By NQOBANI NDLOVU
BULAWAYO businessman and National University of Science and Technology (Nust) lecturer Dumisani Madzivanyati yesterday approached the Supreme Court challenging a High Court judgment which ordered his eviction from a portion of Kershelmar Farms in Nyamandlovu.
Madzivanyati is at loggerheads with the co-owners of Kershelmar Farms, Siphosami Malunga who is son of the late nationalist Sydney Malunga and Open Society Initiative for Southern Africa (Osisa) director, businessman Charles Moyo and Zephania Dhlamini, a scientist also working at Nust.
Madzivanyati was allocated 50 hectares on the farm following a December 2020 notice published by Lands minister Anxious Masuka, which listed the farm measuring 553 hectares for compulsory acquisition under section 72(2) of the Constitution.
The trio approached the High Court through their lawyer Thabekhulu Dube of Ncube and Partners seeking a spoliation order directing Madzivanyati and others to stop interfering with their operations on the farm.
High Court judge Justice Martin Makonese ruled in their favour, giving Madzivanyati 24 hours from the date of the order to restore to the applicants possession of all their farming equipment including all irrigation pipes and machinery.
But in a notice of appeal filed at the Supreme Court yesterday, Madzivanyati through his lawyers Tanaka Law Chambers argued that the High Court grossly misdirected itself by ruling in favour of the trio.
“The court a quo grossly misdirected itself at law in affording spoliation relief to respondents in relation to land that had been gazetted and compulsory acquired by the government and offered to appellant,” Madzivanyati said in his grounds of appeal.
“The court a quo grossly misdirected itself at law and fact by rendering incompetent relief for the eviction of the appellant from land which he had never occupied and further had no title over.”
Madzivanyati cited Kershelmar Farms, Dhlamini, Moyo and Malunga as first to fourth respondents, respectively in his appeal.
“The court a quo grossly misdirected itself at law and fact in finding that the respondents had the requisite locus standi to prosecute the application based before it.”
In their court papers, Malunga, Dhlamini and Moyo singled out Central Intelligence Organisation deputy director-general Gatsha Mazithulela, a former Nust pro-vice chancellor, as being behind the government push to seize their property.
The applicants said Mazithulela had been pestering them for shares at Kershelmar Farms since December 2019, but they declined.
Dhlamini, who is cited as the first applicant, in his founding affidavit went further to say that Mazithulela had warned that the farm risked being seized unless Malunga was removed as a shareholder and director.
Mazithulela, however, denied the claims in his opposing papers filed at the Bulawayo High Court on August 30 through his lawyers Messrs Mlotshwa and Maguwudze.
The applicants said they acquired Kershelmar Farms from a white commercial farmer, the late Jeffrey Swindels, and formed a company, Kershelmar Farms (Private) Limited, in which they have varying shares.
Mazithulela, in his opposing papers, dismissed claims of the farm purchase as fraudulent.
“The agreement is illegal. The transfer of the shares in the company is void. They are, therefore, not shareholders and cannot enforce any right, let alone bring any application before this court in that capacity. They cannot bring proceedings on behalf of the company,” Mazithulela said, citing section 4(1) of the Land Acquisition (Disposal of Rural Land) Regulations 1999.
The section states that “subject to these regulations, no person shall make a significant transfer of shares in a land-owning company unless he has notified the minister of his intention to transfer the shares and (a) the minister has issued him with a certificate of no present interests or (b) the minister has not responded to the notification within the 90-day period”.
Section 10 of the same regulations state that “any transfer of land or shares effected in contravention of these regulations shall be void”.
Mazithulela argued that nowhere in their papers did the applicants comply with section 4(1) of the Land Acquisition (Disposal of Rural Land) Regulations 1999.