Macquire brothers acquitted, Mutanga loses fight
THE High Court has acquitted the Macquire brothers – Phillip and Christopher – of fraud charges, and in the process settled a long-standing dispute between Benard Mutanga and the Macquire family over the ownership, and control of Twairob Investments (Twairo ), which in turn owns Gurlyn Barton A (Gurlyn) Farm in Borrowdale.
This comes as the self-styled developer has been fingered in several other dodgy deals, including the similarly-structured Claire Eastwood and Puzey Property Development (Puzey) transactions.
“According to the state outline… the complainant one Bernard (Mutanga) purchased a company known as Twairob… from (Petros) Johnstone and Nasho. The two subsequently resigned as directors… paving way for Bernard and Tsitsi Mutanga… In due course, Bernard purchased a piece of property Gurlyn Barton… from Cecily Jean Frances Macquire..,” High Court judges Philda Muzofa and Pisirayi Kwenda said in a ruling in which they also set aside the brothers’ 12 month sanctioning on the basis that the state had failed to prove its case.
“In determining whether the appellant misrepresented facts, we have to relate to the evidence on establishing ownership of the company. Bernard said he bought (the) company from Johnstone in October 2003. An excerpt from the agreement… raises doubt (about) the ownership… There was no explanation why Bernard purchased the company on the 30th of October… when he had already signed an agreement… from Cecily on 29 October… In any event, the agreement is clear that Cecily was the holder of shares… and she sold… to Bernard,” they said.
“The paper trail before the court (magistrates) confirmed the first and second appellant (Macquire brother)’s version that the company was an investment vehicle… A document titled ‘transfer of shares…’ was before the trial court. It purported that Johnstone transferred one share… to Bernard on 13 October 2003. What is puzzling and remained unexplained is how Bernard… received shares in a company before purchasing it. Clearly, there was something wrong in (the) agreements. We have no doubt in our mind that documents filed before the court… were a sham. Bernard did not purchase the company from (Petros) Johnson. The only plausible version is that of the appellants,” Muzofa and Kwenda said.
While the ex-Bernwin Development Corporation (BDC) founder’s multi-faceted disputes with the Macquire family have been raging since 2004, the High Court has asserted that documentary evidence proves that Mutanga had not paid for the full purchase price of Twairob and the late Cecily, and Macquire Farming were the company’s only shareholders.
Crucially, Phillip’s “curatorship role” of changing directors — through Tony Wisdom Services — was above board and the magistrate’s conviction of the brothers was erroneous, and faulty.
“If Macquire Farming was authorised at law to appoint… there can be no misrepresentation. For the purposes of proof… the state failed to show that Bernard was the owner of the company and had been properly appointed as a director. The evidence placed before the court by the appellants discredited the state case. As correctly pointed out in the Katsiru case… the court misdirected itself by relying on discredited evidence,” Muzofa and Kwenda said in the hard-hitting six page judgement.
“If there were documents at the company’s registry showing Bernard and Tsitsi as directors, and secretary, they were a nullity. There was no need for the appellants to seek a court order to set it aside. It is inherent within a company as a legal persona to correct that which it deems wrong… From the foregoing, if Bernard was not the owner… the appellants’ conduct cannot be termed a fraudulent misrepresentation,” they said, adding the latter could not sustain claims to the asset also known as Makomo Farm (Makomo) without paying the full price for Twairob and he was not prejudiced in any way.
In 2012, the Maikai Real Estate owner was dragged to court for deceiving the deeds office that he had lost the original title to the 30-hectare Borrowdale estate — registered under 194/2004 — and when he knew that it was with Phillip.
However, Mutanga countered the charges by claiming thebrothers were out to “abuse the judiciary, in order to grab Twairob and it’s property”, and he had executed the transaction in question as the company’s managing director.
At the same time, the controversial businessman was facing another fraud charge of bilking Intermarket Discount House (IDH) of $4 billion over the same asset.
In that case, Mutanga had reportedly sold Gurlyn to First Mortgage Investments (FMI), despite knowing fully well that he had no proper claim to the land.
A police report sent to the police headquarters at the time also confirmed Mutanga’s machinations and in which he tried to muscle his way into Twairob and, hence, he was charged with theft by false pretense for attempting to sell Makomo when he knew the ownership of the shelf company was in dispute.
At the time, the Criminal Investigations Department (CID) not only satisfied itself that the self-styled developer was purporting to be the US$3 million-valued property’s owner through fabricated documents, but went on to receive money from FMI’s sister company IDH without the Macquire’s knowledge.
“There is no company resolution from… Macquire nor directors of Twairob confirming the transfer of shares to the accused. Gurlyn… is the property owned by… Accused had no right to sell the property to First Mortgage..,” said the police report, adding transfers were thus impossible because the accused knew he was lying.
It also emerged during the investigations that Mutanga had even instructed his IFS Real Estate employee Jacob Mugugu to backdate his appointment as a Twairob director to October 2003 and ownership of the same.
In 2013, the man also threatened to invade the property and evict the family through the alleged sale of the plot to his sidekick Munyaradzi Tichaona in July 2013.
But even, though, numerous cases have been opened against him, Mutanga has somehow managed to escape proper legal censure and prosecution. This comes amid reports that the BDC promoter had been abusing police commissioner general Godwin Matanga’s name and parceled out some land to key players or characters in the criminal justice system.
Around the time of the self-styled property investor’s bitter clashes with the Macquires, Mutanga was also entangled in another messy wrangle with Eastwood after she had evicted him from her Alexandra Park dwelling following disputes of an almost similar nature to the Gurlyn debacle and sale of the £60 000-valued dwelling.
The property, he said, was owned by Mak Trust and which “had authorised him to occupy it upon payment of a 20 percent deposit of the sale value”, but relations had already soured as early as 2007 after the BIG proprietor failed to pay for outstanding amounts.
Despite receiving a concession to pay Eastwood through Old Mutual shares he claimed he had — after the agreement had been cancelled — nothing materialised. And this led to a private arbitration ruling by Justice George Smith for Mutanga’s ejection from the premises.
“…the claimants must repay the respondent (Mutanga) what he paid towards the purchase price of the property,” he said in a finding, which also validated the agreement cancellation.
“Likewise, the respondent owes the claimants money in lieu of rent for the four years that he has occupied the property,” Smith said.
And the Puzey deal, meanwhile, was structured by a prominent Harare lawyer, who is now a High Court judge.