BULAWAYO High Court judge Justice Evangelista Kabasa has directed Tsholotsho magistrate Mr Victor Mpofu to suspend the criminal proceedings against human rights lawyer, Siphosami Malunga and his two business partners Zephaniah Dhlamini and Charles Moyo.
The trio is facing charges of illegal occupation of Umguzana Farm popularly known as Esidakeni.
The trial had already kicked off at the Tsholotsho Magistrate’s Court albeit under protest by the accused persons, who immediately approached the High Court on an urgent basis seeking a stay of proceedings at the lower court.
“Pending determination of the review proceedings under case number HC 2169/22, the criminal proceedings under CRB NYA 75-77/22; NYAM 47/07/22 be and hereby stayed.
There be no order as to costs,” ruled Justice Kabasa.
Malunga (50) of Fourwinds, Dhlamini (50) of Hillside and Moyo (58) of Selbourne Park in Bulawayo, were arrested in August for allegedly violating Section 3 (2) (a) of the Gazetted Land (Consequential Provisions) Act, Chapter 20:28 by refusing to vacate Esidakeni Farm in Nyamandlovu, Umguza District.
They are being charged in terms of Section 385 (3) (v) of the Criminal Procedure and Evidence Act, Chapter 9.07. They are out of custody on $10 000 bail each.
Malunga, Moyo and Dhlamini allegedly bought the 554-hectare farm in 2017 before it was listed for compulsory acquisition by the Government in December 2020.
The trio, through its lawyer Mr Josphat Tshuma of Webb Low and Barry Legal Practitioners, filed an urgent chamber application at the High Court in Bulawayo for a stay of all criminal proceedings under CRB NYA 75-77/22, NYAM 47/07/22 pending determination of an application for review before the same court.
They cited Tsholotsho resident magistrate Mr Victor Mpofu and the State as respondents.
The other case before the High Court is an application for review of the rulings made by the lower court.
In his founding affidavit, one of the applicants, Mr Moyo said the application is premised because if proceedings are not stayed, it may result in a miscarriage of justice and cause irreparable harm to them.
“Given the gross irregularities in the first respondent (Mr Mpofu)’s decisions, we applied for review and served him a copy. However, because of the second respondent (State)’s opposition to the postponement of the criminal matter, and the magistrate’s decision not to postpone the criminal proceedings sine die, it is apparent that the respondents will proceed with the trial unless an order of this honourable court is obtained staying the same,” he said.
“The refusal by the magistrate to stay and postpone the criminal proceedings sine die is grossly irregular, unreasonable and irrational in that it fails to consider that the High Court is seized with determining the validity of the gazetting and acquisition of the farm in HC 1054/21.”
Mr Moyo argued that the Land Acquisition Act does not criminalise any acquisition in terms of Section 72 of the Constitution.
“Instead, the relief against a former owner or occupier is to have them evicted by a competent court. In terms of Section 70 of the Constitution, any person accused of an offence cannot be convicted of an act or omission that is no longer an offence,” he said.
The application for the postponement was dismissed by the magistrate, and following this, the applicants were required to plead and they raised an exception, which was also dismissed.
Aggrieved by the magistrate’s decision, Malunga, Moyo and Dhlamini applied for review under case number HC 2169/22. They also filed an urgent chamber application to stay criminal proceedings pending the outcome of the review application.
The applicants argued that the decision by the lower court for the dismissal of the exception was grossly irregular.
“In particular, the applicants’ defence to the charge is that the acquisition of the land was unlawful and void ab initio and as such no consequences can flow from that acquisition,” he said.
The applicants argued that the lower court has no jurisdiction to determine the lawfulness of the acquisition.
“As such, the first respondent should have stayed the proceedings to allow the High Court, which has already been seized with the matter, to make its determination and be guided by the same.
“Instead, decided to proceed with a matter that he has no jurisdiction hence effectively denying the applicants the right to a fair hearing and full protection of the law,” said Moyo.
Last month, Mr Mpofu dismissed the trio’s application for exception on their charge. The applicants argued that their charge did not disclose any offence.
In their initial court appearance, the trio had also sought the postponement of the proceedings, which Mr Mpofu dismissed.
Following the dismissal of their request to suspend the trial pending the review of the proceedings by the High Court, the applicants then applied for the magistrate’s recusal, which Mr Mpofu also dismissed.
The State, which was represented by Mr Khumbulani Ndlovu, did not oppose the application.
According to court papers, on December 18, 2020, Umguzana Farm was gazetted under the General Notice 3042/2020 and subsequently became State land. Before it was gazetted, the property belonged to Kershelmar Farms (Pvt) Ltd.
Following the gazetting of the land, recommendations for the intended beneficiaries were approved by the Ministry of Lands, Agriculture, Fisheries, Water and Rural Resettlement and 16 beneficiaries were offered the land in terms of the Land Commission Act.
In May, the beneficiaries were given offer letters for agricultural settlement in terms of Section 72 (2) of the Constitution.
In their defence outline, Malunga, Moyo and Dhlamini argue that the notice of acquisition of Esidakeni Farm is null and void for want of compliance with provisions of Section 72 of the Constitution.
They argued that after being evicted from the farm, the High Court restored the farm into their possession hence their occupation complies with the court order. – The Chronicle
