Sharpe's lawyers expose Markham's faulty claim

Harare North legislator Allan Markham's application seeking reversal of the land deal between Harare City Council and property development company Augur Investments is fatally defective and incurable at law for the High Court to hear the case, according to the company lawyers.

Markham along with Jacob Pikicha and Tavonga Savings Scheme are the applicants in the case in which Harare City, Augur, Ministry of Local Government and the President are being sued over State land at Stand 654 Pomona. The MDC Alliance legislator and his co-applicants want the deal retreated on the grounds that it was fraudulent, regardless of the council's unflinching position that the Deed of Settlement entered between the parties was in good faith and was made in the best interests of the public.

Allan Markham The parties (Harare and Augur) hammered a settlement over their contractual dispute following negotiations of a compromise, which culminated in the Deed of Settlement being lodged with the Supreme Court and subsequently reduced to an order of the High Court. Government has since transferred the land to Augur, property concern Doorex Properties after all the essential legal processes were concluded.

Through their lawyer, Advocate Tawanda Zhuwarara instructed by Scanlen and Holderness, Augur, its three top executives Mr Kenneth Sharpe, Mrs Tatiana Aleshina and Mr Van Blerk and Doorex have filed their heads of argument challenging the applicants' claim. It is the lawyers' contention that at law, Markham and his co-applicants have no legal standing to seek to impugn a Deed of Settlement entered into by Augur and Harare highlighting that "our law is clear, parties who are not privy to a contract cannot sue or be sued on it".

Adv Zhuwara wants the applicants being the third parties barred from seeking the cancellation of contractual arrangements that exist among their clients.  

"This court cannot be called to negate the arrangement concluded in the Supreme Court and immortalised in the High Court by parties that were never privy to the dispute or attendant litigation," he argues in his papers.

"The law is clear, an extant order of this court must be obeyed unless it has been varied by this court."

He also argues that Markham's claim has no basis at law because it was brought by individuals and entities with no legal footing to bring such an action, without leave of the court. The High Court rules provide that leave must be obtained first to lodge civil proceedings against the Head of State whether in his personal or official capacity.

"To put it kindly, the present claim is an unfortunate misadvantage and must be dismissed more particularly for failing to obtain a leave to sue the President considering that the land under dispute was state land registered in the name of the ninth respondent (President)," said the lawyer.

"The failure and refusal to comply with the rules render the present proceedings still-born. The proceedings are a nullity for want of leave," said the lawyer adding that Markham, in this case, purports to be suing in a representative capacity as well as his own individual right. In an application of this nature a litigant is required to show direct and substantial interest in the property at the centre of dispute as prescribed at law, which Markham and his co-applicants did not plead in their averments.

The company also queried on what basis the applicants were personally adversely affected by the transfer of the land from the State to Doorex Properties. Turning on the claim that the Deed was fraudulently obtained, Adv Zhuwarara urged the court to find the allegations hypothetical as no complaint of misrepresentation was made by any of the parties to the Deed of Settlement, which applicants seek to attack.

"In failing to connect specific instances of fraud to the respondents the present application cannot be sustained," said the lawyer describing the applicants as unwelcome interlopers whose cause must be dismissed.