Top judges in the eye of a storm

07 Aug, 2022 - 00:08 0 Views
Top judges in the eye of a storm

The Sunday Mail

Sunday Mail Reporters

A Harare businessman has written a letter of complaint to Justice, Legal and Parliamentary Affairs Minister Ziyambi Ziyambi raising allegations of criminal abuse of office, conflict of interest and obstructing the course of justice against Deputy Chief Justice Elizabeth Gwaunza and other judges.

In a letter dated May 31, Mr Tendai Mashamhanda raises several red flags over the manner the Supreme Court handled his property dispute case and alleges collusion among senior judicial officers and lawyers to influence the case’s outcome.

Part of the 26-page letter of complaint, seen by The Sunday Mail, reads: “The truth was sacrificed. In my humble opinion, the Honourable Justices of the Supreme Court abused independence of the Judiciary, the supremacy of the Supreme Court as the final court of appeal in non-constitutional matters.”

He said the Justices had “breached their oaths of office” and therefore “must resign to prevent further damage to the integrity of our justice system”.

The letter was copied to the Attorney-General, Special Anti-Corruption Unit, the Judge President, The Registrar of Deeds, Law Society of Zimbabwe and Commissioner-General of Police.

Minister Ziyambi confirmed receipt of the letter, saying the complaint was subject to the ministry’s internal processes.

“Due to the nature of the sensitivities involved because there are serious allegations being made about a senior jurist, we cannot be seen to be making public comments about that,” he said.

Asked to comment, Deputy Chief Justice Elizabeth Gwaunza directed The Sunday Mail to the Judicial Service Commission (JSC).

“Kindly refer the papers that you have on this matter to the Secretary, JSC. The JSC has the authority to appropriately attend to the complaint,” she said.

JSC Secretary Mr Walter Chikwana said: “The letter was directed to the Minister (Ziyambi Ziyambi), so only the Minister or his Permanent Secretary can comment on its contents. It was not addressed to the JSC and that makes it difficult for me to speak on it.”

At the centre of the dispute is a Harare property in Highlands bought by Mr Mashamhanda in 2019 from lawyer Mr Puwayi Chiutsi for US$230 000 through a local real estate agent.

Two weeks later, Harare lawyer Mr Tendai Biti, who was allegedly representing one Mr Eliot Rodgers, filed an urgent chamber application at the High Court seeking cancellation of Mr Mashamhanda’s title deed, which marked the beginning of what was to be a long battle in the courts.

Around 2002, Mr Rodgers was Mr Chiutsi’s client in an inheritance case.

Mr Rodgers, who was at the time based in the United Kingdom, instructed Mr Chiutsi to sell the two properties he won in the inheritance dispute — one in Mutare and another in Mount Pleasant, Harare.

Mr Chiutsi remitted funds from the sale of the Mutare property, but did not send Mr Rodgers the full amount realised from the sale of the Mount Pleasant property.

In his application, through his lawyer Mr Biti, Mr Rodgers claimed the contested property in Highlands, Harare, had been attached from Mr Chiutsi following a wrangle with the latter over US$70 000 in trust money, which he didn’t surrender after the sale of the Mt Pleasant property.

As a result, it was alleged Mr Mashamhanda could not legally acquire the property because it had a caveat.

In response, Mr Mashamhanda insisted that he had taken all the necessary precautions to ensure that the title was unencumbered and secure.

The matter was heard before High Court judge Justice Jacob Manzunzu, who dismissed the application on March 27, 2019, before Mr Rodgers appealed to the Supreme Court.

Later that year, Bariade Investments, a Harare company, alleged to have been the highest bidder at the auction held in 2017 for the Highlands house attached from Chiutsu after the dispute with Mr Rodgers, filed an application seeking the same relief as Mr Rodgers – the cancellation of Mr Mashamhanda’s title deed.

“During the hearing before Honourable Justice (Tawanda) Chitapi, Puwayi Chiutsi filed documents alleging that his (Highlands) house was never auctioned,” said Mr Mashamhanda.

The court dismissed Bariade’s application.

Mr Biti’s claim, according to the businessman, was premised on a previous debt that Mr Chiutsi had over the sale of the Mt Pleasant property.

However, when the aggrieved Harare businessman bought the property from Chiutsi, the lawyer then paid the debt he owed Mr Rodgers’ through Mr Biti.

