Saturday, 27 March 2021

LAND DEVELOPER : AIRPORT DEAL ABOVE BOARD

LAND developer Kenneth Sharpe’s Augur Investments has dismissed allegations of misappropriation of council land in its response to the High Court challenging its mention in a land dispute.

In court papers filed this week in response to allegations that the firm was unprocedurally awarded the Harare Airport Road rehabilitation tender, one of the respondents, Tatiana Aleshina, said the deal was above board.

MDC Alliance legislator Norman Markham recently took Augur Investments to court demanding clarity on how it was given 273 hectares of land as payment for developing the airport road. He said the deal must be reversed so that desperate homeseekers can benefit.

Augur Investments was cited as a respondent alongside Sharpe, Aleshina, Michael John Van Blerk, City of Harare, Local Government minister July Moyo, Doorex Properties Pvt Ltd, the Registrar of Deeds and President Emmerson Mnangagwa.

In an affidavit, Augur Investments representative Aleshina said there was no need for the applicants to include them as individuals in company-related matters.

“I further depose to this affidavit on behalf of Augur Investments whom I have been associated with by the applicants. It is not clear and readily apparent what the cause of action against myself, Sharpe and Blerk have been cited in this matter. This is so more particularly in that Sharpe is merely described as a ‘serious land baron’ who owns extensive land in Zimbabwe through the medium of Augur Investments. It is not competent for a person to own land through the medium of a company,” Aleshina said in her affidavit.

“The company owns land in its own name as a separate legal entity. There is no valid legal basis shown why Sharpe is being cited in an action against Augur which is a company and a separate legal persona. On my own part, I am simply said to be ‘a shareholder in the first respondent as well as in the satellite operations of the 2nd respondent.’ It is bad at law to cite an individual in an action against a company merely because they are a shareholder in the company.

“Even assuming a cause of action had been shown against me, it would be still incompetent to cite me in a supposed action against Sharpe merely by virtue of my association with him. I am a separate legal persona from him,” she added.

Aleshina said the citation of Blerk is even more ridiculous.

“He is cited merely because he is said to be an employee of Sharpe, a natural person and again a separate legal persona. In the circumstances of my citation as well as that of Sharpe and Blerk being improper and bad at law, the application as against us ought to be struck off with costs on an attorney and client scale on that basis alone,” she said.

 

Court papers filed on March 10 show that after a series of litigations between the City of Harare and Augur Investments, a deed of settlement was executed in May 2019.  Court papers show that Herbert Gomba, the then mayor of Harare, signed for the local authority.

“There is in existence a council resolution and minutes authorising Herbert Gomba and Josiah Chisango (town clerk) to sign the deed of settlement. The Local Government minister (July Moyo) had authority to execute the deed of settlement. There is nothing in the deed that offends public policy as alleged,” Aleshina said.

Markham had claimed that Gomba had no authority to sign the document. He added that Moyo claimed to have been sent by Mnangagwa.

The deed of settlement was reached after the City of Harare won several cases against Augur, but the company went for arbitration where High Court judge Justice November Mutshiya ordered that Augur be compensated for the airport project. The city council appealed and won again at the High Court. This prompted Augur to approach the Supreme Court, but they withdrew the case and a deed of settlement was signed.

“Stand 654 Pomona Township was tendered as part of payment to Augur Investments in clear recognition that it had done work which it was entitled to payment for. Council authority and the necessary approvals were obtained. Stand 654 Township was valued at US$20 million,” Aleshina said.

But Markham, Tavonga Savings Scheme and Pikicha argue that the deed of settlement was not only illegal, but a clear case of “theft” of prime council land.

They want an order “setting aside the transfer of the property covered in the deed of settlement to the seventh respondent (Doorex Properties), being a certain 273,2 hectares of land called stand number 654 Pomona Township”.

The applicants also want the original agreement between the City of Harare and Augur for the development of the Harare Airport Road declared null and void on the basis that besides the “illegal signatures” on the deed of settlement, they allege the deal did not go through tender and did not comply with Zimbabwe’s investment laws. They allege that, in any case, the deal conditions were never fulfilled.

In response to the application by the trio, Aleshina told the High Court that stand number 654 Pomona Township, which is registered in the name of Doorex Properties has since been subdivided into 1 120 individual stands.

She said several clients of Doorex Properties have bought stands from the subdivided property and will suffer serious financial prejudice if ownership of that land is interfered by the relief sought in this matter.

“They clearly have an interest in the outcome of these proceedings yet they have not been cited.  The suit in this matter has been brought against Augur Investments which is described as a company duly registered according to the laws of Ukraine and which is said to be trading and operating extensively in Zimbabwe while, on the contrary, the company is not the said company registered in Ukraine, but a different company altogether registered in Mauritius. The applicants have thus proceeded against a wrong party. The first respondent on whom the application was served was thus wrongly cited,”Aleshina submitted.

She said Markham had not demonstrated that he had a real and substantial interest in the matter as his founding affidavit does not show that the land is in his constituency.

“With regards to second applicant, it is disputed that it is a common law universitas or that it is a member of the said Homeless People’s Federation. Without proof of registration and a register of members, the number of members alluded to by second applicant is pure speculation and is a product of wild imagination.” Newsday

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