Moyo ‘deal’ opens can of worms

Source: Moyo ‘deal’ opens can of worms – The Standard

A company that was involved in the construction of Harare’s Airport Road has approached the High Court seeking to overturn an agreement that it says is shielding businessman Ken Sharpe from prosecution over alleged massive theft of land in the capital.

Local Government minister July Moyo is said to have been instrumental in the signing of a deed of settlement between Harare City Council and Ken Sharpe’s Augur Investments, which is now a subject of two court challenges.

Augur Investments is embroiled in land disputes with its former partners, including Fairclot Investments, trading as Trucking and Construction Pvt Ltd and the new court battle is expected to shed more light into one of the biggest land scandals to rock Harare.

Fairclot was subcontracted by Sharpe’s Augur Investments to construct the Airport Road before the construction company terminated the deal because of a payment dispute.

Following an agreement made on March 26, 2013, Fairclot constructed 2.7 km of  the road on behalf of Augur, which was controversially awarded the contract on May 30, 2008, without going to tender.

Under the agreement, Augur was supposed to construct the Airport Road with an understanding that 90% of the costs would be paid in form of the land and 10% in cash.

The tittle deeds for the land that was identified for the deal were supposed to be kept by a private law firm until council approved the road project.

Augur went on to subcontract Fairclot, which stopped work on the road after doing 2.7km due to non-payment.

The dispute was temporarily solved after “Augur pledged as security, stand 654, Pomona Township measuring 273 299 hectares of state land.

Title deeds for the land were kept by lawyers “Messers Coghlan, Welsh and Guest legal practitioners as security for the payment by the first respondent (Augur) of all its indebtedness to the plaintiff (Fairclot),” part of papers filed by the company at the High Court on June 14 read.

Fairclot, who are represented by Mutumbwa Mugabe Legal practioners, was owed US$4,8 million, from which US$3,250 500 was payable in cash and US$1 459 500 was to be paid in form of land or equivalent cash value.

“Despite the arbitration award, the first defendant has not paid the amount it owes to the plaintiff in spite of a purported tender of the amount outstanding in RTGS after the enactment of SI133/2019 in February of 2019,” Fairclot said.

In 2013, council was forced to cancel Augur’s Airport Road contract due to non-performance, but by that time, a lot of land had already been transferred to Sharpe’s firm.

Augur demanded a 35% termination fee, which was identified as the Pomona land measuring 40 665 hectares.

 The High Court, however, granted an award of $3 million in favour of Augur which was successfully challenged by the local authority.

 

 

Augur appealed and before the matter was heard, the deed of settlement was signed, and Sharpe took the land.

In May, a deed of settlement was signed between Moyo, Augur and Harare City Council which “gave present and future immunity to Augur and associates, and transfer of Stand 654 Pomona Township to Augur.

“The deed was assigned without Fairclot’s knowledge, despite the said land being pledged to them as security.

Sharpe immediately moved the stand to Doorex Pvt Ltd, his shelf company and started selling residential stands.

“The agreement is fraudulent and contra to the public policy of Zimbabwe,” Fairclot argued.

“The agreement seeks to defeat a lawful judgment of the High Court being the High Court judgment by Justice Muremba Number HH-727-18 in case No HC7445/17.

“The deed of settlement was executed without the authority of the president of the Republic of Zimbabwe, the interested party herein.”

Fairclot added: “The deed of settlement was executed without the authority of the City of Harare.

“More fully those who executed it on behalf of City of Harare lacked the requisite authority from the same.”

The deed of settlement, Fairclot said, should be set aside, in terms of common law because President Emmerson Mnangagwa did not sign the power of attorney to enable transfer of the property and that the property was transferred in the absence of the original deed, which was held in escrow by Goghlan, Welsh and Guest.

“The transfer was done, in any event on the basis of a deed of settlement which was in any event a nullity,” Fairclot added.

In response to the lawsuit, Augur, Sharpe, and his representative Tatiana Aleshina, said the land was state land and Fairclot cannot seek reversal of actions taken by the president in his official capacity.

 

 

The three said Fairclot has no special interest except that the property was ceded to it as security.

Aleshina said Augur has paid its arrears in full and “thus the application lacks merit and should be dismissed.”

Prominent Harare land developer George Katsimberis has also approached the High Court seeking to have the criminal immunity granted to Augur Investments, a company reportedly registered in Ukraine, Estonia or Mauritius with extensive interests in Zimbabwe withdrawn arguing that it violates provisions of the constitution.

Katsimberis is also seeking to compel prosecutor general Nelson Mutsonziwa to prosecute Moyo, Augur Investments and its representative Tatiana Aleshina as well as another company owned by Sharpe, Pokugara Properties who are cited as a second, third, fourth and fifth respondent, respectively.