In a ruling
delivered on 30 June, Bulawayo High Court Judge Bongani Ndlovu found that the
Ministry of Lands violated constitutional and legal procedures when it seized
the property legally known as Kershelmar Farm without notifying or consulting
its owners.
“The
acquisition cannot stand,” Justice Ndlovu wrote in the judgment. “Taking land
belonging to black Zimbabweans who acquired it for value, so that it is given
to other black Zimbabweans for free, is not only irrational but also goes
against the constitutional and statutory imperatives in this country.”
The land,
measuring over 550 hectares in Nyamandlovu, had been owned since 2017 by
Siphosami Malunga, Charles Moyo, and Zephaniah Dhlamini, who purchased shares
in Kershelmar Farms (Pvt) Ltd from previous owner Jeffrey Swindels. The three
directors, all indigenous Zimbabweans, said they were never informed of the
government’s intent to acquire the farm.
According to
court documents, the government gazetted the land for compulsory acquisition
under General Notice 3042 of 2020, published on 18 December 2020. But the
Minister of Lands failed to give notice or invite representations from the
owners, an omission Justice Ndlovu described as a breach of the Administrative
Justice Act and Section 68 of the Constitution, which guarantees fair
administrative conduct.
“The Minister
simply took the land without affording the owners any hearing or even notice,”
the judge said. “This breach of due process is fatal.”
In his
affidavit, co-owner Zephaniah Dhlamini recounted how a senior security official
Gatsha Mazithulela had approached him in 2019 seeking a stake in the farm and
warned that Malunga’s criticism of government made the property vulnerable to
takeover. There were reports that senior officials, including former cabinet
minister Obert Mpofu, later visited the farm and began plans to subdivide it.
When the directors resisted, they were charged in 2022 for “occupying gazetted
land” a case they challenged in court.
In the present
case, Justice Ndlovu focused squarely on the legality of the acquisition
process rather than the policy of land redistribution itself. He noted that
Section 72 of the Constitution allows for compulsory acquisition of
agricultural land, but only for a public purpose and in line with proper
procedures.
“Before
publishing the Gazette, the authorities should have given the owners a chance
to respond to the planned acquisition,” the ruling stated. “Instead, the
minister usurped the role of a court by unilaterally declaring the farm’s
ownership structure invalid.”
The judgment
criticised the state’s actions as “arbitrary, capricious, and contrary to the
rule of law.” It added that the rationale behind the acquisition was flawed, as
it sought to strip land from black Zimbabweans who had acquired it through
legal means, only to hand it to others without compensation.
In his
concluding order, Justice Ndlovu declared the Gazette notice “null and void”
for violating sections 68 and 72 of the Constitution and Section 3 of the
Administrative Justice Act. He also voided any offer letters issued under the
acquisition, including those believed to benefit Mpofu and other parties. The
court further ordered that the respondents jointly pay legal costs. CITE
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