News / National
Property developer appeals to ConCourt for more time
06 Feb 2023 at 03:06hrs | Views
Prominent property developer George Katsimberis has appealed to the Constitutional Court to be given more time to apply for leave to challenge a High Court ruling on his bid for a permanent stay of parallel prosecutions against him.
Katsimberis wants the top court to stop his prosecution for alleged fraud at the instigation of businessman Ken Sharpe's Pokugara Properties following their fallout over a housing deal.
He is also a state witness where Poukugara Properties and some senior Harare City Council officials are being charged for perjury after they allegedly lied about the fraud charges against the property developer.
Kastimberis says he is being forced to appear in court as an accused and a state witness in related cases and this is a violation of his constitutional rights.
His latest application followed last week's ruling by ConCourt judges Justice Anne Gowora, Justice Paddington Garwe and Justice His Ben Hlatswayo that he had filed his earlier appeal against High Court judge Justice Siyabona Musithu's ruling rejecting the bid for stay of prosecution late and that he did not seek condonation as per court rules.
Katsimberis blamed his failure to file his appeal on time on the registrar of the Supreme Court, who allegedly delayed the process.
He said all processes on his side were done on October 3, within the 15 days, but the registrar only issued the application on October 4.
"This is an application for an extension of time within which to apply for leave to appeal against the decision of the High Court sitting at Harare (per Musithu J) in case number 5 HC-6820-21, being judgement number HH 611-22, and there is no need to re-introduce the parties to each other who remain as they were in that matter," Katsimberis said in his founding affidavit.
"I depose this affidavit in my capacity as the applicant in those proceedings, and putative Appellant in the Constitutional Court should leave to appeal be granted.
"The facts of the matter, the issues in contention between the parties, which form a large part of the judgment by his Lordship handed down on 12 September 202 will not be regurgitated.
"For completeness, I wish to confirm that I have previously filed an application for leave to appeal against that judgment under case number CCZ 51/22.
"However, that application was struck off the roll by the Constitutional Court on 30 January 2023 on the basis that it had been filed out of time.
"I explain herein how that came about. It is in the hope of re- filing that application for leave to appeal that this application is made."
Katsimberis added: "I held a good faith belief that the application in CCZ 51/22 had been filed in time until the hearing on 30 January, 2023.
"I am advised, and therefore have reason to believe, that my legal practitioners had also held a good faith belief that they had complied with the rules, as everything that they needed to do to file the application had been done and completed on 3 October 2022.
"And, had the registrar not delayed processing my application until after working hours, there would never have been an issue about any delay in filing."
He said he was advised by his lawyers, which advice he believed that they had relied on guidance given to them by the registrar through a filing in a separate case that they consider the date when they accept the application as fulfilling all the requirements.
"This document was received by my legal practitioners on the very same date that they were dealing with the exact same issue regarding my application, and appears to support their view that they then adopted, namely that as my application was accepted on 3 October 2022, the application was filed in time,"Katsimberis said.
"I therefore make this application for extension of time within which to file my application leave to appeal."
Katsimberis cited Justice minister Ziyambi Ziyambi and four magistrates, Letwin Rwodzi, Barbra Mateko, Noel Mupeiwa, Stanford Mambanje and prosecutor-general Nelson Mutsonziwa as respondents in the appeal.
The property developer in a witness in a case where he is suing Sharpe and top Harare City Council officials for perjury and malicious damage to property after the local authority demolished his show house.
He is also in court for fraud on charges of having built the same showhouse in Borrowdale, Harare, using a forged building plan.
The same people he accused of perjury and malicious damage to property in his case are witnesses against him in the other case.
Katsimberis wants the top court to stop his prosecution for alleged fraud at the instigation of businessman Ken Sharpe's Pokugara Properties following their fallout over a housing deal.
He is also a state witness where Poukugara Properties and some senior Harare City Council officials are being charged for perjury after they allegedly lied about the fraud charges against the property developer.
Kastimberis says he is being forced to appear in court as an accused and a state witness in related cases and this is a violation of his constitutional rights.
His latest application followed last week's ruling by ConCourt judges Justice Anne Gowora, Justice Paddington Garwe and Justice His Ben Hlatswayo that he had filed his earlier appeal against High Court judge Justice Siyabona Musithu's ruling rejecting the bid for stay of prosecution late and that he did not seek condonation as per court rules.
Katsimberis blamed his failure to file his appeal on time on the registrar of the Supreme Court, who allegedly delayed the process.
He said all processes on his side were done on October 3, within the 15 days, but the registrar only issued the application on October 4.
"This is an application for an extension of time within which to apply for leave to appeal against the decision of the High Court sitting at Harare (per Musithu J) in case number 5 HC-6820-21, being judgement number HH 611-22, and there is no need to re-introduce the parties to each other who remain as they were in that matter," Katsimberis said in his founding affidavit.
"I depose this affidavit in my capacity as the applicant in those proceedings, and putative Appellant in the Constitutional Court should leave to appeal be granted.
"The facts of the matter, the issues in contention between the parties, which form a large part of the judgment by his Lordship handed down on 12 September 202 will not be regurgitated.
"For completeness, I wish to confirm that I have previously filed an application for leave to appeal against that judgment under case number CCZ 51/22.
"However, that application was struck off the roll by the Constitutional Court on 30 January 2023 on the basis that it had been filed out of time.
"I explain herein how that came about. It is in the hope of re- filing that application for leave to appeal that this application is made."
Katsimberis added: "I held a good faith belief that the application in CCZ 51/22 had been filed in time until the hearing on 30 January, 2023.
"I am advised, and therefore have reason to believe, that my legal practitioners had also held a good faith belief that they had complied with the rules, as everything that they needed to do to file the application had been done and completed on 3 October 2022.
"And, had the registrar not delayed processing my application until after working hours, there would never have been an issue about any delay in filing."
He said he was advised by his lawyers, which advice he believed that they had relied on guidance given to them by the registrar through a filing in a separate case that they consider the date when they accept the application as fulfilling all the requirements.
"This document was received by my legal practitioners on the very same date that they were dealing with the exact same issue regarding my application, and appears to support their view that they then adopted, namely that as my application was accepted on 3 October 2022, the application was filed in time,"Katsimberis said.
"I therefore make this application for extension of time within which to file my application leave to appeal."
Katsimberis cited Justice minister Ziyambi Ziyambi and four magistrates, Letwin Rwodzi, Barbra Mateko, Noel Mupeiwa, Stanford Mambanje and prosecutor-general Nelson Mutsonziwa as respondents in the appeal.
The property developer in a witness in a case where he is suing Sharpe and top Harare City Council officials for perjury and malicious damage to property after the local authority demolished his show house.
He is also in court for fraud on charges of having built the same showhouse in Borrowdale, Harare, using a forged building plan.
The same people he accused of perjury and malicious damage to property in his case are witnesses against him in the other case.
Source - Byo24News
