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TOP JUDGES GANGED UP AGAINST ME : BUSINESSMAN newsdzeZimbabweNewsdzeZimbabwe

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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. Sunday Mail

 

 




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