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Temba Dube Senior Reporter
THE High Court in Bulawayo has reserved judgment in the ongoing legal battle pitting city businessman Titus Ncube and prominent law firm Cheda and Partners over a botched $350,000 deal to buy shares at a local mine.Justice Maxwell Takuva yesterday heard how prominent lawyer and partner in the law firm, Sindiso Shepherd Mazibisa, acted as an agent to facilitate the buying of 30 ordinary shares valued at $400,000 from Chakata Resources Pvt Ltd early last year.

According to court submissions, the deal fell through after Ncube, on behalf of South West Gold Private Limited, paid $335,536.55.
Mazibisa has allegedly failed to reimburse Ncube despite several undertakings to do so, dating back to July last year. The lawyer acted on behalf of Gugulethu Henrietta Dube who this year was caught in the eye of a storm over the death of her former lover and British SAS soldier Robert Alexander Wood.

Wood’s family accused her of killing him and faking a suicide to lay her hands on his extensive mining interests. The magistrate court ruled that the death was due to suicide. Ncube dragged Cheda and Partners to court seeking a summary judgment to compel the lawyers to refund him.

Mazibisa and his partners Mlamuli Ncube and Nqobizitha Ndlovu were cited as first, second and third respondents respectively.

Representing Cheda and Partners, Advocate Lucas Nkomo argued that the matter should go to trial as the application for summary judgement did not have merit.

He stated that the written agreement of sale stipulated that Ncube should pay $350,000 deposit before an agreement of sale could be made, with the balance payable by September 30, 2013.

“Although the written agreement of sale stipulated that the deposit of $350,000 was payable directly to the seller through her agent’s trust account upon signing of the agreement, the applicant (Ncube) only paid a part deposit of $335,536.55 on the 19th of March 2013,” said Nkomo.

He said Ncube then sought cancellation of the agreement on July 9 after failing to get the shares, before paying the rest of the money.

Nkomo said Ncube’s application was flawed in that instead of suing Dube for restitution of the part payment, he filed an application for the summary judgment against Cheda and Partners.

He further argued that in his summons, Ncube based his application on the allegation that the deposit was to be kept in trust by Mazibisa and his partners pending transfer of the shares, but failed to prove there was an agreement to that effect.

Nkomo questioned Ncube’s legal qualification to act on behalf of his company, South West Gold Private Limited, to institute the lawsuit.

“There is no valid company resolution by the applicant authorising the deponent to the founding affidavit,” argued Nkomo.

“Is it the applicant’s contention that the seller Henrietta Gugulethu Dube did not receive the part deposit from the respondents pursuant to the written agreement of sale between applicant and Henrietta Gugulethu Dube?” he asked.

Advocate Job Sibanda, representing Ncube, said Mazibisa was “clearly waffling. “He has raised absolutely no defence to the claim,” said Sibanda.

He pointed out that Mazibisa had said nothing about the five written submissions labelled as annexures A, B, C, D, E and F that were produced as evidence in which he and his partners were acknowledging the debt and undertaking to pay.

“Annexure A is a company resolution by applicant authorising Titus Ncube to represent the company,” said Sibanda.

“If the money was paid to the seller because respondents believed it was Ms Dube’s money, why then did respondents promise on numerous occasions to pay it back to applicants?”

He said Cheda and Partners through their lawyer had said nothing in the case that warranted the matter being referred to trial adding:

“They have skirted issues and raised non-issues. They are clearly liable.”

Sibanda charged that Mazibisa and his partners had no defence and were simply abusing the intelligence of the court.

He said the court had to take note of the fact that the three were senior legal practitioners.

“Instead of making arrangements to settle the money that they had no right to misuse anyway, they are putting the applicant further out of pocket when they do not have any defence at all and have not raised one in their papers,” said Sibanda.