CHIREDZI – A disgruntled couple has written to Chiredzi resident magistrate Constance Mutandwa complaining about the rescission of a judgement made in their favour.
In the letter, dated March 02, 2018, David Ginya, on behalf of his spouse Synthia Pfaira, complaints that magistrate Geraldine Mutsoto blatantly erred when she reversed a default judgement made by another magistrate, Tafadzwa Mhlanga.
The default judgement, delivered on January 22, had authorised the messenger of court to help Pfaira recover her money from one David Saunyama who had failed to deliver on a deal to sell her a residential stand.
The default judgement had been made because Saunyama had failed to show up in court.
On March 01, however, Mutsoto granted Saunyama’s application for rescission of judgement and stay of execution on the grounds that there was no indisputable proof that Saunyama was served summons.
“I refer to the above matter and the bizarre ruling that was made by the trial magistrate on the 1st of March 2018. I am the spouse and financier therein, Synthia Pfaira, so kindly note my interest in the matter.
“I am advised that at law, advise (sic) I verily believe to be true and correct in all material respects, that before a court of law can grant default judgement it has to be satisfied that the defaulter was served in accordance with the magistrates’ court (Civil) rules of 1980 in casu, the judgement in default was granted by magistrate Tafadzwa Mhlanga after observing that applicant had been properly served.
“In that vain, (sic) I argue that it is a piece of either breath taking naivety of naked corruption or both for trial magistrate Geraldine Mutsoto to find otherwise. The issue logically boils down to the question: was the final determination by Geraldine Mutsota a matter of law or a classic clash of penalties with Tafadzwa Mhlanga?” reads part of the letter.
In the letter, Ginya also calls upon the office of the resident magistrate to launch investigation into Mutsota’s decision.
It is understood that in 2016, Pfaira entered into an agreement with Saunyama for the purchase of a residential stand which was was valued at US$6 000 and she made an initial payment totalling US$2 000.
Pfaira later demanded her money back after Saunyama allegedly failed to meet his side of the bargain. Saunyama, however, failed to reimburse Pfaira’s money, leading to the civil suit.
TellZim News saw a copy of Mutsoto’s ruling for Case Number GL701/17 as well as summons reportedly served to Saunyama through his legal practitioners, Muvingi and Mugadza Legal Practitioners C/O Zimbodza and Associates.
“The applicant has indicated that the default judgement that was granted was granted in error. This regard being had to Order 7(5) (2) (b) of the magistrates court civil rules which require that service shall be delivered to a responsible person at the residence or place of business or employment of the person or whom service is to be effected or at his chosen address of service,” reads part of Mutsoto’s judgement.
The summons, that bear the clerk of court’s stamp, are said to have been served to Saunyama on November 5, 2017 for the matter which was supposed to be heard on December 12, 2017.
After Saunyama failed to appear in court, Mhlanga delivered the default judgement and gave authority to Pfaira to recover her money through the messenger of court who went on to attach Saunyama’s vehicle.
In 2016, the Judicial Services Commission (JSC) transferred 12 magistrates from the southern region due to what was widely perceived to be part of attempts to fight rampant corruption by magistrates and prosecutors.local