Supreme Court Bid To Reverse Joint Venture Deal Flops
9 June 2023
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A group seeking to reverse a 2007 joint venture deal between Harare City Council and Ken Sharpe’s Augur Investments failed at the Supreme Court on Wednesday, barely a year after a lower court had dismissed the case.

The Zimbabwe Homeless People’s Federation (ZHPF), Knowledge Kwabana and Warship Dumba approached the Supreme Court to get permission to appeal against a High Court ruling by Justice David Mangota. Last year, Justice Mangota dismissed their case on the basis that it has no locus standi.

In the Supreme Court on Wednesday. the matter could not be heard before Justice Nicholas Mathonsi as ZHPF failed to comply with rules.

ZHPF, Kwabana and Dumba approached the courts in 2021 for the land transfer to be undone and the joint venture between HCC and Augur cancelled and declared a nullity. The joint venture had created Sunshine Development.

The applicants alleged that those that signed the agreement were not authorised and that the transaction also broke the investment and procurement laws.

However, the application was dismissed by Justice 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 [ZHPF] 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,” Justice Mangota said.

“Given its interest in the affairs of the City of Harare, the applicant cannot be said to have been unaware of the agreements from 2010 to 2021″.

In its assessment of all submissions, the court established that one of the applicants, Dumba, had been aware of the agreements because he did the land audit and was chairman of the special investigation committee from 2008 to 2013 which enquired into Harare City Council’s land sales and could not now say he did not know about agreements between 2010 to 2021.

The court showed that applicants did not have the right to sue as locus standi cannot come from simply being interested in something and must show a real relationship to the person they are suing.

The court further said the applicants did not have any rights to the land and “it is so far-fetched it can’t hold”, ‘it has no existing, future nor contingent right in that land’ and was “shooting in the dark”.

“The applicant should have foreseen that its prejudice allegations would be seriously disputed and should have proceeded by way of action” Justice Mangota ruled.

He ruled that the ZHPF cannot escape the sins of its own conduct.

“The Federation shall not be accorded a second bite of the cherry. Its case on the respondents stands on no leg. The application is in the result dismissed with costs,” Justice Mangota ruled.

Sunshine Development is a joint venture company with the objective of building middle income houses and a hotel at Mabelreign Golf Course, develop a commercial centre at Hopley and Mukuvisi.

-Business Times