THE complainant in a case in which High Court judge Webster Chinamora is accused of giving a ruling without a hearing has been arrested and detained by the Zimbabwe Anti-Corruption Commission (Zacc) since Friday last week, The NewsHawks has learnt.
NATHAN GUMA
Believe Guta, the managing director of a company called Balwearie Holdings (Pvt) Limited, had lodged a complaint against Chinamora with Judge President Mary Zimba-Dube.
Guta’s lawyer Professor Lovemore Madhuku (pictured) confirmed his arrest to The NewsHawks, saying they are going to appeal to the High Court. In its request for placement on remand dated 4 November, Zacc said Guta allegedly defrauded another company, Balwearie Holdings (Pvt) Ltd 1977 of its land situated in the District of Hartley, known as the remainder of Westhey of Sabonabona Estate measuring 97, 0653 hectares, and lied to the Sheriff of Court.
“On May 29 1997, Balwearie Holdings Private Ltd through its secretary Donald Irvine Priddy made an application for Subdivision to Kadoma Municipality for the creation of agro-residential stands on the said piece of land which was finally granted by Kadoma Municipality on September 1997,” Zacc said.
“After obtaining the subdivision permit, Balwearie Holdings (Pvt) Ltd entered into agreement of sale with Edmore Samson on 01 October 1999 in which Balwearie Holdings (Pvt) Ltd was to sell the said piece of land to Edmore Samson for US$91 000, which was payable in installments. These installments were to paid through a company called Parameter Investments (Pvt) Ltd which was trading as Paragon Estate.
“However, in 2002 Louis Minnar Heyns passed on while Edmore Samson had not finished paying instalments for the property resulting in the cancellation of the Agreement of Sale through an Arbitral Award and Writ of Execution. At the time the agreement cancelled, several individuals who had purchased stands through Parameter Pvt Ltd were kept pending regularization of their agreements of sale by Balwearie Holdings (Pvt) Ltd.”
“Pursuant to their plan to defraud Balwearie Holdings (1977) of its private land around June 2020, the accused persons working in common purpose approached the registrar of companies and successfully registered a new company with an identical name being Balwearie Holdings Private Ltd. The accused instituted High Court proceedings in Case Number HC 2860/20 where they sought a declaratory order to the effect that Balwearie Holdings Pvt Ltd be declared the only legitimate company to continue operating as such.”
Zacc accused Guta of intentionally provided the Sherriff of the High Court of Zimbabwe with a wrong address of service for Balwearie Holdings Private Limited (1977) as Balwearie farm Kadoma.
“They provided a wrong address, well knowing that Balwearie Holdings Private Limited (1977) had no such address resulting in the Sherriff serving a summon to a person only mentioned as Matiki with national identity number 75- 035564V75 who is neither an employee or representative of Balwearie Holdings Private Limited (1977).
“On court day, no Balwearie Private Holdings Limited (1977) representative was present to follow the court proceedings resulting in the accused persons obtaining a default judgement in their favour that Balwearie Holdings Private Limited (1977) be dissolved, and Balwearie holdings Private Limited (2020) be the only legitimate company in existence using company name Balwearie Holdings (Pvt) Ltd and that it be the legitimate owner of the reminder of Westhey of Sabonabona Estate measuring 97, 0653 hectares.”
Zacc says after getting the said judgment, the Guta and others through their lawyers Bherebende Law Chambers went on and served eviction notices to 69 Westhey Sabonabona residents who had bought their agro-residents stands from Parangona Real Estate.
The eviction notices served to the residents were premised on the fact that the residents were illegally occupying the accused persons’ land and that they had to approach the accused persons’ land and that they had to approach the accused persons’ offices and to pay a fee to regularize their occupation, Zacc said.
“Furthermore, the accused persons went on and register a company called Sabre Services (Pvt) Ltd to mimic the company called Sabre Services (Pvt) Ltd (2005) which used to file annual returns for Balwearie Holdings Private Limited (1977]). After registering this company in 2020, the accused persons purporting.
“Investigations also established that the address supplied by Alois Mabhunu as his address of service that is, Room 208, 3rd Floor, Equity House, Rezende Street, Harare is the same as of Peterson Marivadze who was eventually appointed as the liquidator for Gatooma Development Corporation Private Limited. Prior to his arrest, Guta, representing Balwearie Holdings (Pvt) Ltd had filed a complaint against Chinamora with Judge President Mary Zimba-Dube, after he allegedly handed down a judgment in a case he never heard. In a letter dated 25 October, Balwearie Holdings (Pvt) Ltd said it has also gathered information that the Judge allegedly connived with a certain legal practitioner to defeat the course of justice by favouring one of the parties in that matter. “We beg leave to tender supplementary submissions on this point. We shall prove that the Judge was in constant communication and meetings with the lawyer in question,” reads the letter to the Judge President.
