Top judges face probe

Harare Bureau
A TOP Harare businessman has written a letter of complaint to Justice 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 to Minister Ziyambi, Mr Tendai Mashamhanda raises several red flags over the manner the Supreme Court handled his property dispute case and alleges collusion between the 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 also copied to the Attorney General, Special Anti-Corruption Unit, Judge President, The Registrar of Deeds, Law Society of Zimbabwe and Commissioner General of Police.

Minister Ziyambi confirmed receiving 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. Commenting on that will subject us to criticism that may jeopardise the entire process.

“So while I can say I have received something, that is all I am privy to say. Taking into cognisance this is an office of a judge and the perceptions around its independence and lack of, your story may jeopardise our processes if I am to comment.”

Asked to comment, Deputy Chief Justice Elizabeth Gwaunza directed The Sunday Mail to the Judicial Services 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 Chikwanha said:“The letter was directed to the Minister, 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,” said Mr Chikwanha.

At the centre of the dispute is a Harare property 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 cancelation of Mr Mashamhanda’s title deed, stirring up what was to be long battle in the courts.

Around 2002 Mr Rodgers was Chiutsi`s client, in an inheritance case.

Rodgers who was at the time based in the United Kingdom, instructed Chiutsi to sell the two properties he won in the dispute, one in Mutare and another in Mount Pleasant in Harare.

Chiutsi remitted funds from the sale of the Mutare property, but did not send 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 property had been attached from Mr Chiutsi following a wrangle with his former client Mr Rodgers over US$70 000 in trust money.

As a result, it was alleged, Mr Mashamhanda could not legally acquire the property because it was burdened by 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 Justice Jacob Manzunzu who dismissed the application 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 for the house, filed an application seeking the same relief as Mr Rodgers.

In its application, the company alleged that it had bought the property through an auction in 2017.

“During the hearing before Honourable Justice (Tawanda) Chitapi, Puwayi Chiutsi filed documents alleging that his house was never auctioned.”

The court dismissed the application.

Mr Biti’s claim according to Mr Mashamhanda, was premised on a previous debt that Mr Chiutsi held.

Just as he thought the matter was settled since Rodgers was paid the outstanding amount through Biti, and Chiutsi had been acquitted, supported by statements from two officers from the Deeds and Registry Office; Ellen Mawire and Prettmore Tsiga,  Bariade Investments emerged seeking to set aside Mr Mashamhanda’s title deed.

This was on the premise that they had bought the same property at an auction by the Sheriff of the High Court said to have happened on September 17 2017.

Mr Chiutsi then approached the High Court seeking to set aside a judgment by Justice Nicholas Mathonsi on October 3 2018, which confirmed the auction.

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 and it “blue-ticked”, indicating that he had read it, but 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 on July 20 2021.

Through his lawyers Mr Mashamhanda wrote to the Supreme Court to remove the cases brought by Bariade and Biti to the Supreme Court from the roll.

The case was not struck off the roll, but was determined by a bench comprising Deputy Chief Justice Gwaunza, Justice Chinembiri Bhunu and Justice Antonia Guvava.

The ruling, delivered in February 2022, cancelled deed number 708/19, which was held by Mr Mashamhanda.

He alleges foul play in the manner in which his case was handled at the Supreme Court.

The businessman 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 seen by The Sunday Mail show an anomaly in the manner in which the auction, which saw Bariade investments laying claim to the house in dispute, was conducted.

The auction, allegedly held by Sheriff of the High Court McDuff Mageda in 2017 shows that Bariade Investment was the highest bidder, valuing the house at US$270 000.

Order 40 (Rules 353(2) of the High Court Rules state 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.”

In the Commissioner’s Certificate presented as evidence in court, only Bariade Investments is listed and the second bidder is not named, as is prescribed by the rule above.

There is a receipt, which was presented by Bariade Investments and the Sheriff as the proof of payment.
The receipt bears a stamp by the Sheriff of Zimbabwe accounts office dated 25 October 2018, which is 13 months after the date of the alleged auction.

Rule 10 of the rules governing conditions of sale states 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.

This presents another point of scrutiny, as this suggests full payment of the property was paid 13 months after Bariade had 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 after holding illegal sale of houses.

There are allegations that Mr Biti, in his pursuit of the issue, was not acting on behalf of Rodgers, but for personal interest.

One Constance Chaza a legal clerk at Mr Biti’s law firm is in a legal complication as a result.

The cases are before the courts.

It is the State’s case that Chaza tendered a fake special power of attorney from Eliot Rogers which Mr Biti has been using to collect money 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 Rogers and concluded they were not authored by the same person.