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Fidelis Munyoro Chief Court Reporter
Businessman Philip Chiyangwa’s legal fight over 200-hectare land deal which the Redcliff Municipality has been trying to reverse claiming breach of contract is far from over.
Mr Chiyangwa, through his company Pinnacle Holdings, rescued the Redcliff council in 2009 when it was failing to pay its workforce and other services by agreeing to release US$658 000 in exchange for land.
He paid US$360 000 as down payment but a year later, the council decided to cancel the deal accusing the businessman of refusing to pay up the balance.
Mr Chiyangwa last week successfully sought a rescission of a judgment issued against his company after his lawyers missed the pre-trial conference at the High Court.
Although Redcliff council had strenuously opposed Mr Chiyangwa’s application for rescission of judgment, Justice Mary Dube ruled in favour of the businessman.
She set aside an earlier judgment by another judge, Justice November Mtshiya, under case Number HC3439/10.
This means the civil trial of the long running dispute will now go ahead.
Advocate Firoz Girach instructed by Mr Farai Zuva of Mhishi Legal Practitioners argued that his client was not in willful default as the default arose out of error and not out of his making.
He argued that mistakes arising out of misdiarisation of matter do occur and was common.
In this case, Adv Girach contended that it was a minor error for which his client should not be penalised.
But the Redcliff council lawyer, Mr Wayne Nyamakura of Mtetwa and Nyambirai, argued that the businessman’s lawyers were in wilful default.
Mr Nyamakura also said the default judgment was granted because Mr Chiyangwa’s lawyer did not attend the hearing.
He said applicant’s lawyer was called and promised to call back and failed to do so.
After hearing the arguments, Justice Dube found favour with the explanation given by Mr Chiyangwa’s lawyer and allowed the application for rescission of judgment.
The judge also indicated in her judgment that Mr Chiyangwa was likely to win his case in view of the circumstances of the case.
“No basis has been laid for holding onto half the purchase price and other costs claimed,” said Justice Dube. There seems to be merit in that claim. I am satisfied that the applicant has shown good and sufficient cause for rescission of judgment.”
Council decided to reverse the land deal arguing it was prejudicial to the local authority as it gave Mr Chiyangwa control of vast swathes of prime land for a song.
The council also tried to hammer an out of court settlement with Mr Chiyangwa, but he refused saying he was amenable to an arrangement where he could sell back the land at a higher price than he originally paid.
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