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'Esidakeni applicants have no legal standing'

by Staff reporter
02 Sep 2021 at 06:13hrs | Views
GOVERNMENT has said Open Society Initiative for Southern Africa (Osisa) director Mr Siphosami Malunga and his two business partners, have no legal standing to approach the court claiming ownership of Kershelmar (Esidakeni) Farm in Nyamandlovu, Matabeleland North as they have no offer letters.

The property was compulsorily acquired by Government under the Land Reform programme in 2004 from Mr Jeffrey Swindels, who previously owned it.

Mr Malunga and his partners, Mr Zephaniah Dhlamini and Mr Charles Moyo, through their lawyers Webb, Low and Barry Legal Practitioners, recently filed an urgent chamber application at the Bulawayo High Court in which they accused Central Intelligence Organisation (CIO) deputy director-general Dr Gatsha Mazithulela and two other beneficiaries, Messrs Reason Mpofu and Dumisani Madzivanyathi of illegally acquiring their farm.

In their application, Messrs Malunga, Dhlamini and Moyo cited Lands, Agriculture, Fisheries, Water and Rural Resettlement Minister Anxious Masuka, Matabeleland North Provincial Affairs Minister Richard Moyo, the provincial chief lands officer, Registrar of Deeds, Mr Mpofu and Madzivanyathi as respondents.

 The applicants sought an order declaring the acquisition of two pieces of land held under Dr Mazithulela null and void and in violation of provisions of section 72 of the constitution. In his founding affidavit, Mr Dhlamini argued that prior to December 18 last year, Esidakeni Farm had not been acquired under the land reform because it was very productive dairy farm.

"In terms of Government policy, dairy farms had been spared from acquisition and at some stage Mr Swindels entered into a lease agreement with the late Mr Eddias Warambwa, which led to the State believing that the farm was owned by an indigenous Zimbabwean" he said.

Mr Dhlamini said they bought the farm in 2016 through a public auction after the sale was published in the Government Gazette of June 26, 2015. They argued that they acquired the property from Mr Swindles in 2017 after which Dr Mazithulela, who at the time was National University of Science and Technology (Nust) Pro-Vice Chancellor, allegedly started manoeuvring to gain shareholding of the contested property.

In his notice of opposition through the Civil Division in the Attorney-General's Office, Minister Masuka said the applicants have no locus standi to institute legal proceedings as they do not have an offer letter as stated in the Gazetted Lands (Consequential Provisions) Act.

"In addition to this, the applicants are not even at law, the owners of the land in that the title deeds used for the acquisition is in the name of the former white farmer. It would make sense if he was the one making this application," he said. Minister Masuka said the relief sought by the applicant cannot be granted as the land in question belongs to the State.

"The acquisition process is governed and provided for by Section 72 of the Constitution, which makes it clear that once a piece of land is gazetted, it immediately becomes State land and this process can't be challenged in court," said Dr Masuka.

"Clearly, the applicants are way out of their depth in terms of appreciation of land laws and their application. The relief they seek is baseless both at law and on the facts."

Dr Masuka said the applicants are abusing the court processes as they did not follow due procedure.

"This honourable court has no jurisdiction to hear this matter. There is no provision at law for the nullification of a proper and lawful acquisition of agricultural land whose acquisition is in terms of section 72 of the constitution," he argued.

"If indeed, the applicants owned the land at the time of acquisition, for either restoration of title or compensation is the laid down procedure in terms of Statutory Instrument 62 of 2020, which was duly gazetted. The SI provides procedures to be done if one is an indigenous person whose land had been acquired."

Dr Masuka said the applicants are not the rightful owners and holders of title deeds of Kershelmar Farm. He said the applicants did not attach proof of investment in the farm.

Dr Masuka also dismissed claims by the applicants that Dr Mazithulela, Minister Moyo and Messrs Mpofu and Madzivanyathi were involved in the acquisition of the land as unfounded. He said the applicants were unnecessarily dragging the names of the respondents into the disrepute as they had no influence in the acquisition of the farm. Dr Masuka said his ministry is guided by Section 72 of the Constitution when acquiring land and Section 289 when it comes to land policy.

Other respondents, in their notices of opposition through their lawyers, disputed the issues raised in the application and sought its dismissal.

They argued that the application is riddled with several unsubstantiated allegations of corruption and relationships, which they denied. They also argued that they were beneficiaries and holders of valid offer letters issued by the Minister of Lands, Agriculture, Fisheries, Water and Rural Resettlement.

The respondents further argued that the alleged previous owner of the disputed land did not sign the alleged sale of shares agreement. They also queried why the applicants did not disclose what became of the deceased estate of the person who had a lease with the alleged previous owner with regard to the document.

Mr Mpofu denied allegations by the applicants that he had a corrupt relationship with Zanu-PF Secretary for Administration Dr Obert Mpofu.

"Even if I were to be said to be related to him (Dr Mpofu) that does not justify a claim that I obtained an offer letter on the basis of that relationship." he said in his opposing affidavit.

Source - chronicle