By A Correspondent- The Central Intelligence Organisation (CIO) deputy director-general Gatsha Mazithulela distanced himself from influencing the seizure of Kershelmar Farms (Private) Limited in Matabeleland North through a notice of opposing papers filed at the High Court.
Mazithulela was represented by Mlotshwa and Maguwudze of Titan Law firm which sought to have the High Court dismiss the application with costs.
The CIO boss was cited as the fourth respondent in a declaratory order filed on July 23 by Webb Low and Barry legal firm on behalf of Osisa director Siphosami Malunga together with two partners.
The applicants accused Mazithulela of influencing the government to seize the farm after he tried with no success to force his way into the owner-ship structure of Kershelmar Farm better known as Esidakeni Farm. However, through his opposing papers filed on August 30, the CIO boss denied the allegations and stated that he has no interest in acquiring the farm.
Mazithulela said he was “invited” by the applicants in 2016 to be part of the consortium which was to acquire the farm.
Mazithulela, a former National University of Science and Technology (Nust) pro-vice chancellor, described the applicants, Zephania Dhlamini, a senior lecturer at Nust, Malunga and businessman Charles Moyo as colleagues he used to share cordial relations with.
“For the record, I wish to state from the outset that I have no interest in acquiring any portion of Kershelmar Farm and have never been offered any letters on the same. My alleged interest in acquiring the farm, only exists in the fertile imagination of the applicants,” charged Mazithulela in his opposition papers.
“The material omission, done so deliberately in my view, is that first applicant (Dhlamini), neglects to state that I was actually part of the original consortium seeking to acquire the farm he mentions as far back as 2016. It must be noted that first applicant was a colleague of mine at the National University of Science and Technology. I am no stranger to him or the second (Malunga) and third (Moyo) applicants. We knew each other well.”
The CIO boss said their difference arose when he pointed out that they needed to acquire the farm lawfully and subsequently pulled out of the consortium after the partners refused to obtain a certificate of no interest from the government.
“Our point of difference, and hence my pulling out of the consortium during this period, was that it was I, who insisted that any intended acquisition of a farm needed to comply fully with the laws of Zimbabwe, in particular the obtaining of a certificate of no interest from the government,” he said.
“That advice was reiterated to them in our various WhatsApp conversations, some of which are attached to applicants’ founding papers. The applicants did not wish to follow the dictates of the law. I left them to their own devices.”
The applicants indicated that they acquired all shares of Kershelmar Farms which was the registered owner of two pieces of land, namely Subdivision A of Subdivision B of Umguza Block measuring 195 hectares and, Subdivision C of Umguza Block measuring 358 hectares for US$248 500.
Mazithulela questioned the legality of the acquisition of the farm as the applicants’ papers do not show their compliance with Section 4(1) of the Land Acquisition (Disposal of Rural Land) Regulations 1999.
Section 10 of the same Lands Acquisition law states that “any transfer of the land or shares effected in contravention of these regulations shall be void”.
“That the purported purchase of shares in Kershelmar Farms (Private) Limited by the above applicants is void it follows that they cannot be said to be lawful directors or shareholders of fourth respondent (applicant -Kershelmar).
“The agreement is illegal. The transfer of shares in the company to them is void. They are therefore not shareholders and cannot enforce any right, let alone bring any application before this court in that capacity.
“Likewise their appointment as directors of the company as a consequence of the purported acquisition of shares in Kershelmar Farm pursuant to an agreement that is void, is also a nullity. As such they are not lawful directors of Kershelmar. They cannot bring proceedings on behalf of the company …,” reads the opposing papers.
The fourth responded argued that a corporate entity such as Kershelmar can only institute legal proceedings through its duly appointed agents by way of a board resolution resolving to do so.
The opposing papers cite that there is no board resolution in the applicant’s papers from Kershelmar, which is the fourth applicant, resolving to institute legal proceedings or empowering any individual to do so.
Mazithulela through his legal team went on to argue that the purported purchase of the farm was and is a ruse because there is also no evidence to suggest that any Capital Gains Tax (CGT) or its assessment was ever carried out by Zimra in respect of the any CGT payable before the transfer of shares. He pointed out that exchange control approvals would have been required in respect of the intended acquisition since it’s implied that the beneficial holder of the shares – Jeffry Swindels – is a non-Zimbabwean resident.
The fourth respondent further advised the court to summon Swindels in the legal proceedings and corroborate whether he sold the shares to the applicants as the sale agreement attached to the founding papers is missing several critical pages.
Mazithulela also accused the applicants of masterminding a media onslaught against his personal and professional character.