'High Court has no jurisdiction over Malunga farm'

THE High Court has no jurisdiction to hear an application by OSISA director Siphosami Malunga and his business associates challenging the acquisition of their Kershelmar farm in Nyamandlovu, Matabeleland North on grounds of discrimination, a beneficiary of the land acquisition said in his opposition papers.

This is after Malunga and his business associates businessman Charles Moyo and Zephania Dlamini, a scientist working at the National University of Science and Technology (NUST) challenged the acquisition of their farm as "motivated by tribalism" and hence discriminatory.

They approached the High Court to stop the seizure of part of their farm.

In their application, they cited Lands Minister Anxious Masuku, CIO deputy director-general Gatsha Mazithulela, Matabeleland North Minister Richard Moyo, Lands Ministry chief officer for Matabeleland North, Registrar of Deeds, NUST lecturer Dumisani Madzivanyati and beneficiary Reason Mpofu for illegally grabbing the farm early this year.

In his opposing papers dated August 30, Madzivanyati, who has been allocated 50 hectares of Kershelmar farms, argued the High Court has no jurisdiction to hear the applicants' case challenging the acquisition of agricultural land on the basis it was discriminatory.

"I am reliably advised by my legal practitioners that section 72 explicitly prohibits the challenge of land acquisition on the grounds that it is in contravention of section 56 of the constitution. Section 56 of the constitution is the non-discriminatory clause. I am advised that, therefore, this Honourable court does not have jurisdiction to hear any application challenging the acquisition of agricultural land on the basis that it was discriminatory," Madzivanyati said his preliminary objections filed through his lawyers Mutatu, Masamvu and da Silva law Chambers.

"In that regard, without commenting on whether indeed the agricultural land was acquisitioned on the grounds alleged by the applicants; it would be immaterial even if it was. Further and more importantly, this Honourable Courts' jurisdiction is ousted from adjudicating such allegations. As such, grounds (i) and (vi) of the application must fall away.

"The grounds considered herein make the application bad at law while it purports to be a decorator it is in essence a review. I am advised by my legal practitioners that while this Honourable Court has powers to declare rights, it is improper for the applicants to disguise the matter as the former. I argue that although the applicants seek declaratory relief, the grounds of the application and the evidence provided to support them shows that it is in essence an application for review."

In their court application, the applicants said they acquired Kershelmar Farms from a white commercial farmer, the late Jeffrey Swindels, and formed a company, Kershelmar Farms (Private) Limited, in which they have varying shares.

However, the Government has said it acquired the farm at the height of the land reform program, which started in 2000.