HARARE – TV drama actor David Mubaiwa, popularly known as Sabhuku Vharazipi, has launched a bid to stop the attachment of his property to recover $218 000 for CDs that he reportedly sold on behalf of Ziya Cultural Arts Trust.
This comes after High Court judge David Mangota recently gave an order for Sabhuku Vharazipi and two others, Wellington “Chairman” Chindara and Kumbirai “Mbuya Mai John” Chikonye to pay back the money.
However, the trio’s lawyer Isaac Mzenda told the Daily News yesterday that he has since filed a successful application for rescission of judgment, in a bid to suspend the attachment of the property.
“Everything is now under control. We have successfully applied for rescission of judgment. We had all the papers but it’s only that we erred on the case number,” Mzenda told the Daily News.
Recently, Ziya Cultural Arts Trust, through its lawyers Runouya Zimudzi and Norman Mukandagumbo from Zimudzi and Associates Legal Practitioners, secured a default judgment against the three, before further seeking to attach their properties.
“You (the Sheriff of Zimbabwe) are required and directed to attach and take into execution the movable goods of David Mubaiwa, Wellington Chindara and Kumbirai Chikonye, the above mentioned respondents of number 138 Josiah Gondo Street, Mucheke, Masvingo and of the same cause to be realised the following sum of $218 500 being capital debt plus interest thereon at the prescribed rate of interest being five percent per annum calculated from the date of issue of summons being 15th of June 2017 to date of full and final payment…,” reads part of the application for the issuance of a writ of execution.
The lawyers also demanded the trio to pay Ziya Cultural Arts Trust the legal costs it used in the litigation process.
According to court papers, the trio was appointed trustees of the Ziya Cultural Arts Trust in 2013 and had the responsibility to run the affairs of the organisation.
“The most common duties of trustees were the duty to comply with the terms of the trust, the duty to act personally, the duty of loyalty, the duty of care, the duty to act with an even hand, the duty to declare the loss and profit of the trust and the duty to communicate to the beneficiaries.
“The plaintiff (Ziya Cultural Arts Trust) produced a drama popularly known for the ground-breaking comedy called Sabhuku Vharazipi and another known as Voice,” the Trust through its lawyers from Zimudzi and Associates Legal Practitioners said.
The court heard that the Trust’s founder member David Dzatsunga wrote and directed Sabhuku Vharazipi’s first production.
“When the plaintiff’s said produced comedy or film hit the market, Zimpapers donated $10 000 to the plaintiff through the defendants.
“However, the defendants never accounted for the said donation to the plaintiff. To date, the defendants failed, or refused to account for the said donation despite their duty to do so and they have misappropriated the Trust funds.
“After the defendants sold 120 000 discs at $1 per unit for the plaintiff’s comedy called Vharazipi One and collected proceeds of sale to the sum of $120 000 for and on behalf of the plaintiff, the defendants as trustees of plaintiff had the duty to declare all profits to the plaintiff,” the court heard.
In terms of the court papers, the Trust was prejudiced of $120 000, adding that the trio is liable to pay back the money.
According to court papers, the trio was later given another consignment of 80 000 discs for Vharazipi Two, which was also being sold at $1 per unit.
“However, despite demand, the defendants have failed, refused or neglected to declare and or account for $80 000 being the proceeds of Vharazipi Two and therefore the defendants had misappropriated the $80 000 or converted it into their own use in breach of the Trust agreement,” the court heard.
The trio is alleged to have used the funds to buy a car, which they have confiscated to the prejudice of the Trust.
The Trust is also said to have produced another film called Voice, which the trio is accused of intending to distribute without consent from the organisation.
“The plaintiff’s claim is for an order stopping the defendants from publishing, disposing or dealing with the plaintiff’s Voice film in any manner without prior written consent of the plaintiff,” the court heard.
The trio did not respond to the application, which resulted in the Trust applying for a default judgment, which was subsequently granted in its favour on October 18 this year.
“The application for default judgment be and is hereby granted. The respondents jointly and severally be and are hereby ordered to return the motor vehicle to the applicant within 48 hours of granting this order or payment of $8 500 being the equivalent value of the motor vehicle,” Mangota said, further barring the trio from publishing, distributing and disposing or dealing with the Trust’s Voice film.
He further ordered the trio to pay back $210 000 back to the Trust for the discs that were sold.