Sikhumbuzo Moyo, Senior Report
A High Court application by Mr Zephaniah Dhlamini and his business partners Siphosami Malunga, Charles Moyo and Kershelmar Farms (Pvt) Ltd in which they were seeking nullification of the gazetting of Esidakeni Farm has since been abandoned after the applicants failed to have the matter set down in prescribed time.
The applicants had three months from the date of postponement sine die/ removal from the roll within which to set down the matter, according to Rule 66(3) of the High Court Rules, 2021.
Through their lawyer Mr Josphat Tshuma of Webb, Low and Barry Legal Practitioners Dhlamini, Malunga, Moyo and Kershelmar Farms wanted the courts to issue an order declaring the acquisition of Esidakeni null and void.
In their court application, they cited Lands, Agriculture, Fisheries, Water and Rural Resettlement Minister Anxious Masuka, Matabeleland North Provincial Affairs Minister Richard Moyo, the provincial chief lands officer, Registrar of Deeds, Mr Mpofu and Madzivanyathi as respondents.
Minister Masuka challenged the application arguing that the property was compulsorily acquired by Government in terms of the Gazetted Lands (Consequential Provisions) Act in December 2020.
In his opposing affidavit, through his lawyer, Ms Julian Mugova of Titan Law, Minister Masuka, argued that the applicants had no locus standi to institute the proceedings on the grounds that they do not have an offer letter. He said the application is a classic case of abuse of the court process further contending that the applicants are not lawful owners of the farm.
Minister Masuka said his Ministry was guided by Section 72 of the Constitution when acquiring land and Section 289 when it comes to land policy. Dr Masuka said the applicants are not the rightful owners and holders of title deeds of Kershelmar Farm. He said the applicants did not attach proof of investment on the farm.
The acquisition process, argued Minister Masuka, was governed and provided for in terms of Section 72 of the Constitution, which stipulates that once a piece of land is gazetted, it immediately becomes State land and as such the relief they were seeking was baseless both at law and on the facts and cannot be granted adding that the applicants had as a matter of fact not exhausted the internal remedies provided in terms of the Constitution and the Land Commission Act.
It was Minister Masuka’s views that it was trite that one ought to approach the courts after exhausting all the internal remedies and the applicants, for this particular case had not followed due procedure and as such the application simply amounts to forum shopping and was a classic case of abuse of court process hence it qualified to be dismissed.
He also said the High Court had no jurisdiction to hear the matter as there is no provision at law for the nullification of a proper and lawful acquisition of agricultural land whose acquisition is in terms of Section 72 of the Constitution. The alternative relief that the applicants may pursue if indeed they owned the land at the time of acquisition, argued Dr Masuka, is either restoration of title or compensation, which is the laid down procedure in terms of Statutory Instrument 62 of 2020 which was duly gazetted.
The matter was subsequently removed from the roll on the grounds that there were pending condonation proceedings on July 29, 2022.
In a notification of abandonment of application to the applicants, through their lawyers, the High Court said;
“In terms of Rule 66(3) of the High Court Rules,2021 you had three months from the date of postponement sine die/ removal from the roll within which to set down the matter.
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 Court.” — @skhumoyo2000.