Hands off Airzim: Chinamasa

Minister Chinamasa

Minister Chinamasa

Daniel Nemukuyu Senior Court Reporter—
THE law that ring-fences Air Zimbabwe Holdings property from attachment over debts is constitutional and must stay because it is meant to save the troubled airline from collapse, Finance and Economic Development Minister Patrick Chinamasa has said. Four former Air Zimbabwe Holdings managers — Stephen Nhuta, Kingstone Mbape, Charles Muchenje and Charles Mhonderwa — got a writ to attach the airline’s property over outstanding retrenchment packages to the tune of $160 000, but Government quickly amended the Finance Act to make the parastatal immune to attachment of its property.

The quartet then filed an application at the Constitutional Court challenging the constitutionality of Section 23 of the Finance Act. Defending the existence of Section 23 of the Finance Act, which was recently amended to protect the assets of the airline, Minister Chinamasa said it was common knowledge that Air Zimbabwe was in serious debt and the striking down of the law was likely to result in the collapse of the country’s sole airline.

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“In support of the public interest and continuity of vital national air services, it should (be) of very little debate that the sole airline’s property be protected from attachment. “Should this fail, the airline would inevitably grind to a halt in the very short term, leaving Zimbabwe with no local airline.

“In the circumstances, it is my view that Section 23 of the Finance Act is not unconstitutional for the reason that it extends immunity from attachment to Air Zimbabwe Holdings, a successor company of Air Zimbabwe Corporation, which successor company is defined as such by the legislature,” said Minister Chinamasa.

The minister said the contested Act does not violate any of the creditors’ rights and that they have other remedies available to them other than attaching property belonging to the airline. “Section 23 of the Finance Act does not infringe the right to equal protection of the law.

“In other words, applicant, instead of attaching assets of national importance, lodges a claim with the Public Debt Management Office established in terms of Section 4 of the Public Debt Management Act (Chapter 22:21) whereupon applicant’s claim will be satisfied from the Consolidated Revenue Fund,” he said.

Minister Chinamasa said the application by the quartet amounted to asking the judiciary to usurp the powers of the executive arm of the State. “Applicant is inviting the courts to usurp the functions of the Executive in determining which assets are regarded as being of vital national importance and ought to be protected from attachment in satisfaction of a private judgment.

“The courts should adopt a dim view of this as an intrusion into the space of the Executive’s function. “The public cannot be stripped of vital assets at the instance of a private litigant. Setting a precedent of that nature would grind the entire State to an eternal halt,” argued Minister Chinamasa.

The four former managers are battling to recover their agreed retrenchment packages from the airline. They argued that the recent amendment to the law scuttled their plans to attach and auction the parastatal’s property.

When the law was passed, the quartet had been offered retrenchment packages by the airline but $160 000 was still outstanding. Writ of execution had been issued by the courts to enable the four to attach and auction the company’s property.

The courts had ruled that at the time in question, the airline’s assets were capable of being attached in execution as it was not a successor company to Air Zimbabwe Corporation. But the recent amendments to the Finance Act now give Air Zimbabwe immunity from attachment.

In the constitutional challenge filed by the four, labour lawyer Mr Caleb Mucheche argued that the law infringed on the rights of Air Zimbabwe workers. The managers argued that Air Zimbabwe Holdings, being a private company, should not be protected under the State Liabilities Act.

Nhuta, Mbape, Muchenje and Mhonderwa had served the airline for periods between 30 and 32 years when they were served with retrenchment letters. The quartet was retrenched in August 2009 with the company citing viability challenges.

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  • Muchengeti

    Transparent excuses by Minister Chinamasa cannot hide the interfering hand of President Mugabe in propping up bankrupt Air Zimbabwe and maintaining it as a constant drain on the fiscus.
    It would be far more cost effective for the State to acquire a suitable permanent Presidential airplane reserved for Mugabe’s frequent private and State use, and allow Air Zimbabwe to sink and be replaced by the private sector.

  • Kwangwari Gwayendepi

    Hands off Tsoka dzerwendo rwamudhara. Munoda kuti baba vatadze kufamba?

  • http://sn.wikipedia.org Tinovaziva

    The law does not apply to the Zimbabwean government which constantly ammends laws to shift and dodge responsibility.

  • Ijaha le Maguswini Amnyama

    So the law was amended specifically to protect Air Zimbabawe, what message is being sent to would-be lenders

  • yowe

    Hehehe pakaipa

  • Zvichapera

    This is again hot air. Air Zimbabwe is local air line? Is that the reason why it should be immune to meeting its obligations? This is one way of demonstrating that there is no constitution with ZANU PF. ZANU PF and its thugs are self serving and that is how they are ruining down the economy. Time will tell.

  • Kereke (Not Munyaradzi)

    This is just crazy…but vana Chikumba nana Grace Pfumbidzayi makasiya vachienda nemamiriyoni enyika. You will surely reap what you planted one day. You have planted corruption and one day justice will prevail, Chinamasa.

  • Widzo

    Haa nyika yaparara nditengeseri Zimbabwe hangu ini na Wicknell naChiyangwa

  • haiwawo

    The message is if you are the Zimbabwean government, you can default with impunity. What a way to advertise a country.

  • Munya

    This arguement is false: “The public cannot be stripped of vital assets at the instance of a private litigant.” Air Zimbabwe Holdings P/L is a private company incorporated under the Companies Act. It is not the public but a juristic person at law, and there is no overriding public interest for the state to operate an airline. In fact Air Zimbabwe is against the public interest because it is perennially loss making and a waste of the tax payers’ money year in year out. Private airlines can do the job better without cost to the tax payer.

    So this case sets a bad precedent. If people apply their minds, there are innovative ways of saving the assets of the airline without need to enact laws of expediency.

  • PatsoAtoNyepaMesoWakatiNdee

    The Minister of Finance and whoever is advising him are now attempting impossible legal gymnastics. The argument presented by this supposedly learned man as the basis for the Act and in defence of the employer, Air Zimbabwe that is being sued for is at a best a comical excuse and not a sound legal argument. If the Zimbabwe Constitutional Court is indeed a Concourt, balancing rights and obligations allowed by the Constitution and being consistent with not just the verbatim interpretation of the Constitution but its intention and objectives, then, it will throw out the Ministers comical attempt at defending the indefensible with contempt.

  • African Conservative

    Air Zimbabwe owes a lot of legitimate companies money for services and products. How can you effectively set a law that say Air Zim can take and never pay, and you cannot use the courts for restitution?? This is where our government get things wrong.. You cry that you want FDI, but you go and do something like this? I surrender… very intelligent men who think like children.. If Air Zim cannot be a viable enterprise, it should be shut down, not protected from meeting its obligations!