Esidakeni Farm: Supreme Court upholds High Court judgment

Mashudu Netsianda, Senior Court Reporter
THE Supreme Court has upheld a High Court spoliation order granted in favour of Open Society Initiative for Southern Africa (Osisa) director Mr Siphosami Malunga and his two business partners in the disputed Esidakeni Farm in Nyamandlovu, Matabeleland North.

The ruling by Deputy Chief Justice Elizabeth Gwaunza and Supreme Court Judges Justices Hlekani Mwayera and Alphas Chitakunye follows an appeal by Zanu-PF Secretary for Administration Dr Obert Mpofu and his wife, Mrs Sikhanyisiwe Mpofu challenging the High Court judgment handed down on December 23 last year.

In the papers before the court, Kershelmar Farms (Pvt) Ltd, Mr Malunga and his partners, Mr Zephaniah Dhlamini and Mr Charles Moyo were cited as respondents.

Cde Dr Obert Mpofu

The property was compulsorily acquired by Government under the Land Reform programme in 2004 from Mr Jeffrey Swindels, who previously owned it. Dr Mpofu and his wife were subsequently given an offer letter.

Mr Malunga and his partners, Mr Zephaniah Dhlamini and Mr Charles Moyo, through their lawyers Webb, Low and Barry Legal Practitioners had filed an urgent chamber application at the Bulawayo High Court seeking a spoliation order against the Mpofus.

In its judgment, the Supreme Court ruled that although the Mpofus had an offer letter, they were not entitled to resort to taking over possession of the farm without due process of the law.

“It is this disregard of the law which prompted the respondents to approach the High Court for redress. The court a quo correctly granted the spoliation order in favour of the respondents,” read the judgment.

Mr Zephaniah Dhlamini

The Supreme Court said in doing so the High Court was buttressing the core values and objectives of protection of possession of property against unlawful dispossession.

The court said the dispossession of the respondents by the Mpofus was unlawful and done without Mr Malunga and his partners’ consent.

“In casu, there mere fact that the appellants hold an offer letter is not sufficient basis for them to take the law into their own hands and seek to dispossess the respondents who were in possession immediately prior to being despoiled. The court a quo properly frowned at self-help, which is repugnant to our constitutional values,” said the judges.

The Supreme Court said the requirements for a spoliation order were satisfied hence the decision of the High Court is unassailable.

Esidakeni Farm

“The appeal is without merit and must fail. Accordingly, the appeal be and hereby dismissed with costs,” ruled the judges.

The Mpofus stated in the court papers that an offer letter for 145 hectares of the 554-hectare property, which they were given by Government empowered them to take occupation.

In their appeal, through Advocate Sindiso Siziba who was instructed by Ndove and Associates, Dr Mpofu and his wife, argued that in granting the spoliation order in favour of Messrs Malunga, Dhlamini and Moyo, the High Court erred in relying on common law principles rendering nugatory the clear provisions of Section 3 of the Gazetted Land (Consequential Provisions) Act.

“The court a quo erred in evicting the appellants from the property when it was common cause that they were holders of an offer letter which made them lawful occupiers of the disputed portion of the farm. The court a quo erred in making a finding that the respondents were wrongfully or forcibly deprived of possession when no admissible evidence was adduced to that effect,” argued Adv Siziba.

He further argued that by ordering his clients to pay the costs of suit, the High Court erred in granting assistance to the respondents who were acting in open defiance of the law.

In opposing the appeal, the respondents through their lawyer Advocate Thabani Mpofu submitted that the assertion that appellants were holders of an offer did not legally entitle them to resort to self-help and disturbing respondents of their peaceful possession of the land.

He contended that instead of resorting to self-help, the Mpofus as holders of an offer letter should have instituted eviction proceedings.

Lands, Agriculture, Fisheries, Water and Rural Development Minister, Dr Anxious Masuka

Meanwhile, Messrs Malunga, Dhlamini and Moyo are challenging Government’s compulsory listing of the farm for resettlement at the High Court and the matter is still pending.

In his notice of opposition through the Civil Division in the Attorney-General’s Office, Lands, Agriculture, Fisheries, Water and Rural Resettlement Minister Anxious Masuka said Messrs Malunga, Dhlamini and Moyo 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. – @mashnets

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