Wednesday, 11 May 2022

AIRPORT ROAD SAGA SETTLED


An application filed by legislator Allan Markham against Aurgur Investments and President Mnangagwa over the transfer of deed of settlement by the City of Harare was yesterday dismissed by the High Court.

Markham who is the applicant together with Tavonga Savings Scheme and Jacob Pikicha were represented by Advocate Eric Matinenga while the respondents who are cited as 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 Aurgur 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.

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.

The 35 percent termination fee was identified as Stand 654 Pomona Township, Harare, measuring 40,665 hectares in extent.

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 a judgement yesterday ruled that the respondents 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.

“The respondents succeed in all the three in limine matters which they raised. They showed that the application which sued the President of zimbabwe without leave of the court is fatally defective and cannot therefore stand. They showed further that the applicants lacked the locus standi to sue the respondents and that the suit which was brought against them was fraught with material disputes of fact which cannot be resolved on the papers. The application is therefore dismissed with costs,” ruled Justice Mangota.

Advocate Zhuwarara had challenged the applicants saying they do not qualify or locus standi to sue the respondents.

Justice Mangota concurred with Advocate Zhuwarara saying the locus is not established by argument as Markham seeking to do.

Locus manifests itself from an effortless reading of the founding papers of the plaintiff in an action, or the applicant in motion, proceedings. It is a logical consequence of the cause of action of the plaintiff or the applicant against the defendant or the respondent,” JusticeMangota ruled.

He said he was satisfied that applicants who are total strangers to the respondents do not have the requisite locus to sue the latter.

He further ruled that their suit is akin to a leap into the dark, so to speak. It hanged on nothing. It was therefore completely devoid of merit.

The judge further said they should have realized that the serious allegations which they levelled against the respondents would seriously be contested by the latter. Herald

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