CUSTOMARY LAW https://old.zimlii.org/taxonomy/term/10272/all en Marange v Marange And 2 Others (SC 1-21, Civil Appeal No. SC 693/17) [2021] ZWSC 1 (11 May 2021); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2021/1 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>Judgment No. SC 1/21</strong></p> <p><strong>Civil Appeal No. SC 693/17</strong></p> <p>                                              </p> <p><strong>REPORTABLE (1)</strong></p> <p> </p> <p><strong>BERNARD     MURWIRA     MARANGE</strong></p> <p><strong>v</strong></p> <p><strong>ZVIDZAI     ZVOMA     MARANGE</strong></p> <p><strong>and</strong></p> <p><strong>MINISTER     OF     RURAL     DEVELOPMENT,     PROMOTION     AND     PRESERVATION     OF     NATIONAL     CULTURE     AND     HERITAGE</strong></p> <p><strong>and</strong></p> <p><strong>THE     PRESIDENT     OF     THE     REPUBLIC     OF     ZIMBABWE</strong></p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>GWAUNZA DCJ, PATEL JA &amp; BERE JA</strong></p> <p><strong>HARARE:  JUNE 4, 2018 &amp; MARCH 11, 2021</strong></p> <p> </p> <p><em>T. Magwaliba</em>, for the appellant</p> <p><em>E. Mubaiwa</em>, for the first respondent</p> <p>No appearance for the second and third respondents (in default)</p> <p> </p> <p><strong>PATEL JA:</strong>        This is an appeal against the whole judgment of the High Court setting aside the appointment of the appellant to the Marange chieftainship in 2016. It is a matter concerning the procedure to be followed in the appointment of chiefs in Zimbabwe pursuant to the advent of the current Constitution in 2013.</p> <p>Background</p> <p>The substantive Chief Marange died on 6 September 2005. Two of his relatives acted in his place and stead following his death. Following a long and arduous selection process, the appellant was eventually installed as Chief Marange on 27 October 2016.</p> <p>The first respondent challenged this appointment as having taken place irregularly and improperly. In particular, he averred that he was the people’s preferred candidate for the position and that the second respondent (the Minister) had hand-picked the incumbent and imposed him on the people against their wishes.</p> <p> </p> <p>The first respondent moved the court <em>a quo</em> to review the conduct of the Minister and to set aside the appointment of the appellant as Chief Marange. The appellant, together with the other respondents <em>a quo</em>, opposed the application on the basis that the court lacked jurisdiction to hear and determine the application by reason of the provisions of s 283 of the Constitution.</p> <p> </p> <p>Judgment of the High Court</p> <p>The court <em>a quo</em> rejected the point <em>in limine</em> taken by the respondents before it. It found that it did have the jurisdiction, by virtue of ss 26 and 27 of the High Court Act [<em>Chapter 7:06</em>], to inquire into the conduct of the Minister, as an administrative authority, and to ascertain whether that conduct fell within the law. The court further found that the people chosen by the Minister to advise him on the selection process were not conversant with the customs and traditions of the Marange people.</p> <p> </p> <p>The court took the view that the chieftainship dispute should have been resolved by the Minister in terms of s 283(c)(ii) of the Constitution. He should have referred the dispute to the provincial assembly of Chiefs to consider the matter and report back to him as provided by s 42(3) of the Traditional Leaders Act [<em>Chapter 29:17</em>]. Instead, he acted outside the law in accepting the recommendation of one of the commissions that had been illegally set up by him to identify a suitable candidate for the chieftainship. Consequently, he acted <em>ultra vires</em> the Constitution in appointing the appellant as Chief Marange.</p> <p> </p> <p>As regards the first respondent’s claim to the chieftainship, the court <em>a quo</em> found that the documents that he had produced did not substantiate his allegations. He did not produce anything to support his claim to be the people’s choice. On the other hand, the court held that the first respondent had proved his case, for the setting aside of the appellant’s appointment, on a balance of probabilities. The court accordingly ordered that the appointment of the appellant as the substantive Chief Marange be set aside. Additionally, the appellant and the Minister were ordered to pay the costs of the application. In effect, the third respondent (the President) was entirely absolved of any responsibility for the Minister’s unlawful conduct.