Tycoon demands resignation of deputy chief justice, judges

A HARARE resident, Tendai Mashamhanda, son of Mashwede Holdings owner and founder Alex Mashamanda, has written a letter to Justice minister Ziyambi Ziyambi demanding the resignation of Deputy Chief Justice Elizabeth Gwaunza and Supreme Court judges Antonia Guvava and Chinembiri Bhunu over corruption allegations and violations of the Judicial Service (Code of Ethics) Regulations, 2012.

BRENNA MATENDERE

The development comes after the resignation of High Court judge Webster Nicholas Chinamora after President Emmerson Mnangagwa finally appointed a tribunal to investigate the judge’s suitability to hold office.

 This followed the compilation of a damning dossier by the Judicial Service Commission alleging a litany of transgressions by the judge in the course of his duties.

Mashamhanda accuses the DCJ, Guvava and Bhunu of unfairly presiding over an appeal case at the Supreme Court  in which they accepted false evidence that a house he bought in Highlands, Harare, for US$230 000 before developing it to a value of US$1.5 million had been sold at an auction before by  Bariadie Investments (Private) Limited.

 He also accuses the three judges of again accepting false evidence that the house he bought from a Harare lawyer Puwayi Chiutsi had a caveat.

Caveat in Latin means “let him beware” and comes from the verb cavēre, meaning “to be on guard”. Caveats are used to protect interests in a piece of land or other property.

A caveat acts as a “freeze” on the property in question and prevents anyone else registering a dealing with that property that may be contrary to the interest of the person who lodged the caveat.

Mashamanda dismisses the issue of a caveat being registered against the Highlands property, saying it is false and devoid of merit because the Deeds Registry office stated that it did not exist. 

He also cited that in the magistrates’ court case of state versus Chiutsi number Dr 15/03/19 recorded at Rhodesvile Police Station under CR 21/02/19 it was established beyond reasonable doubt that there was no caveat. Mashamhanda says the conveyancer did a diligent search and found no caveat.

In the letter to Ziyambi dated 6 November 2023 seen by The NewsHawks, Mashamhanda said the judgement of the Supreme Court by the DCJ as well as Guvava and Bhunu contains gross elementary errors of facts and misleading statements.

 The Supreme Court matter in question is recorded as of Barriadie Investments (Pvt) Ltd and Tendai Mashamanda Case Number 372/23 dated 8 June 2023.

“I have previously raised serious complaints to your esteemed office on 31 May 2022, 25 August 2022 and 23 December 2022 and to date I am unfortunately yet to be favoured with a response to the aforementioned complaints. It is my considered opinion that the serious nature of these complaints warrants a response. I therefore remain humbly expectant that I will be favoured with a response to my complaints.

“In this letter I wish to bring to your attention further developments that clearly demonstrate how certain Judges are failing to perform their duties in accordance with the law… There has been unforgivable violations of the Judicial Service (Code of Ethics) Regulations, 2012 – as I will outline below,” he wrote.

Mashamanda said he wanted the three judges to resign.

 “Justice Bhunu dismally failed to recuse himself as stipulated by the law, yet I had previously written to the Honourable Minister of Justice, Legal and Parliamentary Affairs on 3 different occasions requesting him and other cited Judges (Bhunu, Gwaunza, Guvava) to resign. Despite this, the Judge did not recuse himself. The Honourable Judge had a personal interest in the matter but chose to disregard the law,” he wrote.

“The Supreme Court arrived at the judgement using falsehoods which I will demonstrate below… The judgement said that on the 18th of December 2017, the Appellant Bariadie Investments (Private) Limited (hereinafter referred to as ‘Bariadie’), participated in the sheriff sale by public auction of the First Respondent’s (Chiutsi) property.

 “This statement in paragraph 2 of the judgement is false. The property was never sold at an auction. There is a fraud case before the Magistrates Court — under case number Harare Central CR11339/09/21 CIDCCD DR 128/09/21 (for the alleged fraud)”

“The judgement also said that the Second Respondent, Mr Tendai Mashamhanda (being myself and hereinafter referred to as ‘Mr Mashamhanda’) was aware that a caveat had been endorsed on the Deed of Transfer. 

 “The statement is false as there was no caveat endorsed on the Deed of Transfer. It also said that Honourable Chitapi J. held an unscheduled hearing on the 20th of July 2021 (to determine whether the house was sold at an auction) and granted a default judgment in favour of Mr Puwayi Chiutsi (hereinafter referred to as ‘Mr Chiutsi’). This Statement is false. The hearing was duly scheduled as demonstrated by the record of proceedings. All parties were aware of the date of the hearing.”

Mashamhanda also protests paragraph 50 of the judgment the Supreme Court which stated that the legal fate of the application for leave to appeal remained in limbo.

He said there is no and has never been an application for leave to appeal against Justice Chitapi’s refusal to recuse himself and if any appeal ever existed it is a private matter between Tendai Biti (Bariadie’s lawyer), Bariadie and the Supreme Court. Mashamhanda also outlined six points that prove that there was no auction where the house he purchased was bought by Bariadie 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.

