By A Correspondent| On July 6th, 2021, a hearing was held at the High Court in an application by Chiutsi to overturn Justice Mathonsi’s 2017 ruling, which had dismissed his prayer for an order to set aside the Sheriff’s confirmation of the auction sale of his Highlands property to Bariadie Investments (Bariadie).
Justice Tawanda Chitapi was presiding. Chiutsi’s grounds were bold, claiming Bariadie had not participated in the auction as claimed.
The property had been attached to pay off Chiutsi’s $70,000 debt to Elliot Rogers. The actual debt was $116,000, but the 2014 order had accounted for a dispute over fees and provisionally only granted $70,000.
Chitapi was not unfamiliar with the matter, having presided over a related case in 2019 where Bariadie sought to cancel the title deed held by Mashamhanda after Chiutsi sold and transferred the property, taking advantage of an apparent
failure by the Sheriff to place a caveat on the property. Chitapi dismissed the 2019 Bariadie application on the grounds that the matter had already been heard and settled by Justice Manzunzu (res judicata) in an application supposedly brought by Rogers (via Biti Law). Chitapi observed that Bariadie had merely changed from respondent to applicant and Rogers from applicant to respondent.
It is worth noting that when Chiutsi sold the house to Tendai Mashamhanda, he immediately paid $115,000 to the Biti Law trust account and paid the debt to Rogers in full. It is unclear why Rogers (via Biti Law) continued to litigate.
Tendai Mashamhanda, in his May 2022 dossier to the Justice Minister, alleges it was not Rogers litigating but Tendai Biti acting of his own accord on the strength of a fraudulent Power of Attorney having forged Rogers’s signature.
HUNTERS HUNTED: BARIADIE AND BITI ON THE RUN
Bariadie and Biti Law (representing Rogers) made several moves to delay and stall the proceedings, including seeking the recusal of judges and sending legal papers to the wrong address.
Tendai Mashamhanda claims this was because they knew Chiutsi had evidence that the auction did not happen as claimed.
By July 6th, Chitapi had dismissed their preliminary points. They requested written reasons and indicated their intention to appeal to the Supreme Court. Given the relatively straightforward nature of the case and the presumed availability of documentary evidence, the other party’s eagerness to have the case dismissed on technicalities seems somewhat suspicious. One judge had already recused himself at their request, with the effect of delaying the hearing of Chiutsi’s application.
When they similarly requested his recusal, Chitapi refused. In its complaint to the JSC, Bariadie falsely claimed that two judges had recused themselves from the matter, justices Chinamora and Munangati-Manongwa. The facts are quite the contrary.
Chinamora recused himself from the case at the request of Tendai Biti. The case was then assigned to Justice Munangati Mungoti.
However, lawyers for Bariadie, Gill, Godlonton & Gerrans deliberately sent notice of the hearing to the wrong address, causing Chiutsi not to attend the hearing. As a result, the case was struck from the roll and returned to Chinamora.
Chinamora asked the parties to provide lists of judges they did not want to hear the case, and Chiutsi submitted his list.
Bariadie did not submit a list. Chinamora then assigned the case to Judge Chitapi. Given the foregoing, Chitapi was right to refuse. The deliberate misrepresentation in Bariadies JSC complaint suggests it has no confidence in its own case.
ALLEGED SECRET JULY 20 HEARING AND DEFAULT JUDGEMENT
At the heart of the matter is the allegation that Justice Chitapi held an unscheduled hearing. Specifically, it is alleged that the hearing held on July 20, 2021, which none of the respondents attended and where default judgement was granted in Chiutsi’s favour, was unscheduled.
However, the High Court record of the July 6 proceedings undermines those allegations, quoting Chitapi
“and the hearing of the application will be held on 20 July 2021 at 10 am. So the main application stands postponed to that date and lastly, the wasted costs of 9 June are reserved for determination in the application for leave to appeal.”
