Makamba wins court case
BULAWAYO High Court judge Maxwell Takuva has ruled that prominent businessman James Makamba’s company Kestrel Corporation (Private) Limited (Kestrel Corporation) was improperly placed under judicial management after a court application by another businessman George Manyere, who sought to recover a US$2,7 million debt claim.
The ruling comes after Makamba went to court citing Kestrel Corporation, Manyere and his company Ecsponent Zimbabwe (Private) Limited, as respondents.
Manyere and his company, on the other hand, had also filed an application before the courts claiming Makamba owed him US$2,7 million, citing Kestrel Corporation as a respondent. Takuva heard both cases at once.
Manyere told the court that through his firm Ecsponent, he entered into an agreement with Makamba’s Kestrel Corporation over sale of Telecel shares.
However, the transaction did not go through and Makamba reportedly failed to pay back the money.
High Court judge Thompson Mabhikwa last year ordered that Kestrel be placed under provisional judicial management indefinitely so that its assets — shares in Empowerment Corporation, a consortium of small scale indigenous organisations with interests in Telecel — are protected from legal action.
However, Takuva said had the material facts been disclosed to Mabhikwa, the order for the firm to be placed under judicial management would have been thrown out.
“Accordingly, I find that it has not been established that second and third respondents are creditors, prospective creditors or contributors as required by the Companies Act. In the circumstances they are not Kestrel’s creditors,” Takuva said, adding that they, therefore, had no right to apply for the placement of Makamba’s company under judicial management.
“I find that applying for judicial management in casu (in this case) is incompetent and improper in that the alleged debt is disputed by the target company, a matter that is pending.
“In my view, Manyere and the second respondent want to use judicial management as a mechanism to compel specific performance by Kestrel. On the authorities in our jurisdiction, judicial management is available for debts which are admitted and which the company is demonstrably unable to pay,” the court ruled.
Takuva further accused Manyere of seeking to hoodwink the court into granting his order.
“The court was in fact hoodwinked in granting the order forcing the applicant not only to oppose the confirmation of the order but also to file an urgent chamber application for stay of the execution of the order granted ex parte pending its confirmation or discharge,” he said.