Zanu PF administration secretary, Obert Mpofu, who lost an appeal against a High Court order compelling him to vacate a highly-productive farm owned by Siphosami Malunga and his business partners, says he will abide by the Supreme Court ruling.
Responding to a Supreme Court ruling condemning him for taking the farm without following the law, Mpofu said, “We will as we have always done abide by the Supreme Court decision as we await for the main case on the farm ownership … The main case on the ownership of the farm which is still pending between government and the Malunga.”
It’s uncertain if Mpofu will leave the farm soon, which he occupied last year claiming that it was offered to him by the Ministry of Lands and Agriculture.
Malunga, a son of national hero Sydney Malunga, academic Zephania Dhlamini and businessman Charles Moyo own Esidakeni Farm in Nyamandlovu, about 60 kilometers north-west of Zimbabwe’s second largest city, Bulawayo. They bought it from a white commercial farmer, who now lives outside Zimbabwe.
Malunga and partners claim that they lost crops worth over US$500,000 following the illegal occupation of the farm by the Mpofu family.
In their judgment, Justice Hlekani Mwayera and Justice Elizabeth Gwaunza ruled that Mswelangubo Farm (Private) Limited, Obert Mpofu and Sikhanyisiwe Mpofu took the law into their hands when they took over the farm last year despite having an offer letter obtained from the Ministry of Lands.
Mwanyera and Gwaunza ruled that from case law it is apparent that even if one is not the rightful owner, if they are in undisturbed and peaceful possession due process and not self-help ought to be followed to evict the possessor.
In court documents in the possession of VOA Zimbabwe Service, the judges said, “The respondents, who had been despoiled therefore, had to approach the court seeking a mandament van spolie (spoliation) order. The court a quo (the court in which the matter was first heard) granted the spoliation order. What is at stake as highlighted in case law is the lawfulness or otherwise of the actions of the incoming possessor. The court in restoring the status quo ante will be seeking to uphold essential rationale for the remedy which is that the rule of law does not countenance resort to self-help.
“The appellants in this case by descending on Esikadeni Farm and starting land preparations, disrupted the respondents’ peaceful and undisputed possession. The fact that the appellants had an offer letter does not entitle them to resort to self-help in taking over possession without due process of law. It is this disregard of the law which prompted the respondents to approach the court a quoa for redress. The court a quoa correctly granted the spoliation order in favor of the respondents. In so doing, the court a quoa was buttressing the core values and objectives of protection of possession of property against unlawful dispossession.”
In their judgment, the Supreme Court judges further noted that “the mere fact that the appellants hold an offer letter is not sufficient basis for them to take the law into their own hands and seek to dispossess the respondents who were in possession immediately prior to being despoiled. It is the brazen invasion by the appellants to the farm which disrupted the respondents who were in peaceful and undisturbed possession, which calls for spoliatory sanction.
“The appellants, without following due process, imposed themselves on the respondents’ possession. The dispossession of the respondents by the appellants was unlawful and it was done without the respondents’ consent. The court a quo, properly frowned at self-help which is repugnant to our constitutional values. It thus properly restored possession to the respondents by granting the spoliation relief. The requirements for a spoliation order were clearly satisfied. The decision of the court a quo is unassailable. The appeal is without merit and must fall.”
Mswelangubo, Mpofu and Sikhanyisiwe Mpofu were ordered to pay the legal costs.
Mpofu, his wife and the owners of Esidakeni Farm – Dhlamini, Malunga and Moyo - were unavailable for comment. The three, who have been barred from entering Esidakeni Farm since December last year, say they lost property worth millions of dollars.