HARARE acting-Town Clerk Engineer Mabhena Phakamile Moyo has filed an affidavit at the High Court dismissing allegations of theft of land by property developing company Augur Investments.
Moyo, who is representing the City of Harare, was responding to a court application by MDC Alliance legislator Norman Markham, who had asked President Emmerson Mnangagwa to explain the land deal with Augur owned by Kenneth Raydon Sharpe.
Others who were cited as respondents are Sharpe, Tatiana Aleshina, Michael van Blerk, Local Government, Public Works and National Housing minister July Moyo, Doorex Properties and Registrar of Deeds.
In the application, Markham alleges that the Deed of settlement was illegal.
“The prayer for the setting aside of the Deed of Settlement is premised on the wrong facts. It is not true that Hebert Gomba and Hosiah Chisango did not have authority to act on behalf of the City of Harare when they entered into the agreement. They did a special council meeting which was held on May 16, 2019 which gave them such authority,” argued Moyo.
Moyo said Markham and Tavonga Savings Scheme have not shown their real interests in the agreement and the fact that they are Zimbabweans who live in Harare does not bestow on them any legal interest in a private partnership matter between two contracting parties.
“The applicants allege fraud, corruption and collusion in the manner in which the agreements were entered into and land was transferred. These allegations are disputed. By their nature such allegations are serious and would require viva voce evidence to be resolved. While I cannot speak for the other parties, I would, on behalf of the City of Harare, put the applicants to strict proof of their allegations of fraud,” he submitted.
“Since these are allegations of a criminal nature it would require much more than bare allegations to substantiate let alone prove them. In such matters, the burden of proof is that of proof beyond reasonable doubt. That threshold cannot be reached on the papers. The applicants ought to have known better.”
Moyo further challenged allegations that Augur Investments were paid for no work done saying there was evidence to the contrary.
“There is the suggestion that the respondents were unjustly enriched at the expense of the public. It is necessary that such accusations be tested. The payments made in money or with land suggest that the contracting parties were happy with how each party had performed in terms of the contract,” he argued.
“The fact that millions of dollars have
been transacted upon, and huge tracts of land have been transferred means that the veracity of each allegation must be tested, and this is not possible on the papers. This is very obviously a matter of grave importance as it impacts so many other rights and competing interests.”
Moyo further stated that: “From the information that I have gathered from some of the records relating to this transaction, the Deed of Settlement was entered in good faith and was made in the best interests of the public.
Things may not have gone as expected but the original intention was to promote infrastructural development for the benefit of the public. Therefore, the City of Harare does not accept that the Deed of Settlement is contrary to public policy.”
He said all parties that had an interest in the matter were aware of the registration and the relevant information to the matter was placed before the court and there was no justification for setting aside a court order made under case No. HC4528/19.
“The transfer of stand 654 Pomona Township is a bilateral contractual issue. Once the owner of the property decided to transfer the property I do not believe third parties can interfere. This was state land which the state decided to transfer to Augur,” Moyo said.
“The City of Harare could not have stopped or refused that. I have no reason
to believe that the payments made were for work which had not been done. I have gathered that at the stage of every payment the engineers who were involved would issue certificates approving the work that had been done.”
Augur Investments also submitted their affidavit at the High Court last week challenging Markham applications saying council, cabinet and President Mnangagwa approved the deal which was given national project status by Finance minister Mthuli Ncube.
They also submitted that the deed of settlement was signed off after independent lawyers representing the City of Harare and the Attorney General were satisfied.
Meanwhile, in a statement, West Property Zimbabwe, which is part of Augur Investments said allegations of illegal parceling of land were defamatory and malicious as everything was done above board.
“It has recently come to our attention that false and libelous information is being circulated in the press and on social media regarding parcels of land legitimately paid to us by the City of Harare as well our joint venture company with them called Sunshine Developments,” it said.
“We wish to bring to the attention of the public that these transactions were and are above board, bona fide and conform to the laws of Zimbabwe.”