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Chitrin vs Tayali case: Be the Judge

by Sehlule Zondo
11 Jan 2012 at 07:08hrs | Views
THE property ownership wrangle between Bulawayo business mogul - Raphael Howard Chitrin and indigenous business man and farmer - Joseph Tayali has taken a decade in the Courts. Many court applications have been made by many lawyers and many rulings have been made by more than a dozen judges from the High Court to the Supreme Court and back to the High Court.

After all this legal drama and judgments, the one thing that remains unsolved is: Who is the rightful owner of the controversial building situated at corner Jason Moyo and 8th avenue in the city of Kings and Queens? Who must pay who for the building?

The Sunday News has taken it upon itself to publish the facts hereunder of the case and throw it to you for judgement, accordingly goes:

Court papers at hand show that, 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 â€" 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 â€" 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 in Southworld and persuaded her to reverse the sale of the property, at the same 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 grounds that he (Mr Chitrin) had a "right of first refusal" which had allegedly been offered to him by Mr Louw before he went to South Africa.

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 High Court judgment are Justices â€" Misheck Cheda, the then Chief Justice Godfrey Chidyausiku and Justice Veranda Ziyambi.

Mr Tayali was then ordered to vacate the building, which order he resisted.

Thereafter, Mr Chitrin approached the High Court of Bulawayo on an urgent basis seeking leave to execute the Supreme Court judgement pending the appeal by Mr Tayali against a High Court order to vacate the premises.

On September 30 this year, Justice Nicholas Ndou granted Mr Chitrin leave to execute the Supreme Court judgement.

In his judgement the learned judge wrote in full:

"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.

 "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.

 "√ɬ¢√¢‚Äö¬¨√Ǭ¶.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.

 "√ɬ¢√¢‚Äö¬¨√Ǭ¶.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√ɬ¢√¢‚Äö¬¨√Ǭ¶..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.

Finally Mr Tayali was evicted by the Deputy Sheriff and anti-riot police last month and Mr Chitrin took over the premises. Mr Chitrin has not paid a cent for the building either to Mr Tayali or the original owners Potential Investments (PV) (Ltd).

In the matter â€" 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.

Mr Tayali then went on to file new legal proceedings at the High Court of Bulawayo against Ms Humpage and others (former directors of Potential Investments (Pvt) (Ltd) claiming compensation.

The High Court granted him US$290 000, however the storm is not yet over as Ms Humpage has filed a notice of intention to oppose the matter and ruling against her.

Fact Sheet

1. Both Mr Tayali and Mr Chitrin received the notice of sale of the building and subsequent reminders

2. Mr Tayali responded and bought the building from a legitimate middle-men

3. Mr Chitrin did not respond to the written offer

4. Mr Chitrin did not pay a cent to date for the building

5. Mr Tayali paid $130 000 (old currency)

6. The sale was valid at law

7. There is no dispute that Mr Tayali paid for the building by party in the case

8. Mr Chitrin does not dispute that he did not and has to date not paid for the building

9. Mr Chitrin has not made any intention to pay for the building

10. Mr Chitrin has not given any proof that he had a right of first refusal save for his word

What other has been said about the case?

(a)21 April 2007 Sunday News: Raymond Louw confessed that he "does not know" what the right of first refusal that Mr Chitrin claims to have gotten from him is.

(b) May 2007 Sunday News : The late Vice President Joseph Msika is quoted by the Sunday News as having 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.

(c) In April 2007 Sam Ncube the chairman of the Affirmative Action group said :

"As an organization, 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.

(d) 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 indigenization and black empowerment drive will be hogwash if he gets away with this matter," he said.

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