STORIES BY LIZWE SEBATHA
AN an urgent High Court application filed on 23 July, National University of Science and Technology lecturer Zephaniah Dlamini, who is in a partnership with Osisa director Siphosami Malunga and businessman Charles Moyo, sought an an order reversing the acquisition of Kershelmar Farm in Nyamandlovu near Bulawayo.
Dlamini, in his founding affidavit filed through Webb, Low and Barry, as well as Ben Baron and Partners, fingered state security agency deputy director-general Gatsha Mazithulela (pictured) as being responsible for the acquisition of Kershelmar Farm and parcelling it out to his subordinates.
Dlamini argued:
- The notice of acquisition of agricultural land under section 72 (2) of the constitution of Zimbabwe being General Notice 3042 of 2020 must be declared null and void and not compliant with provisions of section 72 of the constitution of Zimbabwe;
- Mazithulela has since December 2019 been pestering Dlamini to elbow out Malunga as director and shareholder of Kershelmar Farm;
- Mazithulela never hid his interest of wanting to replace Malunga as director to ostensibly save the farm from state acquisition;
- In February, 2021 Mazithulela warned Dlamini that the farm is at risk of state acquisition because of Malunga’s anti-government rhetoric;
- Malunga confronted Mazithulela over the issue and the WhatsApp correspondence is attached as G2 in both its original and translated forms;
- In December 2020, Mazithulela warned Dlamini and Moyo risked arrest for allegedly acquiring Kershelmar Farm shares under questionable circumstances;
- Suspected state security officials started making several visits to the farm, including senior Zanu PF official Obert Mpofu, to intimidate them to vacate;
- CIO officers have been allocated portions of the farm; and
- It is clear that Gatsha has caused the acquisition of the farm and has effectively parcelled it out to his subordinates.
You don’t have a farm offer letter: Minister
LANDS and Agriculture minister Anxious Masuka has accused Osisa director Siphosami Malunga and his business partners of failing to exhaust “internal remedies” in challenging the acquisition of their farm in Nyamandlovu near Bulawayo.
In his opposing papers filed on 27 August against a High Court application by Malunga and his partners Charles Moyo and Zephania Dlamini challenging the acquisition of their Kershelmar Farm, Masuka said the latter’s court challenge should be dismissed with costs as a result.
Masuka filed his papers through the Civil Division of the Attorney-General’s office, arguing the trio should have exhausted available channels to contest the seizure of their farm.
He argues:
- The land in question is state land and does not belong to the applicants.
- The acquisition process is governed and provided by 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 cannot be challenged through the courts;
- The applicant has not exhausted the internal remedies provided by the constitution of Zimbabwe. (Amendment No. 20) and the Land Commission Act;
- The application simply amounts to forum shopping and is a classic case of abuse of court processes, hence the matter must be dismissed;
- The High Court has no jurisdiction to hear this matter. There is no provision in law for the nullification of a proper and lawful acquisition of agricultural land whose acquisition is in terms of section 72 of the constitution; and
- The alternative relief that the applicants may pursue, if indeed they owned the land at the time of acquisition, for either restoration of title or compensation is the laid down procedure in Statutory Instrument 62 of 2020.
Malunga is squatting on state land: CIO boss
ZIMBABWE’S Central Intelligence Organisation deputy director-general Gatsha Mazithulela has accused government critic and human rights lawyer Siphosami Malunga and his business associates of being “fraudsters” and “squatters” at their Kershelmar Farm in Nyamandlovu that has been gazetted for acquisition.
In his opposing papers filed at the High Court in Bulawayo on 30 August through his lawyers Mlotshwa and Maguwudze Legal Practitioners, Mazithulela dismissed the farm purchase by Malunga and his partners as fraudulent, and hence void, before launching an astonishing personal attack on Malunga.
He asked the court to dismiss the applicants’ application with costs on a higher legal practitioner and client scale.
Mazithulela argued:
- The farm acquisition by the state is not political, tribal or personal;
- The farm purchase by Malunga and his associates is illegal and void, citing section 4(1) of the Land Acquisition (Disposal of Rural Land) Regulations 1999;
- The section states that “subject to these regulations, no person shall make a significant transfer of shares in a land-owning company unless he has notified the minister of his intention to transfer the shares and the (a) the minister has issued him with a certificate of no present interests of (b) the minister has not responded to the notification within the 90-day period.”
- Section 10 of the same regulations state that “any transfer of land or shares effected in contravention of these regulations shall be void”;
- The applicants are not shareholders of Kershelmar;
- The applicants ignored advice to regularise their farm purchase;
l Government acquired the farm from Kershelmar, not from Malunga and partners;
- Government is not mandated to inform Kershelmar Farm of the farm acquisition “so long as the procedure embodied in section 72 of the constitution was followed, the acquisition is lawful and valid.” And
- As such, the court must dismiss the application with costs on a higher legal practitioner and client scale.
