Prominent human rights activist Siphomasami Malunga is a relieved man after the High Court in Bulawayo dismissed a bid by the government to appropriate some sections of Esidakeni Farm in Nyamandlovu to accommodate six more people.
Malunga, Zephaniah Dhlamini and Charles Moyo filed an application for a declaratory order against Agriculture, Water and Rural Resettlement minister Anxious Masuka, the Matabeleland North chief lands officer and Provincial Affairs and Devolution minister Richard Moyo setting aside the compulsory acquisition of the farm.
Some of the people that had been allocated the land included Zanu PF secretary for administration Obert Mpofu and National University of Science and Technology lecturer Dumisani Madzivanyathi.
In the order issued on June 30, High Court Judge Justice Bongani Ndlovu ruled that the acquisition of the farm was null and void.
“Any offer Letter issued on the basis of the purported acquisition is null and void,” Ndlovu said.
“Costs of this application shall be borne by the respondents jointly and severally, one paying, the other to be absolved.”
Malunga, Dhlamini and Moyo wanted the the acquisition of their farm to be declared void for being at variance with provisions of the constitution and Administrative Justice Act.
Court papers show that Dlamini, Malunga and Moyo, directors and shareholders of Kershelmar Farms (PVT) Ltd, owned a company incorporated under Zimbabwean laws and were the beneficial owners of the farm, which is held in the name of the company.
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The trio wanted thenotice of acquisition of agricultural land that appeared in the government Gazette on December 18, 2020 relating to the pieces of land in question to be declared null and void for want of compliance with provisions of the constitution.
They also wanted the offer letter issued on the basis of the purported acquisition to be declared null and void.
“The acquisition was published in the Zimbabwe Government Gazette of December 18, 2020,” reads part of their application.
“ The applicants were not formally informed by the administrative authority (minister) of his intention to acquire the farm before the acquisition was gazetted.
The respondents argued that there was no law providing for the nullification of a lawful acquisition of agricultural and the court has no jurisdiction to entertain the application.
Justice Ndlovu, however, ruled that that cause of action is ousted by Section 72 of the constitution which had an ouster clause prohibiting a court from reviewing the decision of an administrative authority to acquire and gazette land.
“The applicants counter-argued that for the constitution to be invoked in its ouster, the acquisition must have been made in accordance with the provisions of the constitution,” he said.
“The applicants are not challenging the acquisition, but rather how the 1st respondent acquired the farm.”
Justice Ndlovu said a policy that says some Zimbabweans can lose private property simply because they are critics of the ruling establishment belonged to the dark ages.
“Acquired land must be given to landless indigenous Zimbabweans,” he said.
“How can land be taken from indigenous Zimbabweans and be parcelled to other Zimbabweans?
“Are those beneficiaries more Zimbabwean than the second applicant and two others who own the farm?
“The decision to acquire the farm was arbitrary, malicious, and capricious. It cannot stand as a valid administrative decision and is void.
“The farm owners were entitled to due process.”
The judge also ruled that Masukashould have advised the applicants of the acquisition of their land and due process was required to allow them to address issues about the farm and its acquisition as they have a valid sale of shares agreement, which respondent cannot ignore.
Malunga is the son of national hero Sydney Malunga
