Identifier
Created
Classification
Origin
05MAPUTO145
2005-01-31 14:58:00
CONFIDENTIAL
Embassy Maputo
Cable title:  

OPIC/NYATI BEACH DEVELOPMENTS - U.S. INVESTOR

Tags:  EINV MZ OPIC 
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This record is a partial extract of the original cable. The full text of the original cable is not available.
C O N F I D E N T I A L SECTION 01 OF 02 MAPUTO 000145 

SIPDIS
STATE FOR AF/S, AF/EPS, EB/IFD/OIA
DEPT PASS TO MCC FOR HARRINGTON AND GAULL
NSC FOR TEITELBAUM
STATE PASS OPIC FOR WATSON AND SHORE
E.O. 12958: DECL: 01/31/2015
TAGS: EINV MZ OPIC
SUBJECT: OPIC/NYATI BEACH DEVELOPMENTS - U.S. INVESTOR
EVICTED, SUPREME COURT ORDERS EVICTION SUSPENDED

REF: A. MAPUTO 25


B. 2004 MAPUTO 1539

C. 2004 MAPUTO 1446
Classified By: Ambassador Helen La Lime, Reasons 1.4(b) and (d)

C O N F I D E N T I A L SECTION 01 OF 02 MAPUTO 000145

SIPDIS
STATE FOR AF/S, AF/EPS, EB/IFD/OIA
DEPT PASS TO MCC FOR HARRINGTON AND GAULL
NSC FOR TEITELBAUM
STATE PASS OPIC FOR WATSON AND SHORE
E.O. 12958: DECL: 01/31/2015
TAGS: EINV MZ OPIC
SUBJECT: OPIC/NYATI BEACH DEVELOPMENTS - U.S. INVESTOR
EVICTED, SUPREME COURT ORDERS EVICTION SUSPENDED

REF: A. MAPUTO 25


B. 2004 MAPUTO 1539

C. 2004 MAPUTO 1446
Classified By: Ambassador Helen La Lime, Reasons 1.4(b) and (d)


1. (C) Summary: OPIC-supported American investor Dave
Herbert was evicted from his Nyati Beach Lodge on January 6
based on a new provincial court order. Mozambique High
Court has issued a dispatch suspending that order, but the
provincial judge has refused to enforce the suspension.
Mr. Herbert and his legal team are trying to determine how
to ensure that the High Court order is quickly enforced.
His lawyers have heard about a power the Prime Minister has
to compel enforcement, but we do not know how applicable
this is. Ambassador has engaged several senior GRM
officials, including the Foreign Minister, an adviser to
outgoing President Chissano, and the Justice Minister.
Both Chissano and Prime Minister Diogo have been actively
involved. The Ambassador has been informed that the
provincial judge will not be allowed to defy the Supreme
Court dispatch indefinitely, but we are not able to predict
when the issue will be resolved. President-elect Guebuza
will be inaugurated February 2 and his government named
soon afterwards, and the transition may be complicating
matters. Post will engage the officials of the new
government on Mr. Herbert behalf. End Summary.

Claimant Obtains New Order, Evicts Amcit
--------------

2. (SBU) On January 6, Zimbabwean claimant Rex Potter
arrived at OPIC-supported Amcit investor Dave Herbert Nyati Beach Lodge with Inhambane provincial police in order
to take possession of the property and evict guests and
staff. Potter claim is based on a 1994 concession that
includes land on which the Nyati Lodge stands, along with
March 2004 and October 2004 rulings by the Inhambane
provincial judge confirming his rights to the land (ref
C). Since mid-October 2004, Potter had attempted previous
evictions of the lodge with private security forces in
tow. The October order had no provisions for eviction, so
Minister of Interior Almerino Manhenje had previously
denied Potter the use of local police for his evictions

attempts. Potter obtained on January 3 an order that did
authorize the use of police for eviction.


3. (SBU) There was no reported physical violence or
property damage in the eviction. The Danish guests who
wished to remain were allowed to stay for the remainder of
the weekend. Mr. Herbert staff and guests had been fully
evicted by early the following week. There were no
American guests at the lodge at the time of the eviction.

President Intervenes, Supreme Court VP Acts
--------------

4. (SBU) According to Mr. Herbert, Minister of Environment
(and Vilanculos Wildlife Sanctuary board member) John
Kachamila convinced President Chissano to intervene. On
January 10, Chissano reportedly called High Court President
Mario Mangaze, who told him he had never received the order
that Attorney General Madeira had told the Ambassador on
November 23 that he would send (ref B). Chissano then
reportedly called Madeira, who told him that the order had
actually never been sent. Chissano then organized a
meeting of Mr. Herbert legal team with Vice President of
the High Court Luis Sacramento; Judge Sacramento told the
lawyers that if they filed an appeal directly to the High
Court the next day, he would issue a suspension order a
week later.


