By Brenna Matendere
SUPREME Court judge Justice Chinembiri Bhunu has dismissed a case in which Harare business tycoon, Tendai Mashamhanda, was opposing eviction from a property he bought for US$230 000 after which the High Court ruled that it was sold to him in a fraudulent manner and therefore he must be evicted.
He bought the house from Harare lawyer Pihwai Chiutsi before developing it to the value of US$1,5 million.
While Justice Bhunu in his judgement dated 20 February said he was fit to handle the appeal matter, he is under spotlight for failing to recuse himself in the case after Mashamhanda wrote to Justice Minister Ziyambi Ziyambi on 6 December demanding that he resigns over mishandling of the High Court case that ruled that the businessman must lose his home.
Section 14 of the Judicial Service (Code of Ethics) Regulations, 2012, states as follows;
“14.(1). A judicial officer shall disqualify or recuse himself or herself in any proceedings in which the judicial officer’s impartiality may reasonably be questioned…”
The irrefutable import of the above quoted section 14 is that a judicial officer/Judge shall disqualify or recuse himself or herself in any proceedings in which the judicial officer’s impartiality may reasonably be questioned.
In his latest judgement Justice Bhunu noted this but defended himself.
“Although I was part of the panel of three judges which determined the ownership dispute, I have no qualms presiding over this application. This is because these are enforcement proceedings which have a bearing over the execution of the Supreme Court judgment I presided over together with two other judges of the Court.
“In Cohen v Cohen 1979 RLR 184 at 187B the court held that: “Execution is a process of the court and the court has inherent power to control its process subject to the Rules of court.” 6. No party has raised any issue in this regard. I therefore proceed to determine the application before me on the merits,” he said.
Part of Justice Bhunu’s long judgement reads:
“The applicant has been in unlawful and mala fide occupation of the respondent’s property for close to 5 years in circumstances where the law is heavily weighed against him as demonstrated elsewhere in this judgment. I therefore hold that his prospects of success on appeal are pretty dim indeed. The equities and balance of convenience favour the respondent who in legal parlance should ordinarily be in possession and occupation of its property.
“The applicant’s conduct in unlawfully occupying the respondent’s property in bad faith, to his exclusion for a period spanning 5 years without its consent is manifestly unjust and unconscionable.”
He also said considering that the applicant has dismally failed to discharge the onus of proving that he has any reasonable excuse for clinging onto the respondent’s property without its consent, the application cannot succeed as his prospects of success on appeal are bound to fail.
“In the final analysis I hold that the applicant has failed to meet the requirements of the test for stay of execution set out in the Cohen case and other related precedent supra. 52. As regards costs, I see no basis for departing from the norm that costs follow the result. I am not persuaded that costs at the higher scale are merited. 17 Judgment No. SC 17/24 Chamber Application SC 680/23 53. It is accordingly ordered that: 1. The application be and is hereby dismissed with costs.”
Gill Godlontonn and Gerranns, Lawyers of Baliade Investment who wants to take over Mashamhanda’s home have since written to the Sheriff of the High Court asking him to evict the businessman. The letter is dated the same date as of the judgement which raises eyebrows which raises concerns that they knew the judgement before it was delivered.
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.
However, 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 terms of section 74 of the Constitution, Mashamanda cannot be evicted from his home without an order of court made after considering all the relevant circumstances.
In his appeal application that has been dismissed by Justice Bhunu, Mashamhanda further stated that by virtue of the aforesaid section 74 of the Constitution, an applicant with a right of appeal and who exercises that right to appeal against an order of eviction by a court of first instance, ought not be evicted pending appeal.
He again argued that contrary to the foregoing position of the Constitution and also contrary to the common law, the High Court made a specific order that its order of eviction of the applicant from his home would not be suspended by the noting of the appeal to this Court and that accordingly, according to the High Court, the appeal in SC 666/23 will not suspend its order of eviction.
However, Justice Bhunu dismissed all these arguments led by Professor Madhuku.
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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