Shocking incompetence as NSSA’s property gets attached by former executive
By Byron Mutingwende
The Sheriff of the High Court on Monday 16 October 2017 descended on the headquarters of cash rich National Social Security Authority (NSSA), attaching the giant pension fund’s assets in execution of a High Court order granted in favour of Chikuni Mutiswa.
Using a High Court order for High Court Case Number HC2047/17, almost every movable item in every room in the sprawling 12-floor NSSA complex was listed and valued by the Sheriff. The movable items were taken from the General Manager’s office plush new furnishings to the executive luxury vehicles in the basement to the teacups and saucers.
“If NSSA continues to bungle over the next 48 hours, all these items will be taken into the possession of the Sheriff and auctioned for a song. And should the money raised be insufficient to meet the US$700, 000 demand, the Sheriff will hunt and attach more of NSSA’s assets,” said a source privy to the matter.
Mutiswa was appointed NSSA’s Chief Strategic Assets Officer in July last year and was later summarily dismissed early January after he refused an ‘extension’ of his six (6) month probation.
He pointed out that in terms of the Labour Act, the maximum allowable probation was a single period of a maximum of three (3) months. Accordingly the six (6) months was unlawful as was the purported ‘extension’, which was also a unilateral variation of the 3-year contract he had signed with the authority. He also said that not a single evaluation of his performance had been done during his probation, again itself contrary to the law, and as such how could it then be claimed that he had not performed when he had written evidence of glowing praise he had received on a number of occasions from both the hands-on Chairman, Robin Vela, and the Chief Executive Officer and General manager Elizabeth Chitiga?
Vela did not take kindly to being challenged, instructing Chitiga to summarily dismiss Mutiswa and further backdating the dismissal to year-end 2016.
Mutiswa wrote a letter, in Spiked’s possession, highlighting the crass illegality of NSSA’s actions and extending an olive branch to settle the dispute amicably with the intention of limiting reputational fallout to the organisation.
This offer was spurned, as was a 19 January 2017 email written to the full NSSA board debunking Vela’s misleading press statement and warning them of the financial costs of the unlawful dismissal.
This was also ignored.
A seasoned professional who has invested successfully across the globe and knows his onions inside out, Mutiswa was never going to succumb to NSSA’s ‘modus operandi of bullying and bluster.’
On 3 March 2017, he called Vela’s bluff.
He filed a lawsuit in the High Court claiming some US$628,000 in general and special damages for unlawful termination of employment, interest and costs of suit.
A shocked NSSA panicked, dismissing its erstwhile highly regarded legal practitioners DMH whom had advised them to settle early and appointing Mutamangira and Associates.
This firm is headed by Farai Mutamangira and has built up a reputation of being politically connected and legal ‘fixers’. Mutamangira made his name (and some say fortune) as legal counsel to Obert Mpofu during his heyday as Minister of Mines at the time of the Zimbabwean government’s takeover of the Chiadzwa diamonds. He chaired ZABG/ Allied Bank after its acquisition by the Minister and was allegedly the proprietor of The Zimbabwe Mail, a newspaper which quickly flamed out and in its last days was being handed out for free at traffic lights in Harare.
Unfortunately for NSSA, this new set of lawyers lived up to their reputation. They proceeded to make a right dog’s breakfast of NSSA’s already non-existent legal defense.
Subsequent events and documents on hand show that not only were the new lawyers incompetent and their legal strategy amateurish and fatally flawed from the outset, their conduct in attempting to justify the enforcement of an illegal agreement and acting so casually in firing a top level executive shows that they were under the instructions of a board gone rogue.
Or they do not understand the elementary principle of law that an illegal contract clause is null and void from the very outset – void ab initio. This omission would make a first year law student blush.
After Mutiswa, through his lawyer Professor Lovemore Madhuku, gave NSSA notice of intention to bar on 4 May 2017, NSSA filed a special plea, which was already way out of time. They were subsequently barred.
On realising their blunder of filing the special plea having received Madhuku’s legal submission, NSSA then completely fumbled again, purporting to withdraw its invalid special plea and filing yet another invalid ordinary plea on 18 July.
This left Mutiswa free to apply and he was granted a default judgement on 4 October.
Sources close to the matter say the board by allowing a straightforward matter, which could have been quietly dealt with minimum fuss, to become one that has snowballed into an embarrassing and unprecedented seizure of NSSA’s assets, it has failed in its fiduciary duty of protecting pensioners’ hard earned assets.
Led by ‘loud, abrasive, self appointed corporate governance crusader’ Robin Vela, the board has lurched from one crisis to the next and is currently being sued by NSSA staff for eliminating the 2016 bonus while awarding itself an astronomical 20% rise in board fees during the same period.
Mutiswa accuses Vela of the state and media capture.
“Vela has reportedly been strutting up and down the land, boasting that he is untouchable and has half of Cabinet and most of the mainstream media firmly in his pocket,” Vela said.
Efforts to get a comment from the NSSA CEO were futile as her phone went unanswered. Spiked Online was finally referred to Tendai Mutseyekwa for a NSSA position. Mutseyekwa asked for emailed questions, which the publication did but after initially indicating that he was in a meeting, he later said he was out of office.
“I am not in the office. Please email your questions, which I will attend to later as I am engaged with something else out of office today. I will be back tomorrow. I take it that you are a professional journalist. I will not say anything further lest you think I am prescribing how to do your job,” Mutseyekwa said.
Another expert who preferred anonymity said after this latest Vela-initiated debacle, which will end up costing the institution at least US$1. 5 million when legal costs and taxes are included, the board and management will have a hard task retaining the confidence of the new Minister, Patrick Zhuwao who must surely have the brief of cleaning up the Augean stables at NSSA which was the downfall of his predecessor.
“With a lot more corporate malfeasance from Vela and his board likely to be uncovered as whistleblowers, emboldened by Mutiswa’s unflinching refusal to be cowed, step forward, one would do well not to bet on the survival of NSSA’s board and its CEO.”