5. (SBU) On January 19, Judge Sacramento issued a dispatch
to the court in Inhambane, ordering the court to issue a
suspension of its January 3 order, which had authorized
eviction. (The October 2004 order was left untouched.)

Provincial Judge Refuses to Comply
--------------

6. (SBU) The Inhambane judge refused to issue the order,
however, allowing Inhambane police to continue occupying
the Nyati Lodge, in defense of Mr. Potter and his
partners. Emboff spoke with the Interior Minister Chief
of Staff on January 24 and also on January 26. The
official said that the provincial police could not act
without an order from the provincial judge, and that the
Ministry had its hands tied. Embassy legal counsel
reinforced that opinion, and post decided that a meeting
with the Minister of the Interior would not be productive.

Foreign Minister Confirms Presidential, PM Involvement
-------------- --------------

7. (C) On the afternoon of January 26, Ambassador raised
with Foreign Minister Leonardo Simao the USG concern over
the delay in enforcement of the court order. Simao
confirmed that President Chissano had tried to help resolve
the matter, and he said that Prime Minister Diogo had taken
action in the last week as well. He said that the
Mozambican system would not tolerate disobedient judges,
but added that he could not say when he thought the
situation would be reversed. He urged the Ambassador to
talk with the Minister of Justice, Jose Abudo. He added
that contacting the Minister of Interior would be neither
appropriate nor effective.

Possible Alternate Enforcement Method
--------------

8. (SBU) Later that afternoon, Mr. Herbert informed post
that Judge Sacramento had told one of Herbert attorneys
that morning that he (Sacramento) could not order the
Interior Minister to enforce Sacramento order, but that
the Executive, in the form of the Prime Minister, had the
power to enforce judicial decisions by issuing orders to
provincial governors, who are appointed by the Council of
Ministers. It was not clear whether Mr. Herbert attorneys had already contacted the Prime Minister office.


9. (SBU) Post reviewed this issue with legal counsel
immediately, as it had been announced that the Chissano
government would be dissolved as of midnight that night in
preparation for the February 2 inauguration of
President-elect Guebuza. Counsel, who had not heard of the
mechanism, believed that the chain of command described by
Mr. Herbert seemed plausible, but he could not guarantee
that the mechanism was legal, or confirm that it was
accepted practice. Post decided that the lack of
information about precedent and procedure for this
mechanism, the imminent dissolution of the government, and
the fact that the Prime Minister was already engaged in the
matter and presumably aware of her authority, meant that an
approach would not be productive at that time.

Presidential Advisor Expects Eventual Resolution
-------------- ---

10. (C) On January 27, the Ambassador discussed the
provincial judge defiance of the High Court dispatch with
Ambassador Carlos dos Santos, a close adviser to President
Chissano. Dos Santos confirmed that President Chissano had
taken action. He further indicated that the Supreme Court
dispatch was largely due to the efforts of Tourism Minister
Sumbana. Dos Santos agreed that the insubordination of the
provincial judge would not be allowed to stand. However,
he asked for understanding of the delays, saying that the
government was going through a difficult transition as
government officials prepared to make way for the incoming
government. On January 28, the Ambassador raised the case
with Minister of Justice Abudo. The Ambassador spoke to
Dos Santos again at the investiture of the new National
Assembly on January 31, and dos Santos said he had made
another approach to the head of the Supreme Court. He
doubted that the outgoing Justice Minister could do much at
this point, and he told the Ambassador he would get back to
her.

Obstruction Charges Against Herbert
--------------

11. (SBU) Separately, Mr. Herbert attended a hearing on
January 27 to face obstruction of justice charges filed by
Potter related to the October order. Post spoke with Mr.
Herbert on January 26 and twice on January 27. Mr. Herbert
declined post offer to have an officer attend the
hearing, saying that the worst that could happen was that a
trial could be ordered. The hearing was non-eventful; the
prosecutor will continue to study the case, and no decision
to hold a trial has been taken.

Next Steps and Comment
--------------

12. (SBU) President-elect Guebuza takes office February 2,
and we expect his ministers to be appointed that night or
on the next day. Post will continue its efforts on behalf
of Mr. Herbert with the new government on all appropriate
occasions.
LA LIME