Lawyers representing Dr Gatsha Mazithulela have written to the three “erstwhile” directors of Kershelmar Farms in Nyamandlovu, Matabeleland North Province, challenging them to disclose the circumstances under which they disposed of shares in their farming enterprise to Open Society Initiative for Southern Africa director Siphosami Malunga and his two partners.
Kershelmar Farm is at the centre of a dispute pitting
Malunga and his partners, Zephania Dhlamini and businessman Charles Moyo, on
the one hand and Dr Mazithulela and the Government, which has since spilled
into the High Court.
Malunga and his partners accuse Dr Mazithulela of
“influencing Government” to acquire the farm after “he tried with no success to
force his way into the ownership structure of Kershelmar Farm”.
In his opposing papers filed at the High Court on August
30, Dr Mazithulela said he had no interest in acquiring the farm.
“For the record, I wish to state from the outset that I
have no interest in acquiring any portion of Kershelmar Farm and have never
been offered any letters on the same,” reads the papers. “My alleged interest
in acquiring the farm, only exists in the fertile imagination of the
applicants.
“The material omission, done so deliberately in my view, is
that first applicant (Dhlamini), neglects to state that I was actually part of
the original consortium seeking to acquire the farm he mentions as far back as
2016. It must be noted that first applicant was a colleague of mine at the
National University of Science and Technology.”
Last December, Lands, Agriculture, Water, Fisheries and
Rural Resettlement Minister Dr Anxious Masuka published a notice of acquisition
of the farm for purposes of agriculture resettlement in terms of Section 72(2)
of the Constitution.
Malunga is challenging the acquisition arguing that he
bought the farm along with his partners from Messrs Barry Brice, David Power
and Jeffrey Swindles — directors of Kershelmer Farms — nearly four years ago.
However, Kershelmer Farms (Private) Limited is listed as
the owner of the farm in official records.
In a letter dated September 1, Dr Mazithulela, through his
lawyer Gerald Mlotshwa of Titan Law, invited the trio of Messrs Brice, Power
and Swindles to file an application for joinder in the ongoing High Court case
and explain in detail how the alleged sale took place.
“We are instructed by our client, Dr Gatsha Mazithulela to
respectfully draw your attention to the above litigation pending before the
High Court of Zimbabwe, sitting in Bulawayo,” wrote Mr Mlotshwa.
“Our client is cited as the fourth respondent therein,
along with six other respondents. “It is our considered view that all of you,
as the alleged ‘erstwhile’ directors and owners, respectively, of Kershelmar
Farms, take the necessary and urgent steps to file an application for joinder
in respect of the said proceedings.
“From the woefully inadequate, if not incompetent,
application filed by Mr Siphosami Malunga and his co-applicants, it seems to us
that it will become absolutely necessary for the both of you to explain the
circumstances relating to the disposal and transfer of shares in Kershelmar to
Messrs Malunga, Dhlamini and Moyo.
“In particular, we trust that your affidavit/s will provide
the necessary detail as to precisely how the alleged sale and transfer of
shares in Kershelmar Farms (Private) Limited was executed in the clear absence
of a certificate of no present interest.”
Mlotshwa argues that in terms of Section 4(1) of the Land
Acquisition (Disposal of Rural Land) Regulations, no one is allowed to transfer
shares in a land-owning company, unless he has notified the Minister of Lands,
Agriculture and Rural Resettlement his intention to transfer the shares.
In addition, the Minister must first issue a certificate of
no present interest.
“Mr Malunga and his fellow applicants allege, under oath,
that they bought Kershelmar Farms (Private) Limited, and its underlying assets,
being the foregoing pieces of farm land, on 2nd February, 2017.
“They do not, however, provide any evidence of compliance
with the said regulations. That onus, it must be said, rests with the seller of
the shares.
“And from the Court application, we note that Mr Brice
signed the share purchase agreement under power of attorney on behalf of the
seller, Jeffrey Swindells.”
Mr Mlotshwa challenges the trio to provide proof of the
transaction by showing that it was done in compliance with the Capital Gains
Tax Act.
“David Power, as the company secretary of Kershelmar Farms
(Private) Limited, would have been responsible for registering the transfer of
these shares.
“He will need to enlighten the High Court on whether or not
there was full compliance with the Capital Gains Tax Act in light of the
omission to provide documentary evidence of this by his alleged successor as
company secretary, the third applicant in the proceedings, Charles Moyo.”
He goes further to challenge Mr Swindells, who is resident
in Australia, to show that no exchange control regulations were flouted when
the payment for the shares was made.
Mr Mlotshwa said Mr Malunga and his co-litigants state,
under oath, that Mr Swindells, owner of Karshelmar Farms, is resident in
Australia.
“They further swear that they paid at total of US$248 500
for the entire issued shares in the company.
“For the purposes of the Exchange Control Regulations,
1996, the seller, Mr Swindells, is a non-resident.
There is absolutely no proof of compliance with these
regulations in Mr Malunga’s court application.”
Separately, in his notice of to Malunga’s application at
the High Court, made through the Civil Division in the Attorney-General’s
Office, which was filed on September 1, 2021, Minister Masuka said the
applicants’ case was flawed because they do not have an offer letter.
“The applicant (Mr Dhlamini) has no locus standi to
institute these proceedings for the reason that he is not the offer letter
holder as stated in the Gazetted Lands (consequential provisions) Act Chapter
20:28,” reads Minister Masuka’s opposing papers.
“In addition to this, the applicant is not even, at law,
the owner of the land in that the title deed used for the acquisition is in the
name of the former white farmer.
“It would make legal sense if he (the former white farmer)
was the one making this application.
“The applicants’ locus standi on acquisition issues would
be established through a direct link to the land which in this particular case
has not been established.”
Minister Masuka said the relief being sought cannot be
granted because the land does not belong to the applicants.
“The acquisition process is governed and provided for in
Section 72 of the Constitution of Zimbabwe, which makes it clear that once a
piece of land is gazetted it immediately becomes State land and this process
can’t be challenged through the courts.
“The question that then arises is that of in terms of what
law or legal effect is the reversal of a properly done acquisition of
agricultural land, being brought. Clearly the applicants are way out of their
depth in terms of the appreciation of land laws and their application.
“The relief they are seeking is baseless both at law and on
the facts and can’t be granted.”
The Minister added that if the applicants were the rightful
owners, they should have used internal remedies as provided for in the Constitution
(Amendment No 20 and the Land Commission Act).
“It’s trite that one approaches the courts after exhausting
all the internal remedies.
“The applicant in this case has not followed due procedure
and this application simply amounts to forum shopping and is a classic case of
abuse of the court process, hence the matter must be dismissed,” he said.
The matter is still to be set down for hearing. Sunday Mail
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