HARARE – The High Court has blocked a bid by businessman, Ofer Sivan to axe partners from Adlecrafts Investments through execution of a default judgment obtained through deceitful means.
Sivan has been tussling partners, Gilad Shabtai and Munyaradzi Gonyora over the control of the contract mining and land preparation services company.
In the latest case, High Court judge, Pisirayi Kwenda ruled that Sivan could not execute a judgement he obtained through dishonest ways.
The judge also chastised Sivan’s lawyers for a shoddy job after it emerged they sought to set down the matter before serving lawyers representing Shabtai and Gonyora.
Kwenda also noted some irregularities that Shabtai and Gonyora would not find the record of proceedings each time they sought to act on the matter but it would only be availed to Sivan.
“The applicants’ legal practitioners tried to set down the ‘special plea and exception’ as unopposed on three occasions but were unsuccessful because the court record was unavailable.
“There is no official explanation on record for the unavailability of the court record.
“While the applicants were failing to locate the court record, the first and second respondents (Sivan/Adlecraft) were lucky, because the record was availed to them and they were able to set the matter down for default judgement in default of plea.”
The judge said Sivan’s lawyers made a fatal blunder by not serving Shabtai and Gonyora the judgment.
“The decision by respondents’ lawyers not to serve the applicants with the default judgment was ill conceived.
“The default judgment affected the status of the applicants and ought therefore to have been served personally before being carried into execution,” the judge ruled.
Shabtai and Gonyora approached the High Court seeking stay of execution before the application for the rescission of judgment is heard.
Their argument is that the default judgement entered on Wednesday 21 September 2022 was neither brought to their attention nor served on them by Sivan and Adlecraft.
Kwenda said their arguments were valid.
“I accept the applicants’ submission that they only became aware of the default judgment order on Friday 23 September 2022 because it is common cause among the parties that the judgment was entered in their absence, that they were unaware of the set down and the respondents have not served the judgment on them as is required at law,” ruled the judge.
“On the face of it, the decision by the legal practitioners acting for the first and second respondents (Sivan and Adlecraft) to obtain default judgement in the face of a special plea which remained extant may have been erroneous.
“The legal practitioners were content with snatching default judgement and surreptitiously executing the same.
“Their decision to manufacture a non-existent form which they named Notice to Plea and Intention to bar was also an error.
“I am satisfied that the applicants (Shabtai and Gonyora) have made a case for the exercise of this court’s discretion in their favour of stay of execution.”
Sivan sued his business partners seeking a declaratur that the two had misappropriated a sum of US$1,300,000 from the company through acts of fraud between January 2021 and August 2021.
Sivan wanted an order compelling the two to reimburse the money in United States currency or its equivalent in Zimbabwean dollars and an order removing Shabtai and Gonyora from their positions as directors of the company.
But the judge said Sivan’s desire to execute a default judgement called for the court’s intervention.
“The fact that the respondents are taking steps to execute the default judgment without notifying the applicants is therefore in itself a circumstance which calls for the urgent intervention of this court on an urgent basis.
“The applicants became aware of the judgment fortuitously and have adequately explained each day that passed. I rule that the matter is urgent,” Kwenda said.
Recently, another judge Justice Jacob Manzunzu chastised Sivan for claiming to be the only shareholder in the company and also dismissing his application to prevent Shabtai from transacting and representing the company.
Meanwhile, Shabtai and Gonyora will be in the country for the fraud trial of Sivan, contrary to reports that they are fugitives from justice as they do not have a pending criminal case against them.