When Chiutsi appeared at the Supreme Court with the default judgement, whose effect would be to end proceedings, Bariadie’s lawyers claimed complete ignorance of the existence of the decision.
In a complaint against Chitapi written to the Judicial Services Commission during the Supreme Court hearing and placed before Justice Gwaunza in her capacity as deputy chair of the JSC, despite her being presiding over the same matter in her capacity as deputy Chief Justice, Bariadie executive director Kingston Hamutendi Munyawarara claimed:
“Curiously, on the morning of the Supreme Court hearing on 16 September 2021, our lawyers were handed a copy of a default judgment
“The judgment came as a shock to us since none of our Counsel was aware of any hearing that took place on the 20th of July 2021. The judgment itself claims that our Counsel wilfully defaulted Court on 20 July 2021.”
AFFIDAVITS THAT SAID NOTHING
In an affidavit dated September 18, 2021, Advocate Thabani Mpofu (view affidavit) supported the claim that there was no communication that the matter would be heard on July 20. It is notable that Adv Mpofu relies entirely on Advocate Tafadzwa Mapuranga (instructed by Bariadie’s attorneys), who he said assured him that there was nothing said in court on July 6 to schedule July 20 as the date for the main application nor any other.
Despite giving these assurances to Adv Mpofu, Adv Mapuranga was not in attendance on July 6 Instead, he claims reliance on Diana Kawenda of Biti Law with whom he had made arrangements to note the outcome of proceedings on his behalf. Kawenda was herself noncommittal, swearing an affidavit on September 16th in which she submitted.
“I do not recall an order the parties appear on the 20th of July 2021 and I did not make any such communication to Advocate Mapuranga.”
She does not say there was no order, merely that she does not recall.
It is immediately apparent that none of these affidavits contains statements asserting anything. Adv Mpofu relies on Adv Mapuranga who purports to offer assurances despite relying on Kawenda who does not make a statement of fact.
It appears peculiar that three lawyers would rely on a testimony asserting convenient memory loss when they know that High Court proceedings are recorded and that a record of the proceedings can be secured to establish the facts.
A cynic would be forgiven for saying these affidavits were written with perjury in mind. Even Kawenda was careful not to say anything authoritative; in this way, she could always argue that she never said there was no order but did not recall. The other lawyers would be equally safe.
These affidavits were written purportedly for an application of rescission of default judgement. However, that application was never prosecuted. The application was abandoned after Chiutsi caught wind that an application had been filed, but he had curiously not been served with the papers.
They had been sent to the wrong address.
Tendai Mashamhanda alleges this was by design. It is hard to find a basis to dispute his assessment. Chiutsi would immediately file opposing papers as soon as he got the papers. That was the end of the matter, and the application was never prosecuted. There was no answering affidavit filed in response to Chiutsi’s opposing papers.
The question is why. Why would any lawyer not prosecute an application for rescission of a default judgement issued after a hearing purportedly held without their knowledge?
Tendai Mashamhanda is not unreasonable in arguing that this was because they knew a hearing at High Court would expose falsehoods they had made before the Supreme Court while giving Chiutsi a platform to prove his auction claims.
SUPREME ERROR: MENTIONING JULY 20
The claim that the lawyers had no knowledge of the July 20 hearing is undermined by the purported finding of the Supreme Court’s researcher Dean Mawere, who mentions July 20.
Mawere said: “The default judgement was granted in respect of an application for setting aside the confirmation of sale by 4th respondent. This was despite the fact that the hearing on 20th July was scheduled for an application for leave to appeal. Quite how the court aquo then proceeded to determine the substantive issue between the parties is staggering and procedurally inept.”
The Supreme Court’s judgement repeated this accusation and relied on a purported quote from Chitapi from July 6, in which he is alleged to have said: “The hearing of the application is set down for hearing on 20 July, 2021 at 10am. The wasted costs of June 2021 are reserved for determination in the application for leave to appeal.”
The Supreme Court could not have relied on the official record of proceedings as it includes a reference to the main application being postponed to July 20.