</p> <p> </p> <p>Grounds of appeal and relief sought</p> <p>The four grounds of appeal herein impugn the judgment of the court <em>a quo</em> on the following bases. The first is that the jurisdiction of the court to deal with chieftainship disputes was ousted by s 283 of the Constitution. The second is that the dispute in this case arose when the first respondent challenged the appellant’s appointment and it is at that point that the Minister should have referred the dispute for resolution by the President. The third takes issue with the court, having found that the first respondent had not proven his case, but nevertheless granting the relief sought by him setting aside the appellant’s appointment. The fourth attacks the implied finding of the court to the effect that the appellant’s appointment was not in accordance with the custom and practice of the people of Marange.</p> <p> </p> <p>The relief sought by the appellant is that the appeal be allowed with costs and that the judgment <em>a quo</em> be set aside and be substituted with an order dismissing the application with costs.</p> <p> </p> <p>The governing provisions</p> <p>Section 280 of the Constitution recognises the institution, status and role of traditional leaders under the Constitution, while s 281 underscores the principles to be recognised by traditional leaders. Section 282 spells out the functions of traditional leaders within their respective areas of jurisdiction.</p> <p> </p> <p>Sections 285 and 286 of the Constitution provide for the establishment and functions of the National Council of Chiefs and provincial assemblies of Chiefs. In terms of s 285(2), a provincial assembly of Chiefs must be established for each province by an Act of Parliament. By virtue of s 286(1)(f), one of the functions of a provincial assembly is “to facilitate the settlement of disputes between and concerning traditional leaders” within its province.</p> <p> </p> <p>The critical provision for consideration <em>in casu</em> is s 283 of the Constitution relating to the appointment and removal of traditional leaders. It is necessary to set it out in full as follows:</p> <p>            “An Act of Parliament must provide for the following, in accordance with the       prevailing culture, customs, traditions and practices of the communities            concerned—</p> <ol> <li>the appointment, suspension, succession and removal of traditional leaders;</li> </ol> <p>                        (<em>b</em>) the creation and resuscitation of chieftainships; and</p> <p>                        (<em>c</em>) the resolution of disputes concerning the appointment,</p> <p>                        suspension, succession and removal of traditional leaders;</p> <p>            but—</p> <p>                        (i) the appointment, removal and suspension of Chiefs must be done                                   by the President on the recommendation of the provincial assembly                              of Chiefs through the National Council of Chiefs and the Minister                                      responsible for traditional leaders and in accordance with the                                        traditional practices and traditions of the communities concerned;</p> <p>                        (ii) disputes concerning the appointment, suspension and removal                                        of traditional leaders must be resolved by the President on the                                     recommendation of the provincial assembly of Chiefs through the                                         Minister responsible for traditional leaders;</p> <p>                        (iii) the Act must provide measures to ensure that all these matters                                       are dealt with fairly and without regard to political considerations;</p> <p>                        (iv) the Act must provide measures to safeguard the integrity of                                          traditional institutions and their independence from political                                                interference.” (My emphasis)</p> <p> </p> <p>Turning to the Traditional Leaders Act, s 3(1) of this Act empowers and obligates the President to appoint chiefs to preside over communities inhabiting Communal Land and resettlement areas. In performing this function, the President is enjoined by s 3(2) to give due consideration to the prevailing customary principles of succession and, wherever practicable, to appoint a person nominated by the appropriate persons in the community concerned in accordance with those principles. In the event that such nomination is not made within two years after the chieftainship became vacant, the responsible Minister is then required, in consultation with the appropriate persons, to nominate a person for appointment as chief. Section 3(3) of the Act enables the President, where he is of the opinion that good cause exists, to remove a chief from office. This power is subject to s 7 which prescribes the disciplinary procedures to be followed where a chief commits or is alleged to have committed a specific offence or act of misconduct.