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Supreme Court orders Mpofu to vacate Esidakeni

Zanu PF Secretary for Administration, Dr Obert Mpofu, has been ordered to vacate Esidakeni Farm in Nyamandlovu by the Supreme Court after he lost an appeal against an earlier order made by the  High Court.

The High Court last year evicted Dr Mpofu from the farm but the former mines minister appealed against that ruling arguing he had an offer letter.

Early this year, Mpofu started evicting farm workers employed by human rights advocate Siphosami Malunga and his business partners Zephaniah Dhlamini and Charles Moyo from Esidakeni Farm in Nyamandlovu.

Dr Mpofu also reportedly hired armed personnel to keep them out.

In the latest ruling, the Supreme Court ruled that the applicants in this case, by descending in Esidakeni Farm and starting land preparations, disrupted Malunga and co’s peaceful and undisturbed possession.

“The fact that appellants had an offer letter does not entitle them to resort to self-help in taking over the possession without due process of the law. It is this disregard of the law which prompted the respondents to approach the court a quo for redress,” read the Supreme Court ruling which said Mpofu’s appeal is without merit, must fall and was dismissed with costs.

“The court a quo correctly granted the spoliation order in favour of the respondents, in so doing the court a quo was buttressing  the core values and objectives of protection of possession of property against unlawful dispossession.”

The Supreme Court said the mere fact that the appellants hold an offer letter is not sufficient basis for them to take the law into their own hands and seek to dispossess the respondents who were in possession immediately prior to being despoiled.

“It is the brazen invasion by the appellants to the far which disrupted the respondents who were in peaceful and undisturbed possession which the calls spoliation sanction. The appellants without following due process imposed themselves on the respondents’ possession,” read the ruling.

“The dispositions of the respondents by the appellants was unlawful and it was done without the respondents consent , The court a quo properly frowned at self-help which is repugnant to our constitutional values . It thus properly restored possession to the respondents by granting the spoliation relief.”

The requirements for a spoliation order were clearly satisfied, the decision of the court a quo is unassailable.

Malunga, Dhlamini and Moyo bought Esidakeni in 2017 from former white farmers through Kershelmar Farms (Private) Limited but are struggling to retain ownership as the state acquired the farm in 2020 via a Notice of Acquisition General Notice 3042 that appeared in a government gazette.

Dr Mpofu was one of the farm beneficiaries, through his company Mswelangubo, was allocated 154 hectares of the total 553 hectares, which Malunga and partners argue is illegal considering he owns multiple farms.

Dr Mpofu moved into the farm last year in December when Malunga, Dhlamini and Moyo were already locked in another battle to remove another beneficiary, Dumisani Madzivanyathi, who was allocated 50 hectares.

Acting on behalf of Dr Mpofu his legal counsel submitted that the appellants as holders of an offer letter were entitled to occupy the farm ahead of the respondents who remained in occupation in violation of Section 3 of the Gazetted Land (Consequential Provisions ) Act (Chapter 20:28).

Dr Mpofu’s lawyer further contended that although the court does not condone self-help, spoliation should not be granted where a former owner of acquired land continues to stay on the farm after the expiration of 90 days. 

He submitted that the court does not have jurisdiction to assist an occupant who remains on the land after it has been gazetted and acquired by the State.

The appellants’ counsel relied on the case of Commercial Farmers Union and Ors v Minister of Lands and Rial Settlement and Ors SC 2010 (2) ZLR 576 (S).

Acting for Malunga, Dlamini and Moyo,  the legal counsel submitted that the assertion that the appellants were holders of an offer letter does not legally entitle them to resort to self-help and disturb peaceful possession of the respondents.

The respondents’ lawyer submitted that although the case of Commercial Farmers Union supra was distinguishable from the facts of this matter the case made it clear that both the recipient of an offer letter and the former occupiers had to resort to lawful means and follow due process in effecting change of occupancy.

The lawyer contended that instead of resorting to self-help the appellants as holders of an offer letter could institute ejectment proceedings, and argued that the court a quo properly granted spoliatory relief to the respondents

Although the appellants raised five grounds of appeal only one issue comments itself for determination, which was the issue is whether or not the court a qua erred in granting spoliation relief in favour of the respondents.

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