Top CIO operative loses farm case

BULAWAYO - A top intelligence officer, Zenzo Ntuliki, has lost his bid to evict a white commercial farmer from a property allocated to him by government in December 2014 as part of the haphazard land reforms.

Ntuliki had in April 2015 succeeded in pushing Timothy Sean White from the property after a magistrate fined him US$300 or 30 days in prison for illegally occupying gazetted land. White was subsequently ordered to vacate Lot 2 of Lot 36 of Essexvale Avalon Farm.

But tables were turned this week after the High Court quashed both his conviction and sentence.

This followed an application by White, challenging the judgment by former Gwanda magistrate, Reuben Mukavhi.

Sitting with Justice Martin Makonese during a criminal appeal, Justice Maxwell Takuva ruled that Mukavhi had misdirected himself in his judgment.

"In my view, it is totally unfair and not in the interest of justice and public policy for a government official charged with administration of particular statutes to give incorrect advice for whatever reason and then unashamedly turn around and recommend and vigorously support prosecution for the innocent recipient of their bad advice. Such conduct should be frowned upon by the courts, for to tolerate it could very well promote abuse of office and corruption by public officials to the detriment of society in general," ruled Justice Takuva.

Mukavhi, in his ruling, had said White had shown a disregard of the law by continuously occupying the land despite him having been advised by authorities to vacate the farm.

The disputed land measures 142 hectares, of which 30 hectares are mining claims.

The judge said the magistrate failed to appreciate that White's mining claims gave him a right of occupation entirely distinct from any rights that Ntuliki may have been granted under the land reform programme.

"The net effect of this is that even if the appellant (White) had not been granted any rights of occupation by the Ministry of Lands and Rural Resettlement, the State did not have the lawful authority to deprive him of his mining rights by barring him from the land. Appellant had a right to occupy portion of the land in question and therefore could not be found guilty of occupying its entire extent and consequently, the appeal is hereby upheld, conviction and sentence of the magistrate's court be and hereby set aside," ruled Justice Takuva.

In his application through his lawyers, Webb, Low and Barry Legal Practitioners, White sought an order setting aside both his conviction and sentence, arguing that the magistrate misdirected himself by failing to consider representations from officials in the Ministry of Lands and Rural Resettlement that the appellant was lawfully authorised to remain in occupation of Lot 2 of Lot 36 of Essexvale Avalon Farm.

White further argued that the magistrate failed to put into consideration that he had mining claims over a portion of the farm measuring 30 hectares.

"The sentence imposed by the learned magistrate induces a sense of shock. Wherefore the appellant will pray that the appeal be upheld and the conviction and sentence of the magistrate's court be set aside, and the appellant be found not guilty and acquitted," said White.

He further argued that he was the rightful owner of the farm, saying he was occupying the farm by virtue of a permit extended to him by the Lands Ministry in 2007 which was confirmed in a letter written to him on May 17 the same year.

White said his permit had not been cancelled, neither had he been issued with a notice to vacate the farm.

Allegations against White were that sometime in 2003 a notice was issued in terms of the Land Acquisition Act of the President's intention to compulsorily acquire Avalon Farm for the purposes of resettlement.

White was allegedly supposed to vacate the piece of land in 2007, but did not comply, leading to his arrest.

The farm was allocated to Ntuliki in December 2014 and he was presented with an offer letter.

White and Ntuliki have since 2014 been locked in a series of legal wrangles over the control of the farm with both parties claiming to be the rightful owners of the disputed property.