The Law Society of Zimbabwe (LSZ) has started a disciplinary process against three top Harare lawyers that are accused of facilitating an alleged fraudulent transfer of a property to a company linked to real estate mogul Patrick Paul Kennan.
Kennan, who owns Kennan Properties, is linked to Couch Grass, which allegedly benefited from the transfer of the house in Borrowdale through a flawed court process.
The property transfer landed the three lawyers Mark Warhurst, Richard Dhaka, and Kerry Stone Hutchings from Matizanadzo and Warhust Legal Practitioners in trouble with the LSZ where they are now facing charges of unprofessional conduct, fraud, and obstruction of justice.
The trio is accused by two companies, Sayles Corporation and Samalyn Investments,of causing a matter to be determined unopposed despite acknowledging receiving opposition papers.
Sayles and Samalyn are fighting Couch Grass Sayles over the property in Borrowdale measuring 6.8 hectares which was previously owned by the late June Searson. Searson sold the house to Samalyn in 2007.
Sayles raised a complaint against the trio on March 31, 2022, before Agrippa Andrew Madziwa representing Samalyn also lodged another complaint where he sought their deregistration on August 5 this year.
The LSZ said action on both complaints was already underway.
“Please note that the issue is before the Law Society of Zimbabwe's disciplinary and ethics committee,” LSZ communications manager Richard Chidza said.
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The charges against the lawyers arose after they allegedly secured a default court judgment, which they used to re register the property’s title into Kennan’s company in 2019.
This was after its title was cancelled in 2017.
According to court papers, Lot 4 of Reitfontein was sold to Phillipus Fourie Naude, who is the owner of Samalyn, by Searson in 2004.
Samalyn failed to raise the transfer fees before Searson's death, but obtained all the necessary documentation to prove their ownership.
Samalyn put a caveat on the title in 2011 after it noted a rival claim to the property.
But in 2012, Couch Grass, following a purported sale of the same property by the then executors, of Searson’s estate, changed the title deed into its name.
John Timothy and Simon Searson, both resident in Australia, effected the transfer into Couch Grass through Brenda Carol Leeper despite knowing about the existence of a caveat.
Richard Stonier was the conveyancer of the alleged fraudulent transfer.
Couch Grass also allegedly used fake adverts and transferred the property on September 25, 2012, without a court order invalidating the caveat and without supporting documents.
The advert could not be located in the issue of the NewsDay that Couch Grass claimed to have used and an inquiry by Naude with the paper showed no such advert was published.
Cough Grass only managed to file the supporting documents with the Deeds Office a month later after transferring the title.
Couch Grass was registered in October 2012, a month after the title was transferred into its name on September 25.
Samalyn secured a court order cancelling Couch Grass’ title and ordering the executor to transfer the title to any company that would buy the land.
Three court applications by Thomas and Simon Searson, Leeper, and Couch Grass to stop the execution of the order nullifying the Couch Grass title deeds and ordering the reopening of the late Searson’s estate and appointment of an executor to cause the transfer of the property into any new buyer flopped.
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 own title, which was cancelled in 2017.
Couch Grass cited five respondents including Sayles and Shepard Chimutanda, who was the executor of Searson’s estate.
They also cited the registrar of deeds, cited Samalyn and the 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.
The lawyers, however, proceeded to have the case heard unopposed after allegedly hiding notices of opposition to secure a default judgment on October 23, 2019 before High Court judge Justice Edith Mushore.
Matizanadzo and Warhurst used the judgment to change the title of the Borrowdale property from Sayles to Couch Grass.
One of the High Court’s civil registry staffers, Traver Mupita who allegedly manipulated court systems to put the case on the unopposed roll, resigned in 2021 to avoid impending disciplinary proceedings by the Judicial Services Commission (JSC) over the matter.
In its investigation, the JSC ruled that the default judgment was obtained fraudulently.
In his complaint to LSZ Madziwa said the three lawyers intentionally removed papers from the court record and deliberately placed incomplete records before the judge to obtain a default judgment, despite having been served with opposition papers.
“I believe that Mark Warhurst, Richard Manwick Dhaka, and Kerry Stone, who formerly practiced under the style of Messers Matizanadzo and Warhurst, conspired to defeat justice and committed fraud,” part of Madzima’s letter read.
“They should be brought before the disciplinary tribunal as their conduct undermines the integrity and probity of the legal fraternity.”
In a bid to hide the default judgment the lawyers responded to answering affidavits to mislead Samalyn into believing that the matter was still pending before the court, Madziwa said.
Legal experts said if the lawyers were genuinely mistaken they would have filed a consent to judgment in 2019 when they were confronted with proof that three respondents opposed the matter.
One of the legal experts said it was astonishing that the three lawyers have continued to engage in “vexatious conduct for some five years after they were served with incontrovertible proof of service.
“One gets the sense that the lawyers think they are not bound by laws that bind all other lawyers,” the lawyer said.
The matter was also reported to the police and Zimbabwe Anti-Corruption Commission.
Fourie was forced to write to the officer commanding Serious Frauds after the investigating officer in the matter, identified as Ds Jindu, sat on the matter for over a year.
There is still no progress on the matter despite several follow-ups.
Two weeks ago, Couch Grass erected a billboard claiming that it owned the property, despite the matter being before the courts.
In his statement recorded in 2014, Naude accused Couch Grass of using a fake title to secure a title in its name.
He said the title Couch Grass used against him is different from the one held at the Deeds Office, with numerous anomalies that include different positions of date stamps, position of signatures, and different type sets, among others.
Naude was acquitted by the Harare magistrates’ courts in May 2017 after Kennan got him arrested and charged with fraud, forgery, and perjury.
Working with former Harare city council town clerk Michael Mahachi, Kennan accused Naude of lying that he owned the property.
They claimed that Naude forged the documents, such as a power of attorney, but failed to prove the allegations, forcing Harare magistrate Noel Mupeiwa to dismiss the case.
