HIGH Court Justice Webster Chinamhora is in hot soup after he allegedly handed down a judgment in a case he never heard.
A complaint against him has since been lodged with Judge President Mary Zimba-Dube by the aggrieved party, a company called Balwearie Holdings (Pvt) Limited through its managing director Believe Guta.
Justice Chinamora is already under scrutiny, with Advocate Thabani Mpofu filing a complaint against him in February after another attorney, Advocate Taona Nyamakura, lodged a complaint against the judge for alleged conflict of interest in a legal dispute between Zimbabwe’s Delta Beverages (Pvt) Ltd, Schweppes Zimbabwe Ltd and Blakey Plastics (Pty) Ltd, a South African company.
A panel set up by the Judicial Service Commission (JSC) to review the complaint comprising judges Anne-Marie Gowora, Alfas Chitakunye and Custom Kachambwa concluded that Chinamora had a case to answer.
Chinamora was already facing a series of accusations ranging from conflict of interest, judicial misconduct, bribery to different forms of corruption.
The JSC recommended that President Emmerson Mnangagwa set up tribunals to investigate the suitability of Chinamora and former Bulawayo High Court judge Martin Makonese to hold office.
In April, Mnangagwa appointed a three-person tribunal chaired by retired Justice Professor Simbi Veke Mubako and consisting of Dr Gift Manyatera and Ms Sarah Moyo to inquire into the question of removal from office of Makonese but did not appoint a tribunal to investigate Chinamora.
While Makonese resigned immediately after members of the tribunal were sworn, Chinamora is yet to be tried for suitability to hold office.
Before the matter died down, Chinamora is already facing fresh allegations.
In a letter dated 25 October, the company 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 letters 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.— STAFF WRITER
