By A Correspondent| A Zimbabwean businessman has accused a High Court judge of hearing two cases involving the same parties in one day.
In a letter to Justice Minister Ziyambi Ziyambi, Tendai Mashamhanda said the judge, Never Katiyo, “heard a civil matter and criminal matter involving the same parties on November 17, 2022.”
Mashamhanda said the civil matter was between “Chiutsi, Bariadie, Registrar of Deeds, and Eliot Rogers,” while the criminal matter involved “Chaza, Tendai Biti’s employee, and Puwayi Chiutsi and Tendai Mashamhanda.”
Mashamhanda said the judge “did not disclose to the parties that he had heard the other matter involving the same parties the same day.”
He also accused the judge of brushing aside the fact that the signatures in the case were forged.
Mashamhanda said the judge failed to timeously deliver reserved judgments, as prescribed by section 19 of the judicial service (code of ethics) regulations, 2012.
Under the Judicial Service (Code of Ethics) Regulations, judges are supposed to deliver reserved judgment in 180 days in “unusual and exceptional” circumstances.
Mashamhanda said the judge reserved judgment on November 18, 2022, but did not deliver the judgment until July 26, 2023.
He said the reserved judgment was “not delivered within the time frame stipulated by the law.”
Mashamhanda said the judge’s actions have “caused a lot of distress” and have “brought the integrity of our Judicial System into disrepute.”
He has called on the Judicial Service Commission (JSC) to investigate the matter.
In another controversial ruling, Katiyo has dismissed an application by a Chinese businessman, Feng Dejin, seeking the reversal of a fraudulent transaction that led to the sale of his two upmarket houses in Harare. The houses, located in the affluent suburb of Mount Pleasant, are estimated to be worth over US$1 million.
Dejin claims that his former driver, Liu Bin, forged his signatures on documents to sell the properties without his authority. He further alleges that Bin framed him for a crime in China in 2014, resulting in his arrest and imprisonment until 2018. During Dejin’s incarceration, Bin allegedly forged additional documents to facilitate the sale of the properties.
Dejin presented evidence to the court, including a judgment from the China High Court ordering his release from prison and compensation for wrongful arrest. However, Judge Katiyo, who presided over the case, relied on an undisclosed document purportedly signed by Dejin in China to dismiss the application.
Dejin’s lawyers argue that the judge admitted the document without giving Dejin a chance to challenge its authenticity, violating his right to a fair trial.
They also accuse the judge of bias and incompetence for failing to consider Dejin’s China High Court judgment and shifting the burden of proof to Dejin.
Judge Katiyo’s decision to admit the undisclosed document, without allowing Dejin to challenge its authenticity, raises concerns about his adherence to fair trial principles.
‘The judge’s reliance on this document, despite evidence suggesting its forged nature, casts doubt on the impartiality of his judgment. Ignoring Dejin’s China High Court judgment, which provided evidence of his incarceration during the time the document was purportedly signed, further undermines the judge’s impartiality,” said the source.
Katiyo is accused of shifting the burden of proof to Dejin, instead of requiring the respondent to prove the authenticity of the disputed documents, demonstrates a disregard for legal procedures.
“These actions by Judge Katiyo raise serious concerns about his impartiality and competence. His decision to dismiss Dejin’s application appears to be based on a desire to protect the respondent, rather than on a fair assessment of the evidence,” said the source.