Allan Norman Markham and Tavonga Savings Scheme and Jacob Pikicha v Augur Investments OU and Kenneth Raydon Sharpe and Tatiana Aleshina and Michael John Van Blerk and City of Harare and The Minister of Local Government, Public Works and National Housing and Doorex Properties (Pvt) Ltd and Registrar of Deeds and The President of the Republic of Zimbabwe

On 30 May 2008, Augur Investments (a foreign legal entity) entered into a contract with the City of Harare to construct Harare Airport Road, with payment to be 90% in land and 10% in cash. The City of Harare later cancelled the contract in 2013 after allegations that Augur failed to perform, although some land had already been transferred. Augur demanded a 35% termination penalty and instituted arbitration proceedings seeking ownership of Stand 654 Pomona Township (40,665 hectares). The arbitrator awarded Augur $3 million instead of the land. The City of Harare successfully challenged the arbitral award before Muremba J in HC 7445/17 on 10 August 2018. Augur appealed, but the parties settled the dispute via a deed of settlement, which resulted in the transfer of Stand 654 Pomona Township to Augur and subsequently to Doorex Properties (Pvt) Ltd. The applicants (Markham - a ratepayer, MP and former councillor; Tavonga Savings Scheme - a savings club for poor people; and Pikicha - a housing activist and squatter) sought to set aside the deed of settlement and the transfer, alleging fraud, non-compliance with tender procedures, violation of investment laws, unfulfilled suspensive conditions, corruption, and lack of authority by the City and Minister.

• Whether the applicants violated Rule 18 of the High Court Rules, 1971 by suing the President without obtaining leave of court
• Whether the applicants had locus standi in judicio to bring the application
• Whether there were material disputes of fact that precluded determination by motion proceedings
• Whether the distinction between citing the President in personal versus nominal capacity affects the requirement to obtain leave
• Whether applicants demonstrated direct and substantial interest in the subject matter for purposes of a declaratory order

The application was dismissed with costs.

1. Rule 18 of the High Court Rules, 1971 requires that leave of court must be obtained before issuing any civil process against the President or High Court judges, and there is no distinction between suing in personal or nominal capacity - failure to obtain such leave renders the proceedings a nullity and fatally defective. 2. Applicants seeking declaratory relief must establish locus standi by demonstrating a direct and substantial interest in the subject matter, meaning they must show they are personally adversely affected by the alleged wrong - mere status as ratepayers, activists, or members of community organizations is insufficient without privity of contract or personal adverse effect. 3. Motion proceedings are inappropriate where material disputes of fact exist, particularly where serious allegations such as fraud, corruption, and lack of authority are raised and will be contested - such matters must proceed by way of action to allow proper testing of evidence.

The court made observations about the nature of the underlying dispute, noting that the allegations against the respondents included fraud, corruption, non-compliance with tender procedures, and violations of investment laws. While these were serious allegations warranting investigation, the court did not express a view on their merits. The court also noted the purpose of Rule 18 as being to protect the President and judges from being "lumped with frivolous and vexatious suits." The court commented on the difference between parties suing under section 85(1) of the Constitution (which allows broader public interest standing) and ordinary litigants who must demonstrate personal adverse effect. The court observed that the applicants' approach was "akin to a leap into the dark" and that they "gambled" by proceeding via motion proceedings despite knowing their allegations would be seriously contested.

This case reinforces fundamental principles of Zimbabwean civil procedure regarding: (1) the strict requirement to obtain leave of court before suing the President or High Court judges under Rule 18 of the High Court Rules, 1971, with non-compliance rendering proceedings a nullity; (2) the requirement that applicants for declaratory orders must demonstrate direct and substantial interest in the subject matter, not merely general public interest or concern; (3) the principle that parties lacking privity of contract are strangers without locus standi to challenge contractual arrangements; and (4) the impropriety of using motion proceedings when serious allegations (such as fraud and corruption) will create material disputes of fact requiring oral evidence. The judgment emphasizes that procedural requirements exist to prevent frivolous litigation and ensure proper administration of justice.