HARARE – A local businessman has approached the Supreme Court to appeal against the civil imprisonment handed to him last week for failing to pay back a $1,2 million debt owed to his business counterparts.
In his court papers, Yaqub Mahomed argued that the High Court should not have granted the order since he had surrendered his mining company shares worth more than $3 million as surety for the debt.
High Court judge Erica Ndewere ruled in favour of Adam Ebrahim Mohammed Dudhiya and Somayya Meer, directing Mahomed to pay the money owed, even though he had surrendered his mining shares.
Mahomed — who is represented by Thabani Mpofu — in his Supreme Court papers, argued that Ndewere misdirected herself.
He said the order for civil imprisonment was handed down, without his business colleagues having exhausted all the other available resources.
“The court a quo (High Court) misdirected itself in granting an order whose terms are at complete variance with the purpose of a claim for civil imprisonment and in not relating the terms of the order granted to the applicable legal principles,” Mpofu said.
According to Mahomed, contrary to claims that he had refused to pay the $1 252 151,05 owed, he had actually handed over his mining share certificates and some important document pertaining to his company called Pansten (Private) Limited, as surety for the debt.
“The court a quo erred in not coming to the conclusion that the security granted (Pansten (Private) Limited shares) by the appellant (Mahomed) and held by the respondents (Dudhiya and Meer) was sufficient in and of itself to defeat the claim for civil imprisonment which had been sought,” the Supreme Court was told.
“A fortiori the court a quo erred in not requiring the respondents to account for the security held by them in order to show how it is compared to the judgment sum in issue.
“The court a quo erred in any rate in not concluding that the attachment by Sheriff of the shares held by appellant in Pansten (Private) Limited constituted a valid method of the realisation of the judgment debt and rendered the claim of civil imprisonment sentence incompetent.”
Mahomed further said Ndewere, erred at any rate in coming, without any evidence, to the conclusion that Dudhiya and Meer had managed to show that he was able but unwilling to satisfy the judgment debt.
Dudhiya and Meer have not yet responded to the application, which is still pending before the Supreme Court.