State seeks to oppose Esidakeni application

The State seeks to oppose an application made by the three directors of Kershelmar Farms (Private) Limited, Charles Moyo, Siphosami Malunga and Zephaniah Dhlamini at the High Court where the trio argues Esidakeni Farm in Nyamandlovu is lawfully theirs.

This has led to the further postponing of their court case to September 23, 2022.

This postponement was announced on Tuesday, September 6, 2022 after Moyo, Malunga and Dhlamini, who are the accused in this case, appeared at Nyamandlovu Magistrates Court on allegations of the unlawful occupation of Esidakeni Farm.

Moyo, Malunga and Dhlamini are out on bail after they appeared in court before to answer to the mentioned charges.

In an interview with CITE, the trio’s lawyer Josphat Tshuma, a partner at Webb, Low and Barry, confirmed his client’s trial was further postponed.

“It was further postponed to September 23, 2022 because the State said they want to oppose our application, so it was not argued really, that’s the long and short of it. What the State also wanted to do was include the company (Kershelmar) as an accused person as well,” he said.

“On September 23, 2022, that’s really when the courts will have to deal with our application.”

Tshuma explained that Moyo, Malunga and Dhlamini’s application was to seek an order from the High Court to set aside the gazetting of Esidakeni on the basis that it was unlawful. 

Esidakeni Farm was gazetted in 2020 yet Moyo, Malunga and Dhlamini had already been farming since 2018.

“Our application in essence is saying a higher court, that is the High Court is seized with the question of whether the farm was acquired in terms of the law or not,” said the lawyer.

“If we are successful in saying it was not acquired in terms of the law, then that acquisition must be set aside and the offer letters will automatically fall away.”

Tshuma added, “Therefore you can’t in a lower court prosecute (his clients) to say you are in an unlawful occupation (of Esidakeni) because the question of the illegality of the acquisition is an issue.”

“That is what we will be arguing on September 23, 2022,” said the lawyer.

He noted that the State’s case was contradictory as some of its arguments did not make legal sense.

“Normally, if you are charging a company, a company is a legal person, and you should charge the company to the exclusion of its officers. The officers are given a resolution to represent that company because the company can’t speak. It has to speak through its officers,” Tshuma said.

“So, if you then say you are charging directors at the company, you are saying the director on one hand is a representative of the company, on another hand they are representing themselves, it just becomes an awkward way but we will discuss all that at the next hearing.”

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