Court documents filed at the High Court by three black farm owners, including the son of the late national heroe, Sydney Malunga, over the state’s attempt to seize their land in Matabeleland North, indicate that some top Zanu PF officials in the region, members of the spy network, the Central Intelligence Organization (CIO), and ruling party activists are pushing for the acquisition of the land bought by a private company in 2017 from a white commercial farmer.
The applicants, Zephania Dhlamini, Siphosami Malunga and Charles Moyo, who own Esidekeni Farm in Nyamandlovu, claim that they are being pushed out of the land by Zanu PF administration secretary, Obert Mpofu, Provincial Affairs Minister Richard Moyo, CIO Deputy Director General Gatsha Mazithulela and several other state security agents and Zanu PF activist Dumisani Madzivanyathi.
In the court application, the three claim that they acquired Kershelmar Farms (Lots A, B, C, D) from a white commercial farmer, the late Jeffrey Swindels, and formed a company, Kershelmar Farms (Private) Limited, in which they have varying shares.
In the applicants’ founding affidavit, Dhlamini claims that as a result of the manner in which they acquired the farm, the government has no right to dispossess them of the properly.
“This is an application for a declaratur. We seek that it be declared that the acquisition of our two pieces of land held under fourth applicant (Kershelmar Farms (Private) Limited) is void for being at variance with provisions of section 72 of the Constitution of Zimbabwe, 2013.”
The applicants say any offer letters issued to respondents - Mazithulela, Reason Mpofu, Madzivanyathi and several other people, believed to be state security agents - on the basis of the “purported acquisition is null and void.”
The government said the acquired the farm at the height of the land reform program, which started in 2000.
But the three applicants are claiming that they have, over the past few years, endured harassment from Mazithulela and some of the people that have been given offer letters.
In the founding affidavit, Dhlamini, who is the farm’s production director, claims that Esidakeni Farm had prior to the 18th of December 2020 not been acquired under the land reform programme. “First, it was a dairy farm and the former owner, Mr Swindels, was a very productive dairy farmer. In terms of government policy, dairy farms had been sparred from acquisition. Second, at some stage, Mr Swindels concluded a lease agreement with the late Mr Eddias Warambwa which arrangement led to the state believing that the farm was owned by an indigenous Zimbabwean.”
He said they conducted a proper due diligence exercise before putting pen to paper after consulting a real estate agent in Bulawayo about the ownership of the farm and when the land was purchased in 2017, “the farm was in no way encumbered and had never at any point in time been gazetted for acquisition by the state.”
The court documents indicate that the three contacted Swindles in Australia, who sold it to them after they contacted the Deeds Office, the then Resident Minister Cain Mathema and the chief Lands Officer for Matabeleland North, a Mr. Nkiwane
“We wanted to be satisfied that this was a transaction that we could conclude and that it would not violate prevailing state policy on land or any applicable laws. Both the minister and the second respondent (Nkiwane) advised us that the farm in question was private land which had never been acquired. It was specifically advised us that it had been a thriving dairy venture up until sometime in the year 2015.
“On his part, second respondent (Nkiwane) was actually of the view that the farm was owned by the late Warambwa, an indigenous person. He explained that this had been a consideration in the non-acquisition of the farm over the years. According to him, government had no interest in the acquisition of the farm. It was our view that both the Minister and the second respondents were government officials who are charged with enforcing the law relating to rural tenements and that having received the approval from them, we were in a position to acquire the farm. I pause to point out that no additional requirements were raised by the two. In their capacities as administrative authorities, they gave us both approval and encouragement to proceed with our intended course of action.”
The three, according to the court application, acquired the farm from Swindels following all state procedures.
“Dhlamini says, “The said land was not gazetted for allocation by the government hence it was not compulsorily acquired. It is not appearing anywhere in the Government Gazette of 2000 pertaining to the acquisition of land resettlement. Accordingly when we “acquired” the farm, it was lawfully in the hands of the former owner who held its beneficial ownership. That as I have indicated was in the year 2017 and was pursuant to a process that had commenced in the year 2016. I also wish to point out that this farm would have been sold in execution. Indeed, we nearly purchased it in terms of that sale but for the fact that we were a little more diligent. What is key however, is that the farm was available for sale by the state.”
The applicants further claim that owing to the fact that real production had stopped in the year 2015 and “that with the death of Warambwa, the farm had been in the hands of subtenants; when we took over occupation there was some real work to be done to bring it to a usable state. We had to repair the infrastructure and began with rehabilitating the boreholes, the main reservoir, the irrigation main lines as well as the homestead. We also acquired borehole pumps and electric motors.
