News / Local
Travesty of justice?, right of first refusal recognized without evidence
03 Oct 2011 at 15:42hrs | Views
THE High Court of Bulawayo has put to rest the decade long property ownership wrangle between Bulawayo business mogul – Raphael Howard Chitrin and indigenous businessman – Joseph Tayali in a fashion that has left tongues wagging in the legal fraternity.
In judgment made by Justice Nicholas Ndou on September 30 this year, the court granted Mr Mr Chitrin leave to execute a previous judgment of the Supreme Court pending the appeal by Mr Tayali against a High Court order.
"The Applicants be and hereby granted leave to execute the judgment of this court under HB-136-10 pending appeal by the respondents to the Supreme Court.
"The Respondents pay the costs of this application jointly and severally the one paying the other to be absolved on an attorney and client scale," reads the order in full.
This ruling comes after Mr Chitrin made an application to the High Court of Bulawayo seeking an order to execute a Supreme Court ruling in favour of him.
Justice Ndou is his judgment wrote in part as part of his reasons:
"The effect of this judgment was to confirm the provisional order granted to Applicants under HC1583 / 07 (for inta alia, the eviction of the Respondents and all those claiming through them from number 70
Jason Moyo Street, Bulawayo and to dismiss the application by the Respondents under HC2747 / 07.
"….In this case the court confirmed the provisional order and upheld the Applicants rights to ownership of the property in terms of the earlier Supreme Court judgment and thus ordered eviction of the Respondents.
"….A closer examination of the grounds of appeal will show that they do not address any issues in respect of the part of the judgment pertaining to HC1583 / 07…..there is no reason why the Applicants
should continue to suffer deprivation of this property and it is therefore just and equitable that the Applicants be allowed to execute the judgment pending appeal," reasoned the learned judge.
In the matter – Potential Investments Private Limited and Ralema Investments Private Limited (both owned by Mr Chitrin) are the Applicants represented by a Ms MH Moyo from Joel Pincus, Konson and
Wolhuter - whereas Tayali and Sons and Nerger Properties (both owned by Mr Tayali) are the Respondents represented by Advocate Lucas Nkomo instructed by Sindiso Mazibisa of Cheda and Partners.
However legal experts who read the judgment labeled it a "travesty of justice" arguing that taking into account the facts of the case as presented in court papers – there is no evidence that Mr Chitrin had the right of first refusal but there is evidence that he attempted to bribe one of the directors of the company that owned the controversial building.
Said a law lecturer at the University of Zimbabwe on condition of anonymity for professional reasons:
"The case is a good example of an ugly precedence in the whole issue about what is a right of first refusal and how can it been proved," he said.
The Chitrin- Tayali case began in 2002 when Mr and Mrs Tayali, who were tenants of the building at issue, bought the property after its owner a company called – Potential Investments sold it for $130
million (old currency).
The sale was done through an agent, F and SC Accounting Private Limited run by Mr Raymond Louw – who was administering the building and invited buyers to make offers.
Mr Tayali made the highest offer and bought the building. At the same time, Mr Chitrin, who had also received the offer letter and subsequent reminders, did not respond to the offer, allegedly because
he was out of the country.
Upon return, Mr Chitrin went to Mr Louw the estate agent and persuaded him to revere the sale of the building as he wanted it.
Acting on Mr Chitrin's instructions, Mr Louw went to Ms Elizabeth Humpage residence and persuaded her to reverse the sale of the property, at the sane time offering a bribe of $21million (old currency).
She refused to accept the money arguing that it was tantamount to "bad dealing" and that the money was a bribe.
Ms Humpage was one of the directors of Potential Investments Private Limited.
Irked by Ms Humpage refusal to reverse the deal, Mr Chitrin approached the High Court of Bulawayo seeking a court interdict barring Mr Tayali from transferring the property to his own name on the rounds that he (Mr Chitrin) had a "right of first refusal" which had allegedly been offered to him by Mr Louw.
Justice Maphios Cheda ruled in favour of Mr Chitrin and Mr Tayali appealed against the ruling on 12 May 2005, in a case that he lost at the Supreme Court on 13 November 2006(case number 140 / 05) after both courts, concurred that Mr Chitrin had the right of first refusal, despite lack of apparent proof to sustain the same argument.