There are noticeable irregularities in the conditions of the sale form produced by Bariadie as proof it bought the house, which is now in possession of The NewsHawks.

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.

The NewsHawks also saw the commissioner’s certificate in terms of order 40 Rule of the High Court Rules 197.

The date of sale is shown as 15 September 2017. Bariadie Applicant’s Founding Affidavit dated 26 March 2019 states that on 18 September 2017, the applicant participated in a judicial auction at Raylton Sports Club Harare.

 The Sheriff’s acceptance letter dated 18 September 2017, addressed to Tendai Biti Law Chambers advised that the Sheriff declared the highest bidder Bariadie on 18 September 2017 that being the date of the auction.

This means Bariadie was declared the highest bidder three days before the date of the auction. The figure by the highest bidder is altered. There is no second bidder, no amount offered by the second-highest bidder, no attendance, no deposit, and no proof of funds.

The form is unsigned. These are the forms in the Sheriff’s Office, High Court, and Supreme Court records of proceedings that the three judges presided over.

Munyawarara claims that he represented Bariade Investments at a judicial auction on 18 September 2017. He failed to produce a company resolution authorising him to represent the company. The one produced is dated 6 November 2018, more than a year after the auction.

The company resolution states in paragraph 3 “that the company hereby ratifies and adapts as valid any documents already signed and acts performed by any of the Directors with the purchase of the property”. This clearly demonstrates that there was no company resolution at the time of the purported auction.

“If Mr Kingston Hamutendi Munyawarara attended the fake auction he represented himself not Bariadie Investments. Bariadie Investments cannot be a winner at a fake auction it never attended.

“The auction documents are fake and, in my opinion, cannot pass scrutiny at any level let alone in a Court of law. The Supreme Court found these documents are in order. In my view the fake documents demonstrate quite clearly that the subject property was not auctioned,” reads Chimhanda’s letter to Minister Ziyambi.

 He also complained that paragraph 34 of the Supreme Court judgement by the three judges states that “the judgment (default judgment) was handed down a day before the hearing of this appeal.”

“This statement is not true.  The record of proceedings shows that the default judgment was handed down in the High Court on the 20th of July 2021 and not on the 15th of September 2021. The Supreme Court goes on to say that the counsel for both Bariadie and Tendai Biti Law expressed some disquiet at this turn of events and expressed the view shared by the Court that the default judgment in question should not deter the hearing of the appeal.

“This is shocking because firstly, these views were never expressed in an open Court; secondly, if the views were stated in Court why does the Supreme Court not care to state the views of Counsel for the other parties?” writes Mashamhanda. Paragraph 40 of the Supreme Court judgement which Mashamanda says was born of corruption states that “the first Respondent in the main application alleged that Honourable Mathonsi J judgment was granted in error because the first respondent Mr Chiutsi had since discovered that some false evidence concerning one of the parties had been put before the Court.”

 However, he says this is not correct.

“The statement in the Supreme Court Judgment is not reflective of the true position which is that the property was never auctioned and any confirmation of the sale by the Sheriff and the High Court is null and void. This cannot be said to be some false evidence concerning one of the parties. This was a fraudulent act, and the matter is before the criminal Courts,” he wrote.

In paragraph 42, the Supreme Court judges also state that: “the first Respondent who was a Respondent in the application for leave to appeal ended up with a judgement in his favour in the application he filed in terms of rule 449 without the matter being heard and determined on merits.”

However, Mashamanda says this statement is “unfortunate and a deliberate distortion of facts”. In an interview with The NewsHawks, Mashwede Holdings director Alex Mashamanda, who is Tendayi’s father, said he supported the request for the three judges to resign.

“It is clear that the judgement violated the ethics of the judiciary and under such circumstances the judges must resign. People must be subjected to judges that they have trust in,” he said.

The prominent businessman explained the amount of prejudice suffered by his son.

“My Son bought a house from Puwayi Chiutsi for US$230000. The full purchase price was paid to a conveyancer to be held in trust until transfer was done. Transfer went through on 8 February 2019. Tendai got his title deed and the purchase price was released to Chiutsi the seller.

 Before signing the agreement of sale we checked and ensured that there was no caveat registered against title Deed. Deeds officials through the Magistrate Court confirmed that there was no caveat. Biti filed an urgent chamber application seeking cancellation of Tendai title deed claiming falsely that there was a caveat registered against the title deed.

 “He lost the case and appealed to the Supreme Court. Bariadie claimed to have bought the house at an auction. He filed an application at the High Court seeking cancellation of Tendai’s title deed. Bariadie lost the case and appealed to the Supreme Court. The High Court through Chitapi J found that there was no caveat and that the property was not auctioned. Tendai was an innocent purchaser.

“The Supreme Court corruptly created a caveat and a fake auction and lied that a default Judgement by The High Court was irregular.  Prejudice to my son is the value of the house and substantial legal costs. The total prejudice is around US$1,8 million. He carried out massive improvements to the property,” he said.