“Two loans of approximately USD$230 000.00 were obtained for the purpose of operations at the farm. Owing to the fact that we have been efficient in our operations, the first loan being in the sum of USD$110 000.00 has already been repaid. Whilst we started cropping on just 5Ha, by the end of 2020 we had increased our capacity to 30Ha and are set to attain the target of 55Ha this year. The total arable and irrigable land is 85Ha. In addition to the horticulture cropping programme, we also keep a commercial beef herd of 150 animals, 50 goats and 4000 free range SASSO chickens. Our ambitious programme has seen us employing 45 permanent employees. We also engage casual employees and no less than 250 are going to be engaged this year in harvesting and grading tomato and butternut crops. Thus not only have we put in our investment in the acquisition of the farm, we have further invested in ensuring that it is put to productive use.”
They dismissed suggestions by the state and government officials that they were running the farm on behalf of Swindels. “We are our own people. There is no way that these modest operations, successful as they are, could be run by people of our standing and achievements on behalf of some other person. It simply does not make sense and is quite frankly, an insult to suggest that the position is otherwise.”
They claim that their problems started when Mazithulela showed interest in the farm in 2019 and started harassing them, noting that the farm will be acquired if they did not get rid of Malunga, who was viewed as a sharp government critic.
They claim that they turned down Mazithulela’s requests of becoming a shareholder on the basis that the farm had enough directors.
Dhlamini claimed the court papers that in February 2020, he met with Mazithulela in Harare and the discussion came up again.
“The conversation however, quickly became ominous. … He indicated that we had to increase our capacity at the farm otherwise government was going to compulsorily acquire it. This was designed to force us to create room for him. He raised the issue of the second applicant (Malunga), himself a son of a decorated national hero. He suggested that he had become a critic of the government and claimed that association with him imperilled our interests. In that regard, he mentioned the names of Jonathan Moyo and Saviour Kasukuwere and claimed that they were having their farms taken away from them because of their so-called anti-government stance.
“He was relentless on second respondent (Malunga). He advised me that when he joined the CIO, he had found second applicant’s file containing what he termed his anti-government activities. He told me that second applicant works for a regime change organization with a budget of over USD$1 billion which he was using to destabilise government. He said our farm was at risk of acquisition if second applicant did not tone down his anti-government rhetoric. He claimed that he could save the farm if we managed to remove second applicant from being a shareholder and a director. He was to replace him. I flatly told him that this would not happen.”
Dhlamini relayed these “disturbing developments” to Malunga, who confronted Mazithulela and asked him about is intentions. Sometime in 2020, the chief lands officer and visited the farm and indicated that they wanted to see if the land was being properly used.
“… This is no business of the state. This is not a farm that had been acquired by the state and offered to us. This is our farm and the state absolutely has no right to police us in that manner. The state had no legal right to make these enquiries. It is however, important to note that the purpose of the visit is exactly what Gatsha had hinted to me when I met him in February 2020 in Harare.”
Following this confrontation, a Lands Officer identified as Mr. Dendere requested to see the share transfer forms of the farm and other documents.
Dhlamini says, “I decided to take the papers to Mr Dendere who upon having sight of the papers claimed that the purchase of shares was invalid since the farm had been acquired in the year 2002. I disputed this falsehood and challenged him to demonstrate that there had been such an acquisition. He could not do so. When I left him, he indicated that the department was going to be in touch with me. That was the last I heard from him. After that meeting, there were many visits to the farm. It did not take us long to establish that the visitors were actually from the CIO. We were kept on the edge. A simple issue was getting more complicated by day.”
Dhlamini received a call from Mazithulela on December 24, 2020, in which he informed him that the farm had been acquired by the government.
“… Not only did Gatsha (Mazithulela) advise of the acquisition of the farm, he further went on to tell me that I and third respondent (registrar of deeds) were in peril of being arrested on that very day because according to him, we had fraudulently acquired the shares in fourth applicant (company).
The court papers also indicare that in March 2021, former Minister Mines Minister Obert Mpofu visited the farm and asked if the farm had been subdivided.
Dhlamini says, “This perplexed us once again given that Mr Mpofu seemed to know something about the farm which we, the owners, had not been formally advised of. Mr Mpofu must in good time and in a separate forum account for his interest in our farm. I raise this when regard is had to the fact that he is Reason Mpofu’s relative and Reason Mpofu has purportedly been allocated a portion of our farm.
“In the same month, it was advised me that fifth respondent, Madzivanyathi, was claiming that he had been allocated our farm. It was advised me that this claim was made by him after he had attended a rally at the official commissioning of the Epping Forest Boreholes in Nyamandlovu. Madzivanyathi had apparently donated a bull to the president upon being introduced to him by the current Resident Minister for Matebeland North, Mr Richard Moyo. It was claimed that when he had asked for a farm from the president, the president had directed that a farm be found for him whereupon Richard Moyo gave him a portion of our farm.”
