The Sunday Mail
Sunday Mail Reporter
LAWYERS representing property developer Augur Investments have challenged Harare North legislator Allan Markham’s High Court application seeking the revocation of a land deal between the developer and the Harare City Council, describing it as fatally flawed.
Markham along with Jacob Pikicha and Tavonga Savings Scheme last year mounted a legal challenge seeking to annul a land transfer deal between Harare city council and Augur over the transfer of a piece of land at Stand 654, Pomona on the grounds that it was concluded fraudulently.
He cited several respondents including Augur, businessman Kenneth Sharpe, Council, the Ministry of Local Government and the President among others.
Augur and its three executives Mr Sharpe, Mrs Tatiana Aleshina and Mr Van Blerk have, through their lawyer Advocate Tawanda Zhuwarara, instructed by Scanlen and Holderness, filed their heads of argument challenging the applicants’ claim.
The respondents, through their lawyer, argued that Mr Markham has no valid interest in the matter.
“The 1st applicant purports to be suing in a representative capacity as well as in his own individual right,” reads the opposing papers.
“The said applicant again does not relate to his direct interest in stand number 654 Pomona Township measuring 273,2933 hectares.”
The respondents argued that for a person to approach a court for relief they must show an interest.
“For proper proceedings to actuate, all the applicants must have outlined how were they are adversely affected by the transfer of land…”
“The applicants do not profess a direct interest in the land in issue.
“In the result, the present application should fail on account of the applicant’s lack of standing to sue”.
Adv Zhuwarara further argues that the applicants knew fully well that their cause would be disputed and therefore gambled and proceeded to file a motion.
“This conduct is prescribed by law and must see the summary dismissal of the present application.
“The application should therefore fail as adjudged to be the correct manner of dealing with a litigant who brought an application knowing that there are material disputes of fact.”
Augur wants the applicants, being third parties, barred from seeking the cancellation of contractual arrangements that exist.
“This court cannot be called to negate the arrangement concluded and immortalised in the High Court by parties that were never privy to the dispute or attendant litigation,” argues Adv Zhuwarara.
“The law is clear, an extant order of this court must be obeyed unless it has been varied by this court.”
He argues that High Court rules require applicants to first obtain leave in order to lodge civil proceedings against a sitting Head of State.
“To put it kindly, the present claim is an unfortunate misadventure and must be dismissed more particularly for failing to obtain leave to sue the President considering that the land under dispute was State land registered in the name of the ninth respondent (the President),” said Adv Zhuwarara.
“The failure and refusal to comply with the rules render the present proceedings still-born. The proceedings are a nullity for want of leave.”