News / National
Chiyangwa wins court case
05 Jan 2013 at 23:03hrs | Views
Property mogul Dr Philip Chiyangwa has won a provisional High Court order compelling the Harare City Council to transfer properties to his company, Kilima Investments, or to pay him US$2 million for the land swap deals the two parties entered into in 2007.
The order, which Justice November Mtshiya granted last Friday after Dr Chiyangwa made an urgent chamber application through his lawyers, Kantor and Immerman, is the latest twist in the long-running dispute involving thousands of hectares of land in Harare.
The properties include five pieces of land in different suburbs.
Justice Mtshiya said the Harare City Council breached its land exchange agreement with the maverick businessman and barred the local authority from selling or disposing of any of the properties at the centre of the dispute.
He said council made an unlawful resolution to settle the deal by paying US$17 000 and repossessing properties in Ballantyne Park at a meeting last September.
"The respondent (the city council) is directed to do all such things and sign all such papers as may be necessary to effect transfer of the following properties or, alternatively, to pay to the applicant the sum of one million nine hundred and ten thousand three hundred and thirty-five dollars (US$1 910 335) as determined by the respondent's city valuer and estates manager on March 7 2012," reads part of the order.
"Resolution No. 3 of the respondent's council meeting of September 27 2012 under Item 24 of its Finance and Development Committee minutes of September 18 2012 relating to the land exchange agreement between the applicant and respondent be and is hereby declared to be a breach of the land exchange agreement between the parties, unlawful and is set aside.
". . . That the respondent be and is hereby interdicted and prohibited from selling, ceding, transferring or in any manner whatsoever disposing of the immovable properties identified in the inventory of Stands in the City of Harare-Kilima Land Exchange Transaction . . ."
In his founding affidavit, Dr Chiyangwa argued the Harare City Council has since 2007 been agreeable to the deal in terms of which he swapped an industrial property for residential stands.
He said the council only made an about-turn at one of its meetings held on September 12 2012.
Dr Chiyangwa says Town House should give him 8, 971 hectares of land to conclude an arrangement that saw him parcel out his 16 000-hectare Derbyshire industrial stand in exchange for properties in several suburbs.
"Such action is not only unlawful and high-handed but is clearly done in bad faith considering the lengthy negotiations that preceded the agreement as to the values to be used to finalise the land exchange transaction," he said.
"The respondent's actions are also a clear breach of the rules of natural justice and fairness and may indeed amount to an abuse of power."
He added that the matter was urgent as council had terminated all correspondence on the issue in flagrant breach of the land swap agreement.
"The urgency arises from the fact that the respondent has decidedly terminated all correspondence on the issue and has as of last week suspended the members of its Valuation and Estates Department with whom the Applicant was negotiating to resolve this dispute.
"This means that unless the relief sought is granted, the Respondent will proceed with its unlawful Resolution and the properties that have been identified and agreed to by the City to compensate the Applicant may be sold or otherwise disposed of to the Applicant's prejudice.
"After these transfers of land to Applicant, there was still a balance of some 8,971 hectares in espect of which Respondent was still to identify more pieces of land with which to offset this balance.
"The above sequence of events was confirmed by two of the most senior executives of the Respondent, namely the Town Clerk, Dr T Mahachi and the Director of Urban Planning Services, Mr T Chiwanga, in sworn affidavits to which they each deposed in April 2010 following a certain Special Investigation Committee Report which suggested that the transactions were not proper."
The order, which Justice November Mtshiya granted last Friday after Dr Chiyangwa made an urgent chamber application through his lawyers, Kantor and Immerman, is the latest twist in the long-running dispute involving thousands of hectares of land in Harare.
The properties include five pieces of land in different suburbs.
Justice Mtshiya said the Harare City Council breached its land exchange agreement with the maverick businessman and barred the local authority from selling or disposing of any of the properties at the centre of the dispute.
He said council made an unlawful resolution to settle the deal by paying US$17 000 and repossessing properties in Ballantyne Park at a meeting last September.
"The respondent (the city council) is directed to do all such things and sign all such papers as may be necessary to effect transfer of the following properties or, alternatively, to pay to the applicant the sum of one million nine hundred and ten thousand three hundred and thirty-five dollars (US$1 910 335) as determined by the respondent's city valuer and estates manager on March 7 2012," reads part of the order.
"Resolution No. 3 of the respondent's council meeting of September 27 2012 under Item 24 of its Finance and Development Committee minutes of September 18 2012 relating to the land exchange agreement between the applicant and respondent be and is hereby declared to be a breach of the land exchange agreement between the parties, unlawful and is set aside.
". . . That the respondent be and is hereby interdicted and prohibited from selling, ceding, transferring or in any manner whatsoever disposing of the immovable properties identified in the inventory of Stands in the City of Harare-Kilima Land Exchange Transaction . . ."
In his founding affidavit, Dr Chiyangwa argued the Harare City Council has since 2007 been agreeable to the deal in terms of which he swapped an industrial property for residential stands.
Dr Chiyangwa says Town House should give him 8, 971 hectares of land to conclude an arrangement that saw him parcel out his 16 000-hectare Derbyshire industrial stand in exchange for properties in several suburbs.
"Such action is not only unlawful and high-handed but is clearly done in bad faith considering the lengthy negotiations that preceded the agreement as to the values to be used to finalise the land exchange transaction," he said.
"The respondent's actions are also a clear breach of the rules of natural justice and fairness and may indeed amount to an abuse of power."
He added that the matter was urgent as council had terminated all correspondence on the issue in flagrant breach of the land swap agreement.
"The urgency arises from the fact that the respondent has decidedly terminated all correspondence on the issue and has as of last week suspended the members of its Valuation and Estates Department with whom the Applicant was negotiating to resolve this dispute.
"This means that unless the relief sought is granted, the Respondent will proceed with its unlawful Resolution and the properties that have been identified and agreed to by the City to compensate the Applicant may be sold or otherwise disposed of to the Applicant's prejudice.
"After these transfers of land to Applicant, there was still a balance of some 8,971 hectares in espect of which Respondent was still to identify more pieces of land with which to offset this balance.
"The above sequence of events was confirmed by two of the most senior executives of the Respondent, namely the Town Clerk, Dr T Mahachi and the Director of Urban Planning Services, Mr T Chiwanga, in sworn affidavits to which they each deposed in April 2010 following a certain Special Investigation Committee Report which suggested that the transactions were not proper."
Source - SN
