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Court Reporter
THE legal wrangle between Government and Siphosami Malunga, Zephaniah Dhlamini, and Charles Moyo over the gazetting of Esidakeni Farm has taken a new twist after it emerged that a letter purporting that the matter has been abandoned was withdrawn by the registrar of the High Court.

Lands, Agriculture, Fisheries, Water and Rural Development Minister Anxious Masuka is challenging a court application by Dhlamini and his business partners Malunga and Moyo, and Kershelmar Farms (Pvt) Ltd, who are seeking nullification of the gazetting of Esidakeni Farm.

The property was compulsorily acquired by Government in terms of the Gazetted Lands (Consequential Provisions) Act in December 2020.

Dr Anxious Masuka

In their application, through their lawyer Mr Josphat Tshuma of Webb, Low and Barry Legal Practitioners, Malunga, Dhlamini, Moyo and Kershelmar Farms are seeking an order declaring the acquisition of Esidakeni null and void.

In his letter dated 15 February 2023 and addressed to Webb, Low and Barry Legal Practitioners, the registrar of the High Court wrote that the matter has been removed from the roll in terms of Rule 66 (3) of the High Court Rules, 2021.

“We note that you have not set down the matter and in terms of Rule 66 (3) of the High Court Rules, 2021, the matter is hereby regarded as abandoned and therefore deemed to have lapsed. Should you be aggrieved by this decision you will find recourse in the Rules of the High Court,” read the letter.

Responding to the letter, Webb, Low and Barry Legal Practitioners, said at the relevant time the registrar wrote the letter, he was not aware that the judge had given directions as to how the matter was to be handled.

The lawyers said the registrar of the High Court had no lawful authority to communicate and advise that the matter had been abandoned.

“Effectively, therefore, the jurisdiction facts for the registrar to communicate the abandonment of our matter were absent. He had no lawful authority to communicate and advise that the matter had been abandoned. He confirms this and withdraws his unlawful letter,” wrote the lawyers.

“The letter was a nullity ab initio, and there is no basis to apply to set aside nothing.”

The registrar of the High Court has since written to the Webb, Low and Barry Legal Practitioners telling them to disregard his letter, saying it was erroneously issued.

High Court

According to court papers, on December 18, 2020, Umguzana Farm was gazetted under the General Notice 3042/2020 and subsequently became State land. Before it was gazetted, the property belonged to Kershelmar Farms (Pvt) Ltd.

Following the gazetting of the land, recommendations for the intended beneficiaries were approved by the Ministry of Lands, Agriculture, Fisheries, Water and Rural Resettlement and 16 beneficiaries were offered the land in terms of the Land Commission Act.

In May last year, the beneficiaries were given offer letters for agricultural settlement in terms of Section 72 (2) of the Constitution.

Malunga, Moyo and Dhlamini argue that the notice of acquisition of Esidakeni Farm is null and void for want of compliance with provisions of Section 72 of the Constitution.

They argued that after being evicted from the farm, the High Court restored the farm into their possession hence their occupation complies with the court order.