Source: New twist to Esidakeni farm wrangle – The Southern Eye
TSHOLOTSHO magistrate Victor Mpofu on Tuesday dismissed an application for exception of charges filed by human rights’ activist Siphosami Malunga and his business partners for unlawful occupation of Kershelmar Farms also known as Esidakeni, situated in Nyamandlovu district.
Malunga, Zephaniah Dhlamini and Charles Moyo are embroiled in a farm dispute with Zanu PF secretary for administration Obert Mpofu and his company Mswelangubo Farm Private Limited over ownership of the farm.The trio was arrested in August charged with trespassing on the property.
They were released on $10 000 bail each.
They then filed an application through their lawyer, Josphat Tshuma for exception of the charges arguing that section 3 (2) (a) of the Gazetted Land (Consequential Provisions) Act Chapter 20:28 did not specify the particular subsection of the Act they violated.Mpofu ruled against the trio.
“A reading of section 3 of the Gazetted Land Act therefore recognizes it as a crime and penalises the continued occupation of land after the expiry of the period in subsection 3(2) (a) (b). How then the accused persons want the court to become an issue to be determined is bewildering and baffling,” Mpofu said in his ruling.
He said the State had the prerogative to prosecute anyone who provokes the laws of the land.
“An exception is one which then is entertained by court in the magistrates’ court and not one to quash charges.“The effect of their prayer where it is going to be upheld is not one to amend the charges to the appropriate one but to have an abrupt end to these impending prosecutions, this will be synonymous to quashing the charges. In view of the above reasoning, the exception is hereby overruled consequently dismissing the request for quashing of the same charge.”
Mpofu said charges preferred against the trio were appropriate at law.
“The prosecution sticks to the analysis of section 171(1) of the Criminal Procedure and Evidence Act as interpreted in line with section 72 (2) of the Constitution Number 20 of 2013 which is the Supreme law of the land…,” he said.
“The prosecution argues that as long as the accused persons were made aware of the acquisition of Esidakeni farm by the government of Zimbabwe, it sufficed to activate their removal from the said piece of land within the prescribed time set forth by the law which is 45 days in terms of s3(2) (a) of the Act 20:28.”
In 2021, Agriculture minister Anxious Masuka published a notice in the Government Gazette announcing that it had acquired Keshelmar Farm measuring 553 hectares.
The government said the farm was compulsory acquired under Section 72(2) of the country’s constitution.