According to the court documents, Madzivanyathi and Moyo are friends and “drinking mates. Their friendship is well known … They are always together at Madzivanyathi’s pub. I must also point out that I have heard it mentioned that Moyo is selling ‘Offer Letters’ for anything between USD$6,000.00 and USD$15,000.00.
Mazithulela allegedly told Dhlamini that the president had asked Moyo and him to look for a farm for Madzivanyathi.
“Gatsha advised me that it had been resolved that he would be allocated a farm in Gwanda. The fact of the matter however, is that Madzivanyathi has been allocated a portion of our farm. In May 2021, Madzivanyathi came to the farm brandishing an Offer Letter for 50Ha. He even posted the visit on Facebook claiming that God had blessed him with our farm. The farm that God is supposed to have blessed him with is one that he has unlawfully received from his friend who has abused his powers.”
Dhlamini says sometime this year, he received a call from a Mr Dodzi who introduced himself as the Chief Lands Officer, who informed him that their farm had been gazetted and that he was sending a team to subdivide the farm.
“This was the first time that I had sight of the Gazette and the purported acquisition of the farm was confirmed. This was also the first time that we had been informed of the acquisition by the department of lands. This subdivision process had apparently been preceded by the issue of an Offer Letter. There is everything invalid with that process … The acquisition is said to have been made in terms of section 72 of the Constitution.
Moyo allegedly told Dhlamini that the farm belonged to Swindels and they were his fronts, offer letters have been issued and that only one of his partners, Charles Moyo, would be allocated land as he (Dhlamini) was already a beneficiary of the land reform programme and Malunga won’t get anything because “he talks too much”.
The three applicants claim that the acquisition of their land is a classic example of corruption and abuse of power by state security agents, Zanu PF officials and the provincial affairs minister.
“It has now come to our attention that the officers from the CIO have been allocated portions of the farm. We have, despite diligent search, not managed to establish who these officers are. When one considers the centrality of the role of Gatsha, it is clear that he has caused the acquisition of the farm and has effectively parcelled it to his subordinates. Whether those are genuine allocations or simply window dressing measures is as of now unknown. On the basis of the evidence before us, we take the respectful view that these are simply fronts.
It is also clear that Minister Moyo’s shadow looms large over this acquisition. He is however, not the Minister of Lands. We have heard that he is charging amounts to land hungry Zimbabweans for whom he facilitates the issue of Offer Letters. We dare him to deny this. The involvement of Obert Mpofu is also cause for concern. He is as I have already pointed out related to Reason Mpofu. Stung by the media fall out post the purported acquisition, Gatsha has been sending emissaries to us advising that if we apply to be allocated the land, he would help us with such applications. We have refused to yield to the corrupt offer. We also have no basis to be applying to be allocated our land. Gatsha’s abuse of power is however, evident.”
“… Given that we beneficially own the land through our alter ego the fourth applicant (company), such land cannot be acquired under section 72 of the Constitution. We are indigenous Zimbabweans. We are black people. The liberation struggle was waged so that we could reclaim the land. We however, purchased this land. Second respondent, is particularly in a unique position. His father lies at the national shrine as testament of his unyielding sacrifices in the face of oppression and dispossession. He fought for land. Land cannot be taken away from his son and be given to some other black Zimbabwean simply because someone thinks that he ‘talks too much’ and is a critic of the government. Second applicant has committed no crime and is a citizen in good standing.”
They applicants further claim that the beneficial ownership of this land is in the hands of black Zimbabweans and this means that its acquisition is void.
“It is illegal. It is irrational in that it cannot satisfy the constitutional imperatives. It is contrary to the principle of legality. The acquisition is not on the authority of the constitution and nothing can depend on it … The farm was not acquired for a constitutional purpose but was acquired by a greedy lot bent on abusing state power. That taints the acquisition and renders it invalid. Equally irrational is that the acquisition and allocation of the farm to 14 individuals in addition to three of us (a total of 17 people on a 580ha farm of which only 85ha is arable and irrigable) instantly renders it unproductive from a farming perspective. In addition, the farm is a dairy farm in the process of capitalisation. The acquisition instantly destroys the dairy operation as the feed requirements for the dairy herd cannot be sustained.”
Mazithulela, Obert Mpofu, Reason Mpofu, and Moyo were unavailable for comment. Madzivanyathi claims that he was given an offer letter and therefore the land now belongs to him. He says he is planning to evict Dhlamini and his colleagues.
The three are represented by Webb, Low and Barry Legal Practitioners.