The Supreme Court judges who upheld the controversial High Court judgment are Justices – Misheck Cheda, the then Chief Justice Godfrey Chidyausiku and Justice Veranda Ziyambi.
In an interview with The Sunday News on 21 April 2007; Mr Louw confessed that he did not know what "the right to first refusal" was about.
Unsatisfied with the handling of his matter Mr Tayali reported the case to various Government departments but nothing was done until he met the late Vice President Joseph Msika who said:
"There is no evidence of what Mr Chitrin is alleging. Where is the right of first refusal he is talking about? You must not leave that building, it is yours. You bought it isn't, so stay in it.
"Besides, Mr Chitrin has not paid a cent for it, so how does he want a building without paying a cent for it,' said Cde Msika.
Mr Tayali has refused to leave the controversial building and the Affirmative Action Group (AAG) which he is a member of has encouraged him not to, arguing that the court rulings are "an affront to black
empowerment and a reversal of the gains of the liberation struggle."
Said AAG chairman Mr Sam Ncube in April 2007:
"As an organisation, we are concerned with what is happening. The Courts are now being used to reverse black empowerment. Mr Tayali is not going anywhere until this matter is solved in a logical manner.
"He has to stay or be refunded his capital invested at the current value of the building and improvements done there. Anything else, less than this is unacceptable," he said then
Contacted for comment on Thursday 28 September 2011, Mr Ncube said:
"AAG does not change. That building belongs to Mr Tayali, court or no court. Unless if there is anyone who is saying we must allow Mr Chitrin to own all streets and buildings in Bulawayo via hook and
crook.
"After all Mr Chitrin is one of the people who have many unused buildings in town. He just must pay Mr Tayali for that building or forget about it. This indenisation and black empowerment drive will be hogwash if he gets away with this matter," said the tough-talking Ncube.
To date, Mr Chitrin has not paid a cent for the building and has not made an offer to buy it, but he wants me to move out and the courts seem to agree to this," read Mr Tayali's court papers.
Mr Tayali, now has to appeal against the High Court ruling and get an order granting him leave to appeal to the Supreme Court again – alternatively sue Mr Chitrin for damages amounting to the same value of the property – legal experts say.
In judgment made by Justice Nicholas Ndou on September 30 this year, the court granted Mr Mr Chitrin leave to execute a previous judgment of the Supreme Court pending the appeal by Mr Tayali against a High Court order.
"The Applicants be and hereby granted leave to execute the judgment of this court under HB-136-10 pending appeal by the respondents to the Supreme Court.
"The Respondents pay the costs of this application jointly and severally the one paying the other to be absolved on an attorney and client scale," reads the order in full.
This ruling comes after Mr Chitrin made an application to the High Court of Bulawayo seeking an order to execute a Supreme Court ruling in favour of him.
Justice Ndou is his judgment wrote in part as part of his reasons:
"The effect of this judgment was to confirm the provisional order granted to Applicants under HC1583 / 07 (for inta alia, the eviction of the Respondents and all those claiming through them from number 70
Jason Moyo Street, Bulawayo and to dismiss the application by the Respondents under HC2747 / 07.
"….In this case the court confirmed the provisional order and upheld the Applicants rights to ownership of the property in terms of the earlier Supreme Court judgment and thus ordered eviction of the Respondents.
"….A closer examination of the grounds of appeal will show that they do not address any issues in respect of the part of the judgment pertaining to HC1583 / 07…..there is no reason why the Applicants
should continue to suffer deprivation of this property and it is therefore just and equitable that the Applicants be allowed to execute the judgment pending appeal," reasoned the learned judge.
In the matter – Potential Investments Private Limited and Ralema Investments Private Limited (both owned by Mr Chitrin) are the Applicants represented by a Ms MH Moyo from Joel Pincus, Konson and
Wolhuter - whereas Tayali and Sons and Nerger Properties (both owned by Mr Tayali) are the Respondents represented by Advocate Lucas Nkomo instructed by Sindiso Mazibisa of Cheda and Partners.
