Lawyers representing Dr Gatsha Mazithulela have written to the three “erstwhile” directors of Kershelmar Farms in Nyamandlovu, Matabeleland North Province, challenging them to disclose the circumstances under which they disposed of shares in their farming enterprise to Open Society Initiative for Southern Africa director Siphosami Malunga and his two partners.
Kershelmar Farm is at the centre of a dispute pitting Malunga and his partners, Zephania Dhlamini and businessman Charles Moyo, on the one hand and Dr Mazithulela and the Government, which has since spilled into the High Court.
Malunga and his partners accuse Dr Mazithulela of “influencing Government” to acquire the farm after “he tried with no success to force his way into the ownership structure of Kershelmar Farm”.
In his opposing papers filed at the High Court on August 30, Dr Mazithulela said he had no interest in acquiring the farm.
“For the record, I wish to state from the outset that I have no interest in acquiring any portion of Kershelmar Farm and have never been offered any letters on the same,” reads the papers.
“My alleged interest in acquiring the farm, only exists in the fertile imagination of the applicants.
“The material omission, done so deliberately in my view, is that first applicant (Dhlamini), neglects to state that I was actually part of the original consortium seeking to acquire the farm he mentions as far back as 2016. It must be noted that first applicant was a colleague of mine at the National University of Science and Technology.”
Last December, Lands, Agriculture, Water, Fisheries and Rural Resettlement Minister Dr Anxious Masuka published a notice of acquisition of the farm for purposes of agriculture resettlement in terms of Section 72(2) of the Constitution.
Malunga is challenging the acquisition arguing that he bought the farm along with his partners from Messrs Barry Brice, David Power and Jeffrey Swindles — directors of Kershelmer Farms — nearly four years ago.
However, Kershelmer Farms (Private) Limited is listed as the owner of the farm in official records.
In a letter dated September 1, Dr Mazithulela, through his lawyer Gerald Mlotshwa of Titan Law, invited the trio of Messrs Brice, Power and Swindles to file an application for joinder in the ongoing High Court case and explain in detail how the alleged sale took place.
“We are instructed by our client, Dr Gatsha Mazithulela to respectfully draw your attention to the above litigation pending before the High Court of Zimbabwe, sitting in Bulawayo,” wrote Mr Mlotshwa.
“Our client is cited as the fourth respondent therein, along with six other respondents.
“It is our considered view that all of you, as the alleged ‘erstwhile’ directors and owners, respectively, of Kershelmar Farms, take the necessary and urgent steps to file an application for joinder in respect of the said proceedings.
“From the woefully inadequate, if not incompetent, application filed by Mr Siphosami Malunga and his co-applicants, it seems to us that it will become absolutely necessary for the both of you to explain the circumstances relating to the disposal and transfer of shares in Kershelmar to Messrs Malunga, Dhlamini and Moyo.
“In particular, we trust that your affidavit/s will provide the necessary detail as to precisely how the alleged sale and transfer of shares in Kershelmar Farms (Private) Limited was executed in the clear absence of a certificate of no present interest.”
Mlotshwa argues that in terms of Section 4(1) of the Land Acquisition (Disposal of Rural Land) Regulations, no one is allowed to transfer shares in a land-owning company, unless he has notified the Minister of Lands, Agriculture and Rural Resettlement his intention to transfer the shares.
In addition, the Minister must first issue a certificate of no present interest.
“Mr Malunga and his fellow applicants allege, under oath, that they bought Kershelmar Farms (Private) Limited, and its underlying assets, being the foregoing pieces of farm land, on 2nd February, 2017.
“They do not, however, provide any evidence of compliance with the said regulations.
“That onus, it must be said, rests with the seller of the shares.
“And from the Court application, we note that Mr Brice signed the share purchase agreement under power of attorney on behalf of the seller, Jeffrey Swindells.”
Mr Mlotshwa challenges the trio to provide proof of the transaction by showing that it was done in compliance with the Capital Gains Tax Act.
“David Power, as the company secretary of Kershelmar Farms (Private) Limited, would have been responsible for registering the transfer of these shares.
“He will need to enlighten the High Court on whether or not there was full compliance with the Capital Gains Tax Act in light of the omission to provide documentary evidence of this by his alleged successor as company secretary, the third applicant in the proceedings, Charles Moyo.”
He goes further to challenge Mr Swindells, who is resident in Australia, to show that no exchange control regulations were flouted when the payment for the shares was made.
Mr Mlotshwa said Mr Malunga and his co-litigants state, under oath, that Mr Swindells, owner of Karshelmar Farms, is resident in Australia.
“They further swear that they paid at total of US$248 500 for the entire issued shares in the company.
“For the purposes of the Exchange Control Regulations, 1996, the seller, Mr Swindells, is a non-resident.
There is absolutely no proof of compliance with these regulations in Mr Malunga’s court application.”
Separately, in his notice of to Malunga’s application at the High Court, made through the Civil Division in the Attorney-General’s Office, which was filed on September 1, 2021, Minister Masuka said the applicants’ case was flawed because they do not have an offer letter.
“The applicant (Mr Dhlamini) has no locus standi to institute these proceedings for the reason that he is not the offer letter holder as stated in the Gazetted Lands (consequential provisions) Act Chapter 20:28,” reads Minister Masuka’s opposing papers.
“In addition to this, the applicant is not even, at law, the owner of the land in that the title deed used for the acquisition is in the name of the former white farmer.
“It would make legal sense if he (the former white farmer) was the one making this application.
“The applicants’ locus standi on acquisition issues would be established through a direct link to the land which in this particular case has not been established.”
Minister Masuka said the relief being sought cannot be granted because the land does not belong to the applicants.
“The acquisition process is governed and provided for in Section 72 of the Constitution of Zimbabwe, which makes it clear that once a piece of land is gazetted it immediately becomes State land and this process can’t be challenged through the courts.
“The question that then arises is that of in terms of what law or legal effect is the reversal of a properly done acquisition of agricultural land, being brought. Clearly the applicants are way out of their depth in terms of the appreciation of land laws and their application.
“The relief they are seeking is baseless both at law and on the facts and can’t be granted.”
The Minister added that if the applicants were the rightful owners, they should have used internal remedies as provided for in the Constitution (Amendment No 20 and the Land Commission Act).
“It’s trite that one approaches the courts after exhausting all the internal remedies.
“The applicant in this case has not followed due procedure and this application simply amounts to forum shopping and is a classic case of abuse of the court process, hence the matter must be dismissed,” he said.
The matter is still to be set down for hearing.