The Constitutional Court has trashed an application by Fairclot Investments which was seeking to challenge the Supreme Court's ruling upholding an appeal by businessman Ken Sharpe against the attachment of his upmarket Pomona City prime land to settle a debt.
Fairclot had filed an application seeking an order for direct access to the Constitutional Court.
If direct access was granted, Fairclot intended to file an application under s 85 (1) of the Constitution of Zimbabwe seeking a declaration that its rights to the protection of the law and a fair hearing, guaranteed in ss 56 (1) and 69 (2) of the Constitution respectively, have been infringed by the decision of the Supreme Court of Zimbabwe when it ruled in favour on Sharpe and his company Doorex Properties (Private) Limited last year.
A Constitutional Court three-panel bench comprising Justices Paddington Garwe, Rita Makarau and Anne Mary Gowora dismissed the application ruling that the decision made by the Supreme Court was on a non-constitutional issue.
"It has not been demonstrated that the Court, in coming up with that decision, violated the applicant's rights under s 56 (1) and 69 (2) of the Constitution.
"No demonstrable conduct on the part of the Court has been shown to have disabled it from determining the appeal matter that was before it in accordance with the requirements of the law.
"Accordingly, the intended application does not enjoy any prospects of success should leave for direct access be granted.
"It would, therefore, not be in the interests of justice to grant the applicant leave for direct access to this Court," ruled the bench.
Last year Doorex won an appeal against a High Court ruling ordering the attachment of its upmarket Pomona City 273 hectares of prime land in Harare's affluent area of Borrowdale to settle a debt.
The company owed Fairclot Investments funding for a dual carriageway in Harare leading to Robert Mugabe International Airport.
Doorex is a subsidiary of Augur Investments.
The Supreme Court ruled that the debt was executable in local currency in terms of the country's financial laws.
Augur had appealed to the Supreme Court after the High Court ruled that it should settle its debt with Fairclot in United States dollars instead of the local currency.
Augur had already paid the money in RTGS to Fairclott.
The Supreme Court, after hearing the parties, made a determination.
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It held that the fact of the registration of the award did not affect its status as an asset or liability that was affected by S.1.33/19 and that the registration had been done simply for purposes of execution.
Fairclot had sought to persuade the Constitutional Court to find that the decision was wrong and that it violated its fundamental rights.
It also wanted an order granting it direct access to
this Court so that, in addition to the declaration of the violation of its fundamental rights, the decision of the Supreme Court is set aside.
Fairclot is a construction company duly registered in terms of the laws of Zimbabwe and trading as Trucking Construction (Pvt) Ltd.
Augur is a peregrine (foreign company) with business and property interests in Zimbabwe.
The background is that Fairclot obtained an arbitral award against Augur in the sum of US$4,800,000 excluding interest on 19 March 2015.
On 22 February 2019, S.1.33/19 was promulgated by the Minister of Finance and Economic Development.
Thereafter Fairclot applied for the registration of the award and this was granted through an order of the High Court dated 26 June 2019.
A writ of execution was issued on 10 July 2019 resulting in the judicial attachment of Augur Investments' immovable property in Pomona.
Subsequent to the registration of the award and the issuance of the writ of execution, Augur Investments paid the sum of RTGS4,800,000 as full payment of the debt.
Fairclot insisted the money was supposed to be paid in USD but did not find favour with the courts.