However legal experts who read the judgment labeled it a "travesty of justice" arguing that taking into account the facts of the case as presented in court papers – there is no evidence that Mr Chitrin had the right of first refusal but there is evidence that he attempted to bribe one of the directors of the company that owned the controversial building.
Said a law lecturer at the University of Zimbabwe on condition of anonymity for professional reasons:
"The case is a good example of an ugly precedence in the whole issue about what is a right of first refusal and how can it been proved," he said.
The Chitrin- Tayali case began in 2002 when Mr and Mrs Tayali, who were tenants of the building at issue, bought the property after its owner a company called – Potential Investments sold it for $130
million (old currency).
The sale was done through an agent, F and SC Accounting Private Limited run by Mr Raymond Louw – who was administering the building and invited buyers to make offers.
Mr Tayali made the highest offer and bought the building. At the same time, Mr Chitrin, who had also received the offer letter and subsequent reminders, did not respond to the offer, allegedly because
he was out of the country.
Upon return, Mr Chitrin went to Mr Louw the estate agent and persuaded him to revere the sale of the building as he wanted it.
Acting on Mr Chitrin's instructions, Mr Louw went to Ms Elizabeth Humpage residence and persuaded her to reverse the sale of the property, at the sane time offering a bribe of $21million (old currency).
She refused to accept the money arguing that it was tantamount to "bad dealing" and that the money was a bribe.
Ms Humpage was one of the directors of Potential Investments Private Limited.
Irked by Ms Humpage refusal to reverse the deal, Mr Chitrin approached the High Court of Bulawayo seeking a court interdict barring Mr Tayali from transferring the property to his own name on the rounds that he (Mr Chitrin) had a "right of first refusal" which had allegedly been offered to him by Mr Louw.
Justice Maphios Cheda ruled in favour of Mr Chitrin and Mr Tayali appealed against the ruling on 12 May 2005, in a case that he lost at the Supreme Court on 13 November 2006(case number 140 / 05) after both courts, concurred that Mr Chitrin had the right of first refusal, despite lack of apparent proof to sustain the same argument.
The Supreme Court judges who upheld the controversial High Court judgment are Justices – Misheck Cheda, the then Chief Justice Godfrey Chidyausiku and Justice Veranda Ziyambi.
In an interview with The Sunday News on 21 April 2007; Mr Louw confessed that he did not know what "the right to first refusal" was about.
Unsatisfied with the handling of his matter Mr Tayali reported the case to various Government departments but nothing was done until he met the late Vice President Joseph Msika who said:
"There is no evidence of what Mr Chitrin is alleging. Where is the right of first refusal he is talking about? You must not leave that building, it is yours. You bought it isn't, so stay in it.
"Besides, Mr Chitrin has not paid a cent for it, so how does he want a building without paying a cent for it,' said Cde Msika.
Mr Tayali has refused to leave the controversial building and the Affirmative Action Group (AAG) which he is a member of has encouraged him not to, arguing that the court rulings are "an affront to black
empowerment and a reversal of the gains of the liberation struggle."
Said AAG chairman Mr Sam Ncube in April 2007:
"As an organisation, we are concerned with what is happening. The Courts are now being used to reverse black empowerment. Mr Tayali is not going anywhere until this matter is solved in a logical manner.
"He has to stay or be refunded his capital invested at the current value of the building and improvements done there. Anything else, less than this is unacceptable," he said then
Contacted for comment on Thursday 28 September 2011, Mr Ncube said:
"AAG does not change. That building belongs to Mr Tayali, court or no court. Unless if there is anyone who is saying we must allow Mr Chitrin to own all streets and buildings in Bulawayo via hook and
crook.
"After all Mr Chitrin is one of the people who have many unused buildings in town. He just must pay Mr Tayali for that building or forget about it. This indenisation and black empowerment drive will be hogwash if he gets away with this matter," said the tough-talking Ncube.
To date, Mr Chitrin has not paid a cent for the building and has not made an offer to buy it, but he wants me to move out and the courts seem to agree to this," read Mr Tayali's court papers.
Mr Tayali, now has to appeal against the High Court ruling and get an order granting him leave to appeal to the Supreme Court again – alternatively sue Mr Chitrin for damages amounting to the same value of the property – legal experts say.
Source - Byo24News
