News / National
Judge under probe for making phantom ruling
13 Nov 2023 at 16:25hrs | Views
JUDGE President Mary Zimba-Dube is now investigating a case in which High Court judge Webster Chinamora gave a ruling in a case he never heard involving Balwearie (Pvt) Ltd, and has written to lawyers who represented the company requesting more information.
A complaint against Chinamora has since been lodged with Zimba-Dube by the aggrieved party, Balwearie Holdings (Private) Limited, through its managing director Believe Guta.
Guta has been in police custody since 4 November after being arrested by the Zimbabwe Anti-Corruption Commission (Zacc) on fraud charges, days after filing the complaint, which has been viewed as a ploy to protect the underfire judge.
Chinamora is already under scrutiny, with Advocate Thabani Mpofu filing a complaint against him in February after another attorney, Advocate Taona Nyamakura, lodged a complaint against the judge for alleged conflict of interest in a legal dispute between Zimbabwe's Delta Beverages (Pvt) Ltd, Schweppes Zimbabwe Ltd and Blakey Plastics (Pty) Ltd, a South African company.
A panel set up by the Judicial Service Commission (JSC) to review the complaint comprising judges Anne-Marie Gowora, Alfas Chitakunye and Custom Kachambwa concluded that Chinamora had a case to answer.
Chinamora was already facing a series of accusations ranging from conflict of interest, judicial misconduct, bribery to different forms of corruption.
The JSC recommended that President Emmerson Mnangagwa set up tribunals to investigate the suitability of Chinamora and former Bulawayo High Court judge Martin Makonese to hold office.
In April, Mnangagwa appointed a three-person tribunal chaired by retired Justice Professor Simbi Veke Mubako and consisting of Dr Gift Manyatera and Ms Sarah Moyo to inquire into the question of removal from office of Makonese but did not appoint a tribunal to investigate Chinamora.
While Makonese resigned immediately after members of the tribunal were sworn in, Chinamora is yet to be assessed for suitability to hold office. Before the matter subsided, Chinamora is already facing fresh allegations.
This week, in a letter dated 7 November, Judge President Mary Dube has written to Advocate Agyver Sawunyama, who in 2021 appeared for Balwearie in a company registration and land wrangle between the company and another company Balwearie (Pvt) Ltd incorporated in 1977, to which Justice Chinamora gave a ruling without a hearing.
"I am in receipt of two letters complaining about the matter in which the Honourable Justice Chinamhora dealt with the matter under HC 3847/20. The papers in my possession reveal that you were served with the copies of the letters of complaint.
"To assist me in my investigation of the allegations, I will need your comments over the allegation. I look forward to hearing from you soon to enable me to finalise investigations in this matter," read the letter copied to Advocate Sylvester Hashiti, Zvobgo Attorneys, Mr Valentine Mhungu c/o Messrs. Chasi and Maguwudze.
In her response, in a letter dated 10 November 10 and stamped by the Judge President, Advocate Agyver Sawunyama, denied having appeared before the controversial ruling, despite having been cited among those who appeared before Justice Chinamora.
"On March 31 2021, I appeared before Justice Webster Chinamora in the hearing of the matter of Balwearie Holdings (Private) Limited 1977 v Balwearie Holdings (Private) Limited 2020 & The Registrar of Deeds HC 3847/20. I appeared for the First Respondent whilst Advocate Silvester Hashiti appeared together with Tavonga Makamure for the applicant, there was no appearance for the Second Respondent," Sawunyama said.
"I sought a postponement of the hearing to enable the record HC 5431/20 which is a chamber application for leave to file a supplementary affidavit in HC 3847/20 to be placed before Justice Chinamora so that the chamber application could be determined by him first before the parties argued the rescission application in 3847/20. As a result of this intervention, Justice Chinamora issued an order that the matter would be postponed to 6 April 2021.
"I do not recall anything happened on 6 April 2021 as there were numerous postponements of the cases mostly owing to the Court's congested day until sometime in the winter of 2021. I however recall that when the cases resumed, and before HC 3847/20 could be argued."
