admin
Fidelis Munyoro-Chief Court Reporter
A GROUP trying to reverse a 2007 land and development deal between Harare City Council and land development company Augur Investments have lost in the High Court on the grounds that they made their application way after the deadline for such suits, had no legal standing and chose the wrong sort of civil action.
Harare and Augur, owned by Mr Ken Sharpe, entered into a land and development joint venture in 2007 in which Augur was allocated 70 percent of the shares with council getting 30 percent in the joint-venture company called Sunshine Development (Pvt) Ltd.
Zimbabwe Homeless People Federation (ZHPF), Knowledge Tinashe Kwambana and former Harare City councillor Warship Dumba had sued through an application the Harare City Council, Augur Investments, the Minister of Local Government and Public Works, Mr Ken Sharpe and others demanding a reversal of the deal.
They accused council of illegally allocating more than 239 hectares of land to Augur without anything paid to the local authority.
However, the matter was decided on three preliminary points raised by Harare City Council, the investor and the rest of those sued before the court went into the merits of the civil application.
Firstly, the council and Augur pleaded prescription, that is the application was made long after the deadline for a civil case, arguing the applicants’ claims arose in 2007 hence three years had already lapsed by the time the claim was instituted in 2021.
The council and Augur also argued that the federation had no legal footing to sue and that thirdly their claim raised material disputes of fact, which at law could not be resolved on papers and so they had chosen the wrong sort of civil procedure.
Justice David Mangota upheld all three preliminary points.
On the first point, the deadline for a civil action, it is not disputed the joint venture agreements were signed in June and September 2007 and these are a matter of public record.
In his judgment, Justice Mangota said ZHPF, which claimed to have a keen interest in the affairs of good governance in Harare, could not suggest that it was unaware of the agreements which the parties signed in 2007 up until 2021 when it filed its application.
Former councillor Mr Dumba in his capacity as the chairperson of the special investigations committee which the City of Harare set up between 2008 and 2013 to inquire into the City of Harare’s land sales, leases and exchanges from 2004 to 2009, so the ZHPF could not have been unaware between 2010, the year of the deadline, to 2021, the year they sued, of this land deal.
The federation and the two individuals had not denied in their affidavits and had stated in their papers that they were aware of the transactions as far back as 2010 when the issue was raised in the land audit which the City of Harare conducted.
They could not explain why they did not sue at the time within three years of their knowledge of the identity of the parties as well as the facts from which their claim arose. So while they should have sued within three years of 2007, they had an argument that the case could have started in 2010 when they found out about the deal, but they could not explain why they had not taken advantage of even that new potential deadline.
This means that the claim was legally prescribed, that is made too late, and that simply killed the process. The Prescription Act does not give the court any discretion. If the requirements for a plea of prescription have been established by the party making the point, then that party is entitled, as a matter of right, to have that plea upheld.
But the court continued to look at the other two points. The court ruled that the HPZF and its co-applicants had no direct and substantial interest in the contract between the council and Augur needed to establish a legal footing to sue.
They claimed to be suing on behalf of its unnamed members who would subsequently seek land from the City of Harare after the land has been returned to it, which interest the court found to be remote and unconvincing.
The court also agreed with the council and the company that HPZF should have foreseen that its allegations of fraud, corruption and collusion would be seriously disputed but went on to bring the present application instead of proceeding by way of an action. The type of application HPZF took would require the judge to look at the papers alone and hear argument. The type of action required, if HPZF had started in time and had legal standing, was the one where facts could be settled, and that would normally require witnesses and the rest of the machinery of a civil trial.
When the joint venture was signed Harare was represented by then Town Clerk Tendai Mahachi and the then chairperson of the Commission running Harare, Sekesayi Makwavarara.
In the agreement, the joint venture was supposed to build middle income houses and a hotel at a golf course, develop a commercial centre at Hopley and Mukuvisi among other projects.
Augur Investments is ready to build a state-of-the-art tourism and hospitality resort at Warren Hills Golf Course. This followed the launch of Warren Hills Golf and Residential Estate in May this year.
The resort will provide world class services that Zimbabwe has never experienced.
Also attached to the imposing golf course will be a club house, high-class houses and holiday homes. World-acclaimed designer and former golfer, Peter Matkovich, has since been roped in to develop the multi-million-dollar infrastructure.
Advocate Eric Matinenga instructed by Mr Tendai Biti represented the applicants while Mr Charles Kwaramba represented City of Harare and Adv Tawanda Zhuwarara Augur Investments.
Online Reporter