The High Court has dismissed Fairclotte Investments’ application to halt Augur Investment from developing and selling residential properties on a Pomona stand that is subject to attachment. Justice Siyabona Musithu was unable to hear Fairclotte’s application, as it had become irrelevant, and thus removed the case from the court’s schedule. Augur had opposed the application, claiming that Fairclotte had filed an inappropriate request.
The dispute between the two companies stems from a long-standing financial disagreement regarding the funding for the dual carriageway in Harare leading to Robert Gabriel Mugabe International Airport. Augur had contracted with Fairclotte, trading as Truck and Construction Private Limited (T&C Construction), for the construction of the airport road and had provided 30 hectares of Stand Number 654 Pomona Township as collateral.
However, a payment dispute arose after Fairclotte withdrew from the project, resulting in arbitration proceedings. Fairclotte ultimately won the case. Subsequently, the enactment of Statutory Instrument 33 of 2019 allowed for the settlement of debts in local RTGS currency at a 1:1 rate with the US dollar. Augur Investments then transferred $4.8 million and $1,078,040.21 in local currency to Fairclotte Investments as full payment.
Following the complete payment, the Sheriff of the High Court lifted the attachment on the Pomona stand, which was then transferred to a shelf company called Doorex, owned by Augur. Fairclotte successfully appealed against the removal of the attachment, arguing that the debt had been cleared with the payment of $4.8 million in local currency.
In its appeal, Fairclotte contends that the lower court erred in not recognizing that the arbitral award from March 19, 2015, in their favor, was affected by the statutory instrument that became part of the Finance Act No. 2 of 2019. Augur also argues that the lower court erred in determining that the 2015 arbitral award only became effective upon registration on June 26, 2019, as the RTGS payments fulfilled the 2015 award. Additionally, Augur maintains that the lower court was mistaken in concluding that the Sheriff acted unlawfully by lifting the judicial attachment on Stand 654 Pomona, considering that Augur had settled its debts.