Daniel Nemukuyu Senior Court Reporter
HARARE lawyer and founder of Mathias and Mildred Church, Mr Mathias Madzivanzira, risks losing immovable property over non-payment of a $300 000 debt to Tetrad Investment Bank Limited.
High Court judge Justice Nicholas Mathonsi on Thursday ordered Mr Madzivanzira, his wife Mildred and their company Mathias and Mildred Private Limited to pay up the debt or risk losing a piece of land in Zimre Park.
The land, Lot 1A Inverneil, Goromonzi, is the land along Mutare Road where a service station popularly known as M&M was built, but the service station is now operating under the name Sakunda.
Justice Mathonsi declared the piece of land executable.
“In the result, it is ordered that judgment be and is hereby entered in favour of the plaintiff as against first, second and third defendants jointly and severally, the one paying the others to be absolved as follows:
a) Payment of the sum of $448 711,56
b) Interest on that amount at the rate of 23 percent per annum calculated from January 7 2014 to date of payment in full.
c) The mortgage property being a certain piece of land in the district of Goromonzi called Lot1A Inverneil held under Deed of Transfer Number 6596/2005, is declared specially executable,” he said.
Justice Mathonsi, however, threw out a counter claim by Mr and Mrs Madzivanzira and their company for $1,5 million damages, saying it lacked merit.
He blasted the defendants for deliberately opposing the claim and wasting the court’s time well knowing they had no basis before slapping them with costs on a higher scale.
“Even if the plaintiff (Tetrad) was not entitled to costs on a higher scale in terms of the contract, I take the view that this is a case in which admonition is called for because the defendants have trifled with the court in a shameless way,” said Justice Mathonsi.
“They have contested this unassailable claim all the way on frivolous or vexatious grounds, a defence and counter claim which are manifestly groundless, utterly hopeless and without foundation.”
In terms of a loan agreement signed between the bank and Mathias and Mildred (Pvt) Ltd on November 2 2012, Tetrad advanced $300 000 to the company on certain conditions.
The company was supposed to pay up the debt by November 30 2013 and Mr and Mrs Madzivanzira, being co-directors for the firm, signed the agreement as guarantors.
The piece of land that was declared executable had been tendered as surety.
But the couple failed to repay the loan prompting the bank that is now under judicial management, to file a lawsuit at the High Court.
While admitting receipt of the $300 000, Mr Madzivanzira and others filed a counter-claim for $1,5 million arguing that Tetrad Bank had promised to pay them an additional $260 000.
They argued that the bank had breached the agreement by advancing a lesser figure, hence it must compensate them for breach of contract.
However, Justice Mathonsi described the argument of Mr Madzivanzira, who is also a pastor, as “dishonest and shameless in the extreme”.
The judge rejected the defence and counter-claim insisting that the only proof before the court is of a loan agreement for $300 000 and that the $560 000 argument was baseless and unfounded.
“He was then granted the loan he applied for as represented by the facility agreement dated November 2 2012,” Justice Mathonsi. “So when did it metamorphose to a loan of $560 000, a loan which was not applied for and was not granted?
“It is for that reason that I have concluded that the allegation of a loan in the latter amount is dishonest and shameless in the extreme. It is unfounded and I reject it completely. I find as proven that the parties entered into a loan agreement for $300 000.”
Justice Mathonsi said Advocate Thabani Mpofu gave Mr Madzivanzira a tough time during cross-examination to an extent of getting angry for fear of being exposed.
“Madzivanzira had a very torrid time under cross-examination,” said Justice Mathonsi.
He became extremely angry when his credibility as a lawyer and pastor was questioned against the quality of his evidence and started hedging.
“What became clear, however, is that while admitting to owing the money, he was unwilling to pay anything back content to rely on a counter claim which is a pie in the sky.”