The battle for a piece of prime land in Harare that was parcelled out to businessman Ken Sharpe by the city council has escalated after a construction company approached the High Court seeking an urgent order to sell the property.
Fairclot Investments, which was subcontracted by Sharpe’s Augur Investments to construct the Harare Airport Road, last month won a High Court challenge against its former partner’s move to pay it in local currency for work on the project.
The land now belongs to the Victoria Falls Stock Exchange (VFEX) listed West Property Zimbabwe (WestProp).
Justice Nyaradzo Munanganti-Munongwa ruled that WestProp the land in Pomona worth US$105 million must be attached and sold to resolve the debt dispute with Fairclot Investments.
In his founding affidavit in the urgent application, Grant Russel, one of Fairclot’s directors, said further delays in paying the money by WestProp would cause irreparable harm to the company given that Sharpe’s firm has divested itself of its executable assets.
Fairclot said WestProp has continued to sell stands on the property, which made the application urgent.
The newly VFEX listed frim is now touting Augur’s sole asset as belonging to it, Russel argued.
He said WestProp would not suffer prejudice because its prospects of success on the matter were remote and that in its appeal, it has never indicated that it was unable to pay.
He said the company’s Supreme Court appeal against Munanganti-Munongwa’s judgement was vexatious and frivolous.
Russel said the appeal was not made with a bona fide intention to reverse the judgement but for indirect purposes such as to harass Fairclot or to inform shareholders, present and future, involved in WestProp’s VFEX listing that the appeal had an effect of suspending the High Court judgment.
“When the arbitral award was granted in 2015, the first respondent (Augur) once again went out on a series of pointless and ultimately unsuccessful litigation to challenge the debt and it took four years to get that dismissed in the Supreme Court, and then there were three other unsuccessful attempts to challenge the debt in the High Court, including an interpleader suggesting that the property attached was not executable; all pointing to the fact that this is a debt whose payment is due and no amount of litigation will change that; and the balance of hardship is such that the application ought to be granted in order to bring finality to this long-running matter and long-awaited payment to the applicant,” Russel said in the founding affidavit dated June 8.
He said Augur’s appeal will not succeed because it attacks the court for purportedly failing to uphold the arbitral award of 2015 as a judgment and does not, therefore, qualify under the statutory Instrument 33 of 2019.
It was only registered by the High Court after the SI.
Russel said the cross-appeal by the sheriff of the High Court showed that he was sponsored by Augur and was not implementing orders based on the law.
“Once the court found that the judgment debt was in US dollars and that execution ought to have been made in that currency and not in RTGS at the wrong rate of 1:1 as opposed to the prevailing exchange rate, it followed that the RTGS payment did not fully discharge the debt,” he argued.
“Such a finding cannot be a "gross misdirection" since it flows logically from the finding that Statutory Instrument 33 of 2019 did not apply in this case.”
Russel added: “I further point out that the appeal does not put the judgment of the court at risk of being set aside.
“Its lack of prospects of success is such that there is nothing for which to wait before the judgment is carried into execution.
“I also indicate that the applicant has no alternative remedy by which to achieve the fruits of the judgment.”
Munangati-Munongwa’s ruling followed a challenge by Fairclot against Augur’s move to pay for the US$4.8 million debt for the construction of the Airport Road in local currency using a 1:1 rate to the US dollar after the introduction of Statutory Instrument 33 of 2019.
Augur has appealed to the Supreme Court against the High Court order.