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Herald Reporter
The Supreme Court and the High Court had cleared the dispute involving the construction of Airport Road after they ruled that the agreements signed were aboveboard and that Augur Investment be awarded a US$3 million arbitration award.
This comes amid falsehoods that were peddled recently by Tendai Biti who claimed Augur Investment duped City of Harare of its land.
While addressing the court on Monday this week where he was submitting his application for referral to Constitutional Court, Biti claimed Augur Investment swindled City of Harare and the President of Zimbabwe land for a song without due processes being followed.
In this current case Biti is facing charges of manhandling a Zimbabwean investor Mrs Tatiana Aleshina.
Biti further claimed that Augur Investment used connections to get hold of the deed of settlement which was kept in escrow.
But the matter was heard by a competent court that dismissed an application to have the transfer of the deed of settlement cancelled.
The matter was finalised after 14 years of legal showdown.
The Zimbabwe Homeless People’s Federation, Knowledge Kwabana and Warship Dumba were cited in that case as the applicants.
They had approached the courts for the land transfer to be undone and the joint venture between HCC and Mr Ken Sharpe’s company Augur Investment cancelled and declared as a nullity the joint venture that had created Sunshine Development.
The applicants alleged that those that signed the agreement were not authorised. They also argued that the transaction also broke the investment and procurement laws.
However, the application was dismissed by High Court judge Justice David Mangota, who ruled that the agreement was a matter of public record.
The respondents argued that the claim was prescribed, the applicants had no locus standi and that the application was riddled with material disputes of facts which were incapable of being resolved on the papers alone.
“The applicant which claims to have a keen interest in the affairs of good governance in Harare cannot suggest that it was unaware of the agreements which the parties signed in 2007 up until 2021 (14 years) when it filed the current application,” said the judge.
Sunshine Development is a Joint Venture Company with the objective of building middle income houses and a hotel at Mabelreign Golf Course, and develop a commercial centre in Hopley and Mukuvisi.
Another application by Allan Markham against Augur Investment, President of Zimbabwe, as respondents over the transfer of deed of settlement by the City of Harare was dismissed by the High Court.
Markham who was the applicant together with Tavonga Savings Scheme and Jacob Pikicha unsuccessfully filed to have the transfer cancelled.
It has other respondents that include Augur Investments, Tatiana Aleshina, Michael Van Blerk, City of Harare, Local Government Minister July Moyo, Doorex Properties, Registrar of Deeds and the President of Zimbabwe.
First to ninth respondents were being represented by Advocate Tawanda Zhuwarara.
According to State papers, on May 30, 2008 Augur Investments entered into a written contract with the City of Harare and according to terms of the contract, Augur was to construct Joshua Mqabuko Nkomo Road (Airport Road).
It is said 90 percent of the construction costs would be paid in the form of land while 10 percent would be paid in cash.
The papers indicate that upon satisfaction of the consulting engineers, the City of Harare would instruct conveyancers to transfer land to Augur for work done.
Harare City Council, however, abruptly cancelled the agreement and this prompted Augur to demand a penalty payment of 35 percent of the value of the land supplied as a penalty fee.
The 35 percent termination fee was identified as Stand 654 Pomona Township, Harare, measuring 40,665 hectares in extent.
Augur’s position was that it is entitled to a 35 percent termination fee and it sued under HC 598/17 demanding 35 percent termination fee.
Augur instituted arbitration proceedings seeking that it be declared the owner of Stand 654 Pomona Township, Harare and that the City of Harare and the Minister of Local Government, Public Works & National Housing be directed to sign all documents to enable transfer to Augur of Stand 654 Pomona Township, Harare.
The judge entered an award of US$3 million in Augur’s favour.
However, the City of Harare challenged the arbitral award, but Augur appealed the decision and the parties settled the dispute in the form of deed of settlement.
It was this deed of settlement that was challenged by Markham and other applicants. They argued that the deed of settlement should be declared null and void.
The applicants then also sued President Mnangagwa in violation of Rule 18 of the High Court Rules, 1971. The rule was in existence when the suit was filed.
The rule reads: “No summons or other civil process of the court may be issued out against the President or against any of the judges of the High Court without the leave of the court granted on a court application being made for that purpose.”
Advocate Zhuwarara challenged Markham and others saying for them to sue the President or any of the judges of the court they must apply and seek leave of the court to sue any of those public officials.
The applicants concede that they sued the President without having obtained leave of the court to do so.
They submitted orally that there is a difference between citing the President in his personal capacity and citing him in his nominal capacity.
However, Justice David Mangota in his judgement ruled that the applicants had no authority to sue the respondents.
The judge said the applicants sued President Mnangagwa in violation of rule 18 of the High Court rules.
The rule says no summons or other civil processes of the court may be issued against the President or against any of the judges of the High Court without the leave of the court granted on a court application being made for that purpose.
Advocate Zhuwarara had challenged the applicants saying they do not qualify sue the respondents.
Justice Mangota concurred with Advocate Zhuwarara saying the locus is not established by argument as Markham is seeking to do.
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