A group seeking to reverse a 2007 land deal between Harare City Council and Augur Investments has, for the second time, failed to get permission to appeal against a High Court ruling dismissing it for lack of legal standing.
The bid to appeal comes after Zimbabwe Homeless People
Federation (ZHPF), one Knowledge Tinashe Kwambana and former Harare City
councillor Warship Dumba — lost in the High Court on the grounds that they made
their application way out of legally prescribed deadline.
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.
But ZHPF and others 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 the council of illegally allocating more than
239 hectares of land to Augur without payment.
However, the lower court 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 in the lower court 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 on public record.
In the Supreme Court on Wednesday, before Justice Nicholas
Mathonsi, sitting in his chambers, the matter could not be heard because ZHPF
failed to comply with standing rules, yet again and now there are required to
pay the costs incurred by Augur.
In his judgment, Justice Mangota said ZHPF, which claimed
to have 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.
Clr 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.
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 ZHPF and its co-applicants had no
direct and substantial interest in the contract between the council and Augur.
They claimed to be suing on behalf of its unnamed members
who would subsequently seek land from the City of Harare after the land had
been returned to it, which interest the court found to be remote and
unconvincing.
The court also agreed with the council and Augur that ZHPF
should have foreseen that its allegations of fraud, corruption and collusion
would be seriously disputed but went on to bring the application instead of
proceeding by way of an action.
The type of application ZHPF filed requires the judge to
look at the papers alone and hear arguments.
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 2022. 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 Tawanda Zhuwarara instructed by Scanlen and
Holderness represented Augur Investments while Mr Charles Kwaramba represented
City of Harare and Advocate Eric Matinenga instructed by Mr Tendai Biti
represented the ZPHF and others. Herald
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