SUPREME Court judge Justice Chinembiri Bhunu on Tuesday reserved judgement in a case in which Harare business tycoon, Tendai Mashamhanda, son of the business mogul Alex Mashamhanda, the founder of Mashwede Holdings, is seeking eviction from a property he bought for US$230 000 from Harare lawyer Pihwai Chiutsi before developing it to the value of US$1,5 million after which the High Court ruled that it was sold to him in a fraudulent manner and therefore he must be evicted.
The High Court judgement number HH 637/23 delivered in November by Justice Takuva ordered that Mashamhanda be evicted from his home, known as The Remainder of Subdivision C of Plot 6 of Lots 190, 191, 193, 194 and 195 of Highlands Estate of Welmoed, also known as 41 Ridgeway North, Highlands, Harare.
However, in his Supreme Court appeal lodged by lawyer Professor Lovemore Madhuku, Mashamhanda applies, on an urgent basis, and in chambers, to a judge of the Supreme Court, for stay of execution of the judgment.
Barriade Investments (Private) Limited, a company that claimed at the High Court that it had bought the house in question at a public auction before Mashamhanda did in “a fraudulent manner”, is cited as first responded and the sherrif of the High Court as the second responded.
While Justice Bhunu is expected to deliver the judgement he has reserved, he is under spotlight for failing to recuse himself in the case after Mashamhanda wrote to Justice Minister Ziyambi Ziyambi on 6 December demanding that he resigns over mishandling of other cases involving the business tycoon.
Section 14 of the Judicial Service (Code of Ethics) Regulations, 2012, states as follows;
“14.(1). A judicial officer shall disqualify or recuse himself or herself in any proceedings in which the judicial officer’s impartiality may reasonably be questioned…”
The irrefutable import of the above quoted section 14 is that a judicial officer/Judge shall disqualify or recuse himself or herself in any proceedings in which the judicial officer’s impartiality may reasonably be questioned.
However, in the Supreme Court matter of Barriadie Investments (Pvt) Ltd and Tendai Mashamanda he has failed to recuse himself as stipulated by the law.
Part of the latest Supreme Court application by Mashamhanda reads:
“Take notice that the applicant hereby applies, on an urgent basis, and in chambers, to a judge of the Supreme Court for stay of execution of the judgment of the High Court in Case Number 3124/22, being Judgment No. HH 637/23, pending the hearing and determination by the Supreme Court of the appeal in SC 666/23.
“Take further notice that the specific order sought is in terms of the draft order annexed hereto and that the application is on the grounds that:
“ 1. The applicant has filed an appeal in SC 666/23 against the whole judgment of the High Court in Case Number 3124/22, being Judgment No. HH 637/23.
“ 2. The aforesaid judgment of the High Court seeks applicant`s eviction from his home, known as The Remainder of Subdivision C of Plot 6 of Lots 190, 191, 193, 194 and 195 of Highlands Estate of Welmoed, also known as 41 Ridgeway North, Highlands, Harare.
“3. In terms of section 74 of the Constitution, applicant cannot be evicted from his home without an order of court made after considering all the relevant circumstances.”
In the application Mashamhanda further states that by virtue of the aforesaid section 74 of the Constitution, an applicant with a right of appeal and who exercises that right to appeal against an order of eviction by a court of first instance, ought not be evicted pending appeal.
“Contrary to the foregoing position of the Constitution and also contrary to the common law, the High Court made a specific order that its order of eviction of the applicant from his home would not be suspended by the noting of the appeal to this Court. Accordingly, according to the High Court, the appeal in SC 666/23 will not suspend its order of eviction.
“The applicant has very bright prospects of success on appeal in SC 666/23. Given that the eviction is from applicant`s home where he has made huge improvements, it is in the interests of justice that the status quo be maintained pending appeal.
“Eviction of the applicant by the respondent is imminent to the extent that by close of business on 4 December, 2023, the respondent had already instructed the Registrar of the High Court to issue a writ of ejectment. 8. It is therefore extremely urgent that this matter be heard and determined before the eviction of the applicant,” reads another part of the Supreme Court application.
Mashamanda attached an affidavit as applicant, and the accompanying certificate of urgency that will be used in support of the urgent chamber application.
The Supreme court application in reference to Barriadie Investments (Pvt) Limited says:
“Further take notice that this application may be set down for hearing at any time by a judge of the Supreme Court. If you intend to oppose this urgent chamber application, you will have to file and serve your notice of opposition and supporting affidavits before or at the hearing or as otherwise directed by the judge who will hear and/or determine the application.
“If you do not file your notice of opposition and the supporting affidavits or if you fail to appear at the hearing, this matter may be heard in chambers as an unopposed application.”
In a letter of complaint dated 6 November 2023 addressed to Justice Minister Ziyambi Ziyambi complaining about how he is being forced to vacate his home, Mashamhanda outlined six points that prove that there was no auction where the house he purchased was bought by Barriadie before him.
“The Sheriff of Zimbabwe High Court of Zimbabwe conditions of sale are attached. In terms of condition number 2 of the conditions of sale, it is a requirement that the Sheriff must state the name of the highest and second bidder and any other information that may be relevant.
“In terms of condition number 5a of the conditions of sale, to participate in the auction sale all prospective purchasers shall deposit the sum of US$10 000 with the appointed auctioneer at least two days before the auction. Condition number 7 also states that the purchase price shall comprise of a deposit of US$10 000.00 to be deposited with the Sheriff at least two days before the date of sale.
“Bariadie did not pay the deposit to the auctioneer or to the Sheriff. It never alleged in its pleadings that it paid the deposit. It alleges that it paid the full purchase price of US$270 000.00 in October 2018. That means the deposit was paid more than a year after the auction,” reads the letter.
They were noticeable irregularities in the conditions of the sale form produced by Bariadie as proof it bought the house, which the business tycoon cited.
The name of the approved purchaser is made deliberately illegible, but it is not Bariadie. Space for the purchase price which was supposed to be paid is left blank.
The address is incomplete and the form is undated. Mashamhanda argues in his letter to Ziyambi that there is a reasonable suspicion that the form was signed in blank by one Kingston Hamutendi Munyawarara representing Bariadie and later completed by the secretary of the Judicial Service Commission Walter Chikwanha because it looks like his handwriting.
“The proof of payment receipt is nothing but fake. It’s made in favour of Kreamorn and not Bariade. The amount in words is two hundred and seventy dollars whilst the amount in figures is RTGS $270 000.00. The receipt is undated but has a Sheriff date stamp of 25th October 2018.
“I understand the police now hold bank statements showing a deposit of US$270 000. These statements are suspicious. The payment, if ever made, demonstrates beyond reasonable doubt that the deposit of US$10 000 which had to be paid before the auction was never made. We are aware that we are dealing with alleged fraudsters. The bank statement needs to be examined by forensic experts,” wrote Mashamhanda.