BULAWAYO – Prominent rights advocate Siphosami Malunga and two business partners were arrested for a crime that does not exist, the Bulawayo High Court ruled Thursday as it stopped their prosecution before a lower court.
Justice Maxwell Takuva ordered the trio’s trial before Tsholotsho magistrate Victor Mpofu permanently stayed as he granted an application for review filed by the three men.
Malunga, the director of programmes for Open Society Africa and partners Zephaniah Dhlamini, a NUST scientist, and Charles Moyo, a miner, were arrested in August last year accused of illegal occupation of gazetted state land – a coveted 554-hectare farm in Nyamandlovu.
The three men say they bought the farm in 2017 from Kershelmar Farms (Pvt) Ltd and are resisting its seizure by the government, purportedly to resettle landless black farmers.
Instead, they argue in court papers that Esidakeni Estate has been carved up and offered to just over a dozen politically connected individuals including the multiple-farm-owning Zanu PF secretary general Obert Mpofu and state intelligence operatives.
Lawyer Josphat Tshuma, who represented the three men, said after the ruling: “We filed an exception to the charges at the magistrates court, stating that the charge that was preferred against them, the section under which they were being charged, did not criminalise their actions.
“In other words, when one remains in occupation of gazetted land, and that land has been gazetted in terms of section 72 of the new constitution, the Gazetted Lands (Consequential Provisions) Act does not criminalise that occupation, it only criminalises occupation of land that was gazetted in terms of the old constitution.
“Since Esidakeni was gazetted on December 18, 2020, under the new constitution, continued occupation does not amount to a crime and consequently the magistrates court has no authority to try a matter in which no crime has been committed.
“The magistrate had thrown out our exception application, insisting to say they should stand trial, and the issues we were raising can form part of the defence. We objected to going through a trial where no competent charges were before the court, as that would amount to depriving my clients of their right to protection and benefit of the law.
“We took our argument up at the High Court on review, and the review has been successful. The magistrate’s ruling has been set aside, and therefore criminal proceedings at Tsholotsho have terminated.”
The National Prosecuting Authority (NPA) had assigned Acting Deputy Prosecutor General Michael Reza to lead the prosecution. He arrived on the first day of hearing in Tsholotsho with a police escort.
Malunga, Dhlamini and Moyo have challenged the seizure of the farm by the government in court, in part accusing the lands minister Anxious Masuka of exercising administrative action and decisions that are neither lawful, reasonable nor procedurally fair.
They argue that the seizure of the farm came only after they rebuffed approaches by Central Intelligence Organisation (CIO) deputy director Gatsha Mazithulela, who wanted to partner them.
The court filing includes WhatsApp messages where Mazithulela allegedly made threats against Malunga, in particular, also raising his work in support of pro-democracy campaigners in Zimbabwe in his previous role as the executive director of the Open Sociecty Initiative for Southern Africa (OSISA).
The hearing of the main court challenge to the seizure of the farm has been delayed after Masuka missed the deadline for filing his heads of argument. He has filed an application for condonation to submit his heads of argument out of time, but a date is yet to be set for the hearing.
