A Harare company is seeking the deregistration of three top lawyers it is accusing of unprofessional conduct after they caused a matter to be determined unopposed despite acknowledging that they received opposition papers.
Sayles Corporation approached the Law Society of Zimbabwe (LSZ) seeking the censure of Mark Warhurst, Richard Dhaka, and Kerry Stone Hutchings from Matinadzo and Warhust Legal Practitioners, who represented a rival company Couch Grass in a legal wrangle of property.
The company first filed the case against the trio on March 31, 2022.
Salyes and Couch Grass are battling over the control of a property in Borrowdale measuring 6.8 hectares which June Searson owned but sold to a company, Samalyn Investments before she died in 2007.
Samalyn failed to raise the transfer fees before Searson's death and it put a caveat on the title in 2011.
The title was still registered in Searson’s name.
According to court papers, Couch Grass transferred the title into its name in 2012 despite the caveat and without consulting the conveyancer.
Couch Grass also allegedly used fake adverts and transferred the property on September 25, 2012 without a court order cancelling the caveat and without supporting documents.
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The company only managed to file the supporting documents with the Deeds Office a month later.
Samalyn then secured a court order cancelling Couch Grass’s title and ordering the executor to transfer the title to any company that would buy the land.
The title was then transferred to Sayles Corporation.
Cough Grass then filed a court application in 2019 seeking the cancellation of Sayles’ title and the revival of its title.
In the court case, it cited five respondents including Sayles and Shepard Chimutanda, who was the executor of Searson’s estate.
They also cited the registrar of deeds and cited Samalyn and master of the High Court. Out of the five respondents, Chimutanda, Sayles and Samalyn opposed the application.
Their respective notices of opposition were served on Matizanadzo and Warhurst on October 18, 2019 and the lawyers confirmed receipt.
Matizanadzo and Warhurst, however, still proceeded to file a notice of sat down on an unopposed role.
The matter was heard in an unopposed role on October 23, 2019 by High Court judge Justice Edith Mushore and they obtained a default judgment.
Matizanadzo and Warhurst used the judgement to change the title of the Borrowdale property from Sayles to Couch Grass.
Sayles only became aware of the change when a would-be-lender was conducting investigations on the property which was about to be used as security.
The scandal sucked in two officials of the High Court’s civil registry, who allegedly manipulated court systems to put the case on the unopposed roll.
The officials are also accused of removing about 130 pages from the file to facilitate a judgment against Sayles.
The pages were restored after the default judgement and the Judicial Services Commission (JSC) instituted investigations on the matter that implicated the two officers. The JSC ruled that the default judgments were fraudulently obtained.
“This was with assistance of High Court civil division registry official(s) who besides being aware that opposing papers had been filed, proceeded to place the matter on an unopposed roll,” part of the JSC report read.
“A perusal of the file indicates that a court application for reversal of cancellation of the deed of transfer was filed in the High Court by Messrs Warhurst and Matizanadzo on 27 September 2019.
“Your averment that the matter was improperly placed on the unopposed roll is correct because the first and fifth respondents had duly filed their opposing papers”.
Meanwhile, Matizanadzo and Warhurst waited for another whole month after the default judgment and filed an answering affidavit to the notice of opposition that was filed by Samalyn, which they claimed not to have seen when the default judgment was secured.
Sayles, through one of its directors, Darryn Williams Blumears, filed a court application under rule 449 seeking the reversal of the default judgment obtained by Couch Grass, which was used to take away their title.
The High Court however held the matter in abeyance pending the determination of a separate dispute between Couch Grass and Samalyn that was before the Supreme Court.
The rule 449 application has not been determined and this forced Sayles to file three more applications.
They are an application for a declarator, application for a joinder and another for reversal of the judgment in the matter between Couch Grass and Samalyn in which Couch Grass succeeded.
Sayles’ application was based on the fact that they had rights to the land when the matters were decided. It said this made them an interested party, which must have been joined in the case.
The three matters are still pending before the court.
Sayles says it was clear that the three lawyers misrepresented to the court that the matter was not opposed.
For the past three years, the lawyers have maintained that the case was not opposed and this formed the basis of Sayles’ complaint to the LSZ.
It argued that if the lawyers were sincere that they did not know that the case was being opposed they were supposed to have filed a consent for judgment in all three cases.
Sayles said the conduct of the lawyers was inseparable from their client and deserve punishment for unworthy and fraudulent behaviour