</p> <p> </p> <p>Part IX of the Act provides for the establishment and functions of provincial assemblies and the Council of Chiefs. In terms of s 35(1), there is constituted a provincial assembly for each province of all the chiefs of that province. Section 35(2) requires every provincial assembly “to meet at least twice a year at such time and place as the Minister may from time to time determine”. One of the principal functions of a provincial assembly, as stipulated by s 36(b), is “to consider and report on any matter which is referred to it by the Minister, the Council or a member of such provincial assembly”.</p> <p> </p> <p>Following exchanges with the Court, it was accepted by both counsel that s 283 of the Constitution does not constitute the actual code that governs the appointment and removal of chiefs or the resolution of disputes in that connection. What s 283 does is to enunciate the template to be applied in the formulation and implementation of that code. It is also common cause that the Traditional Leaders Act, duly modified so as to fully conform with the Constitution, provides the requisite legislative framework contemplated by s 283 of the Constitution.</p> <p> </p> <p>Thus, even without having been exactly aligned to the Constitution, the Act makes it clear that it is the President who is vested with the power to appoint and remove chiefs from office and that he must do so in accordance with the prevailing customary principles of succession, following nominations by the local community and/or the responsible Minister. To a significant extent, therefore, the provisions of the Act that I have alluded to are perfectly capable of being applied in accordance with the requirements of s 283 of the Constitution. I am amply fortified in adopting this approach by having regard to para 10 of the Sixth Schedule to the Constitution, which dictates the continuation in force of all existing laws to be construed in conformity with the Constitution.</p> <p> </p> <p>Jurisdiction to entertain chieftainship disputes</p> <p>As I have already stated, s 283 of the Constitution is not a substantive provision that impacts directly on the law governing the appointment and removal of traditional leaders. Rather, it declares what that law should provide in regulating, <em>inter alia</em>, the resolution of chieftainship disputes. Consequently, it cannot be construed, <em>per se</em>, as ousting the jurisdiction of the courts over such disputes.</p> <p> </p> <p>At common law, the High Court enjoys original review jurisdiction. This jurisdiction is now codified in s 26 of the High Court Act which endows the court with the “power, jurisdiction and authority to review all proceedings and decisions of all inferior courts of justice, tribunals and administrative authorities within Zimbabwe”. Section 27 of the Act elaborates “the grounds on which any proceedings or decision may be brought on review” and includes “any gross irregularity in the proceedings or the decision”. The powers of the court on review of civil proceedings and decisions are spelt out in s 28 which enables the court “subject to any other law, [to] set aside or correct the proceedings or decision”.</p> <p> </p> <p>It is trite that Parliament is at large, subject to the Constitution, to curtail or oust the jurisdiction of any court. However, it is equally trite that any such ouster must be effected in clear and unambiguous terms. In the present context, even if s 283 of the Constitution were to be regarded as a substantive provision, I am unable to discern anything in its language that might be construed, whether expressly or by necessary implication, to curtail or oust the review jurisdiction of the High Court. By the same token, there is nothing contained in s 3 of the Traditional Leaders Act, being the relevant substantive provision currently in force, which might be taken as effecting any such ouster.