Another CIO loses case in farm wrangle

THE Bulawayo High Court has dismissed an urgent chamber application by a senior intelligence officer who sought a provisional order to stop an Esigodini white commercial farmer from kicking him out of Avalon Farm in Umzingwane district.

Last week, Rodney Mashingaidze, a district officer in the President's Office, lost a similar case against a white commercial farmer, Peter Cunningham at Maleme Farm in Kezi District.

Justice Nokuthula Moyo dismissed an application by Zenzo Ntuliki, a senior state security official who sought to bar commercial farmer Tim White from interfering with activities at the farm.

Ntuliki cited White, officer commanding police in Matabeleland South, Happymore Sigauke and the Sheriff of the High Court as respondents.

In her ruling, Justice Moyo said she did not dispute that Ntuliki was allocated the land after it was gazetted by government in 2003. She, however, ruled that the applicant did not follow the proper procedures in occupying the farm and subsequently dismissed his application.

"Applicant must wait for the law to take its course before creating urgency for himself. It would seem applicant failed in his bid to despoil first respondent (White). In my view, the applicant should have followed due process in seeking to occupy the farm rather than confronting the first respondent and advising him of his imminent take-over of the farm. He should have left it to the lands authorities to notify the respondent to vacate the farm and give him a reasonable period within which to leave," said the judge.

Justice Moyo said the Ministry of Lands and Rural Settlement should have notified White of its decision to repossess the farm and allowed the concerned parties to be heard.

"It's my considered view that the Ministry of Lands and Rural Settlement cannot allow a party to occupy land and then offer the same land to another without following the requirements of the rules of natural justice that demand that the one who understands has a right to remain in occupation, should be duly notified of the intention to take that right away, make representations if any, and a decision be taken subsequently after all the concerned parties have been heard," said Justice Moyo.

"In my view, administrative decisions should be taken within the ambit of the law. For the applicant to have a well grounded fear that the first respondent wants to dispossess him of the farm or to disturb his effective control, applicant must have occupied the farm after following due process, which is not the case in this situation. I accordingly dismiss the application with costs," ruled Justice Moyo.

In his founding affidavit, Ntuliki who is being represented by Cheda and Partners accuses White of blocking his workers from occupying Avalon Farm and refusing to vacate the property.

"This is an urgent chamber application for an interdict against White. I'm the legal holder of real and personal rights over an area of land known as Lot 2 of Lot 36 Essexvale also known as Avalon Farm in Esigodini. The farm was gazetted and acquired by the government in 2003 and it was subsequently offered to me in terms of the Agricultural Land Settlement Act in 2014," said Ntuliki.

He argued that White has been refusing to vacate the farm despite having initially reached an agreement to leave on January 10, this year. Ntuli said he has an offer letter from the ministry.

"White was supposed to vacate the farm on 10 January, 2015, but he reneged on his word and my workers have been reduced to vagabonds as he is stopping them from moving in and they are now squatting in the bush," said Ntuliki.

The state security official is also accusing the commercial farmer of endangering his livestock through illegal mining activities.

"The respondent is vandalising my irrigation equipment and he is also conducting illegal mining activities within the vicinity of the farm thus endangering my livestock due to massive environmental degradation as he is leaving large open pits, cyanide and mercury, which are dangerous chemicals. He is also polluting water sources on the farm," said Ntuliki.

In his opposing papers, White said he has been in occupation of the 142 hectares farm since 1998 after he bought it from his family.

"Lot 2 of Lot 36 Essexvale commonly known as Avalon Farm was purchased by my family in 1988. It was held under a holding company PHW Farm (Pvt) Ltd. In 1998, I sold my town house and bought the farm from my family," he said.

"I believe I'm in lawful occupation of the farm because I was granted a permit to remain in occupation of the farm by the Ministry of Lands and Rural Settlement in 2007 and that permit was confirmed in writing," said White.

He further argued that he had not been officially notified by the Ministry of Lands and Rural Settlement to vacate the farm.