By Brenna Matendere
Harare businessman Tendai Mashamhanda has stopped eviction order to vacate his US$1.5 million mansion in Harare which was scheduled for today after his lawyer Professor Lovemore Madhuku filed an urgent application at the High Court.
Supreme Court judge Justice Chinembiri Bhunu last week dismissed a case in which he opposed being evicted before determination of his court appeal.
The development saw an eviction order signed by M Kapesa being the sheriff of the High court issued and giving him 72 hours to vacate his home where extensive investments have been made over years.
However in the latest court application, Mashamanda said it was illegal for one to be evicted within 72 hours as it translated to being an infringement of the fundal 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 2nd respond (Sherif of High Court) cannot issue a “Notice of Removal” 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 indicate what they consider to be a reasonable notice period in light of any hardships they may experience,” reads the application.
Mashamenda 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.
“It is therefore extremely urgent that this matter be heard and determined before eviction of the applicant,” reads the court application.
Bariade Investment Pvt Ltd is cited as first responded and the Sheriff as second.
Mashamhanda bought the property in Harare for US$230 000 and developed it to the value of US$1.5 million.
The High Court then 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.
Last week Justice Bhunu in his judgement dated 20 February said he was fit to handle the appeal matter without recusing himself despite Mashamhanda having written 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.
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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