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(SUNDAY MAIL ZW) Buyanga challenges AG’s lawsuit

Buyanga challenges AG’s lawsuit
Saturday, 24 March 2012 21:09
Ishemunyoro Chingwere

Lawyers representing businessman Frank Buyanga have lodged a High Court challenge to an application by the Attorney-General’s Office seeking to interdict him from selling some 43 properties belonging to his debtors, saying the application is premised on a factually inaccurate and prejudicial affidavit from the police.

Responding to the AG Office’s application of March 1, in which the State sought to bar Buyanga from selling properties of defaulting debtors pending the outcome of an investigation into suspected irregularities, Nyika Legal Practitioners said the police affidavit ignored some crucial facts, bringing its credibility into question.

In the AG’s application, which also cited Hamilton Property Holdings and the Registrar of Deeds as the second and third respondents respectively, the State alleges that Buyanga and the property firm were involved in illegal money lending, fraudulent agreements of sale of immovable properties, creation of fraudulent powers of attorney and forging Zimbabwe Revenue Authority (Zimra) capital gains tax clearance certificates.



However, in a notice of opposition filed last week, Buyanga’s lawyers challenged the application, saying there was even no need for their client to be cited as the first respondent in the matter as it was common knowledge that Buyanga had resigned as director of Hamilton Property Holdings in 2010.

“Taking into account that the first respondent resigned as a director of the second respondent (Hamilton), then the logic why the applicant decided to sue the first respondent in the matter has escaped us. Why, for example, has the applicant decided to cite the first respondent instead of the correct office bearers of the second respondent?
“After the resignation from the office of the second respondent, what residue powers still remain in the hands of the first respondent?” queried Buyanga’s lawyers.

“To make matters worse, nothing has been placed on record to suggest that despite the first respondent’s resignation from office, he has continued to deal with the immovable properties registered in the second respondent’s portfolio.
“Furthermore, no evidence has been placed on record which shows that since the first respondent’s resignation from office, he has approached the third respondent (Registrar of Deeds) seeking to transfer the second respondent’s immovable properties.”

In his own affidavit, Buyanga said the legal costs he had incurred in opposing the “ill-advised” application from the AG’s Office could have been avoided, adding that the applicant had also erred in asking the court to grant an interdict with costs.
“It must be ironic that the applicant could just launch an application and seek for costs regardless of whether the application is opposed or not,” averred Buyanga.

He said the allegations levelled against him in the application, which included illegal money lending, tax evasion and illegal property transfers, were defamatory.
“The contents of the applicant’s founding papers are defamatory, inflammatory and insulting. An application cannot be taken as an opportunity to go on a fishing expedition because the courts have better things to do.

“After reading the affidavit, one cannot sift the cogent facts from the speculation and suspicion. We all know that one cannot prove a case from a multitude of suspicion. What is currently before the court leaves a lot to be desired and the affidavit is wanting, thereby placing the office of the Attorney-General into disrepute.”

Buyanga’s lawyers also denied that their client was a fugitive from justice, pointing out that the AG’s application was not an application for his extradition.
They said it was littered with irrelevant data which should be struck off the record.
“What is the connection between the first respondent’s present whereabouts and the interdict the applicant is seeking from the court? The first respondent is not a fugitive from justice as the applicant seems to imply in the application before the court.

“He is a law-abiding citizen who is proud to be Zimbabwean and, in a small way, has contributed towards the economic development of Zimbabwe.”
The lawyers also submitted that the application, which was made after an affidavit from police Chief Superintendent Patrick Majuta, was founded on hearsay whose credence was never tested or investigated.

They said, for instance, Chief Supt Majuta never interviewed any Zimra official, adding that the conclusions made by the police officer were not supported by the facts.
Zimra would not have waited until the affidavit to establish the fact that criminal offences were committed at the instance of the second respondent.

The various bank statements annexed to the affidavit as presumed proof of illegal business transactions, did not confirm that there was any offence that was committed by Buyanga or people who made deposits into his bank accounts.
The bank statements attached to the affidavit by Chief Supt Majuta show that the cumulative transactions involving Buyanga’s accounts amounted to around US$10 million.

“The evidence in question has not been confirmed and/or corroborated, yet the applicant is before the court using the same evidence as the roots of the application,” said the lawyers, further submitting that the applicant wanted to import criminal law into a matter which was essentially civil in its outlook.
“This is on account of the fact that various judges of this honourable court have had occasion to adjudicate on the matter and no judge has found any wrongdoing on the first

or the second respondent’s part.

“Instead of presenting the full picture, (Chief Supt) Majuta went out of his way to paint a picture of the commission of criminal offences. The alleged criminal offences according to (Chief Supt) Majuta were committed by the first and second respondent.
“It cannot be mere coincidence that Majuta is not aware that the facts of the present matter were adjudicated upon by the following judges: the Honourable Justice Makarau,

Honourable Justice Mutema and Honourable Justice Patel.
“(Chief Supt) Majuta was aware that once it was known that the present matter had been ventilated by judges of this honourable court who found that no wrongdoing was done in the matter, that was going to be the end of the application.”

Buyanga also denied that he changed his name from Frank Tawanda Buyanga to Frank Buyanga Sadiqi to evade arrest or to commit more crimes, saying if he had wanted to do so, he would have dropped the names Frank and Buyanga altogether.
“It must be remarked that the present matter has been debated since about 2009 and that is almost four years ago. It is, therefore, interesting to note that suddenly the

interdict application is launched and simultaneously I have become an international criminal.

“If I was on the international wanted list, then why was I never arrested by the Zimbabwean police in order to give effect to the Interpol warrant?”

Labels: CORRUPTION

posted by MrK @ 5:24 PM