House saga: Court clears First Lady

The Herald (Zimbabwe) - - Front Page - Daniel Ne­mukuyu and Hazel Lifa

THE High Court has re­scinded an er­ro­neous court or­der that com­pelled First Lady Amai Grace Mu­gabe and her son Mr Rus­sell Gor­eraza to va­cate three houses be­long­ing to a fugi­tive Le­banese busi­ness­man Ja­mal Ahmed.

Judge pres­i­dent Ge­orge Chi­weshe set aside the or­der af­ter the First Fam­ily’s lawyer Mr Wil­son Manase of Manase and Manase Le­gal Prac­ti­tion­ers suc­cess­fully ar­gued that his clients had noth­ing to do with the al­leged grab­bing of the property and that Dr Mu­gabe’s name had been soiled un­fairly.

The po­lice have since told the court that they placed the houses in ques­tion un­der po­lice guard as part of their in­ves­ti­ga­tions into crim­i­nal al­le­ga­tions against Ahmed. Ahmed, who is be­lieved to be in hid­ing, is on the po­lice wanted list for al­leged money

laun­der­ing among other of­fences.

The judg­ment handed down yes­ter­day, cleared the First Lady and her son of “house grab­bing” and if Ahmed still in­sists on pur­su­ing the case, he has an op­tion of su­ing the po­lice.

In De­cem­ber last year, Jus­tice Cle­ment Phiri was mis­led into grant­ing an or­der against Amai Mu­gabe and Mr Gor­eraza when the two had been wrongly cited as re­spon­dents. An at­tempt by Mr Manase to seek a post­pone­ment of the case on the eleventh hour, was dis­missed re­sult­ing in the is­suance of the or­der com­pelling the two to va­cate the houses they never oc­cu­pied.

To that end, Mr Manase filed an ap­pli­ca­tion at the High Court for rescis­sion of the judg­ment.

The Judge pres­i­dent, in his judge­ment, de­scribed the or­der by Jus­tice Phiri as er­ro­neous be­fore set­ting it aside.

“I am sat­is­fied that the or­der of Phiri J, hav­ing been er­ro­neously sought and er­ro­neously is­sued, must be set aside in terms of Rule 449(1) (a) of the High Court Rules 1971. If al­lowed to stand, it would cause an in­jus­tice. The rules al­low me to so pro­ceed even in the ab­sence of any ap­pli­ca­tion from ei­ther party.

“Ac­cord­ingly, it is or­dered as fol­lows:

1. The or­der of this court, given un­der the hand of Phiri J on 21 De­cem­ber 2016 un­der case num­ber HC12497/16, be and is hereby re­scinded.

2. The ap­pli­cants (Ahmed) shall pay the costs of suit.”

The Judge pres­i­dent found that Jus­tice Phiri er­ro­neously is­sued a fi­nal or­der when the sit­u­a­tion called for a pro­vi­sional or­der.

Judge pres­i­dent Chi­weshe said the First Lady and her son were never served with the ur­gent cham­ber ap­pli­ca­tion since they were out of the coun­try on hol­i­day.

Grant­ing a fi­nal or­der against them with­out hear­ing their side of the story was un­fair, the court ruled. “The judge and both par­ties were un­der the im­pres­sion that a pro­vi­sional or­der and not a fi­nal or­der had been granted.

“If Phiri J had been ad­vised that the in­terim re­lief was framed in terms of a fi­nal or­der, he would not have granted it with­out hear­ing the ap­pli­cants who were on hol­i­day out­side the coun­try…” said the Judge pres­i­dent.

Judge pres­i­dent Chi­weshe said the er­ro­neous or­der was is­sued with­out es­tab­lish­ing the cor­rect iden­tity of the per­pe­tra­tors.

He added that the fact that the po­lice had ex­on­er­ated the First Lady and her son sup­ports the no­tion that the or­der was er­ro­neous. “Even if the facts of the spo­li­a­tion were es­tab­lished, it would still be in­cum­bent upon the ap­pli­cant to es­tab­lish the iden­tity of the per­pe­tra­tor . . .

“The re­spon­dents also point out that the po­lice as hav­ing con­firmed that it was the force that was oc­cu­py­ing the prop­er­ties as part of an in­ves­ti­ga­tion against first ap­pli­cant who is ac­cused of money laun­der­ing and other of­fences,” the Judge pres­i­dent said.

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