Harare City Council barred from direct sales of land

Harare City Council has been barred by the High Court from selling land directly to companies and individuals after the illegal sale of Mount Pleasant Sports Club and golf course has seen two top officials being jailed for effective six-year terms.

While the council's own standard operation procedures allow direct sales of city land, Justice Pisirayi Kwenda ordered an immediate stop to the practice in a judgment in which two top Harare City Council executives, finance director Stanley Ndemera and chamber secretary Charles Kandemiri, were jailed for an effective six years each on charges of criminal abuse of office for selling Mount Pleasant Sports Club and golf course.

The court wants all sales to include public advertisements seeking to sell the land and calling for interested potential buyers. This would allow those who object to the sale in the first place to raise their objections, and then would ensure that any sale that went ahead was done openly.

The actual sale of the sport club while it was a direct sale was wrongful since the sales procedure had not started with a request from the potential buyer, a laid down requirement, and that allowed the guilty verdict.

The judgment was made available on Friday. One of the key witnesses who testified in the trial said Ndemera and Kandemiri followed the correct procedure in selling Stand 402 to Hardspec Investments, and the witness saw nothing wrong with the direct sale of the piece of land to Hardspec Investments because that was permissible under the standard procedures.

But Justice Kwenda sitting with assessors Mr G Shenje and Mr R Mabandhla were unable to agree with the witness because the procedure set out in the standard operating procedure was supposed to open with a written application by an interested party of an identifiable stated specific piece of land belonging to the city council.

There was no record of such an application.

"We digress to point out that direct sales of land in terms of the touted standard operating procedure ought to be discontinued forthwith because that procedure is inconsistent and irreconcilable with the principles of public procurement entrenched in s 315 of the Constitution which are ‘…to ensure transparency, honesty, cost-effectiveness and competitiveness," said Justice Kwenda.

"It is totally unacceptable that citizens only become aware of disposal of council land when they see development taking place."

Public procurement promotes fairness and equality by ensuring that all businesses have an opportunity to participate in the market.

The fight against corruption has been relentless under the Second Republic as the Government is working round the clock to weed out the vice which has been milking the country's potential revenue.

Ndemera and Kandemiri were initially jointly charged with former mayor Herbert Gomba and town clerk Engineer Hosea Chisango who were acquitted on the same charges, for lack of evidence.

In acquitting Mr Gomba and Eng Chisango, Justice Kwenda said their involvement in the commission of the offence was minimal such that no criminal liability could be ascribed to them.

Then mayor Mr Gomba, the court found, signed the agreement as the designated signatory and under the belief that Kandemiri had checked the agreement. He was justified because Kandemiri had a check list.

As for Eng Chisango, the court noted that he was just the link between the various professional departments of council and the councillors.

All the documents were prepared for him by the relevant technocrats in the departments and the judge found that he signed the agreement for sale as the designated signatory.

The extent of the involvement of Mr Gomba and Eng Chisango  was so minimal that it was not possible to infer the desire to favour or disfavour anyone, said Justice Kwenda.

"Their defence that they were sincere and genuine remained reasonably possibly true at the end of the trial."

To this end it was the court's conclusion that the two only signed the agreement of sale as a matter of policy because their assumption was that everything was done above board.

In convicting Ndemera and Kandemiri, Justice Kwenda said the two had abused their offices to commit the offence.

They sold the council-owned Mt Pleasant Sports Club in Vainona, including the golf course, without following procedure. Justice Kwenda described this as one of the bad cases involving dishonest alienation of public property held in trust.

He noted in an assessment of sentence that Ndemera and Kandemiri worked together to deal dishonestly with State land managed by the City of Harare as a public trust.

"The land involved is vast and was benefiting a whole community," said Justice Kwenda.

"The accused persons did not only callously privatise such land by selling it to an individual but in a manner calculated to cause prejudice to the fiscus.

"At this rate there will be no State land left for future generations in a short space of time."

Justice Kwenda said the duo's actions were deliberate.

The stand was sold to Hardspec Investments for $23 923 340 while the club was quoted as worth US$2,3 million.

Mr Joel Mambara represented Ndemera and Kandemiri while Garikai Mhishi and Gyton Vhiriri acted for Mr Gomba and Eng Chisango.