By Staff Reporter
HIGH Court Judge, Justice Webster Chinamhora is in the eye of a fraud storm after he allegedly passed judgment in a case never heard or argued in court.
Complainant, Balwearie Holdings (Pvt) Limited, avers that through his shenanigans, the top jurist acted fraudulently, breached oath of office, and violated both the law and rights of parties involved in the matters before him.
The affected company, which deals in real estate, has since written a letter of complaint to Judge President, Mary Zimba-Dube, seeking urgent redress.
In the letter dated October 25, 2023, Balwearie Holdings cited section 25 (3) of the Judicial Service (Code of Ethics) Regulations, 2012 to formally lodge a complaint against the High Court judge.
The background giving rise to the complaint is that in July 2020 the complainant was served with an application under case number HC3847/20 and they duly instructed their lawyers, Messrs Bherebende Law Chambers, to oppose the papers.
Applicants, another realtor, in the said case attached to the application documents which were purported to have been prepared by a company called Sabre Services (Pvt) Limited. When Sabre directors learnt of this, they filed an application for joinder under case HC5399/20.
“When we learnt of the fact that Sabre Services (Pvt) Limited was denying to have authored the documents, we also filed an application for leave to file a supplementary affidavit under case HC5431/20.
“On March 31, 2021, the matter under case HC3847/20 was set to be heard by Justice Chinamhora and on the day of hearing Adv Mubaiwa appeared on behalf of Sabre Services (Pvt) Limited and advised the court that his client had a pending application for joinder under HC5399/20, and that his client wants to be joined in HC3847/20,” wrote lawyers representing Balwearie Holdings.
It is alleged on the same day, one Advocate Agyver Sawunyama appeared for Balwearie Holdings and advised the judge that there was a pending application for leave to file a supplementary affidavit, which needed to be determined before case under HC3847/20 could be entertained.
Further, it is also alleged the judge issued an order directing the Registrar of the High Court to locate records HC5399/20 and HC5431/20 and place them together with HC3847/20. The matter was then postponed to April 6, 2021.
Sometime in June 2021, Chinamhora heard the joinder application and reserved judgement. He then directed that the application for leave to file a supplementary affidavit under case HC5431/20 and the main matter involving property dispute under HC3847/20 would be heard after delivery of the ruling on the application for joinder.
Balwearie notes that from June 2021 to date, three years on, the honourable judge is still withholding judgement in the joinder application by Sabre Services (Pvt) Limited, which is not permissible at law.
“What has disturbed us is that while we were still waiting for the ruling on the joinder application by Sabre Services (Pvt) Limited under 5399/20 on October 17, 2023, our lawyers Mr Bherebende received a call from Justice Chinamhora’s clerk inviting parties to note judgement which was to be handed down by judge in his chambers.
“…what is worrying is that the honourable judge delivered judgement in case HC3847/20 which was not heard or argued. He did this knowing very well the following; that the case was not heard or argued; that there was a party, Sabre Services (Pvt) Limited, which wanted to be joined in that case and judgement whether or not it could be joined or not is still being reserved by the same judge,” Balwearie further wrote.
The aggrieved company also lamented Chinamhora also knew that there was a pending application for leave to file a supplementary affidavit which should have been heard before HC3847/20 could be placed before court.
It is further alleged on the same day, there was a meeting between Balwearie staff and lawyers and they agreed to engage judge’s clerk to flag the matter.
“Also, on the same day we requested through the Integrated Electronic Case Management System (IECMS) Ref. CR 0000031666 requesting a copy of the judgement. The response we got from the court is that there was no such judgement and that we should attend to the Deputy Registrar.
“At Registry, we were shown a copy of the judgement and advised that it was not yet accessible officially because the judge had summoned it back.
“Judgement indicates on October 17, 2023, Adv Hashiti and T. Makamure appeared for applicant while Adv Sawunyama appeared for respondent…”
Balwearie lawyers argue Adv Hashiti and Sawunyama deny ever making appearances at any such court hearing, an embarrassing episode which led to Justice Chinamhora confessing to have erred.
“On October 19, 2023, parties were invited to appear in the judge’s chambers. During that time the judge admitted that he had delivered judgement on a case which was not heard or argued. He claimed that this was an error on his part.
“He suggested that he could just destroy the printed judgement and delete it from the system as a way of correcting his error. We did not agree with his suggestion preferring that he should, on his own initiative, simply issue another judgement rescinding his ‘erroneous one’ as provided for in Rule 29 of High Court Rules, 2021.”
After promising to take that route to correct the anomaly on October 20 this year, Justice Chinamhora has allegedly been evasive.
Balwearie says the judge’s delay was inconveniencing the company.
“As it stands, we cannot appeal or file any application because we have no access to the officially stamped judgement,” said Balwearie lawyers.
Balwearie is praying for Justice Chinamhora to recuse himself in all matters considering the gravity of his “error.”