Businessman Matsika loses Con-court appeal in battle over control of Croco Motors

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By Staff Reporter

Businessman Farai Matsika has lost an application in which he was seeking leave to appeal to the Constitutional Court against the decision of the Supreme Court.

This becomes the second time he has lost a Constitutional Court appeal in a dragging legal battle over the control of Croco Motors.

Last year the Constitutional Court struck off his other application for lack of jurisdiction.

In the present case, a three-panel Constitutional Court bench comprising Justices Anne Gowora, Bharat Patel and Gladys Hlatswayo threw out his application ruling that the Supreme Court did not determine any Constitutional issue as such the decision it handed down was final and not appealable.

“Given the foregoing, I am constrained to find that it is not in the interests of justice that the applicants be granted leave to appeal against the decision of the court a quo.

“The application, therefore, fails on that basis.

“Consequently, as the applicants approached the court a quo on the basis of the wrong provisions of the law, the application was improperly before the court a quo.

“The proceedings before the court a quo were a nullity and no appeal can lie against them.”

The judges said it is well settled that anything done contrary to the provisions of the law is a nullity.

“In addition to the above, the law requires that there be finality to litigation.

“Consequent thereto, the decision of the court a quo on the application for condonation and extension of time to note an appeal was final in nature.

“This is provided for in s 169 of the Constitution as read with s 26 of the Supreme Court Act, both of which state that all decisions of the Supreme Court, including those of a single judge in chambers, in non-constitutional matters are final and not subject to appeal.

“Only where the Supreme Court determines a constitutional issue, may one appeal to this Court for a final determination.

“Because the Supreme Court in this matter did not determine any constitutional issue, the decision it rendered was final and not appealable.”

“Given the above, it is clear that this application for leave to appeal has no merit and ought to be dismissed,” the bench ruled.

Matsika who was the applicant in the case together with Fairgold Investments Pvt Ltd had argued that the Supreme Court erred in law and misdirected itself in not finding that under section 175(4) of the Constitution of Zimbabwe, a request for a referral of a constitutional issue to the Constitutional Court necessarily has to be in writing.

He also said the Supreme Court erred in law and misdirected itself in dismissing the application for referral in terms of section 175(4) of the Constitution of Zimbabwe, it applied an incorrect test in determining whether the request was merely frivolous or vexatious.

Matsika also said said the lower court failed to find that, as an alternative to the above two grounds of appeal, its finding that it had no jurisdiction to review and correct a decision of a single judge in chambers was an incorrect interpretation of section 176 of the Constitution of Zimbabwe.

He wanted the entire judgment set aside.

Matsika is fighting for control of Croco Holdings with his cousin Moses Chingwena.

He has been tussling Chingwena for years over company ownership claiming he spent over two decades building the empire.

In 2022 Supreme Court judges, Elizabeth Gwaunza, Joseph Musakwa and Hlekani Mwayera declined jurisdiction prompting Matsika to file a ConCourt appeal.

In the previous Supreme Court hearing, the court ruled that Matsika tried to illegally grab ownership of Croco Holdings from the company’s rightful owner, Chingwena.

Another judge, Justice Chinembiri Bhunu, in his judgment said High Court judge, Owen Tagu could not be faulted for coming up with that ruling since Matsika had put nothing before the courts to support his ownership claims.

Justice Bhunu ruled it was Matsika’s obligation to convince the court, but it was clear he submitted doctored documents which made it difficult for both courts to believe him.

At the High Court, Justice Owen Tagu had accused him of trying to grab the company through the back door.

Justice Bhunu also blasted Matsika and his lawyers for incompetence.

Matsika then sought the setting aside of the High Court ruling and demanded a forensic audit and valuation of Croco Holdings and 39 other entities.

Matsika claimed he had built the Croco business empire for 26 years while his cousin Chingwena was working at LCZ, Century Bank, and Discount House, which he added are failed companies.

He said he was an employee of Croco Holdings Private Limited.

In this protracted dispute, he and Fairgold Investments (Pvt) Limited, approached the High Court, in terms of s 196 (1) as read with s 198, of the Companies Act [Chapter 24:03], (the Companies Act), alleging that the affairs of the company were being conducted in a manner which was oppressive and prejudicial to its members, including the first applicant himself.

It was also averred that the latter held 30 percent of the issued shares in the third respondent through the medium of Fairgold.

Chingwena argued that Matsika failed to place before the court evidence showing how he secured the 30% stake in the vehicle sale company.

While Matsika had claimed that Phibeon Gwatidzo of Baker Tilly Gwatidzo Chartered Accountants was the shares transferring secretary in 2006, it emerged through Gwatidzo’s secretary that the accounting firm was not yet in existence at the time.