The property was compulsorily acquired by Government under
the Land Reform programme in 2004 from Mr Jeffrey Swindels, who previously
owned it.
Mr Malunga and his partners, Mr Zephaniah Dhlamini and Mr
Charles Moyo, through their lawyers Webb, Low and Barry Legal Practitioners,
recently filed an urgent chamber application at the Bulawayo High Court in
which they accused Central Intelligence Organisation (CIO) deputy
director-general Dr Gatsha Mazithulela and two other beneficiaries, Messrs
Reason Mpofu and Dumisani Madzivanyathi of illegally acquiring their farm.
In their application, Messrs Malunga, Dhlamini and Moyo
cited Lands, Agriculture, Fisheries, Water and Rural Resettlement Minister
Anxious Masuka, Matabeleland North Provincial Affairs Minister Richard Moyo,
the provincial chief lands officer, Registrar of Deeds, Mr Mpofu and
Madzivanyathi as respondents.
The applicants sought an order declaring the acquisition of
two pieces of land held under Dr Mazithulela null and void and in violation of
provisions of section 72 of the constitution.
In his founding affidavit, Mr Dhlamini argued that prior to
December 18 last year, Esidakeni Farm had not been acquired under the land
reform because it was very productive dairy farm.
“In terms of Government policy, dairy farms had been spared
from acquisition and at some stage Mr Swindels entered into a lease agreement
with the late Mr Eddias Warambwa, which led to the State believing that the
farm was owned by an indigenous Zimbabwean” he said.
Mr Dhlamini said they bought the farm in 2016 through a
public auction after the sale was published in the Government Gazette of June
26, 2015.
They argued that they acquired the property from Mr
Swindles in 2017 after which Dr Mazithulela, who at the time was National
University of Science and Technology (Nust) Pro-Vice Chancellor, allegedly
started manoeuvring to gain shareholding of the contested property.
In his notice of opposition through the Civil Division in
the Attorney-General’s Office, Minister Masuka said the applicants have no
locus standi to institute legal proceedings as they do not have an offer letter
as stated in the Gazetted Lands (Consequential Provisions) Act.
“In addition to this, the applicants are not even at law,
the owners of the land in that the title deeds used for the acquisition is in
the name of the former white farmer. It would make sense if he was the one
making this application,” he said.
Minister Masuka said the relief sought by the applicant
cannot be granted as the land in question belongs to the State.
“The acquisition process is governed and provided for by
Section 72 of the Constitution, which makes it clear that once a piece of land
is gazetted, it immediately becomes State land and this process can’t be
challenged in court,” said Dr Masuka.
“Clearly, the applicants are way out of their depth in
terms of appreciation of land laws and their application. The relief they seek
is baseless both at law and on the facts.” Dr Masuka said the applicants are
abusing the court processes as they did not follow due procedure.
“This honourable court has no jurisdiction to hear this
matter. There is no provision at law for the nullification of a proper and
lawful acquisition of agricultural land whose acquisition is in terms of
section 72 of the constitution,” he argued.
“If indeed, the applicants owned the land at the time of
acquisition, for either restoration of title or compensation is the laid down
procedure in terms of Statutory Instrument 62 of 2020, which was duly gazetted.
The SI provides procedures to be done if one is an indigenous person whose land
had been acquired.”
Dr Masuka said the applicants are not the rightful owners
and holders of title deeds of Kershelmar Farm. He said the applicants did not
attach proof of investment in the farm.
Dr Masuka also dismissed claims by the applicants that Dr
Mazithulela, Minister Moyo and Messrs Mpofu and Madzivanyathi were involved in
the acquisition of the land as unfounded.
He said the applicants were unnecessarily dragging the
names of the respondents into the disrepute as they had no influence in the
acquisition of the farm.
Dr Masuka said his ministry is guided by Section 72 of the
Constitution when acquiring land and Section 289 when it comes to land policy.
Other respondents, in their notices of opposition through
their lawyers, disputed the issues raised in the application and sought its
dismissal.
They argued that the application is riddled with several
unsubstantiated allegations of corruption and relationships, which they denied.
They also argued that they were beneficiaries and holders
of valid offer letters issued by the Minister of Lands, Agriculture, Fisheries,
Water and Rural Resettlement.
The respondents further argued that the alleged previous
owner of the disputed land did not sign the alleged sale of shares agreement.
They also queried why the applicants did not disclose what
became of the deceased estate of the person who had a lease with the alleged
previous owner with regard to the document.
Mr Mpofu denied allegations by the applicants that he had a
corrupt relationship with Zanu-PF Secretary for Administration Dr Obert Mpofu.
“Even if I were to be said to be related to him (Dr Mpofu)
that does not justify a claim that I obtained an offer letter on the basis of
that relationship.” he said in his opposing affidavit. Chronicle
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