Just as Mashamanda thought the matter was settled since Mr Rodgers was paid the outstanding amount and two officers from the Deeds and Registry Office (Ellen Mawire and Prettmore Tsiga) had filed affidavits proving the property did not have a caveat, Bariade Investments then made its application seeking to set aside Mr Mashamhanda’s title deed.

Bariade claimed it had bought the same property at an auction by the Sheriff of the High Court that was purportedly conducted on September 17, 2017.

Apparently, High Court judge Justice Nicholas Mathonsi had confirmed the auction in a ruling on October 3, 2018.

However, Mr Chiutsi then approached the courts seeking to set aside the judgment by Justice Nicholas Mathonsi.

Between February 2020 and July 2021, Mr Mashamhanda alleges that Mr Biti and lawyers representing Bariade Investments came up with all manner of tactics to delay hearing of the case at the High Court.

When The Sunday Mail contacted Mr Biti for comment, he said he was in court and could not talk.

A message was later sent to his mobile phone via Whatsapp, which “blue-ticked”, indicating that he had read it, but he chose not to respond.

Tactics listed in the letter include application for judge recusals, application for postponements and non-appearance by lawyers.

After a long process, Justice Chitapi issued a default judgment against Bariade and Mr Biti on July 20, 2021.

However, the two parties appealed the judgement.

But, through his lawyers, Mr Mashamhanda wrote to the Supreme Court to remove the cases brought by Bariade and Biti from the Supreme Court’s roll.

The case was not struck off the roll, but was determined by a bench comprising Deputy Chief Justice Gwaunza and Justices Chinembiri Bhunu and Antonia Guvava.

The ruling – delivered in February 2022 – cancelled deed number 708/19, which was held by Mr Mashamhanda.

However, the businessman alleges foul play in the manner in which his case was handled at the Supreme Court.

He believes the Supreme Court bench ignored critical evidence which changed the outcome of the case.

“The Honourable Deputy Chief Justice appears to have had an unknown special interest in the appellant’s case. As pointed out, the appellant and the Sheriff breached all conditions of sale. Turning a blind eye to the fraud brought to the attention of the High Court by Chiutsi during the hearing before Justice Chitapi in 2019 does not resolve fraud.

“Judicial auction sales documents are public documents, if they cannot be produced in more than three years after the event, it can only mean one thing: There was no auction unless the intention is to give parties an opportunity to doctor documents,” Mr Mashamhanda wrote.

Documents of the purported auction of the Highlands property, allegedly held by Sheriff of the High Court McDuff Madega in 2017, shows that Bariade Investment was the highest bidder at US$270 000.

Mashamhanda claims that Order 40 (Rules 353(2) of the High Court Rules prescribe that “the public auction shall be held in the presence of the Sheriff and or his commissioner who shall certify that the public auction was duly and properly conducted. In his certificate, the Commissioner shall state the name of the Judgment Debtor and the Judgment Creditor, the amount of the purchase price, the name of the highest bidder and the second highest bidder and any other information that may be relevant to the sale.”

But it is claimed in the Commissioner’s Certificate presented as evidence in court that only Bariade Investments is listed and the second bidder is not named, as is prescribed by rules of the court.

There is a receipt, which was presented by Bariade Investments and the Sheriff as the proof of payment from the auction.

The receipt bears a stamp by the Sheriff of Zimbabwe accounts office dated October 25, 2018, which is 13 months after the date of the alleged auction.

But Rule 10 of the rules governing conditions of sale reportedly state that the Sheriff of the High Court must confirm sale within 14 days if there is no objection raised.

Sales are only confirmed after payment of full amount.

Mr Mashamanda alleges that evidence suggest that full payment of the property was made 13 months after Bariade had supposedly won the bid.

McDuff Madega, then Sheriff of the High Court, who handled the contentious auction, is currently facing 19 charges of criminal abuse of office for illegal auctioning off properties.

A clegal clerk at Mr Biti’s law firm, one Constance Chaza, is also facing allegations of tendering a fake special power of attorney from Eliot Rogers, which Mr Biti had been using to collect money from the sale of the Mt Pleasant property and file court applications.

Mr Kurauone Madzivanyika, a forensic expert at the ZRP Forensic Science Laboratory, studied the documents presented as power of attorney and other documents said to be from Mr Rogers and concluded they were not authored by the same person.


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