News / Local
Malunga trial kicks off under protest
03 Nov 2022 at 01:06hrs | Views
THE trial of human rights lawyer, Siphosami Malunga and his two business partners Zephaniah Dhlamini and Charles Moyo on charges of illegal occupation of Umguzana Farm popularly known as Esidakeni, has kicked off albeit under protest by the accused persons.
Malunga (50) of Fourwinds, Dhlamini (50) of Hillside and Moyo (58) of Selbourne Park suburbs in Bulawayo, were arrested in August for allegedly violating section 3 (2) (a) of the Gazetted Land (Consequential Provisions) Act, Chapter 20:28 by refusing to vacate Esidakeni Farm in Nyamandlovu, Umguza District.
They are being charged in terms of section 385 (3) (v) of the Criminal Procedure and Evidence Act, Chapter 9.07.
Malunga, Moyo and Dhlamini allegedly bought the 554-hectare farm in 2017 before it was subsequently listed for compulsory acquisition by the Government in December 2020.
The three accused persons, who are being represented by Mr Josphat Tshuma of Webb Low and Barry Legal Practitioners, pleaded not guilty to the charges when they appeared before Tsholotsho magistrate Mr Victor Mpofu on Tuesday.
They are out of custody on $10 000 bail each.
The accused persons, through their lawyer, sought the stay of proceedings, arguing that they had two pending matters before the High Court.
One of the cases before the High Court is an urgent chamber application in which the trio is seeking an order for a stay of prosecution. The other matter before the same court is an application for review of the rulings made by the lower court.
Last week, Mr Mpofu dismissed the trio's application for exception on their charge. The applicants argued that their charge did not disclose any offence.
In their initial court appearance, the trio had also sought the postponement of the proceedings, which Mr Mpofu dismissed.
Following the dismissal of his client's request to suspend the trial pending the review of the proceedings by High Court, Mr Tshuma on Tuesday applied for the magistrate's recusal, which Mr Mpofu also dismissed.
"We made two applications at the High Court to stay proceedings and also set aside the rulings of this court. We are saying this court cannot ignore those proceedings of the High Court where it is also a party to. It must wait to hear what the High Court will say," argued Mr Tshuma.
"We therefore cannot proceed with this trial as that is tantamount to undermining the processes at the High Court. This is also in view of the fact that the accused persons are raising concerns as their defence in this matter is that the gazetting of the farm is null and void."
Acting Deputy Prosecutor General Mr Michael Reza opposed the application by the accused persons, arguing that matter before the High Court is a civil case while the one before the magistrate court is criminal in nature.
"Both the criminal matter and civil one can run parallel without interfering with each other. It is also not correct to say the accused persons have been restored possession of the farm on the merits. According to the judgments of the Supreme Court and High Court, the matter was not determined on merit, they were purely spoliation orders," he said.
"The superior courts have not yet decided definitively which party owns that piece of land. We are simply talking about a specific period where nobody authorised the accused persons to occupy the farm and that is precisely why we are in this court."
In their application for the magistrate to recuse himself, the trio alleged that he was biased hence there was a likelihood of them not getting a fair trial. The three further argued that they have been denied administrative justice by being subjected to issues that are before the High Court.
Testifying in court, the provincial lands officer for Matabeleland North, Mr Madodana Samson Dodzi said he informed the accused persons about gazetting of the farm but they did not comply.
"Once the land is gazetted, our task is to go to the ground and draw up subdivisions to facilitate occupation by the new beneficiaries. However, when our officers went to Esidakeni Farm to do the pegging, the property was under lock and key despite having notified the accused persons that it was now gazetted land," he said.
Mr Dodzi said in terms of the law, the accused persons were supposed to vacate the farm within 45 days of the gazetting.
"I spoke to one of the accused persons, Dhlamini, last year about the issue and this was after we had struggled to access the farm since it was always locked each time our officers went there," he said.
Mr Dodzi said once the land is acquired it becomes State land hence the accused persons had no right to continue occupying Esidakeni Farm.
"The offer letter given to the beneficiaries are still valid and they have not been revoked. The accused persons were given 45 days to vacate and pave way for the new beneficiaries but they didn't," he said.
Prosecuting, Mr Reza, who was being assisted by Tsholotsho prosecutor Ms Sharon Phiri, said on December 18, 2020, Umguzana Farm was gazetted under the General Notice 3042/2020 and subsequently became State land. Before it was gazetted, the property belonged to Kershelmar Farms (Pvt) Ltd.
"Following the gazetting of the land, recommendations for the intended beneficiaries were approved by the Ministry of Lands, Agriculture, Fisheries, Water and Rural Resettlement and 16 beneficiaries were offered the land in terms of the Land Commission Act," said Mr Reza.
The court heard that last year in May, the beneficiaries were given offer letters for the purposes of agricultural settlement in terms of section 72 (2) of the Constitution.
"As matters stand, the accused persons are still in occupation of the gazetted land. In terms of section 32 (2) (a) of the Gazetted Land (Consequential Provisions) Act, the accused persons ought to have vacated the farm 45 days after it was gazetted," said Mr Reza.
In their defence outline, the accused persons argue that the notice of acquisition of Esidakeni Farm is null and void for want of compliance with provisions of section 72 of the Constitution.
"The accused will allege that the offer letters which were issued pursuant to the null and void gazette are also null and void and cannot find a charge. The accused will further aver that section 3 (2) (a) of the Gazetted Land (Consequential Provisions) Act does not create an offence and the State is put to strict proof thereof," read the defence outline.
They argued that after being evicted from the farm, the High Court restored the farm into their possession hence their occupation is in compliance with the court order.
