to defraud”.  Shumba as a financier of the pre- IPO Econet argues that he has personal knowledge which Mr Mboweni does not possess since he was not involved at all at the material period.

“Accordingly, it is part of my complaint that Mr. Mboweni knowingly and wittingly misrepresented facts before the South African Court that the version that Mr. Masiyiwa who associated himself with the application is false and that a careful reading of the prospectus when juxtaposed with the true nature of the facts of this matter will confirm a crime of perjury and defeating the ends of justice.

This application constitutes abuse an abuse of the SA justice system because the correct version is known to Mr. Masiyiwa that his purported shareholding in TSM was based on the fact that TSM, a Zimbabwean registered company that was subject to exchange control limitations was the lawful owner of the equipment that was purportedly acquired by Econet at the IPO stage”.

Daniel Shumba said Mr. Mboweni knew and ought to have known that the basis of this application is based on manufactured facts that are not supported by any reality. “The allegation is made that the fourth applicant (Masiyiwa)’s family company improperly benefited as the result of an “international fraud,” which “resulted in an unjust and corrupt enrichment of the Masiyiwa family and related shareholders of TSM.”

Shumba said the evidence and facts at his disposal confirm that in truth and fact, Mr. Masiyiwa was a driving behind and fraudulent scheme that resulted in gaining the control of a company that he helped fund and more significantly the purported equipment that TSM swapped for shares in Econet was not owned by TSM and in any event TSM had no capacity to procure the equipment in question.

“It is my contention that Messrs. Mbeweni and Masiyiwa knew and ought to have known that the whole IPO was tainted with fraud.” On paragraph 1 of the affidavit Mr. Masiyiwa represents before a Court that he was the majority shareholder of TS Masiyiwa Holdings (Private) Limited (TSM) which he erroneously misrepresented as MASCOM fully knowing that MASCOM was a separate company in which Shumba was a purportedly 25% shareholder at the material time.

“I only become aware of this affidavit a few weeks ago. At all material times, I was made to believe that TSM was a company that was the vehicle of owning the shares in Econet at IPO stage or during 1998. Until then, my understanding was that Mascom was the sole shareholder of Econet yet in this affidavit, Mr. Masiyiwa represents otherwise.

On paragraph 4 Mr. Masiyiwa also misrepresented that Mascom, a company which Daniel Shumba was a shareholder, was a successor to Retrofit (Pvt.) Limited. However, in terms of company law and practice, there is no such thing as a successor of a juristic or entity. “I also draw your attention to a copy of judgement under Case Number SC251/96 in which the Learned Judge Gubbay CJ, stated as follows; TS Masiyiwa (Private) Limited (Mascom) owns the entire share capital in Econet.”

The deponent Daniel Shumba said Masiyiwa is no longer within the reach of the Zimbabwean justice system and wants to abuse the SA system to perpetuate a lie. It is important that the proper facts relating to this matter are investigated properly so that the delayed justice and equity in this matter can be known and ventilated.

The second Respondent Mutumwa Zviva Mawewere also argues that Civil Procedure and the common law in South Africa require that before a party may sue in Court of law, it must prove that it has title to sue. In this case, Mr. Mboweni must prove that he is the right person to sue and depose to factual matters in the cause and also that he has ability or capacity to substitute the fourth applicant.

In this matter, there are no averments made as to how Mr. Mboweni purports to act in relation to the applicants other than the bold assertion that he is CEO of the second applicant, a company that is domiciled in Zimbabwe, while at the same time acknowledging that the other three applicants are situated outside the jurisdiction of Zimbabwe.

A letter authored by the National Merchant Bank of Zimbabwe Limited on 22nd January, 1998 with ref: Exchange Control Application for TS Masiyiwa Investments in Mascom Botswana (Pty) Limited reads;
“This is to confirm that we, National Merchant Bank Zimbabwe Limited, bankers to TS Masiyiwa Holdings (Pvt.) Limited, will obtain Exchange Control Approval from Reserve Bank of Zimbabwe in respect of our client’s investments in Botswana.

We further confirm that our client’s application meets the normal criteria for such approvals from the Reserve Bank. We therefore have no doubt that the Reserve Bank of Zimbabwe will grant Exchange Control Approval for this investment.” The letter was signed by PF Timba Assistant General Manager, Corporate Finance Division.

In the High Court of Botswana Held at Lobatse on the 30th October 1998, in the shareholders dispute DECI Holdings (PTY) LTD 1st Applicant, Portugal Telecom Internacional, SGPS, SA 2nd Applicant and DECI Investment (PTY) Limited 3rd Applicant had dragged Strive Masiyiwa and Mascom Wireless Botswana (PTY) Limited before the court.

