PRESIDENT Emmerson Mnangagwa is entangled in a messy secret agreement that gives millionaire Ken Sharpe’s Augur Investments unusual immunity from litigation on disputed vast tracks of land he acquired through the Airport Road construction project.
The immunity scandal – which legal experts say may very well be illegal – has also sucked in Mnangagwa’s longtime right-hand man, Local Government minister July Moyo.
The minister, acting on behalf of the state, undertook to immediately withdraw all and any criminal cases against Augur, its associated companies, representatives and its directors.
As result of the secret nature of the immunity deal, it was emphasised that the arrangement involving Mnangagwa and Moyo must be treated with “utmost confidentiality”.
Moyo also gave Sharpe assurances that the local authority and government departments would expedite licences and permits in relation to his other land development projects across the city. Most of the land mentioned was however irregularly obtained through the airport deal, according to a Harare council 2010 audit report.
The agreement for the construction of the 20-kilometre Airport Road, also known as the Joshua Mqabuko Nkomo Expressway, which was not completed, was signed in 2008 between Harare City Council and Augur, although the project was later taken over by the government.
The land in dispute – stand 654 Pomona township (273,29 hectares) – has opened a Pandora’s Box, showing Mnangagwa and Moyo are deeply involved. The title deed for the land was held in escrow by Coghlan, Welsh and Guest Legal Practitioners at the time of the secret agreement.
A company subcontracted by Augur for civil works on road project — Trucking and Construction (T&C) Pvt Ltd — is claiming the land in a bid to recover its US$4.8 million for services and equipment provided.
Before the dodgy agreement, signed on 2 8May 2019, the City of Harare was also involved in legal battles with Augur to get back land it had given the company as payment. The city wanted the land back, saying Augur failed to complete the project as agreed.
Augur in a July 2019 filed an urgent court application for stay of execution on a court ruling in favour of T&C. It claimed the land could not be seized by T&C as it was registered in Mnangagwa’s name.
“The writ of execution itself was not served on the correct domicilium citandi executandi of Augur. Instead the writ was simply dropped at the gate to immovable property which T&C seeks to attach, which property to date of this application remains in the name of the President of Zimbabwe,” the application reads.
“Further, the immovable property that T&C wishes to attach in execution is registered in the name of the President of Zimbabwe and no consent has been sought from the President for the attachment of such property.”
Stand 654 Pomona was Augur’s security as well as for payment for future work and equipment hired for the contract between T&C and Augur for the project.
T&C, represented by Mutumbwa, Mugabe & Partners legal practitioners, went to court for the release of the piece of land and payment after Augur had reneged.
The court ruled in favour of T&C in several legal battles that ensued.
T&C director Grant Russell, in an August 2019 application at the High Court, described Augur as a “peregrine company” (outslandish), which has spent the last several years avoiding execution of orders of the court.
Russell, seemingly not aware of Mnangagwa’s secret immunity deal, said he did not believe Augur’s claim the land was registered in the President’s name.
“Further, it is disputed that the title deed for the Pomona property is in the name of the President. I attach hereto as ‘Annexure M’, a copy of the deed of grant, which is held in the name of the Ministry of Local Government Public Works and National Housing,” Russell said.
“In all this, the applicant does not mention that apart from the writ of execution in HC3931/19, the Pomona stand was already property held in escrow and the sheriff was not at liberty to transfer it to applicant (Augur).
“Further, applicant does not mention that since June 2019, it, in cahoots with officials from the Ministry of Local Government and Public Works working outside the scope of their duties, has attempted to coerce Coghlan Welsh and Guest Legal Practitioners to release the tittle deeds for the Pomona property.”
Documents show that it was.
In the secret deed of settlement, attached as an annexure to T&C’s court documents, Moyo, representing himself and Mnangagwa, gave Sharpe assurances that he would not face litigation from government, Harare municipality or third parties regarding the land.
The deed of settlement signed on 28 May 2019 between Tatiana Aleshina on behalf of Augur and Moyo was given the status of a High Court order. Lawyers are questioning its legality.
Aleshina — a Russian —is the twin sister of Ken Sharpe’s wife.
Suspended Harare town clerk Hosiah Chisango and former mayor Herbert Gomba, who are on bail facing charges of illegal land deals and abuse of office respectively, signed as witnesses.
Sharpe got vast land in Harare, including the Pomona stand, a 400-hectare piece of land where he planned to construct the Mall of Zimbabwe in Borrowdale, and at least 197 hectares dotted around the city. Some of the land was allegedly transferred into shelf and subsidiary companies, according to the audit report.
In one of the legal correspondences in June 2019, Augur and Sharpe’s lawyers Chinawa Law Chambers distanced Augur from the other pieces of land the company gained through the airport deal.
However, in the secret deed agreement with Moyo, government promised Augur that the company and the Harare municipality would “expedite the issuance of all and any necessary licences and permits to Augur and its related companies for any of its developments which it is carrying out in Harare”.
