By Fidelis Munyoro
Former partner of Econet Media in the Kwese TV business, Mr Dish, failed to show it needed to raid Econet and Cassava Smartech to obtain accounting records before these could be possibly destroyed, the High Court has ruled.
The ruling means Mr Dish must return all the information and papers seized since an interim order was granted in February last year.
The Sheriff had seized the information in pursuit of the Anton Piller order, that is an order allowing a search and seizure without prior warning.
Mr Dish had approached the High Court seeking confirmation of a provisional order granted to it last year to search premises belonging to Cassava Smartech and Econet.
Dismissing the application for confirmation of the provisional order by Mr Dish, Justice Paul Musithu said the company had no real apprehension that Econet posed any threat of hiding or destroying evidence as postulated, and ordered the Sheriff to return to Econet all the information it had taken.
When it first approached the court, Dr Dish feared that the cellular company could conceal or destroy accounting statements it needed to confirm any payments due to it, arguing this warranted the intervention of the court.
But Justice Musithu found that Mr Dish’s conduct was not consistent with a party that harboured any apprehension that evidence could be destroyed or spirited away, since it waited 13 months before approaching the courts.
“The applicant was aware a dispute existed some 13 months earlier, but chose not to act when the alleged misrepresentations by Econet were already known,” he said.
Justice Musithu found that Mr Dish failed to fully set out its case in the founding affidavit, which was replete with fresh allegations.
In its submission, Mr Dish even went to the extent of claiming it was hoodwinked into signing the CDA with Econet Media Limited instead of Econet Media (Private) Limited.
It also claimed so because it signed a heads of agreement with Econet Media (Private) Limited, when it even doubted the existence of Econet Media Limited.
But Justice Musithu noted that it was not just the allegations which sounded rather preposterous and comical, but the point at which they were made which was of serious concern.
“Applicant conveniently chose to be reticent, thereby misleading the court when it filed the ex parte application,” he said. “It sought to build its case, surreptitiously, through the answering affidavit.”
Justice Musithu said the importance of disclosure was central to applications of this nature and in the final analysis, found that Mr Dish failed to discharge the onus for the granting of an Anton Piller.
Mr Dish claims to be owed over $6.8 million by Econet Media as part of their revenue sharing deal when Kwese TV was launched.
Justice Edith Mushore had granted a provisional order pending the finalisation of the matter.
She ruled that Dr Dish had established a prima view basis for the intervention which comes with an Anton Pillar award.
Econet claimed that the lower-than-expected subscriber list meant Dr Dish was owed US$58 000.
But Dr Dish said Econet never gave the subscriber records as agreed and which were needed to calculate what is due to it. The Herald