The company that was subcontracted in the construction of the incomplete Harare Airport Road has joined those challenging the legality of a deed of settlement that saw vast of tracts of land in the capital being ceded to Augur Investments as payment for the job in lieu of cash.
Fairclot Investments, trading as Trucking and Construction Company (T&C) is embroiled in a payment dispute with businessman Ken Sharpe’s Augur Investments after contractual disagreements that led to the halting of the project before it was cancelled by the government.
On May 28, 2019, Local Government minister July Moyo, Harare City Council and Augur signed a deed of settlement that gave Augur what has been described as immunity from prosecution that might emanate from the land disputes related to the Airport Road project.
In the High Court case HC2737/22 against an Augur Investments subsidiary company Doorex Properties, T&C wants the deed of settlement declared null and void.
T&C said the settlement sanctioned “the transfer of title in stand 654 Pomona Township to Doorex and the indemnification of all criminal charges to be committed in future against Augur Investments, its associate companies, representatives, and its directors.”
“The deed of settlement in case No SC878/2018 was registered as an order of the High Court of Zimbabwe in case No HC4528/2019 without reference or advice or instruction to the plaintiff notwithstanding that it was an interested party to the extent that the agreement among other things, covered stand 654 Pomona Township which had been pledged to it as security,” T&C argued.
T&C said the deed of settlement was void because the agreement was contrary to Zimbabwe’s public policies and that the agreement sought to defeat a lawful High Court judgement by Justice Esther Muremba in case number HC7445/17.
The deed of settlement, T&C said, was executed without the authority of the president and City of Harare who were interested parties.
“The registration of the deed of settlement as an order of the High Court in case number HC4528/2019 was wrong and unlawful on the following basis that the registration was based on a deed of settlement, which was a nullity,” T&C said in its submissions.
“The registration was done in the absence and without the knowledge of the plaintiff and other interested parties and for this, the reason, the deed of settlement should be set aside in terms of the common law nod or rule 449 of the High Court rules 1971, which were applicable at the time.”
T&C also said the transfer of the property to Doorex Properties on January 20, 2020 because the president did not sign the requisite power of attorney to enable transfer and that the property was transferred in the absence of the original title deed, which is still held by Coghlan, Welsh and Guest.
Responding to the summons, Augur Investments said T&C was not an interested party in the deed of settlement.
“Curiously, Fairclot was not a party to both the dispute and deed of settlement that it seeks to set aside under case number HC 2737122,” Augur Investments said.
“The matter culminating in the deed resolved the criminal and ownership wrangle over the property therein concerning the parties involved in that matter.
“The first respondent was not a litigant in that matter; thus, it has no interest in such a matter.”
Land developer George Katsimberis and Harare legislator Norman Markham have also challenged the deed of settlement.
Following the secret deed of settlement giving immunity to Augur and its associates, more land was transferred to the company for the Airport Road.
T&C was subcontracted by Augur on March 26 2013, but pulled off-site after only covering 2.7km of the 20 km stretch of road because of non-payment issues.
The dispute between Augur and T&C was temporarily resolved after Augur pledged Stand 654 Pomona Township o measuring 273, 29923 hectares.
T&C cited Augur, Sharpe, his aide Tatiana Aleshina, City of Harare, Local Government Ministry, Doorex Properties, Registrar of Deeds, and the deputy sherriff of the High Court Mucduff Madega as first to eighth respondents.
Doorex was cited as the sixth respondent in the case because it holds the land in dispute.
Mnangagwa was cited as an interested party in the case.
Previously the dispute between T&C and Augur was referred to arbitration and an arbitrator awarded T&c USS4.8 million of which US$3,250,500.00 was payable as cash and US$1,459,500.00 was being payable in land or equivalent value or cash.
T&C rejected a move by Augur to repay the debt using statutory 33 of 2019 that allowed for the payments of legacy dates using a rate that was at par with the US dollar.