Narrating the alleged abuse of office by the judge, Guta said in July 2020 they were served with an application under case number HC3847/20 and they duly instructed their lawyers, Bherebende Law Chambers, to oppose the papers.
Applicants, another realtor, in the said case, attached to the application documents which were purported to have been prepared by a company called Sabre Services (Pvt) Limited.
When Sabre directors learnt of this, they filed an application for joinder under case HC5399/20. The letter says one Advocate Agyver Sawunyama appeared for Balwearie Holdings and advised the judge that there was a pending application for leave to file a supplementary affidavit, which needed to be determined before case under HC3847/20 could be entertained.
Further, it is also alleged the judge issued an order directing the Registrar of the High Court to locate records HC5399/20 and HC5431/20 and place them together with HC3847/20.
The matter was then postponed to 6 April 2021. In June 2021, Chinamora heard the joinder application and reserved judgement.
He then directed that the application for leave to file a supplementary affidavit under case HC5431/20 and the main matter involving property dispute under HC3847/20 would be heard after delivery of the ruling on the application for joinder.
Balwearie notes that from June 2021 to date, three years on, the honourable judge is still withholding judgment in the joinder application by Sabre Services (Pvt) Limited, which is not permissible at law.
“While the judgment is still reserved, the Supreme Court in SC 329/21 dealt with another case involving the Applicant in case number HC 3847/20. The Supreme Court upheld a High Court Judgement which ruled that the party which is the Applicant in HC 3847/20 is non-existent hence it cannot sue or be sued,” reads the letter.
“Realising that the Supreme Court ruling had the effect of disposing case number HC 3847/20, our lawyers wrote to the Judge advising him of the Supreme Court Judgement.”
“The company noted with concern that while it was still waiting for the ruling on the joinder application by Sabre Services (Pvt) Ltd under HC 5399/20, on the 17th of October 2023 our lawyer Mr Bherebende received a call from Justice Chinamhora’s clerk inviting parties to note judgement which was to be handed down by the Judge in his Chambers.
“We were advised and together with our lawyers we went to the High Court where we met another lawyer from Zvobgo Attorneys who was representing the other party. When we entered into the Judge’s Chambers, he handed down judgement number HH 559/23. What is worrying is that the Honourable Judge delivered judgement in case number HC 3847/20 which was not heard or argued. He did this knowing very well that the case was not heard or argued.”
Balwearie said the judge also knew that there is a party, Sabre Services (Pvt) Ltd, which wanted to be joined in that case and judgment on whether it will be joined or not is still being reserved by him. Following this development, the company went to the registry where they were shown a copy of the judgment. They were advised that it was not yet accessible officially because the judge had summoned it back.
They explained: “We then requested for a photocopy which we attach hereto as Annexure C From the said judgement it indicates the date of hearing as the 17th of October 2023 and it indicates that Advocate Hashiti and T. Makamure appeared for the applicant while Advocate Saunyama appeared for the respondents.
“Seeing this we quickly emailed Advocate Saunyama who denied to have appeared before Justice Chinamhora on the 17th of October 2023. We also got hold of Advocate Hashiti who also denied to have appeared before Justice Chinamhora on the 17th of October 2023.”
On the 19th of October 2023 the parties were invited to appear in the judge’s chambers. The Judge President was told that during that time the judge admitted that he had delivered judgment on a case which was not heard or argued. He claimed that this was an error on his part.
Chinamora allegedly suggested that he can just destroy the printed judgment and delete it from the system as a way of correcting his error.
“We did not agree with his suggestion, preferring that he should on his own initiative simply issue another judgement rescinding his ‘erroneous one’ as provided for in Rule 29 of the High Court Rules, 2021.”
The judge directed that parties appear before him on 20 October 2023 so that he can deliver judgment rescinding the judgment which he delivered on 17 October 2023.
“We went on the 20th of October 2023 and were told to come again on the 24th of October 2023. We went again on the 24th of October 2023 but up to now the judge is still yet to rescind his judgement and his erroneous judgement is not officially accessible on the system since he caused it to be removed. As it stands we cannot appeal or file any application because we have no access to the officially stamped judgement,” reads the letter.
“We submit that through the conduct narrated above, the Judge in question has acted fraudulently, breached his oath of office, violated both the law and the rights of the parties.”
Guta further complained: “This is not the first time for the judge to unlawfully deliver judgement on matters and then claim that it is an error. He did the same in May 2022 when he ordered an unconditional release of a suspect, Amos Chimbiru who had been sentenced to 10 years for contravening section 60A of the Electricity Act (Chapter 13:19. The judge claimed that he had made an error. What the Judge did is akin to a doctor who issues Covid-19 results on a patient without testing the patient and then call that an error. This brings into question his competence.”
Guta said because the judgment was deleted from the system, this has left the complainant without a recourse.
“We cannot institute any proceedings for corrective measures without the stamped judgement from the system. Both us and Sabre Services (Pvt) Ltd have suffered prejudice financially and also in that our rights were violated,” he wrote
