The Sunday Mail
Mines and Mining Development Minister Walter Chidhakwa refuses to be moved by attempts by Dutch farmers and Amaplat to seek compensation from diamond proceeds from Antwerp.
His spirited fight to repulse these attempts re-defines the jurisprudence of international law.
These two cases have kept Minister Chidhakwa awake at night. He seems to be gaining ground, though.
The minister is not only fighting for his own Government, but for other third world countries that are subjected to the vestiges of oppressive Western legal jurisdictions under the guise of applying international law.
Zimbabwe’s legal team, led by Farai Mutamangira, who is revered in the Kimberly Process community as the “most shrewd solicitor”, is arguing in the Belgium Court that the Dutch farmers, collectively referred to as the Funnekotter, and Amaplat are seeking attachment of goods that do not belong to the Government of Zimbabwe.
Amaplat’s claim arises from an International Court of Arbitration award against the Zimbabwe Mining Development Corporation. They erroneously contend that no mining entity can mine diamonds except ZMDC and, therefore, the diamonds sold in Belgium belong to the corporation.
However, this award is being challenged in the Zambian High Court. Lusaka is a city of arbitration.
The diamonds sold in Belgium belong to Mbada Diamonds, Marange Resources, DMC and Jinan.
Of course, the Amaplat position is unsustainable at law as all these entities have separate legal personalities registered under the Companies Act.
ZMDC is a creature of statute.
Commercial invoices and export documents of record of diamond shipments demonstrate, without ambiguity, that these mining companies were and are acting as separate entities.
The Funnekotter dimension relates to, again, an arbitration award against the Government of Zimbabwe by the International Centre for Settlement of Investments Disputes, which was registered in the Court of First Instance (equivalent of High Court) in Brussels in July 2012.
The Mutamangira-led legal team has now brought a property law action to assert ownership of the diamonds by the mining companies. This vindicatory action has put Amaplats and Funnekotter on a back-foot, leaving the Belgian Balliff (Sherriff of the Court) in a quandary.
On September 19, 2014, Minister Chidhakwa’s legal team filed at the Court of First Instance in Brussels an urgent chamber application to attach diamond parcels founded upon his assertion. This step is preservatory and registers the mining entities’ interest in the diamond parcels.
The Court is yet to sit.
The foregoing developments simply expose competing interests between Antwerp and its central government in respect of Zimbabwean diamonds. The diamond trading district of Antwerp is keen to wholesale Marange diamonds, but its own government continues to align with London’s antagonising policy on Mugabe’s gems.
Addressing the Kimberly Process Johannesburg 2013 breakfast meeting, which was beamed live on South African national television, Minister Chidhakwa said, “The Mugabe Government has comprehensive inventory of friends and foes in the diamond trading (sector). We know the challenges that lie ahead, especially the implications arising from direct and indirect illegal sanctions. We are aware of the encumbrances of frivolous litigation also arising from our revolutionary land reform that threatens our national economic interests.
“The current offshore diamond auctioning will soon be replaced by domestic auctioning and we are, in the meantime, proceeding carefully to ensure that we deal direct with big boys and not the small fish that are buying diamonds and reselling them at a premium.”
True to the minister’s word, the Zimbabwe diamond price leaped from an average of US$38 per carat in 2013 to the latest price of US$75.
In its dossier to the European Commission on the Resolution on Kimberly Process, the Belgian government said, “It is a fact, however, that human rights can also be infringed on by governments on a large scale, as is the case in Zimbabwe.”
This statement is clearly an indictment of President Mugabe’s government by the Belgians whose diamond industry desperately wants to buy the whole of current and future production of our diamonds.
The on-going legal challenge in Belgium is a replica of similar claims made by other “judgment creditors” of the Zimbabwean Government who won judgments and awards in other Western jurisdictions.
In 2011, the Funnekotter also lost in a United States district court when they approached the court, seeking to freeze funds belonging to ZB Bank, CBZ, ZMDC and the Mineral Marketing Corporation of Zimbabwe because they “are instrumentalities of Zimbabwean Government”.
This was in pursuit of an eight million Euros award for “the lost farmland”.
In his landmark ruling, Judge McMahon said these were separate entities from the Government of Zimbabwe and not instrumentalities.
It will, therefore, be interesting to see if the Brussels High Court, presiding on a matter of identical facts, will rule differently from what an American District Court Judge ruled.
Minister Chidhakwa’s plan to commence home diamond sales is very plausible as it allows these transactions to prosper without external interference.
When De Beers moved its sighting portfolio (diamond auctioning) from London to Gaborone, Botswana, prophets of doom declared that that was the end of De Beers.
To date, the sightings have been oversubscribed and this proved a point that Africa’s gems can be sold on the same soil they are mined.
Tafadzwa Musarara is Chair of Resources Exploitation Watch
