A company subcontracted by Augur Investments to construct the Harare Airport Road has told the High Court that its former partner is trying to buy time and delay the selling of a Harare property to offset a US$4.8 million debt
On May 9 this year, Fairclot Investments won a High Court challenge against a move by Augur Investment to settle its long outstanding debt for the work on the Airport Road project in local currency.
Justice Nyaradzo Munanganti-Munongwa ruled that West Properties (WestProp) land in Pomona worth US$105 million must be attached and sold to resolve the debt dispute with Fairclot Investments.
WestProp is listed on the Victoria Falls Stock Exchange (VFEX).
Augur held the land before it was transferred to WestProp.
The company has appealed against the judgment by Justice Munangati-Munongwa, forcing Fairclot to make an application for execution pending appeal.
Fairclot argued that delays in paying the money would cause irreparable harm to the company given that Augur has divested itself of its executable assets.
Responding to Augur’s response to Fairclot’s application, Simbarashe Kadye said the company had failed to establish how non-payment could further prejudice them if the execution was stayed until the Supreme Court SC 217/23 appeal filed by the sheriff of the High Court is heard.
- News in depth: How Harare lost vast tracts of prime land for incomplete Airport Road
- News in depth: Airport Road scandal takes centre stage at Biti trial
- Contractor pushes to sell Augur Investments property over debt
Keep Reading
He noted that the execution would be very detrimental to Augur considering that the order Fairclot got “cancelled any and all transfers of title that effected after the upliftment of judicial attachment.”
Kadye argued that the sale of the property cannot be undone if the Supreme Cort ruled in Augur’s favour in case SC 217/23.
But Fairclot, represented by Tino Chinyoka, who is being instructed by Mutumbwa, Mugabe and Partners said the sheriff was hiding behind a finger.
“This application challenges all appeals files,” Chinyoka wrote in his response to Kadye dated 22 June.
“Third respondent (sherrif) cannot seek to rely on the notice of appeal filed by the first respondent (Augur Investments) and the payment by the first respondent of security for costs and then turn and seek to suggest that it has its own appeal.”
“Such an appeal, if it stood alone, was abandoned and deemed dismissed by operation of the law by the third respondent’s failure to provide good and sufficient security for costs.”
He said the sheriff cannot claim to have paid security of costs through Augur’s payment.
“The attempt to hold a brief for the first and third respondents as a trojan horse for that appeal against costs is incompetent because the sheriff was not a party to the application for a declaratur, against which she now seeks relief for first and third respondents,” Chinyoka said.
“The only part of the judgment that the sheriff can challenge is the costs order or the application where she was cited, which did not have as an option the relief that she is asking for from the Supreme Court.
“And, for the appeal against costs, leave to appeal is needed.
“Such leave was not sought, so the sheriff's appeal must fail, and therefore it cannot stand in the way of this application.”
Chinyoka also said Augur has failed to dispute his allegation that it simply made the appeal to buy time and meet the requirements of the VFSE listing.
“The applicant alleged that the appeal was lodged to meet the notification requirements of the stock exchange and provided proof,” he said.
“These allegations, serious as they are, have not been denied in the notice of opposition.”
Chinyoka said the respondents have already admitted that they lodged their appeal for the purposes of buying time.
He said the appeal did not deal with the court’s finding that the arbitral award was not executable and, therefore, incapable of being regarded as a judgment for the purpose of SI 33/19.
“Findings of fact by the court are not appealable just because the appellant does not like them,” submitted Chinyoka.
In his answering affidavit, Fairclot director Grant Russel said he wondered why the sheriff was filing opposing papers when he was not a party to the application.
“None of the grounds of appeal touched on the right and entitlement that the third respondent raises in this affidavit.
“It is on this basis that it has failed to be an opposition to the application, if the third respondent had truly believed that no relief was sought against it, it would not have filed an opposing affidavit.”
