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Sheriff and Byo businessman accused of fraud

The Sheriff of the High Court and businessman Mohammed Zakariya Patel are being accused of fraud in a case in which a Bulawayo resident, Naome Thakataka, has approached the Bulawayo High Court seeking an order to set aside the transfer of her property that was sold at a public auction in 2018.

The property, according to court papers is a piece of land measuring 4795 square meters including vested roadways called remaining extent of subdivision 2 of Lot 63A, Hillside, was sold at a public auction to Patel who was the highest bidder at $76 000, 00 according to the Sheriff.

At the time, the US dollars were trading at par with the bond notes.

The property, according to Thakataka was transferred to a then non-existent company, Summergate Investments (Private) Limited.

The cited address for Summergate Investments (Private) Limited is 4A Weir Close, Hillside, Bulawayo while that one for Mohammed is 43 Weir Avenue, Hillside Bulawayo.

Thakataka in earlier court papers said the property, in a “sought after area” was sold at an unreasonably low price and had attracted a purchaser willing to purchase it at $90 000,00.

In court papers, dated 20 January 2020, Thakataka, who is represented by Mathonsi Ncube Law Chambers, cited the Deputy Sheriff of the High Court, Mohammed Patel, Summergate Investments (Private) Limited, Solusi University and the Registrar of Deeds as first, second, third, fourth and fifth respondents, respectively.

Thakataka argues that the Registrar of Deeds obtained an order against Auction Intermarket Floors (Private) Limited for payment of the sum of US$29 920. 65 under cover of High Court Case number 988/14.

“Pursuant thereto, 4th respondent obtained an order in terms of section 318 of the Companies Act, which effectively rendered us as directors personally liable to the 4th respondent,” said Thakataka.

“As a result of that the 4th respondent (Solusi University) caused the attachment of my immovable property which was sold in execution on the 23rd of March 2018 to the 2nd respondent.”

Thakataka had in 2018 filed an objection against the sale which was dismissed with the 2nd respondent confirmed as the highest bidder.

Thakataka further argues that what has however happened since then is what has prompted the filing of a fresh application to set aside the transfer to the third respondent as a result of the “glaring fraud” and misrepresentation of the 1st, 2nd and 3rd respondents.

“After the dismissal of HC 1664/18, what followed next clearly shows that 1st respondent and 2nd respondent acted fraudulently,” argued Thakataka.

“The 1st respondent has since issued another letter, backdated 31 May 2018 (styled an Amended Confirmation Letter), in which the Sheriff purports to award the property to Summergate Investments (Private) Limited. Again, there is a company resolution dated 30th May 2018 issued by the directors of Summergate Investments (Pvt) Limited authorising the company to purchase property from an auction. The lie is that Summergate Investments did not exist on the 30th of May 2018. Summergate Investments (Private) Limited was incorporated on the 18th of June 2018. The misrepresentation did not stop there.”

The applicant further said the 1st, 2nd and 3rd respondents proceeded to misrepresent to the 5th respondent that the 3rd respondent had purchased the immovable property at a public auction, which the applicant says was far from the truth.

“In fact, the conduct of the 1st respondent, as a judicial officer, to backdate and amend court documents must be frowned upon by this court,” the applicant bemoaned.

“How a judicial officer can misrepresent on oath, that on the 23rd of March 2018 he sold a property to a non-existent company is baffling. In fact, the conduct of the 1st respondent to amend court documents, after issuance must be frowned upon by this court.”

The applicant argues there are now two letters dated 31 May 2018, explaining when the court challenge in HC 1664/18 was mounted, the highest bidder was the 2nd respondent.

“Now it turns out that the sheriff actually awarded the property to 3rd respondent,” the applicant said.

“The sheriff clearly misled and misrepresented to me as is evidenced by this new letter. The above clearly demonstrates that the auction process was a sham and the 1st-3rd respondents held a farcade. The sheriff as a judicial officer must not be a party to such. The sheriff himself conducted a hearing in which the 2nd respondent was present. There was and has never been a Summergate Investments (Private) Limited all this time.”

The applicant added: “Had I known; I would have challenged Summergate Investments as the highest bidder. However, the truth as appears on the papers is that Summergate never existed before, during and after the auction. In the premises, I submit that the entire transfer is tainted with fraud and must be set aside on that basis alone and the auction process be re-done in a clear and transparent manner.”

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