The ebbing legal wrangle over a million-dollar mansion nestled in the posh Highlands suburb pitting Harare businessman and an investment company continues in the courts, with businessman Tendai Mashamhanda asking the Supreme Court to halt his eviction from the property.
Mr Mashamhanda’s urgent application to stop the eviction came after Barriade Investments, who have been recognised by the Supreme Court as the owner of the property, obtained an eviction order from the High Court against the businessman.
According to the order, even if Mr Mashamhanda notes an appeal against the judgment, execution would proceed and he would have to go until the final Supreme Court decison over the eviction.
In addition, a writ of ejectment was issued by the Sheriff on the instruction of Barriade Investments, which was served on Mr Mashamhanda on December 8 notifying him that he had to vacate the property by December 13.
Although a Supreme Court judgment is considered final in an ownership dispute, Mr Mashamhanda has asked the Supreme Court to order a forensic check of the documents used to make the decision in favour of Barriade to see if any were forged.
So Mr Mashamhanda represented by Professor Lovemore Madhuku instructed by Mr Kudzai Rangarirai of Rangarirai & Co Legal Practitioners, appealed against the decision of the High Court at the Supreme Court in an urgent chamber application to stop the eviction until the appeal is decided.
This urgent chamber application was heard early this week and after hearing arguments from both parties, Justice Chinembiri Bhunu reserved judgment to a later date.
As it stands Mr Mashamhanda’s lawyers have, therefore, managed to stop the eviction temporarily because of the pending legal processes.
He is not evicted until the judgment is out. So the fact that the judgment was reserved means the businessman still remains at the property.
Mr Tendai Mashamhanda, is the son of the business mogul Alex Mashamhanda, the founder of Mashwede Holdings, bought the disputed house for US$230 000 from Harare lawyer Piwai Chiutsi before developing it to the value of US$1,5 million, but the High Court ruled that it was sold to him in a fraudulent manner and therefore he must be evicted.
Last month High Court Justice Maxwell Takuva ordered that Mr Mashamhanda be evicted from 41 Ridgeway North, formed of the Remainder of Subdivision C of Plot 6 of Lots 190, 191, 193, 194 and 195 of Highlands Estate of Welmoed.
That prompted him to approach the Supreme Court on appeal and also brought an urgent application for stay of execution of the judgment until the matter is finalised.
A bid to have Justice Bhunu recuse himself from the matter failed after Mr Mashamhanda wrote to Justice Minister Ziyambi Ziyambi on December 6 demanding that he resigns over mishandling of other cases involving the businessman.
Section 14 of the Judicial Service (Code of Ethics) Regulations, 2012, provides in 14(1), that a judicial officer had to disqualify or recuse themself in any proceedings in which the judicial officer’s impartiality may reasonably be questioned…”
However, where the reason for seeking recusal is not actual bias, the test is whether there is a reasonable belief that a real likelihood of bias exists.
So, the person considering the alleged bias must be reasonable and the apprehension of bias itself must be reasonable in the circumstances of the case.
There are several case laws where it was held that in considering an application for recusal there is a presumption that judicial officers are impartial and that the onus is on the applicant for recusal to rebut that presumption by adducing cogent and convincing evidence.
This is in recognition of the position that it is not easy to dislodge the presumption of judicial impartiality.
However, Mr Mashamhanda contends that in the Supreme Court matter involving the same parties, Justice Bhunu overruled his motion to disqualify him from hearing the appeal as stipulated by the law.
