Bulawayo High Court Judge Justice Evangelista Kabasa has reserved a judgment in an application where Keshelmar Farms (Private) Limited directors are seeking to stop the ongoing trial at Tsholotsho Magistrate’s Court.
The three partners, Siphosami Malunga, Charles Moyo and Zephaniah Dhlamini who are being accused of illegally occupying Esidakeni Farm in Nyamandlovu, are being represented by Josphat Tshuma of Webb Low and Barry.
The application was filed with the High Court on October 31, 2022 citing Esidakeni Farm and its directors as the applicants while Matabeleland North Provincial Magistrate Victor Mpofu and the State were cited as first and second respondents respectively.
The application, which was heard in the chambers, Tuesday, sought to stay criminal proceedings being heard at the Tsholotsho Magistrates’ Court pending an outcome of the review of the proceedings being conducted therein.
“This is an urgent chamber application, wherein the Applicants seek an order staying the criminal proceedings under cover of Case No. CRB NYA 75-77/22; NYAM 47/07/22, pending the outcome of the review proceedings under H264/22. This application is premise on the grounds that if the criminal proceedings are not stayed it may result in a miscarriage of justice being occasioned on the Applicants,” read the court papers seen by CITE.
Legal representative, Tshuma, noted that the background of the case highlights that the three partners acquired shares of the farm from one Jeffery Swindles upon which they subsequently commenced farming activities in 2018.
However, in 2020, the application states, the farm was gazetted and when the trio found out in 2021, they approached the courts and won the case giving them permission to occupy the land.
The founding affidavit attached to the application, states that
sometime in July 2022, the trio (partners) were arrested and charged with occupation of gazetted-land without lawful authority.
The complainants in the matter are Legina Muchimba and Lovemore Jiyane, who are some of the people who were given offer letters pursuant to the gazetting of the farm.
“We did not know the names and particulars of the persons who were given offer letters by the Minister despite our request to be supplied with such names. We then instituted proceedings at the High Court to have the complainants joined to the proceedings under and that the Minister of Lands, Agriculture, Water and Rural Resettlement provide us with the names of all the individuals issued with offer letter in respect of the farm,” one of the partners, Moyo, is quoted saying in the court papers.
“At the initial hearing of the criminal proceedings, we made an application to postpone the criminal proceedings pending the finalisation of a matter at the High Court under wherein the High Court was seized with determining the issue of the validity of the acquisition and subsequent issuing of offer letters in respect of the farm.”
The court papers read that the applications made in Magistrate’s court to review the irregularities marring the case, were dismissed and the matter was forced to proceed to trial.
“Due to the gross irregularities in the decisions, the Applicants, filed an application for review on October 31, 2022. Given the State’s ravenous opposition to postponing the matter and the decision of Magistrate Mpofu not to postpone the criminal proceedings, it is apparent that the both (Magistrate Mpofu and State) will proceed with the trial unless an order of this honourable court is obtained staying the same pending the outcome of the review proceedings,” the court papers read.
“We are advised by our legal practitioners of record that the decision of refusing to stay and postpone the criminal proceedings is grossly irregular, unreasonable and irrational in that it fails to consider that the High Court is seized with determining the validity of the gazetting and acquisition of the farm. The question as to whether the farm was lawfully gazetted is one of the elements necessary to be proved when determining whether we are in lawful or unlawful occupation.”
The application further noted that if the High Court finds the acquisition and purported offer letters null and void, the present proceedings will automatically fall away as they too will be null and void.
“Proceeding to trial would pre-empt the decision of the High Court. The question has to be asked as to what happens if the criminal proceedings at the Magistrates Court proceed and the respondents find that the acquisition was valid as it complied with section 72 of the Constitution,” the papers read.
“We are advised and verily believe that the Court has a duty to protect its own processes, it cannot proceed with a process where potentially it can make a decision that is an ineffective legal judgment. If Magistrate Mpofu proceeds with the hearing and convicts and its decision to proceed with the trial is subsequently upset by the High Court, then the whole proceedings would have been an exercise in futility and would be irrational in the circumstances as it would offend the whole principle of the rule of law.”
