A group attempting to overturn a Mugabe-era 2007 land agreement between Harare City Council and Augur Investments has failed to obtain permission to appeal a High Court decision dismissing it for lack of legal standing for a second time.
After losing at the High Court on the grounds that their application was submitted far past the legally required period, the Zimbabwe Homeless People Federation (ZHPF), a person named Knowledge Tinashe Kwambana, and former Harare City councillor Warship Dumba made the effort to appeal.
In 2007, Mr. Ken Sharpe’s Augur and Harare entered into a land and development joint venture in which Augur received 70% of the shares and the council received 30% of the company, Sunshine Development (Pvt) Ltd.
However, ZHPF and other parties have filed a lawsuit seeking that the transaction be reversed against the Harare City Council, Augur Investments, the Minister of Local Government and Public Works, Mr. Ken Sharpe, and others.
They claimed that the council gave Augur more than 239 hectares of land without authorization or compensation.
However, before the court considered the merits of the civil complaint, the lower court made decisions on three preliminary issues brought up by the Harare City Council, the investor, and the other parties sued.
The applicants’ allegations started in 2007, therefore three years had passed by the time the lawsuit was instituted in 2021, the council and Augur argued, saying that the application was lodged well after the deadline for a civil case.
The council and Augur further stated that the federation lacked the legal capacity to suit, that their claim presented important factual issues that, under the law, could not be settled by written documents, and that as a result, they had selected the incorrect civil method.
All three of the first issues were affirmed by Justice David Mangota in the lower court.
Regarding the first issue—the statute of limitations for a civil action—it is undeniable that the joint venture agreements, which were executed in June and September 2007, are public records.
ZHPF failed to follow standing orders once again, and as a result, they must now pay Augur’s costs at the Supreme Court on Wednesday before Justice Nicholas Mathonsi, who was present in his chambers.
In his ruling, Justice Mangota stated that ZHPF could not imply that it was oblivious of the agreements that the parties made in 2007 up until 2021 when it filed its case. ZHPF claimed to have a genuine interest in the concerns of good governance in Harare.
Clr. Dumba, in his capacity as chairperson of the special investigations committee that the City of Harare established between 2008 and 2013, could not have been unaware of this land deal between 2010, the deadline year, and 2021, the year they filed their lawsuit. The committee’s mandate was to look into the City of Harare’s land sales, leases, and exchanges from 2004 to 2009.
The federation and the two people indicated in their papers that they were aware of the transactions as early as 2010, when the matter was brought up in the land audit that the City of Harare performed. They did not deny this in their affidavits.
They were unable to provide an explanation for why they did not file a lawsuit right away after becoming aware of the parties’ identities and the relevant facts, which was three years ago.
The party making the argument is automatically entitled to have the plea upheld if the prerequisites for a plea of prescription have been proved by that party. However, the court kept considering the other two points.
According to the court, neither the ZHPF nor its co-applicants had a direct or significant stake in the agreement between the council and Augur.
They stated that they were suing on behalf of its unidentified members who would later demand land from the City of Harare after the land was returned to it, but the court concluded that their assertion was improbable and unpersuasive.
In addition, the court agreed with the council and Augur that ZHPF should have anticipated that its claims of fraud, corruption, and collusion would be severely contested before bringing the application rather than advancing through a lawsuit.
The kind of application ZHPF submitted necessitates the court hearing arguments and reviewing the files in private.
Harare was represented during the signing of the joint venture by Sekesayi Makwavarara, then-chairperson of the Commission administering Harare, and the then-town clerk Tendai Mahachi.
According to the contract, the joint venture would, among other things, construct middle-class homes, a hotel on a golf course, and a commercial hub in Hopley and Mukuvisi.
At Warren Hills Golf Course, Augur Investments is prepared to construct a cutting-edge tourism and hospitality complex.
This came when Warren Hills Golf and Residential Estate opened its doors in May 2022. Zimbabwe has never received services of this calibre before from the resort.
The impressive golf course will also include a clubhouse, upscale residences, and vacation homes linked to it.
Peter Matkovich, a well-known designer and former golfer, has recently been hired to create the multimillion-dollar infrastructure.
While Mr. Charles Kwaramba represented the City of Harare and Advocate Eric Matinenga, instructed by Mr. Tendai Biti, represented the ZPHF and others, Advocate Tawanda Zhuwarara, instructed by Scanlen & Holderness, represented Augur Investments.- Agencies
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