Daniel Nemukuyu Senior Court Reporter—
The Supreme Court has confirmed the transaction in which Zimcor Trustees Limited acquired a Mt Pleasant property and later sold it to Boka Investments. Zimcor, under the directorship of businessman Mr Frank Buyanga, acquired shares in Rasar Investments which owned Stand Number 671 Mt Pleasant in Harare.
Mr Buyanga then sold shareholding in the same company to Mr Mathew Boka of Boka Investments.
The original directors of Rasar Investments led by Dr Webster Rushesha contested the transactions at the High Court and obtained an order nullifying them.
He argued that the property belonged to his two minor children who were the registered shareholders for Rasar Investments.
Zimcor and Boka Investments took the matter to the Supreme Court on appeal where Justice Bharat Patel quashed the High Court decision and validated the transactions.
Justice Patel sitting with Justices Luke Malaba and Paddington Garwe, allowed the appeal with costs.
“The appeals in Case Number SC453 /13 and SC446/ 13 be and are hereby allowed with costs.
“The judgment of the court a quo is set aside and substituted with the following:
“The plaintiffs’ claims are dismissed with costs,” ruled the judge.
Justice Patel ruled that the formation and administration of the original Rasar Investments was marred with misrepresentation and fraud.
“To sum up, the net effect of all the aforementioned evidential deficiencies was to irremediably undermine Rushesha’s case as pleaded in the summons and declaration,” he said.
“They demonstrate that the formation of Rasar Investments and its subsequent control and administration were severely afflicted by misrepresentation, probably fraudulent, rendering it almost impossible to ascertain the precise status and contention that his minor children were the lawfully registered owners of the total issued share capital of Rasar Investments.”
Justice Patel ruled that the High Court erred in nullifying the transactions involving Zimcor.
“The court a quo clearly erred in upholding his claim (Dr Rushesha) and consequently invalidating the sale and transfer of shares to Zimcor and the subsequent sale of the property to Boka Investments,” he said.
Dr Rushesha acquired the property and later relocated to the United Kingdom for professional employment.
According to Dr Rushesha, he asked his brother-in-law Mr Alexio Dera, to set up a company called Rasar Investments.
The property was then registered in the name of Rasar as the company’s sole asset.
The directors of Rasar were Dr Rushesha, his wife and Mr Dera, while the two minor children were registered as shareholders.
When Dr Rushesha moved to UK in 2003, Mr Dera concluded a sale agreement of shares to Zimcor.
Dr Rushesha later tried to nullify the sale arguing that the property belonged to the children who did not consent to the sale.