Daniel Nemukuyu Investigations Editor
Prosecutor General Mr Kumbirai Hodzi has directed the police to investigate possible violations of the exchange control and the tax laws in a transaction that saw two Zimbabweans claiming ownership of a 554 hectare farm bought in 2016 although the State had compulsorily acquired it under the land reform.
Government, under the land reform laws, compulsorily acquired subdivision A of subdivision B of Umguza block measuring 195,8095 hectares and subdivision C of Umguza block measuring 358,8095 hectares, the two blocks forming Kershelmar (Esidakeni) Farm in Nyamandlovu.
The farm was allocated to Mr Dumisani Madzivanyati and Mr Reason Mpofu.
However, Open Society Initiative for Southern Africa (OSISA) director Mr Siphosami Malunga and his two business partners, Mr Zephaniah Dhlamini and Mr Charles Moyo, are contesting in an urgent chamber application the compulsory acquisition arguing that they bought the farm at a public auction in 2016.
There is another procedure in place since last year for indigenous owners of land to query any compulsory acquisition, but this was not followed.
While the civil dispute is pending in the High Court, Mr Hodzi has directed a criminal investigation into exactly what happened to have the property put on sale in the first place.
“The Constitution empowers this office to direct the Commissioner-General of Police to investigate and report on anything, which in the Prosecutor-General’s opinion relates to an offence or alleged or suspected offence.
“Accordingly, I hereby notify the public that the Commissioner-General of Police is hereby being directed to investigate and report back to this office in respect of his findings on the allegations aforesaid.
“My Office undertakes to make public a summary of those findings once completed,” he said.
Mr Hodzi said the case generated public interest and the police should investigate whether or not there is criminal conduct.
During the course of the above litigation, it came to the attention of the National Prosecuting Authority that there could have been certain acts or omissions of a criminal nature related to the sale of the entire issued shares in Kershelmar.
These allegations are focused on non-compliance with the Capital Gains Tax and Exchange Control regulations of Zimbabwe, he said.
In a recent response filed by the Attorney General in the pending civil case, Government said Mr Malunga and his two business partners had no legal standing to approach the court claiming ownership of Kershelmar (Esidakeni) Farm.
Mr Malunga and his partners, through Webb, Low and Barry Legal Practitioners, recently filed an urgent chamber application at the Bulawayo High Court in which they accused Central Intelligence Organisation deputy director-general Dr Gatsha Mazithulela and the two beneficiaries, Mr Mpofu and Mr Madzivanyathi of illegally acquiring their farm.
In their application, Mr Malunga’s team cited Lands, Agriculture, Fisheries, Water and Rural Development Minister Anxious Masuka, Matabeleland North Provincial Affairs Minister Richard Moyo, the provincial chief lands officer, Registrar of Deeds, Mr Mpofu and Mr Madzivanyathi as respondents.
They are seeking an order declaring the State acquisition of the farm held under Dr Mazithulela null and void and in violation of provisions of Section 72 of the Constitution.
In his founding affidavit, one of the three claiming ownership, Mr Dhlamini, argued that prior to December 18 last year, Esidakeni Farm had not been acquired under land reform because it was a very productive dairy farm.
Mr Dhlamini said the three had bought the farm in 2016 through a public auction after the sale was published in the Government Gazette of June 26, 2015. They argue that they acquired the property from Mr Swindles in 2017.
In his notice of opposition through the Civil Division in the Attorney-General’s Office, Minister Masuka said the applicants have no legal standing to institute legal proceedings as they do not have an offer letter as stated in the Gazetted Lands (Consequential Provisions) Act.
“In addition to this, the applicants are not even at law the owners of the land in that the title deeds used for the acquisition is in the name of the former white farmer. It would make sense if he was the one making this application,” he said.
Minister Masuka said the relief sought by the three cannot be granted as the land in question belongs to the State.
“The acquisition process is governed and provided for by Section 72 of the Constitution, which makes it clear that once a piece of land is gazetted, it immediately becomes State land and this process can’t be challenged in court,” said Dr Masuka.
“Clearly, the applicants are way out of their depth in terms of appreciation of land laws and their application. The relief they seek is baseless both at law and on the facts.”
Dr Masuka said the applicants are abusing the court processes as they did not follow due procedure.
“This honourable court has no jurisdiction to hear this matter. 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,” he argued.
“If indeed, the applicants owned the land at the time of acquisition, for either restoration of title or compensation is the laid down procedure in terms of Statutory Instrument 62 of 2020, which was duly gazetted. The SI provides procedures to be done if one is an indigenous person whose land had been acquired.”
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 minister dismissed claims by the applicants that Dr Mazithulela, Minister Moyo and Mr Mpofu and Mr Madzivanyathi were involved in the acquisition of the land as unfounded.
He said the applicants were unnecessarily dragging the names of these respondents into the disrepute as they had no influence in the acquisition of the farm.
Dr Masuka said his ministry is guided by Section 72 of the Constitution when acquiring land and Section 289 when it comes to land policy.
Other respondents, in their notices of opposition through their lawyers, disputed the issues raised in the application and sought its dismissal.
They argued that the application is riddled with several unsubstantiated allegations of corruption and relationships, which they denied.
They also argued that they were beneficiaries and holders of valid offer letters issued by the Minister of Lands, Agriculture, Fisheries, Water and Rural Development.
The respondents further argued that the alleged previous owner of the disputed land did not sign the alleged sale of shares agreement. They queried why the applicants did not disclose what became of the deceased estate of the person who had a lease with the alleged previous owner with regard to the document.
Mr Mpofu denied allegations by the applicants that he had a corrupt relationship with Zanu PF Secretary for Administration Dr Obert Mpofu.
“Even if I were to be said to be related to him (Dr Mpofu) that does not justify a claim that I obtained an offer letter on the basis of that relationship,” he said in his opposing affidavit.