Judge Lesetedi had ruled that Mascom is a holder of one of only two cell network licenses issued by the Botswana Telecommunications Authority in the country. The shareholding Mascom and the relationship of the shareholders is governed by a consortium agreement entered into by the shareholders on the 11th day of August 1997 at Harare. This was before Mascom was awarded the licence.

Under the consortium agreement, the shareholding was as follows: (DECI – 36%, PTI – 25% and TSM- 14%). On the remaining 25%, 15% of the ordinary share capital was to be offered to institutional investors of Botswana origin, 5% to Southern African Enterprise Development Fund. At the time of this litigation, the aforementioned twenty- five per centum shareholding had not yet been taken up. The consortium agreement was to be an interim governing agreement pending the signing of a shareholder’s agreement, otherwise it was to lapse in the event of Mascom not being granted a licence.

Lesetedi said the governing contractual instrument is the consortium agreement has been cancelled on the basis inter alia that TSM has not paid its share call. Neither has TSM paid its contribution to DECI Holdings to make its own contribution to Mascom. TSM admits that it has not paid its share call although it now says the funds are available.

“It appears to me that if PTI had a prima facie right to cancel the agreement, then it appears to me that due to the public interest in Mascom, it is very important that an order be granted for the two companies to run with some semblance of normality in the interim pending the final determination of this matter.

Mascom was the first mobile telecom company Masiyiwa founded. He founded the company 21 years ago, few months before he established Econet Wireless in Zimbabwe. It is Botswana’s largest mobile operator with a reported 1. 7 million subscribers. Earlier in March, Econet Group spent $300 million acquiring a 53% stake in Mascom from MTN Group, thereby increasing its stake from 7% to 60%. The deal is expected to be concluded anytime soon as regulatory approval is at its final stages.

Earlier this year during his visit to Botswana and hosted by President Mokgweetsi Masisi Zimbabwe’s richest man, announced that his company, Econet Group, will list Botswana mobile network operator, Mascom, on the nation’s stock exchange later this year.

Speaking at a press conference in Gaborone, Masiyiwa said that by October this year, he intends to list some of Econet’s Mascom shares on the Botswana Stock Exchange in what he believes will be one of the biggest flotations on the bourse. “This is what I have always wanted to do …I have never held enough shareholding to push it through,” he told reporters.

On his Facebook page, Masiyiwa said that anyone who can raise $10 should be able to buy shares in Mascom. “In what I hope will be the biggest public listing ever undertaken in Botswana, I want to sell shares to anyone who can raise about 100 pula ($9.36),” Masiyiwa said.

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Woman swindled out of P62 000 by fake CID officers

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Botswana Police Service (BPS) has indicated concern about the ongoing trend where the general public falls victim to criminals purporting to be police officers.

According to BPS Assistant Commissioner, Dipheko Motube, the criminals target individuals at shopping malls and Automated Teller Machines (ATMs) where upon approaching the unsuspecting individual the criminals would pretend to have picked a substantial amount of money and they would make a proposal to the victims that the money is counted and shared in an isolated place.

“On the way, as they stop at the isolated place, they would start to count and sharing of the money, a criminal syndicate claiming to be Criminal Investigation Department (CID) officer investigating a case of stolen money will approach them,” said Motube in a statement.

The Commissioner indicated that the fake police officers would instruct the victims to hand over all the cash they have in their possession, including bank cards and Personal Identification Number (PIN), the perpetrators would then proceed to withdraw money from the victim’s bank account.

Motube also revealed that they are also investigating a case in which a 69 year old Motswana woman from Molepolole- who is a victim of the scam- lost over P62 000 last week Friday to the said perpetrators.

“The Criminal syndicate introduced themselves as CID officers investigating a case of robbery where a man accompanying the woman was the suspect.’’

They subsequently went to the woman’s place and took cash amounting to over P12 000 and further swindled amount of P50 000 from the woman’s bank account under the pretext of the further investigations.

In addition, Motube said they are currently investigating the matter and therefore warned the public to be vigilant of such characters and further reminds the public that no police officer would ask for bank cards and PINs during the investigations.

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Botswana Congress Party (BCP) leadership walked out of Umbrella for Democratic Change (UDC) National Executive Committee (NEC) meeting this week on account of being targeted by other cooperating partners.

UDC meet for the first time since 2020 after previous futile attempts, but the meeting turned into a circus after other members of the executive pushed for BCP to explain its role in media statements that disparate either UDC and/or contracting parties.

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Katlholo wins against DPP

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The transfers were seen by observers as a badly calculated move to emasculate the DCEC which is seen as defiant against certain objectionable objectives by certain law enforcement agencies – who are proven decisionists with very little regard for the law and principle.

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