Mugabe moves to save Didymus Mutasa

LEADER of a faction of the Zimbabwe People First (ZPF) party, Didymus Mutasa, could recover his top-of-the-range Range Rover Sport with a market value of about US$75 000 following claims by the Office of the President and Cabinet (OPC) that it was wrongfully attached by the Sheriff of the High Court as it was still on their asset register, the Financial Gazette can exclusively reveal.

The former State security minister in President Robert Mugabe's office had his assets attached by the Sheriff of the High Court on February 12 and are set to be auctioned to recover a judgment debt owed to a Harare law firm, Nyakutombwa Mugabe Legal Counsel.

The law firm represented Zimbabwe's first black speaker of Parliament when he tried to block the ruling Zanu-PF party from expelling him two years ago.

Mutasa was among hordes of former vice president Joice Mujuru's sympathisers who were either axed or suspended from Zanu-PF for plotting to unseat President Mugabe using unconstitutional means. He was later to withdraw his court action, preferring to re-launch his political career under ZPF, which has since split into two factions.

It emerged this week that the OPC, through CMED (Private) Limited — a wholly-owned State enterprise that administers the Transport Purchase Fund on behalf of the Civil Service Commission and Treasury — is laying claim to the Range Rover sports utility vehicle attached from Mutasa's home, in the up-marked Umwinsdale suburb.

The OPC allocated the vehicle to Mutasa in 2013, a year before he was given his marching orders for hobnobbing with Mujuru.

It has since written to the sheriff of the High Court advising them that the vehicle could not be attached since it was State property.

Although the sheriff of the High Court, Mcdoff Madhega, declined to comment on the issue, saying he was not authorised to speak to the Press, a senior partner with Nyakutombwa Mugabe Legal Counsel, Tafadzwa Mugabe, confirmed the latest development.

"We received correspondence from the Office of the President and Cabinet through CMED.

They are advising us that they would be instituting interpleader proceedings wherein the sheriff will seek an order of the High Court to declare who the owner of the vehicle is. We are still waiting for the papers," he said.

An interpleader is a suit pleaded between two parties to determine a matter of claim or right to property held by a third party.

Mutasa has also roped in his wife, Gertrude, in a fresh bid to recover the movable assets attached by the sheriff, which include three sets of leather sofas, a coffee table, dining table, eight chairs, two fridges and two water tanks, among others.

They have since filed a joint urgent chamber application at the High Court in which Gertrude is the first applicant while her husband is the second applicant. Nyakutombwa Mugabe Legal Counsel and the sheriff of the High Court are cited as the first and second respondents, respectively.

In his application, Mutasa concedes that the vehicle was still State property, although he has an option to purchase it — an alternative which government has not yet activated.

"The Range Rover vehicle is second applicant's ministerial issue. It is still registered in the name of the State although I have an option to purchase it. It is therefore State property which cannot be attached or executed upon, let alone removed. I have not yet been given the go ahead to purchase it," Mutasa states in court papers.

Attachment of State assets is prohibited under section five (2) of the State Liabilities Act.

Party of the Act reads: "Subject to this section, no execution or attachment or process in the nature thereof shall be issued against the defendant or respondent in any action or proceedings referred to in section two or against any property of the State, but the nominal defendant or respondent may cause to be paid out of the Consolidated Revenue Fund such sum of money as may, by a judgment or order of the court, be awarded to the plaintiff, the applicant or the petitioner, as the case may be."

Legal experts said the State's involvement in the case was curious as its actions could benefit Mutasa, who has a legitimate claim to the vehicle in terms of government policy on vehicles.

Until their fallout in 2014, Mutasa was one of President Mugabe's closest allies.

In an interview with the Financial Gazette last week Mutasa maintained there was no bad blood between him and the Zanu-PF leader "although he has never explained to me why he expelled me".

On Tuesday, there were, however, no indications that Nyakutombwa Mugabe Legal Counsel would back off. The law firm still insists it acted lawfully.

It argued that the Range Rover was almost repossessed by the OPC in February, 2016, and they intervened objecting to its retake without due process on Mutasa's behalf.

In the meantime, Mutasa and his wife are, for the second time, seeking rescission of a High Court judgment which ordered the former Zanu-PF secretary for administration to pay outstanding legal fees amounting to US$26 900 to Nyakutombwa Mugabe Legal Counsel last year.

The latest application follows an earlier one which was thrown out by Justice Priscilla Chigumba on February 16.

The Mutasa couple also filed a different application on the same day, arguing that the value of the attached assets far exceeded the US$26 900 being asked for by the lawyers.

The urgent case is being handled by High Court judge, Justice Amy Tsanga, who heard the case in her private chambers a few hours after Mutasa's new lawyers, Mwonzora and Associates filed his papers.

In the application, Mutasa's wife argues that the law firm 'fraudulently' attached her assets as she had contributed to their acquisition from her own earnings.

She also argues that she was never part of the legal proceedings and therefore was being wrongfully deprived of her assets.

"I have been married to the second applicant for 47 years. During that period, I have been gainfully employed as well and directly or indirectly contributed to the acquisition of the assets. Further, these matrimonial assets are indivisible as they were jointly acquired," she argues.

"The property attached and subsequently removed partly belongs to me as I took part in their acquisition as a productive and gainfully employed spouse. Even when the second applicant was in political detention during the armed struggle, I remained fending for the family and laying the foundation for the acquisition of all the matrimonial assets that we have as a family.

"I was never a part of the legal proceedings between the respondent (the law firm) and the first applicant. I was not aware that there was a judgment that would affect me until I became aware of the same on the 10th of February 2017 when the second respondent ( sheriff) visited our homestead armed with the writ of execution against the property," she further states.

In the same application, Gertrude is also seeking to have the default judgment which empowered the deputy sheriff to attach the property to be stayed.

"Now that my interests were affected, I made an application for rescission of the default judgment so that I can be accorded an opportunity to defend myself in this suit. I have worked hard in my life to acquire them. I am therefore a person affected by the judgment. To this end, I pray that the execution of the default judgment be stayed until the application I have filed is heard by this honourable court," she contends.

Gertrude further reasons that Justice Chigumba erroneously dismissed the urgency of the earlier application and raises allegations of fraud.

"From the application I have filed under HC1482/17, it is clear that this default judgment was obtained by fraud and was erroneously granted by the honourable court.

"I am a business woman venturing inter alia in horticulture. I need to use my vehicles and fridges for my business," she argues.

Mutasa engaged the Automobile Association of Zimbabwe for valuation of the two vehicles and argued that Nyakutombwa Mugabe deliberately deflated the price of the Range Rover Sport to US$15 000 when its actual price was US$75 000.

The Land Rover Discovery, they argued, is valued at US$40 000 but the law firm had pegged it at US$15 000.

"According to papers brought by the second respondent, the judgment debt is US$26 919, 25. However, the second respondent has attached and removed property worth more than US$120 610. Even by the figures he has put, which are wrong, the total amount of goods removed is US$36 000 which is about US$10 000 over the judgment debt. The injustice caused by the attachment is so glaring that the malice of the respondent is clear," he argues in his own papers.

The law firm is, however, defending its case.

"He (Mutasa) requested an itemised bill which was provided on several occasions at his request through e-mails. He queried the bill but did not take it to taxation, which meant that the judgment would be executed as it was given," states the law firm in its opposing papers defending the value of properties that were attached.

Justice Tsanga heard the case at 16:00 hours on Tuesday, February 21 and is expected to hand over judgment today.