THE Pomona land deal between Augur Investments and Harare City Council will now stand without further challenge after the Supreme Court declined to hear the appeal by Harare North legislator Mr Allan Markham and two others challenging the High Court’s decision to let the deal stand.
The Supreme Court found the appeal was defective and hopeless at law and so struck it off the roll, also noting that there were no valid grounds of appeal.
In May this year, Mr Markham along with a company called Tavonga Savings Scheme and Harare resident Mr Jacob Pikicha lost their High Court bid to nullify the land deal between Harare and Augur involving State land.
They had sued nine respondents over Stand 654 Pomona: City of Harare, Augur, Ministry of Local Government and Public Works, Mr Kenneth Sharpe, Ms Tatiana Aleshina, Mr Michael van Blerk, Doorex Properties, the Registrar of Deeds and, fatally for the legal action, the President of Zimbabwe.
But the High Court threw out the application because the Markham group had three preliminary fatal flaws in their court application.
Aggrieved by the decision of the High Court, the Markham group took the matter up to the Supreme Court on appeal.
But Justices Chinembiri Bhunu, Justice Joseph Musakwa and Justice Hlekani Mwayera on Monday unanimously agreed to strike the appeal off the roll on the grounds that it was defective and in addition there were no valid grounds of appeal and the relief sought was also defective.
The group had wanted the deal cancelled on the grounds that it was fraudulent. But as emerged during the hearing at High Court in just the preliminary legal moves, that the Markham group missed that no one can sue the President, in either his official or personal capacity, without the leave of the High Court. That was not obtained.
The rule is designed to stop nuisance suits and people suing the President when they should be targeting the correct Government official, but still allows a judge to permit a suit against the President when there is good reason.
The second fatal flaw was that the Markham group had no legal standing. They were not a direct part of the contract nor had any interest in the property, and so were unable to bring any legal action to enforce or negate the contract.
Finally, they chose a method of bringing the matter to court that would not allow the facts to be contested in court hearings, and they should have realised that such a contest would be almost certain since the city council has consistently maintained that the deed of settlement entered between the parties was in good faith and was made in the best interests of the public.
In his ruling Justice David Mangota of the High Court found that the Markham group agreed they had not sought leave to sue the President, He also found that Mr Markham and his co-applicants were not part of the contract between the city council and Augur, necessary to claim a direct and substantial interest in the contract.
The basic idea of contract is that people must be bound by the contracts they make with each other and Justice Mangota ruled it would be ridiculous if total strangers could sue or be sued on contracts which they are in no way connected to.
It was also the findings of the High Court that the Markham group could not be allowed to approach the court via motion proceedings in circumstances where they are aware that there are material disputes of fact, which cannot be resolved on papers.
They should, therefore, have proceeded by way of an action, and not a motion, to allow the respondents to test the veracity of the allegations.
It was on this basis that the respondents succeeded in all the three preliminary points.
The council and Augur hammered a settlement over their contractual dispute following negotiations of a compromise, which culminated in the deed of settlement being lodged with the Supreme Court and subsequently reduced to an order of the High Court.
The Government has since transferred the land to Augur through its property concern Doorex Properties after all the essential legal processes were concluded.
The three top Augur executives were sued by the Markham group with their companies, but Mr Sharpe, Mrs Aleshina and Mr van Blerk and Doorex challenged the motion using the reasons accepted by the High Court.
The Markham group was represented by Advocate Lewis Uriri instructed by Mr. Tendai Biti while Adv Tawanda Zhuwara argued the matter for Augur and its directors. Mr Charles Kwaramba acted for City of Harare. – The Herald