A violent contradiction emerges.
Recall that Diana Kawenda of Biti Law claims she did not recall any reference to July 20 (view affidavit). Yet, the Supreme Court ruling recognises that a hearing was properly scheduled for July 20. Its objection is not to the scheduling, instead alleging that the hearing was limited to addressing preliminary issues. This, too, as the record of proceedings shows, is incorrect.
Furthermore, Bariadies lawyers wrote to Registrar of the High Court on July 9 and displayed cognisance of the proceedings of the July 6 hearing. It is hard to believe that they only were able to hear everything except the part about the main application being postponed to July 20.
How is it possible that all the respondents made the exact same mistake, together with the Supreme Court researcher and three judges, reaching a conclusion at variance with the record of proceedings? Was this a genuine error or, as Tendai Mashamhanda alleges, a conspiracy involving the highest court in the land?
SPECULATION: AVOIDING THE HIGH COURT?
Since the Supreme Court accepts that the July 20 hearing was scheduled, albeit misquoting Chitapi to exclude the part which referred to the main application, we must proceed on the fact that the hearing was scheduled.
It is highly unusual for lawyers to fail to attend a scheduled hearing and not follow up on the matter afterwards.
In this case, it’s possible that one lawyer had a domestic emergency, another was involved in a car accident, and the third had prior commitments.
However, the fact that none of the legal representatives made any attempt to follow up on the matter after the July 20 hearing raises suspicions.
The question must be answered as to why they behaved in this peculiar manner.
It’s possible that they knew that any interaction with the court on that matter would deny them the opportunity to plead ignorance of the proceedings, as alleged by Tendai Mashamhanda.
This would be consistent with the conspiracy he has claimed.
It is difficult to fault his conclusion that Bariadie and Rogers were desperate to prevent the hearing on Chiutsi’s application because Bariadie did not in fact attend any auction and the hearing would have revealed as much.
If Chiutsi’s claim that the auction did not happen as claimed is incorrect, then one would expect Bariadie and Rogers to be eager for the matter to be clarified through the production of documentary evidence. In this case, no legal arguments would be necessary – just the presentation of the relevant documents. The fact that they have not produced such evidence raises suspicions about the veracity of their claims.
TROUBLED DOCUMENTS
Perhaps that simplicity, requiring the presentation of the relevant documents, was precisely the reason for their trepidation.
As with the claimed caveat, there appears to be no documentation to support the auction claims. Bariadie’s complaint to the JSC insists there was a caveat on the property. Still, no evidence has ever been presented to the extent that Adv Mpofu, when pressed by Justice Chitapi, was forced to speculate that Chiutsi had conspired with the deeds office to remove it corruptly.
The Sheriff would have received a notification from the deeds office confirming placement of the requested caveat if a caveat was indeed placed on the property.
Surely the Sheriff could have long ago produced this confirmation, putting the matter to rest?
Indeed, why would the deeds office deny the existence of the caveat knowing that the Sheriff was in possession of their confirmation letter, which would expose the lie? It is implausible.
The auction also has document problems. There is no explanation as to how the commissioner certified Bariadie as the highest bidder some three days before the actual auction.
The matter cannot be considered settled without an explanation of how the commissioner’s certificate
came to be dated September 15, 2017, when the auction was supposedly held on September 18, 2017. The only possible explanation is that the certificate is fraudulent. It is outrageous that the issue can be considered closed and justice served without answering these pertinent questions.
Bariadie claims to have paid US$270,000 for the property but has not produced evidence to support the claim.
The receipt provided as evidence shows an RTGS deposit stamped October 25, 2018, by the Sheriff of Zimbabwe accounts office.
However, as Mashamhanda points out, there was no RTGS currency in Zimbabwe in 2018. The Reserve Bank of Zimbabwe introduced the currency in 2019.
The conspiracy against Justice Chitapi is not just about a suburban home in affluent Highlands. It is about the integrity of the justice system and the rule of law in Zimbabwe.