High Court Nullifies State’s ‘Malicious’ Acquisition Of Siphosami Malunga’s Farm

Human rights lawyer and prominent critic of the Zimbabwean government, Siphosami Malunga, along with his business partners Zephaniah Dlamini and Charles Moyo, have secured a significant legal victory, with the High Court in Bulawayo ruling that the state’s compulsory acquisition of their Esidakeni Farm was unlawful and unconstitutional.

 

The judgment, delivered by Justice Bongani Ndlovu on June 30, paves the way for Malunga and his business partners, Zephaniah Dlamini and Charles Moyo, to regain control of their property after years of legal dispute.

 

The farm, located in Nyamandlovu, was gazetted for compulsory acquisition by the Minister of Lands, Agriculture, Water and Rural Resettlement in December 2020. This move initiated a protracted legal battle, as the indigenous Zimbabwean owners challenged the state’s actions.

 

Justice Ndlovu, in his ruling, cited the disregard for legal principles during the acquisition process.

 

“This acquisition represents a blatant disregard for the principles of legality. The constitution and the Administrative Justice Act demand procedural fairness and substantive compliance. None of these were observed here,” he stated.

 

The applicants, directors and shareholders of Kershelmar Farms, had argued that the acquisition process was fundamentally flawed and unconstitutional.

 

Justice Ndlovu concurred, stating that the “failure to involve the farm owners in the process is a denial of their fundamental rights. Taking land from one group of black Zimbabweans to give to another undermines the very purpose of land reform.”

 

The court also dismissed claims that the sale of shares in Kershelmar Farms was a simulated arrangement designed to bypass land laws, asserting that the legality of the share transfer was not in dispute and could not justify the unlawful acquisition.

 

The judgement nullified the seizure of the farm, including any offer letters issued to prospective beneficiaries.

 

“An offer letter cannot stand on a foundation of illegality,” Justice Ndlovu ruled.

 

Offer letters for sections of the farm, which had been issued to individuals including Zanu PF secretary Obert Mpofu and several Central Intelligence Organisation (CIO) agents, were also declared null and void.

 

The High Court deemed the seizure of the farm from indigenous farmers, purportedly for resettlement of others, as not only unlawful but also “irrational, arbitrary, malicious, and capricious.”

 

“The farm owners are indigenous Zimbabweans. They are black people. The liberation struggle was waged so that black people could reclaim the land. They, however, purchased this farm. The fact that the beneficial ownership of this land is in the hands of black Zimbabweans means that its acquisition is void.

 

“It is illegal. It is irrational in that it cannot satisfy the constitutional imperatives. It is contrary to the principle of legality,” the judge ruled.

 

The judge dismissed arguments suggesting that Malunga’s status as a “government critic” was relevant to the acquisition.

 

“A policy that says some Zimbabweans can lose private property simply because they are critics of the ruling establishment is downright uncouth and belongs to the dark ages. The irrationality inherent in the process is unmistakable and cannot go unnoticed,” he ruled.

 

The court further noted the absence of adequate notice to Malunga, Moyo, and Dlamini prior to the farm’s acquisition.

 

Justice Ndlovu noted: “The failure to give adequate notice to those who were affected by the decision to acquire their farm renders the decision of the lands minister arbitrary and in contravention of the law as set out in the relevant statutes.”

 

Advocate Thabani Mpofu represented the Kershelmar directors, while Julian Mugova, Moreblessing Mahaso, Nqobizitha Ndlovu, and Kossam Ncube represented various offer-letter beneficiaries. *nehandaradio*