"The foregoing is the last that I heard of these matters until Believe Guta sent me an email in the evening of 17 October 2023 after which I learnt that there was an autographically signed, but unstamped and therefore unofficially issued judgment dated 17 October 2023 in the case of Balwearie v Balwearie HC 3847/20 which the judgement is clearly delineated HH 559/2023 and bears my name as having appeared ‘for the respondents'."
Sawunyama said Justice Chinamora's judgement was prematurely handed down as the matter under case number HC 3847/20 was never argued by the parties involved.
"If at all the matter was argued, then certainly the legal practitioner who argued for Balwearie Holdings (Pvt) Ltd 2020 is someone other than myself. The face of that judgment which bears my name as appearing ‘for the respondents'. Is therefore inaccurate, so too is the substance of the judgement in as far as it relates to arguments made on behalf of Balwearie Holdings (Pvt) Ltd who are the First Respondent therein," she said.
After the handing down of the judgment on 17 October 2023 and the delivery of an urgent letter by Bherebende Law Chambers pointing to the error of a judgment in a matter that was yet to be heard, Justice Chinamora convened a case management meeting on Thursday 19 October 2023, Sawunyama said.
She attended together with Walter Bhere bende, Believe Guta and a representative of Sabre Services (Pvt) Ltd, loosely known as Agrippa, and one Ezekiel Chinoingira. Zvobgo T.
Zvobgo attended on behalf of Balwearie Holdings 1977 together and judge Chinamora's clerk. It was then Justice Chinamora admitted to having handed down judgment in error.
During the meeting, he suggested that there were two ways of dealing with the issue - to opt for a rescission or a deletion of the judgment from the ‘system', as none of the parties has the judgement.
Opting for a rescission would see him entirely recusing himself from the case. He would then proceed to arrange for further hearing of the rescission in HC 3847/20.
"Without commenting on the suggestions, I requested time to take full instructions from the client and requested that Sabre Services (Pvt) Ltd's counsel Advocate Edley Mubaiwa should be present at the resumption of case management. It was agreed that we would reconvene the following day at midday.
"The meeting of Friday 20 October could not take place as the judge was in a virtual hearing which went well into the lunch hour. The Judge's clerk requested that we return on Tuesday 24 October 2023 in the afternoon. At some point the idea emerged, although I am not sure from whence, that a judgement rescinding HH 559/2023 had been prepared and needed only to be handed down.
"I was informed by Mr. Guta on Tuesday afternoon that the judge was unavailable on account of sickness and that we were to try again the following day. By this time seven days had elapsed since the handing down of the judgment and Mr. Guta had made several attendances to the office of the Registrar of the High Court and had met with the Registrar and both of the Deputy Registrars regarding the ‘missing judgment'."
Chinamora's judgment number HH559/2023 had not been made available on the electronic system (IECMS) since the handing down of the judgement on 17 October 2023, and was therefore unavailable to everyone except the judge.
Guta had become apprehensive that probably Justice Chinamora's delay in rescinding his judgement was so that he could edit the judgment HH 559/2023 to include the other three connected cases which the typed judgment had omitted and for which some determination would be necessary if the judgement in ‘the ultimate case', case number HC 3847/20 is to hold any meaning, Sawunyama said.
"I was shown a draft of the letter of complaint on 24 October 2023. When Mr. Guta served me the Letter of Complaint on October 26, 2023, he also informed me that the judge's clerk had called requesting that the parties attend a further case management meeting on Friday 27 October 2023 in his chambers.
"I had reservations about the proprietary of the judge's calling such a meeting when there have been served on him by then but I had previously been instructed in writing on the manner of proceeding which the client preferred.
"I thus made myself available on Friday 27 October 2023 and arrived a little later than 8am to the office of Justice Chinamora's clerk, I was with Ms Gaynor Chitsaka the case of Bherebende Law Chambers who is familiar with the case. We also encountered Agrippa from Sabre Services Private Limited on the way. Just outside the judge's chambers and a hunch, I requested Ms. Chitsaka to record the proceedings in the judge's chambers which she did."
