THE vicious battle over the ownership of Kershelmar Farm, popularly known as Esidakeni Farm, in Umguza, Matabeleland North, is raging with parties trading ferocious barbs in latest court papers filed at the Bulawayo High Court.
The Central Intelligence Organisation ( CIO) deputy director-general Gatsha Mazithulela, through his lawyers, Titan Law, is questioning the legality of the purchase of the farm by Zephania Dlamini, Charles Moyo and Siphosami Malunga.
Mazithulela, in his heads of argument filed on November 10, 2021, said the farm was bought without following proper procedures.
“First to third applicants (Malunga and his business partners) contrived a plan to buy rural agricultural property without following laid-down procedures. The law is clear — obtain a certificate of no present interest. In the absence of such a certificate, the sale, in terms of the provisions of the law, is null and void,” Mazithulela said in court documents. “Said applicants knew this, and they know it now; but there is deliberate, if not disturbingly abnormal denialism on their part. They consider themselves above the law. They are delusional and paranoid. They see, smell and hear conspiracies everywhere.”
The CIO boss argued that Malunga and partners did not comply with the provisions of Section 4(1) of the Land Acquisition (Disposal of Rural Land) Regulations of 1999, which gives the Minister of Lands and Agriculture powers to issue a certificate of no present interest.
Mazithulela further accuses the Esidakeni Farm owners of failing to produce a certificate of no present interest.
“Applicants were invited to produce evidence that there had been compliance with the foregoing section. They tried to get one Jeffrey Swindles to assist with an affidavit from Australia. In his attempt to deceive this court, through deceptive omissions, Swindles inadvertently reveals the truth: no certificate was ever sought in compliance with Section 4(1).”
In his court papers, Mazithulela also argues that Moyo, Dlamini and Malunga do not own shares in Kershelmar Farms.
He said: “If they do not own the shares, they do not own the Kershelmar Farms (Private) Limited, nor could they have been its directors and importantly, before the farm was acquired, could they have been, indirectly indigenous owners of the rural agricultural land. The entire application collapses on this simple ground. This court must bury it.”
However, in their papers, Malunga, Dlamini and Moyo, state that Section 4(1) of the Land Acquisition (Disposal of Rural Land) Regulations, 199 (Statutory Instrument 287 of 1999) is directed to the seller and not the purchaser.
The business partners said Mazithulela and other respondents, including Agriculture minister Anxious Masuka, were aware that an agreement of sale existed between Malunga, Moyo, Dlamini and Swindles.
“For respondents to take this ill-fated point, they must accept that there was an agreement of sale for respondents cannot in the same proceedings approbate and reprobate. Further, first respondent who claimed that the land had already been acquired cannot mount such an objection without trifling with the court,” they wrote.
Malunga and his associates said they bought the farm in 2016 in pursuit of their commercial interests.
Esidakeni Farm, according to the trio, was being sold in execution to cover debts “incurred by a Mr Warambwa”. The farm, Malunga and his business partners argue, was sold under a judicial process and had not been acquired by the state of Zimbabwe.
“First to third applicants were interested in purchasing the farm but a little due diligence yielded the fact that the farm was actually not owned by Mr Warambwa. The real owner not having been hands on, the applicants became aware that an approach to him might persuade him to sell what now was a neglected farm,” reads part of Malunga’s heads of argument filed in October 2021.
Before buying the farm, Malunga, Moyo and Dlamini then approached Matabeleland North Provincial minister Richard Moyo and the Chief Lands Officer’s department where they established that the state had no interest in Esidakeni Farm.
What then followed was an agreement of sale with Swindles after which Mazithulela also expressed interest in joining the trio which they rejected.
“When his (Mazithulela) advances were rebuffed, he threatened trouble. Trouble is what followed hard on the trails of that threat,” wrote Malunga and his business partners.
They further argued that an attempt to acquire Esidakeni Farm which was bought by indigenous Zimbabweans was a nullity.
“The court must not withhold its protection from the applicants. This is too small a piece of land to generate such heat and frenzy. The state will not collapse if the piece of land is not acquired. Why should all the good be thrown away in defence of an illegality. We would otherwise be left with no country.”