Online Reporter
Mashudu Netsianda, [email protected]
THE Esidakeni Farm ownership dispute has taken a new twist, with five Government-allotted beneficiaries, among them Zanu–PF Secretary-General Dr Obert Mpofu, filing an appeal at the Supreme Court challenging a recent High Court ruling that nullified their offer letters and declared the State’s acquisition of the land unconstitutional.
Bulawayo High Court judge Justice Bongani Ndlovu, recently ruled that the Government’s acquisition of Esidakeni Farm was unlawful and unconstitutional, declaring any offer letter null and void. The farmland is owned by Kershelmar Farms (Private) Limited.
Human rights activist Siphosami Malunga, along with fellow shareholders Zephaniah Dhlamini and Charles Moyo, own Kershelmar Farms (Pvt) Ltd, the registered title holders of the contested property known as Umguza Block.
In his ruling on June 30, Justice Ndlovu found that the State had failed to follow due legal and constitutional processes when it sought to compulsorily acquire the property.
He ruled that the acquisition of the 554-hectare farm by the Ministry of Lands, Agriculture, Fisheries, Water and Rural Development was invalid due to violations of sections 68 and 72 of the Constitution and Section 3 of the Administrative Justice Act. The court found that the Government failed to consult or notify the farm’s owners before gazetting the acquisition.
Justice Ndlovu ruled that the legality of the share transfer was not in dispute and could not be used to justify the unlawful acquisition of the farm.
While the court did not delve into the political implications, it affirmed that administrative actions must be impartial and lawful.
The court ruled that any offer letters issued following the invalid acquisition were likewise null and void.
The farm, legally transferred to Kershelmar Farms in 2017 through a share sale agreement, was home to a joint farming operation between Malunga, Dhlamini and Moyo. The Government’s 2020 gazette notice seeking to acquire the land was made without any invitation for the trio to make representations, a procedural breach the court deemed fatal to the acquisition’s legality.
Dr Mpofu, Mswelangubo Farm, Legina Muchimba, Lovemore Jiyane, Dumisani Madzivanyathi and Reason Mpofu, through their lawyers, filed an appeal at the superior court, arguing that the High Court had erred in both fact and law.
The appellants argue that the judgment wrongly invalidated a lawful acquisition and failed to appreciate the constitutional basis of land reform in Zimbabwe.
Among their 11 grounds of appeal, they argue that the court should not have reviewed administrative action under constitutional principles outside the scope of proper constitutional proceedings. They further argued that the acquisition was from a company and not from individuals, making arguments about indigenous ownership irrelevant.
“The court a quo erred in nullifying the offer letters issued pursuant to the acquisition of the farms, as the first to fourth respondents had failed to demonstrate a plausible and satisfactory legal basis for the setting aside of the acquisition and consequently the invalidation of the offer letters,” they argued.
“The court a quo erred at law in awarding costs to the first to fourth respondents when they had totally failed to provide a sound legal basis for overturning the acquisition of the farm.”
They are seeking to have the High Court ruling overturned or, alternatively, for the matter to be remitted for a hearing on whether the applicants had approached the court with unclean hands.
Dr Mpofu and Mswelangubo Farm (Pvt) Ltd are being represented by Nozabelo Ndlovu of Nozabelo Law Chambers, while Muchimba, Jiyane, Madzivanyathi and Mpofu are being represented by Kossam Ncube and Partners.
The Supreme Court is yet to set the date for the hearing.
