The deputy chief secretary in the office of the President and Cabinet, Ray Ndhlukula, has filed an appeal at the Supreme Court challenging his 90-day incarceration on contempt of court charges after failing to comply with a High Court order barring him from evicting Figtree farmer, David Conolly.
BY CHARLES LAITON
Ndhlukula, who was convicted for defying a High Court order, is entangled in a fierce battle with Conolly over the control of Subdivision ‘A’ of Centenary Farm, which is located in Bulilima district in Matabeleland South Province.
Ndhlukula’s conviction came after his workers allegedly occupied the farm and disrupted Conolly’s farming operations despite High Court judge Justice Maxwell Takuva’s June 2014, interim order barring him from taking over the land
Ndhlukula’s actions prompted Conolly to approach the court for recourse and a contempt of court charge was preferred against him leading to his conviction.
However, through his lawyer, Advocate Thabani Mpofu, Ndhlukula argues Conolly misled the court when he secured the court order since the farm was gazetted by government.
“The farm was offered to the appellant (Ndhlukula) and he accepted the same. It constitutes lawful authority to hold, use and occupy gazetted land,” Mpofu said.
Ndhlukula said pursuant to the offer letter he got from government, he gave Conolly a 90-day notice of his intention to occupy the farm, but the latter challenged the said occupation by filing an urgent chamber application, which was granted in default, interdicting Ndhlukula from occupying the land.
“Upon expiry of the notice period given by appellant (Ndhlukula), the first respondent (JC Conolly and Sons (Private) Limited) proceeded to obtain a contempt of court order … on the purported basis that appellant was in breach of the interdict,” Mpofu said.
“It is abundantly clear that the court a quo misdirected itself in concluding that first respondent was entitled to remain on gazetted land until such time it had been convicted, and an eviction order issued to its effect.”
Ndhlukula further argues the land belongs to the State and as such Conolly should not be allowed to remain in occupation of the farm.
“It is submitted that the court order granting first respondent interdictory relief and the contempt of court order are being used as a ‘back door’ by the said party for the purposes of obtaining ‘lawful authority’ in order to continue in occupation and use of State land notwithstanding the provisions of Section 3 of the Gazetted Land (Consequential Provisions) Act,” Mpofu said.
“Appellant cannot be prohibited from doing that which is lawful. He is empowered by statutory law to hold, use and occupy the land in dispute. As such he cannot be held to be in contempt of court for that is lawful.”