Augur’s related companies include Pokugara Properties Pvt Ltd (stand 19828 Harare Township), Electro Properties Pvt Ltd (stand 19673 Harare Township), Express Properties Pvt Ltd (stand 19674 Harare Township), Volin Property Company Pvt Ltd (stand 144 Northwood), Yellow Seat Properties Pvt Ltd (stand 19345 Harare Township), and Seatrite Properties Pvt Ltd (stand 1989 Harare Township).
Other related projects which will receive favours under the agreement are the Mbudzi People’s Market, Warren Hills Residential and Commercial Development and Mukuvisi Development.
“Augur, Moyo and the City of Harare (hereinafter referred to as ‘the parties’) were involved in numerous litigation against each other including and not limited to the arbitration ruling from Justice N T Mtshiya on 26 2017, HC7445/17, SC878/18, HC 598/17 and other matters currently before the Supreme Court, the High Court and the Magistrates Court,” the agreement says.
“Upon signature of the Deed of Settlement, the minister, City of Harare and Augur undertake to withdraw all and any legal actions and proceedings, both civil and criminal pending against each other before the courts, and each party is to bear its own costs.
“The minister acting on behalf of the state, undertakes to immediately withdraw all and any criminal matters against Augur, its associated companies, representatives and its directors.”
The agreement also states that within 24 hours of signature, Moyo was to issue an instruction for the release of the title deed of 654 Pomona from escrow.
“Immediately thereafter, the minister and/or the President shall sign all and any documents necessary to facilitate and effect the transfer of the stand to Augur or its nominee Doorex Properties Private Limited within 14 calendar days,” the agreement reads.
“In the event of the minister failing to provide the signed aforesaid documents necessary to transfer stand 654 Pomona to Augur, the deputy sheriff is hereby authorised by the minister to sign on its behalf all and any documents required for the transfer of stand 654 Pomona Township to Augur.
“The ministry has claimed US$3, 974116.39 (US$3,9 million) as expenditure for civil works done on stand 654 Pomona Township.”
The secrecy clause in the agreement reads: “The parties hereby agree that the subject matter of this deed of settlement are of an utmost confidential nature and constitute confidential information. No party to this deed of settlement shall disclose or divulge, directly or indirectly, the contents of this deed of settlement to any third party, save in accordance with either of the parties ordinary day to day business activities and requirement thereof.”
The deed of settlement repeatedly mentions that Mnangagwa and Moyo have indemnified Augur against prosecution.
“The minister warrants that there are no encumbrances on stand 654 Pomona Township and further agree that within a reasonable time and in any case no later than 30 days of date of signature of this deed of settlement the ministry and CoH will hand over to Augur all existing statutory approvals relating to zoning, town planning, development, EIA (Environmental Impact Assessment) certificate or approval, sub-division permit and any other licences, permits or documents for stand 654 Pomona Township,” it says.
A City of Harare special investigations committee audit report of 2010 found that no tenders were floated for Airport Road. The project was initially valued at US$60 million, but was then increased to US$87 million.
“Stand 812 was hurriedly transferred as payment to Augur before being brought to council for consideration,” the report states.
“Ninety-three comma zero nine (93,0993) hectares of land were transferred to shelf companies which had no evidence of legal links with Augur as payment for the preliminary work done on the road.”
However, in June 2019 Chinawa Law Chambers (Augur’s lawyers) wrote to Mutumbwa, Mugabe & Partners denying Augur had links with the companies the land was transferred to.
“We wish to advise however that you are embarking on a wild goose chase, in the spirit of good faith we wish to highlight to you and be upfront of the fact that you are mistaken on the ownership of the various entities as they are not owned by Augur as alleged in your aforementioned summons. It would in the best interest of your client to first and foremost ascertain the ownership of said companies before continuing on this disastrous road which you seek to sojourn,” the letter says.
The then town clerk, Tendai Mahachi, was caught in a conflict of interest after failing to declare his links with Sharpe as he was a project manager for Augur.
The project was supposed to provide a direct link from Dieppe roundabout through Braeside suburb, over the National Railways of Zimbabwe marshalling yard and Robert Mugabe Way leading into Enterprise Road with a continuous flyover estimated to be almost half-a-kilometre long.
The Augur board through the company’s lawyer, Douglass Chinawa, said the settlement agreement was arrived at after a considered assessment of the rights and obligations between all parties and that T&C had been paid according to law.
“Your conclusion that Augur International OU did not complete the project is a clear misunderstanding of all the facts of the matter and calculated to defame it,” the board said.
“Itself was approved by both the High Court and the Supreme Court. The settlement agreement did not take away any 3rd party rights which you seem to allude to as ‘escrow’ rights. For your information, the 3rd party in question has since been paid what is due to them in accordance with the law. Augur investments OU can only enforce rights creted as between the parties to the settlement agreement.”
The NewsHawks had sent questions to the signatory of the deed of settlement Aleshina.
Mnangagwa’s spokesperson George Charamba said he would need to verify the details of the deed of settlement with Local Government minister July Moyo before commenting. He was however later unavailable.