A complaint against Chinamora has since been lodged with Zimba-Dube by the aggrieved party, Balwearie Holdings (Private) Limited, through its managing director Believe Guta.
Guta has been in police custody since 4 November after being arrested by the Zimbabwe Anti-Corruption Commission (Zacc) on fraud charges, days after filing the complaint, which has been viewed as a ploy to protect the underfire judge.
Chinamora is already under scrutiny, with Advocate Thabani Mpofu filing a complaint against him in February after another attorney, Advocate Taona Nyamakura, lodged a complaint against the judge for alleged conflict of interest in a legal dispute between Zimbabwe's Delta Beverages (Pvt) Ltd, Schweppes Zimbabwe Ltd and Blakey Plastics (Pty) Ltd, a South African company.
A panel set up by the Judicial Service Commission (JSC) to review the complaint comprising judges Anne-Marie Gowora, Alfas Chitakunye and Custom Kachambwa concluded that Chinamora had a case to answer.
Chinamora was already facing a series of accusations ranging from conflict of interest, judicial misconduct, bribery to different forms of corruption.
The JSC recommended that President Emmerson Mnangagwa set up tribunals to investigate the suitability of Chinamora and former Bulawayo High Court judge Martin Makonese to hold office.
In April, Mnangagwa appointed a three-person tribunal chaired by retired Justice Professor Simbi Veke Mubako and consisting of Dr Gift Manyatera and Ms Sarah Moyo to inquire into the question of removal from office of Makonese but did not appoint a tribunal to investigate Chinamora.
While Makonese resigned immediately after members of the tribunal were sworn in, Chinamora is yet to be assessed for suitability to hold office. Before the matter subsided, Chinamora is already facing fresh allegations.
This week, in a letter dated 7 November, Judge President Mary Dube has written to Advocate Agyver Sawunyama, who in 2021 appeared for Balwearie in a company registration and land wrangle between the company and another company Balwearie (Pvt) Ltd incorporated in 1977, to which Justice Chinamora gave a ruling without a hearing.
"I am in receipt of two letters complaining about the matter in which the Honourable Justice Chinamhora dealt with the matter under HC 3847/20. The papers in my possession reveal that you were served with the copies of the letters of complaint.
"To assist me in my investigation of the allegations, I will need your comments over the allegation. I look forward to hearing from you soon to enable me to finalise investigations in this matter," read the letter copied to Advocate Sylvester Hashiti, Zvobgo Attorneys, Mr Valentine Mhungu c/o Messrs. Chasi and Maguwudze.
In her response, in a letter dated 10 November 10 and stamped by the Judge President, Advocate Agyver Sawunyama, denied having appeared before the controversial ruling, despite having been cited among those who appeared before Justice Chinamora.
"On March 31 2021, I appeared before Justice Webster Chinamora in the hearing of the matter of Balwearie Holdings (Private) Limited 1977 v Balwearie Holdings (Private) Limited 2020 & The Registrar of Deeds HC 3847/20. I appeared for the First Respondent whilst Advocate Silvester Hashiti appeared together with Tavonga Makamure for the applicant, there was no appearance for the Second Respondent," Sawunyama said.
"I sought a postponement of the hearing to enable the record HC 5431/20 which is a chamber application for leave to file a supplementary affidavit in HC 3847/20 to be placed before Justice Chinamora so that the chamber application could be determined by him first before the parties argued the rescission application in 3847/20. As a result of this intervention, Justice Chinamora issued an order that the matter would be postponed to 6 April 2021.
"I do not recall anything happened on 6 April 2021 as there were numerous postponements of the cases mostly owing to the Court's congested day until sometime in the winter of 2021. I however recall that when the cases resumed, and before HC 3847/20 could be argued."
