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A court bid to stop the transfer of 100 hectares of land in Harare to a company owned by property tycoon Kenneth Raydon Sharpe has failed after the High Court said the challenge was filed out of time.
Justice David Mangota said the legal challenge brought by the Zimbabwe Homeless People Federation should have been filed within three years of the joint venture agreement between the City of Harare and Sharpe’s Sunshine Development (Private) Limited.
The transaction was signed in 2007, and the High Court says any challenge should have been filed within three years. The law of liberative prescription sets three years as the period of time after which legal action is barred if no steps have been taken to enforce a right where the existence of the contract was not disputed.
The joint venture between the City of Harare and Sharpe’s Sunshine Development, a subsidiary of Augur Investments, would see the local authority transfer of 99.41 hectares of land to the property developer in Warren Park, Hopley (Mbudzi) and Mukuvisi Arcadia.
The Zimbabwe Homeless People Federation argued that the agreement was unlawful and wanted it nullified.
Sharpe and the City of Harare raised a preliminary argument that the application had been prescribed by the passage of time.
Justice Mangota concurred.
“The agreements which the Zimbabwe Homeless People Federation seeks to impugn were signed in June and September, 2007. They are, as the City of Harare correctly states, a matter of public record,” Justice Mangota ruled.
“The applicant which claims to have a keen interest in the affairs of good governance in Harare cannot suggest that it was unaware of the agreements which the parties signed in 2007 up until 2021 when it filed the current application.
“Given its interest in the affairs of the City of Harare as supported by the land audit which one Warship Dumba, the third applicant in casu, conducted in his capacity as the chairperson of the Special Investigations Committee which the City of Harare set up between 2008 and 2013 to inquire into the City of Harare’s land sales, leases and exchanges from 2004 to 2009, the applicant cannot be said not to have been unaware of the agreements from 2010 to 2021.
“The respondents state, correctly in my view, that the applicant does not deny their allegation which is to the effect that the applicant was aware of the alleged breaches of statute, delict and contract from as far back as 2010. It is trite that what is not denied in affidavits is taken to be admitted.”
Justice Mangota said once it is accepted that the claim is prescribed, the application must fail.
“The Zimbabwe Homeless People Federation cannot, in short, bring the claim after three years. As the respondents correctly submit, where, as in casu, a claim is shown to have been prescribed, the court has no choice but to bring the matter to an end.”
The judge also ruled it was unconscionable for the applicant to suggest that it derives its right or capacity to bring an action or to appear in a court from the rates that it pays to the City of Harare.
“The Zimbabwe Homeless People Federation, it is mentioned, does not state that it had been personally adversely affected by the alleged wrong of the parties. As the respondents correctly state, a person seeking a declaration of rights must set forth his contention as to what the alleged right is,” the judge continued.
“The applicant’s claim which is to the effect that it has the right to the land which the parties transferred to Sunshine Development is not only remote. It is so far-fetched that it cannot hold. The applicant has neither an existing, future or contingent right in that land. It is as it were, shooting in the dark in the vein hope that it may get at its intended target which remains undescribed and undefined.”
The judge also dismissed corruption claims as baseless while slapping the applicants with costs.
He ruled: “The Zimbabwe Homeless People Federation should have foreseen that its allegations of fraud, corruption and collusion would be seriously disputed by the respondents. It, notwithstanding, made up its mind to file this application instead of proceeding by way of an action.
“It cannot escape the sins of its own conduct. It shall not be accorded a second bite of the cherry. Its case on the respondents’ last preliminary point stands on no leg. The respondents have proved their three preliminary issues on a balance of probabilities. The in limine matters are, therefore, upheld. The application is, in the result, dismissed with costs.” ZimLive
