Esidakeni farm: Kershelmar directors challenge prosecution

The directors of  Kershelmar Farms (Private) Limited have challenged charges that they are illegally occupying Esidakeni farm in Nyamandlovu, Matabeleland North.

Siphosami Malunga, Charles Moyo and Zephaniah Dhlamini are currently embroiled in a court battle with Zanu PF secretary of administration Dr Obert Mpofu, over the ownership of the farm.

In July, the trio won a Supreme Court case which ordered Mpofu to vacate Esidakeni.

However, they were later arrested on allegations of unlawful occupation of the farm and are currently out on bail.

Through their lawyer, Josphat Tshuma of Webb Low and Barry, they made an application for an exception of the charges when they appeared before Tsholotsho Magistrate Victor Mpofu, on Friday.

In his application, Tshuma said his clients were not yet in occupation of the farm nor had they been served with any notice of eviction. 

“The charge that has been levelled against my clients does not show any criminal offence. For there to be an offence, there must be evidence that the occupier of the land continues to occupy three months after a notice of eviction has been served,” he said. 

“In this case, my clients did not receive any notice. They are not yet occupying the land although they intend to. The court cannot charge them for what they intend to do. Procedurally, this allegation is for an offence that never happened.”

The heated court session commenced with magistrate Mpofu dismissing an application for postponement of the case for an indefinite period of time until a similar matter that is before the High Court is finalised. 

Magistrate Mpofu said, in his submissions, Tshuma had noted that the outcome of the High Court case would overrule the proceedings in the lower court.

“The State argued that the litigants in the judgments attached by the defence counsel in their submissions are not the ones that are cited in this current case so they are irrelevant so what the High Court decides will not affect this particular case,” said Mpofu.

“What the High Court is dealing with is a civil matter while what this court is dealing with is a criminal matter. These two matters being dealt with by the distinct courts are totally different. This application is therefore dismissed.”

Tshuma went on to plead with the court to make an application for review of the decision made by the lower court at the High Court before proceeding to trial but Magistrate Mpofu said the trial should proceed and if the counsel wished to take the matter to the High Court they could proceed.

For the State, Deputy Prosecutor-General, Micheal Reza, who travelled from Harare for the case, said the matter should proceed to trial, noting that the defence counsel should have come prepared for either outcome.

“Your Worship when an application is made before the court, there is a possibility of two outcomes. One should always be prepared for either a dismissal or upholding of an application. Surely the counsel cannot say they were extremely certain that their application would sail through,” said Reza.

“As the State, we came quite prepared that should the ruling be made otherwise we would be ready to proceed with trial. We have one state witness who is ready to testify should there be a need.”

Magistrate Mpofu ordered for an adjournment after which the trial would commence. 

Reza argued that the accused persons were in occupation of the land because the people who are currently on the farm are on their payroll working under their instructions. 

The matter has been set to continue on October 25, 2022, after the State and Counsel would have filed their written submissions in accordance with the procedure. 

In an interview with CITE after the court session, Tshuma said all they wanted from the court was for the matter to be put on hold until the High Court matter is finalized on whether the gazetting of the farm was lawful or not but the State was adamant to proceed to trial.

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