"The foregoing is the last that I heard of these matters until Believe Guta sent me an email in the evening of 17 October 2023 after which I learnt that there was an autographically signed, but unstamped and therefore unofficially issued judgment dated 17 October 2023 in the case of Balwearie v Balwearie HC 3847/20 which the judgement is clearly delineated HH 559/2023 and bears my name as having appeared ‘for the respondents'."
Sawunyama said Justice Chinamora's judgement was prematurely handed down as the matter under case number HC 3847/20 was never argued by the parties involved.
"If at all the matter was argued, then certainly the legal practitioner who argued for Balwearie Holdings (Pvt) Ltd 2020 is someone other than myself. The face of that judgment which bears my name as appearing ‘for the respondents'. Is therefore inaccurate, so too is the substance of the judgement in as far as it relates to arguments made on behalf of Balwearie Holdings (Pvt) Ltd who are the First Respondent therein," she said.
After the handing down of the judgment on 17 October 2023 and the delivery of an urgent letter by Bherebende Law Chambers pointing to the error of a judgment in a matter that was yet to be heard, Justice Chinamora convened a case management meeting on Thursday 19 October 2023, Sawunyama said.
She attended together with Walter Bhere bende, Believe Guta and a representative of Sabre Services (Pvt) Ltd, loosely known as Agrippa, and one Ezekiel Chinoingira. Zvobgo T.
Zvobgo attended on behalf of Balwearie Holdings 1977 together and judge Chinamora's clerk. It was then Justice Chinamora admitted to having handed down judgment in error.
During the meeting, he suggested that there were two ways of dealing with the issue - to opt for a rescission or a deletion of the judgment from the ‘system', as none of the parties has the judgement.
Opting for a rescission would see him entirely recusing himself from the case. He would then proceed to arrange for further hearing of the rescission in HC 3847/20.
"Without commenting on the suggestions, I requested time to take full instructions from the client and requested that Sabre Services (Pvt) Ltd's counsel Advocate Edley Mubaiwa should be present at the resumption of case management. It was agreed that we would reconvene the following day at midday.
"The meeting of Friday 20 October could not take place as the judge was in a virtual hearing which went well into the lunch hour. The Judge's clerk requested that we return on Tuesday 24 October 2023 in the afternoon. At some point the idea emerged, although I am not sure from whence, that a judgement rescinding HH 559/2023 had been prepared and needed only to be handed down.
"I was informed by Mr. Guta on Tuesday afternoon that the judge was unavailable on account of sickness and that we were to try again the following day. By this time seven days had elapsed since the handing down of the judgment and Mr. Guta had made several attendances to the office of the Registrar of the High Court and had met with the Registrar and both of the Deputy Registrars regarding the ‘missing judgment'."
Chinamora's judgment number HH559/2023 had not been made available on the electronic system (IECMS) since the handing down of the judgement on 17 October 2023, and was therefore unavailable to everyone except the judge.
Guta had become apprehensive that probably Justice Chinamora's delay in rescinding his judgement was so that he could edit the judgment HH 559/2023 to include the other three connected cases which the typed judgment had omitted and for which some determination would be necessary if the judgement in ‘the ultimate case', case number HC 3847/20 is to hold any meaning, Sawunyama said.
"I was shown a draft of the letter of complaint on 24 October 2023. When Mr. Guta served me the Letter of Complaint on October 26, 2023, he also informed me that the judge's clerk had called requesting that the parties attend a further case management meeting on Friday 27 October 2023 in his chambers.
"I had reservations about the proprietary of the judge's calling such a meeting when there have been served on him by then but I had previously been instructed in writing on the manner of proceeding which the client preferred.
"I thus made myself available on Friday 27 October 2023 and arrived a little later than 8am to the office of Justice Chinamora's clerk, I was with Ms Gaynor Chitsaka the case of Bherebende Law Chambers who is familiar with the case. We also encountered Agrippa from Sabre Services Private Limited on the way. Just outside the judge's chambers and a hunch, I requested Ms. Chitsaka to record the proceedings in the judge's chambers which she did."
Source - newshawks
