Mphoko's Maleme intervention null and void at law

LEGAL experts have said Vice President Phelekezela Mphoko's recent intervention at the Maleme Ranch Farm wrangle in which he ordered a senior state intelligence official to vacate the area was political, hence null and void at law, a development that has not prevented Rodney Mashingaidze from taking the legal route to challenge his dismissal from the Matabeleland South-situated ranch.

Maleme Ranch owner, Peter Cunningham, was summoned to appear at the Gwanda Magistrates Court Friday for illegally occupying gazetted land, of which Mashingaidze argues has the offer letter from the Ministry of Lands and Resettlement that entitles him access to the land.

In an interview with Radio Dialogue, Advocate Lucas Nkomo, said there ought to be a distinction between VP Mphoko's political intervention and the legal route Mashingaidze was taking.

He said the VP's intervention was a political initiative yet the Maleme Ranch Farm issue came after certain legal administrative processes were done.

"The takeover by Mashingaidze was legal, it involved all stakeholders who take part in the distribution of land that is the District Lands Committee and the Provincial Lands Committee thereafter the Minister of Lands (Douglas Mombeshora) gave him the offer letter. These were the administrative processes that took place as required by the Land Acquisition Act. The moment Mashingaidze was given the offer letter, the whole process fell under administrative law," he said.

Advocate Nkomo said the latest initiate by Mashingaidze of going to the Criminal Court was an attempt by him to reclaim lost ground through the legal route.

"This is what is being dealt with now. Cunningham took the legal route to block Mashingaidze from taking over his farm and the judgment was in favour of Cunningham. The intervention of VP Mphoko and the villagers were a political process, not in the direction with the legal dictates governing the issue. The VP's initiative can't change the legal basis of what is on the ground," he said.

Advocate Nkomo noted that according to the Land Acquisition Law, a former white farm owner is obliged to vacate the land within a specified date to make way for the new owner.

"Any person can occupy that land if they have an offer letter, a land lease or a certificate of occupation. If Cunningham doesn't have either of these three. then he is occupying the land illegally and this is what Mashingaidze should be saying."

"The shortcoming in Mashingaidze's case is this is a criminal process, one can be prosecuted for staying but that does not mean the convicted person can leave as the process of eviction remains a Civil Court process. This was also spelt out by the High Court through Justice Nokuthula Moyo who indicated to Mashingaidze that he was not right to occupy the land yet, as he had to obtain an eviction order. In the Criminal Court, one can be convicted told to leave the land, where an ultimatum to vacate with a specified date might be given but the issue is still Mashingaidze needs to go the Civil Court for Cunningham to vacate," he said.

Advocate Nkomo highlighted Mphoko's involvement was politicking because Mashingaidze had a lawful deal.

"It was up to the Minister of Lands to withdrew the offer letter not the VP because he had no power, as he does not head the land portfolio, only the minister can. Mphoko was mere politicking," he said.

Professor Welshman Ncube, a professor at law, said the problem with Maleme Ranch was VP Mphoko failed to fully address the position of who would own the land.

"Mphoko did not say 100 percent who will own the land. He did not say what exact decision the government was taking save to say to the villagers can continue to remain in the farm neither was it clear what would happen to Cunningham," he said.

Prof Ncube highlighted the takeover of Maleme Ranch was gazetted last year, and by virtue of that, the land belonged to the government and it could choose who would use it.

"What we don't know is the full decision of the government since VP Mphoko spoke through Chief Nyangazonke and no questions were asked, we don't know if Cunningham was told to stay and if he does, he do so but continuing with his programmes with the villagers or if the farm was fully given to the villagers minus Cunningham.

"If there was a decision to revoke the acquisition by Mashingaidze, Cunningham should have been given the title deeds and he continues working with villagers. On the other hand, if they didn't revoke the acquisition, it is possible the state allowed Cunningham to remain and continue sponsoring the villagers programmes since the land belongs to the state. The issue is when Mphoko indirectly told villagers to stay, that decision had uncertainties and was left hanging. There was no clear written position on the matter, leaving legal uncertainties as well," he said.

Prof Ncube said, technically Mashingaidze would be right to claim the land, as whoever gave him that land did so after following procedures.

"However, the High Court ruled Mashingaidze must go to court and obtain an eviction letter, if he wants to occupy the land and if he wants to go against Mphoko, he can go and obtain an eviction letter. Cunningham's summons are a criminal case, but this matter includes the villagers who in part occupy the land. Although Mashingaidze has evoked criminal procedures to prosecute Cunningham, he will face a challenge from the villagers who were told by Mphoko to remain there," he said.

Another legal expert, Lizwe Jamela refrained from divulging more saying:

"Firstly Mphoko's intervention was political, that was a political matter, I do not comment on political matters that requires a political analyst. Secondly, I am not aware that Cunningham has been summoned, I am not privy to that," he said.

Efforts to reach Minister of Lands were fruitless, as his mobile phone was either unavailable or went unanswered.

Villagers at Maleme successfully protested the seizure of the ranch which is home to Ebenezer Agricultural Training Center and Shalom campsite leading to VP Mphoko visiting the farm and ordering Mashaingaidze out of the property.