News / National
Malunga and his two business partners granted stay of criminal proceedings
06 Dec 2022 at 04:59hrs | Views
THE High Court has suspended criminal proceedings against human rights lawyer, Siphosami Malunga and his two business partners Zephaniah Dhlamini and Charles Moyo, who are facing charges of illegal occupation of Umguzana Farm popularly known as Esidakeni.
The trial of the trio had already kicked off at the Tsholotsho Magistrate's Court albeit under protest by the accused persons, who immediately approached the High Court on an urgent basis seeking a stay of proceedings at the lower court.
Malunga (50) of Fourwinds, Dhlamini (50) of Hillside and Moyo (58) of Selbourne Park 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. They are out of custody on $10 000 bail each.
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 trio, through its lawyer Mr Josphat Tshuma of Webb Low and Barry Legal Practitioners, filed an urgent chamber application at the High Court in Bulawayo for stay of proceedings, arguing that they had two pending matters before the same court.
They cited Tsholotsho resident magistrate Mr Victor Mpofu and the State as respondents.
The other case before the High Court is an application for review of the rulings made by the lower court (HC2169/22).
Bulawayo High Court judge Justice Martin Makonese ruled that the criminal proceedings under CRB NYA 75-77/22; NYAM 47/07/22 should be stayed pending determination of case HC 2170/22.
"Pending the determination of the matter under HC 2170/22, the applicants are granted the following relief: the criminal proceedings under CRB NYA 75-77/22; NYAM 47/07/22 are hereby stayed," Justice Makonese ruled.
The application for stay of proceedings has been set down for hearing before Justice Evangelista Kabasa on December 13.
In his founding affidavit, Mr Tshuma said the application is premised on the grounds that if proceedings are not stayed, it may result in miscarriage of justice and cause irreparable harm to his clients.
"The applicants made an application for stay of proceedings pending the finalisation of the matter under HC1054/21 wherein my clients challenged the legality of acquisition. The application for postponement was dismissed by the magistrate, and following this, the applicants were required to plead and they raised an exception, which was dismissed," he said.
Aggrieved by the magistrate's decision, Malunga, Moyo and Dhlamini filed an application for review under case number HC 2169/22. They also filed an urgent chamber application to stay criminal proceedings pending outcome of the review application.
"The applicants seek an order staying the criminal trial pending the finalisation of the application for stay under HC2170/22. This would be in the interests of justice, and to ensure that the applicants are able to be given an effective remedy through the courts," said Mr Tshuma.
"This matter is urgent as the trial is set to continue on December 5, 2022. The applicants have, however, not waited until the day of reckoning has arrived to act."
Mr Tshuma argued that the decision by the lower court for the dismissal of exception was grossly irregular.
"In particular, the applicants' defence to the charge is that the acquisition of the land was unlawful and void ab initio and as such no consequences can flow from that acquisition," he said,
The lawyer further argued that the lower court has no jurisdiction to make a determination on the lawfulness of the acquisition.
"As such, the first respondent (Mr Mpofu) should have stayed the proceedings to allow the High Court, which has already been seized with the matter, to make its determination and be guided by the same. Instead, he has elected to proceed with a matter that he has no jurisdiction hence effectively denying the applicants the right to a fair hearing and full protection of the law," said Mr Tshuma.
"The applicants have shown good cause that criminal proceedings should be stayed pending the outcome of the matter under HC2170/22. In terms of the Rule 60(9) of the High Court Rules, where the applicants have established a prima facie case, the judge is empowered to grant a provisional order as sought by the applicants."
Last month, 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."
The State, which was represented by Mr Khumbulani Ndlovu, did not oppose the application.
According to court papers, 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.
In May, the beneficiaries were given offer letters for the purposes of agricultural settlement in terms of Section 72 (2) of the Constitution.
In their defence outline, Malunga, Moyo and Dhlamini 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.
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 trial of the trio had already kicked off at the Tsholotsho Magistrate's Court albeit under protest by the accused persons, who immediately approached the High Court on an urgent basis seeking a stay of proceedings at the lower court.
Malunga (50) of Fourwinds, Dhlamini (50) of Hillside and Moyo (58) of Selbourne Park 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. They are out of custody on $10 000 bail each.
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 trio, through its lawyer Mr Josphat Tshuma of Webb Low and Barry Legal Practitioners, filed an urgent chamber application at the High Court in Bulawayo for stay of proceedings, arguing that they had two pending matters before the same court.
They cited Tsholotsho resident magistrate Mr Victor Mpofu and the State as respondents.
The other case before the High Court is an application for review of the rulings made by the lower court (HC2169/22).
Bulawayo High Court judge Justice Martin Makonese ruled that the criminal proceedings under CRB NYA 75-77/22; NYAM 47/07/22 should be stayed pending determination of case HC 2170/22.
"Pending the determination of the matter under HC 2170/22, the applicants are granted the following relief: the criminal proceedings under CRB NYA 75-77/22; NYAM 47/07/22 are hereby stayed," Justice Makonese ruled.
The application for stay of proceedings has been set down for hearing before Justice Evangelista Kabasa on December 13.
In his founding affidavit, Mr Tshuma said the application is premised on the grounds that if proceedings are not stayed, it may result in miscarriage of justice and cause irreparable harm to his clients.
"The applicants made an application for stay of proceedings pending the finalisation of the matter under HC1054/21 wherein my clients challenged the legality of acquisition. The application for postponement was dismissed by the magistrate, and following this, the applicants were required to plead and they raised an exception, which was dismissed," he said.
Aggrieved by the magistrate's decision, Malunga, Moyo and Dhlamini filed an application for review under case number HC 2169/22. They also filed an urgent chamber application to stay criminal proceedings pending outcome of the review application.
"The applicants seek an order staying the criminal trial pending the finalisation of the application for stay under HC2170/22. This would be in the interests of justice, and to ensure that the applicants are able to be given an effective remedy through the courts," said Mr Tshuma.
"This matter is urgent as the trial is set to continue on December 5, 2022. The applicants have, however, not waited until the day of reckoning has arrived to act."
Mr Tshuma argued that the decision by the lower court for the dismissal of exception was grossly irregular.
"In particular, the applicants' defence to the charge is that the acquisition of the land was unlawful and void ab initio and as such no consequences can flow from that acquisition," he said,
The lawyer further argued that the lower court has no jurisdiction to make a determination on the lawfulness of the acquisition.
"As such, the first respondent (Mr Mpofu) should have stayed the proceedings to allow the High Court, which has already been seized with the matter, to make its determination and be guided by the same. Instead, he has elected to proceed with a matter that he has no jurisdiction hence effectively denying the applicants the right to a fair hearing and full protection of the law," said Mr Tshuma.
"The applicants have shown good cause that criminal proceedings should be stayed pending the outcome of the matter under HC2170/22. In terms of the Rule 60(9) of the High Court Rules, where the applicants have established a prima facie case, the judge is empowered to grant a provisional order as sought by the applicants."
Last month, 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."
The State, which was represented by Mr Khumbulani Ndlovu, did not oppose the application.
According to court papers, 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.
In May, the beneficiaries were given offer letters for the purposes of agricultural settlement in terms of Section 72 (2) of the Constitution.
In their defence outline, Malunga, Moyo and Dhlamini 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.
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.
Source - The Chronicle