"The accused will further aver that the complainants in this matter have no right of audience of this court as they are approaching it to evict us from Esidakeni Farm when they have resorted to self-help by taking occupation of the farm," argued the accused persons.
Malunga (50) of Fourwinds, Dhlamini (50) of Hillside and Moyo (58) of Selbourne Park suburbs in Bulawayo, were arrested in August for allegedly violating section 3 (2) (a) of the Gazetted Land (Consequential Provisions) Act, Chapter 20:28 by refusing to vacate Esidakeni Farm in Nyamandlovu, Umguza District.
They are being charged in terms of section 385 (3) (v) of the Criminal Procedure and Evidence Act, Chapter 9.07.
Malunga, Moyo and Dhlamini allegedly bought the 554-hectare farm in 2017 before it was subsequently listed for compulsory acquisition by the Government in December 2020.
The three accused persons, who are being represented by Mr Josphat Tshuma of Webb Low and Barry Legal Practitioners, pleaded not guilty to the charges when they appeared before Tsholotsho magistrate Mr Victor Mpofu on Tuesday.
They are out of custody on $10 000 bail each.
The accused persons, through their lawyer, sought the stay of proceedings, arguing that they had two pending matters before the High Court.
One of the cases before the High Court is an urgent chamber application in which the trio is seeking an order for a stay of prosecution. The other matter before the same court is an application for review of the rulings made by the lower court.
Last week, Mr Mpofu dismissed the trio's application for exception on their charge. The applicants argued that their charge did not disclose any offence.
In their initial court appearance, the trio had also sought the postponement of the proceedings, which Mr Mpofu dismissed.
Following the dismissal of his client's request to suspend the trial pending the review of the proceedings by High Court, Mr Tshuma on Tuesday applied for the magistrate's recusal, which Mr Mpofu also dismissed.
"We made two applications at the High Court to stay proceedings and also set aside the rulings of this court. We are saying this court cannot ignore those proceedings of the High Court where it is also a party to. It must wait to hear what the High Court will say," argued Mr Tshuma.
"We therefore cannot proceed with this trial as that is tantamount to undermining the processes at the High Court. This is also in view of the fact that the accused persons are raising concerns as their defence in this matter is that the gazetting of the farm is null and void."
Acting Deputy Prosecutor General Mr Michael Reza opposed the application by the accused persons, arguing that matter before the High Court is a civil case while the one before the magistrate court is criminal in nature.
"Both the criminal matter and civil one can run parallel without interfering with each other. It is also not correct to say the accused persons have been restored possession of the farm on the merits. According to the judgments of the Supreme Court and High Court, the matter was not determined on merit, they were purely spoliation orders," he said.
"The superior courts have not yet decided definitively which party owns that piece of land. We are simply talking about a specific period where nobody authorised the accused persons to occupy the farm and that is precisely why we are in this court."
In their application for the magistrate to recuse himself, the trio alleged that he was biased hence there was a likelihood of them not getting a fair trial. The three further argued that they have been denied administrative justice by being subjected to issues that are before the High Court.
Testifying in court, the provincial lands officer for Matabeleland North, Mr Madodana Samson Dodzi said he informed the accused persons about gazetting of the farm but they did not comply.
"Once the land is gazetted, our task is to go to the ground and draw up subdivisions to facilitate occupation by the new beneficiaries. However, when our officers went to Esidakeni Farm to do the pegging, the property was under lock and key despite having notified the accused persons that it was now gazetted land," he said.
Mr Dodzi said in terms of the law, the accused persons were supposed to vacate the farm within 45 days of the gazetting.
"I spoke to one of the accused persons, Dhlamini, last year about the issue and this was after we had struggled to access the farm since it was always locked each time our officers went there," he said.
Mr Dodzi said once the land is acquired it becomes State land hence the accused persons had no right to continue occupying Esidakeni Farm.
"The offer letter given to the beneficiaries are still valid and they have not been revoked. The accused persons were given 45 days to vacate and pave way for the new beneficiaries but they didn't," he said.
Prosecuting, Mr Reza, who was being assisted by Tsholotsho prosecutor Ms Sharon Phiri, said on December 18, 2020, Umguzana Farm was gazetted under the General Notice 3042/2020 and subsequently became State land. Before it was gazetted, the property belonged to Kershelmar Farms (Pvt) Ltd.
"Following the gazetting of the land, recommendations for the intended beneficiaries were approved by the Ministry of Lands, Agriculture, Fisheries, Water and Rural Resettlement and 16 beneficiaries were offered the land in terms of the Land Commission Act," said Mr Reza.
The court heard that last year in May, the beneficiaries were given offer letters for the purposes of agricultural settlement in terms of section 72 (2) of the Constitution.
"As matters stand, the accused persons are still in occupation of the gazetted land. In terms of section 32 (2) (a) of the Gazetted Land (Consequential Provisions) Act, the accused persons ought to have vacated the farm 45 days after it was gazetted," said Mr Reza.
In their defence outline, the accused persons argue that the notice of acquisition of Esidakeni Farm is null and void for want of compliance with provisions of section 72 of the Constitution.
"The accused will allege that the offer letters which were issued pursuant to the null and void gazette are also null and void and cannot find a charge. The accused will further aver that section 3 (2) (a) of the Gazetted Land (Consequential Provisions) Act does not create an offence and the State is put to strict proof thereof," read the defence outline.
They argued that after being evicted from the farm, the High Court restored the farm into their possession hence their occupation is in compliance with the court order.
"The accused will further aver that the complainants in this matter have no right of audience of this court as they are approaching it to evict us from Esidakeni Farm when they have resorted to self-help by taking occupation of the farm," argued the accused persons.
Source - The Chronicle
