The High Court has removed from the roll Fairclotte Investments’ application to stop Augur Investment from developing and selling residential stands on a large Pomona stand it seeks to attach.
Justice Siyabona Musithu could not hear the application by Fairclot, which has since been overtaken by events, and removed the matter from the roll.
Augur had opposed the application. It argued that Fairclot filed an improper application.
The land developer argued that considering the fact that the Sheriff of the High Court uplifted judicial attachment on the property after debt had been discharged in full, Fairclot should have filed an application for review instead of an interdict.
The two companies are embroiled in a long-standing financial dispute over part of the funding for the dual carriageway in Harare leading to Robert Gabriel Mugabe International Airport.
The matter spilt into the Supreme Court after Augur approached the court challenging the High Court decision ordering attachment of Stand Number 654 Pomona belonging to West Property Holdings to offset the debt with Fairclot.
Augur entered into a contract agreement with Fairclot Investments trading as Truck and Construction Private Limited (T&C Construction) for the construction of the airport road and was offered 30ha of stand 654 Pomona Township as collateral.
After constructing a portion of the road, a dispute over payment arose and Fairclot pulled out of the project and parties went for arbitration and Fairclot won the case.
However, following the promulgation of the Statutory Instrument 33 of 2019 which declared that debts owed in US dollars could be settled in local RTGS at a rate of 1:1, Augur Investments transferred $4,8 million and $1 078 040,21 to Fairclot Investments in local currency.
After the full payment the sheriff of the High Court lifted the attachment of the stand, which was then transferred to Doorex, a shelf company owned by Augur.
The appeal comes after Fairclot then successfully challenged the upliftment of the attachment on the property by the Sheriff of the High Court on the grounds that the debt had been cleared after the payment of $4,8 million in local currency.
In its notice of appeal, the property development company argues that the lower court erred in failing to hold that the arbitral award dated March 19 2015, granted in favour of Fairclot, constituted a liability affected by the statutory instrument which then was incorporated into the Finance Act No. 2 of 2019.
So Augur also argues that the lower court also erred in determining that the 2015 arbitral award only became effective upon its registration on 26 June 2019. The RTGS payments were in fulfilment of the award of 2015.
The company is also arguing that the lower court erred in determining that the Sheriff had acted unlawfully in uplifting the judicial attachment on Stand 654 Pomona, since Augur had paid its debts.