Esidakeni Farm wrangle court case removed from the roll

BULAWAYO High Court judge, Justice Bongani Ndlovu, yesterday removed from the roll a case challenging the acquisition of Esidakeni Farm in Nyamandlovu by the Government under the Land Reform Programme.

The 554-hectare property was compulsorily acquired in 2004 from Jeffrey Swindels, but has been subject to an application from Open Society Initiative for Southern Africa (Osisa) senior executive, Siphosami Malunga, and his two business partners, Messrs Zephaniah Dhlamini and Charles Moyo, who argue that the farm was not acquired under the land reform as it was a productive dairy farm.

The trio, through their lawyers Webb, Low and Barry Legal Practitioners, filed an application at the Bulawayo High Court in 2021 accusing Central Intelligence Organisation (CIO) deputy director-general Dr Gatsha Mazithulela and two beneficiaries, Messrs Reason Mpofu and Dumisani Madzivanyathi of illegally acquiring their farm.

Messrs Malunga, Dhlamini and Moyo claimed that they’d purchased the farm in 2016 through a public auction after the sale was published in the Government Gazette of June 26, 2015.

They sought an order declaring the acquisition of the two pieces of land held under Dr Mazithulela null and void and in violation of Section 72 of the Constitution.

They also cited Lands, Agriculture, Fisheries, Water and Rural Resettlement Minister, Dr Anxious Masuka, Matabeleland North Provincial Affairs and Devolution Minister, Richard Moyo, the provincial chief lands officer and Registrar of Deeds as respondents.

However, Justice Ndlovu could not proceed with the matter brought before him yesterday, saying the files were not properly merged by the Registrar of the High Court when the Judicial Service Commission (JSC) migrated to the Integrated Electronic Case Management System (IECMS).

“We cannot proceed with this matter because the merging of the files has not given us the desired results. The matter is hereby removed from the roll owing to inadequate merging and parties should, therefore, liaise and come up with one definitive file,” he said.

“The applicants will then upload the definitive file no later than 31 May 2024 on the Integrated Electronic Case Management System (IECMS) and the Registrar will then set the matter down in consultation with this court.”

Messrs Malunga, Dhlamini and Moyo claimed that Dr Mazithulela, who at the time was the National University of Science and Technology (Nust) Pro-Vice Chancellor, allegedly started manoeuvring to gain shareholding of the contested property.

In 2021, Dr Masuka through the Civil Division in the Attorney-General’s Office, argued that 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.

Dr Masuka said the relief sought by the applicants 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 then.

Dr Masuka said the applicants are not the rightful owners and holders of title deeds of the 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 dispute, 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 Development.

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 concerning the document. — @mashnets