By Brenna Matendere
Harare businessman Tendai Mashamanda has hit back at the Harare Messenger of Court following a foiled eviction from his home last week at the behest of a company that claims ownership of his house which he bought from a local lawyer.
In a letter dated 2 April 2024 addressed to the messenger of court, Mashamanda’s lawyers, Rangarirai and Co. Legal practitioners, said the attempted eviction was outrageous.
“We were naturally disappointed by the Sheriff’s attempt to evict our client despite the fact that there is a pending application before the Court.Our client’s assertion that eviction cannot and should not proceed whilst there is a pending court application is the correct legal position.
“The Sherriff’s actions of evicting people whilst there is a pending application was strongly castigated in the case of Sibambene Traders Association v Findley Investments HB17/22 where it was stated that the courts frown upon such behaviour.
“The cases of Ndhlovu v The Officer Commanding ZRP Bulawayo Province 2010ZWBHC 100 and Livetouch Investments v Philcool Invetsments HB 173-20 further fortifies our client’s case. 5.In the above cases, the courts were very clear that litigants and the Sheriff should wait until litigation is finalised. Principal: K. Rangarirai LLB(Hons) (Oxon), Tatenda Chiriseri LLB(Hons) UZ,” reads part of the letter.
The lawyers pointed out that the Courts admonished the Sheriff for bringing unnecessary litigation to the Courts by acting prematurely as the law is very clear that if there is a pending application, no eviction should take place.
“We don’t know if the subtle threat by the Applicant to sue the Sheriff in her personal capacity is what prompted the Sheriff to attempt to bizarrely and unlawfully evict our client as the law and the Courts have been very clear that if there is a pending application, eviction should not take place. 8.Because of the above clear and unambiguous position of our law, we humbly request the Sheriff to take appropriate corrective action,” reads the letter.
After Barriade Pvt Ltd, a company pushing to possess Mashamhanda’ house complained to the sherrif that she must use all ways available to evict the businessman, the lawyers said it was unfortunate that there were issues that are being smuggled in.
“We are in receipt of the Applicant’s letter of 2nd April 2024, whose contents have been noted. 2.It’s unfortunate that the Applicant is attempting to smuggle issues which are not before the Sheriff or the Courts. 3.This is a legal matter and it will be resolved by legal arguments.
“Our client has been very consistent in his legal arguments and the Applicant, having failed to controvert our client’s sound and correct legal position with any legal arguments, has resorted to emotionally abuse the Sheriff.” The lawyers said Mashamanda is a law-abiding citizen.
“Our client is a law-abiding citizen and he has always restricted his arguments to legal issues, unlike the Applicant, who is now inviting uncited people to the dance floor and giving directives to the Sheriff with the sole and singular motive to intimidate the Sheriff. Principal: K. Rangarirai LLB(Hons) (Oxon), Tatenda Chiriseri LLB(Hons) UZ 6. Because the Applicant has nothing to offer in terms of legal arguments, he is now on a fishing expedition, throwing everything and anything and hoping to somehow manage to evict our client without following due process.
“Fortunately, we use law not emotions in Court hence the Sheriff should do the right thing and stop the eviction until the pending application is finalized,” reads the letter.
Through their lawyers, Barriade Investments had said Mashamanda must be delt with in a tough manner because he has in the past castigated the judiciary for corruption and asked the Chief Justice Luke Malaba to resign for failing to reign in the vice among his subordinates.
In the court application pending, Mashamanda said it was illegal for one to be evicted within 72 hours as it translated to being an infringement of the fundamental right to freedom from arbitrary eviction protected by section 74 of the constitution of Zimbabwe.
“By virtue of section 74 of the Constitution of Zimbabwe, the 2rnd respond (Sherif of High Court) cannot issue a “Notice of Removakl” arbitrarily in respect of homes. He/She is required by the Constitution to:
“Ascertain whether it is an eviction from a home . . . If so, engage the occupiers with a view to giving them an opportunity to indicagte what they consider to be a reasonable notice period in light of any hardships they may experience,” reads the application.
Mashamanda also said he lived at his home with wife and minor children which made the arbitrary eviction illegal.
He also cited has already appealed against the judgement that seeks to have him removed from his home.
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.
In his Supreme Court appeal lodged by lawyer Professor Lovemore Madhuku, Mashamhanda applied, on an urgent basis, and in chambers, to a judge of the Supreme Court, for stay of execution of the judgment which has now been thrown out by Justice Bhunu.
In appealing against the eviction order, he averred that it carried jurisprudence for the action to be suspended pending the hearing and determination by the Supreme Court of the appeal recorded as SC 666/23 which is against the whole judgment of the High Court in Case Number 3124/22, being Judgment No. HH 637/23 which sought to make him lose his mansion.
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.
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