</p> <p> </p> <p>It follows from the foregoing that the court <em>a quo</em> was correct in adopting the stance that it was invested with the requisite jurisdiction to review the acts and conduct of the Minister, in his capacity as an administrative authority, on the recognised grounds of illegality, irrationality or procedural impropriety. More specifically, what is reviewable is not how the President exercises his discretion but whether those who formulate their advice to him acted on sound principle. See <em>Rushwayo</em> v <em>Minister of Local Government &amp; Anor</em> 1987 (1) ZLR 15 (S), at 18F-19B; <em>Chigarasango</em> v <em>Chigarasango</em> 2000 (1) ZLR 99 (S); <em>Moyo</em> v <em>Mkoba &amp; Ors</em> SC 35/2013; <em>Munodawafa</em> v <em>Masvingo District Administrator &amp; Ors</em> HH 571-15. It further follows that the first ground of appeal challenging the assumption of jurisdiction by the court <em>a quo</em> in a chieftainship dispute, as having been ousted by s 283 of the Constitution, is misplaced and cannot be sustained. What remains in issue, however, is the decision made by the court, pursuant to the exercise of its jurisdiction, to set aside the appointment of the appellant as the substantive Chief Marange.</p> <p> </p> <p>Appointment to substantive chieftainship</p> <p>The court <em>a quo</em> proceeded on the basis that the commissions of inquiry established by the Minister were not provided for in the current Constitution or in the Traditional Leaders Act. One such commission identified the appellant as a suitable candidate for the position of Chief Marange. This, according to the learned judge, offended s 283 of the Constitution. Both the commission and the Minister acted <em>ultra vires</em> the Constitution. Their actions were nullities and therefore could not be allowed to stand. The Minister was called upon to revisit the matter “properly guided by s 283 of the Constitution of Zimbabwe as read with s 42(3)(b) of the Traditional Leaders Act”. In the event, the court was satisfied that the applicant (the first respondent herein) had proved his case on a balance of probabilities. It accordingly ordered that the appointment of the first respondent (the appellant herein) as the substantive Chief Marange be set aside.</p> <p> </p> <p>Both counsel are in agreement that the court <em>a quo</em> relied upon and applied the wrong provisions in setting aside the decision of the Minister and the appointment of the appellant. As I have concluded earlier, s 283 of the Constitution is not directly applicable to the resolution of the dispute <em>in casu</em>. As for s 42(3)(b) of the Traditional Leaders Act, which was referred to by the court <em>a quo</em>, there is no such provision in the Act. This provision simply does not exist. It is clear, therefore, that the learned judge <em>a quo</em> misapprehended and misapplied the law governing the appointment of chiefs. He consequently set aside the decision of the Minister and the ensuing appointment of the appellant as Chief Marange on the wrong legal bases.</p> <p> </p> <p>Equally critically, it would appear that the court <em>a quo</em> opted to delve into the substantive merits of the respective positions advanced by the contesting parties. The first respondent’s case was that he was the people’s preferred candidate for chieftainship and that the appellant had been hand-picked by the Minister and imposed upon the people of Marange against their wishes. In support of his case, the first respondent tendered the supporting affidavits of nine other persons and two seemingly relevant documents. The court <em>a quo</em> rejected the first respondent’s averments on the basis that he had failed to substantiate them and had produced nothing to support his claims. In short, it was held that he had failed to prove his case.</p> <p> </p> <p>The appellant’s case was that the first respondent was disqualified for appointment as he had seriously violated certain cultural and customary practices. He therefore failed to meet the criteria to become a chief. As for himself, the appellant averred that at the third commission of inquiry he was publicly selected as the only remaining candidate without any violations of the traditions, customs and practices of the Marange clan. He defended his appointment as chief on the basis that he stood in the line of chieftainship of the clan, that he was the oldest surviving father of the clan without any customary or traditional infringements, and that proper consultations had been carried out with the clan leading to his election by the clan as its chief.</p> <p> </p> <p>In weighing up these opposing positions, the court <em>a quo</em> commended the Minister’s efforts in setting up the commissions of inquiry. However, the court found that the shortcoming in these efforts was that the people whom the Minister chose to drive the process were not in any way conversant with the customs, culture and traditions of the Marange people. In the event, the court found that the appellant had been irregularly appointed as the substantive Chief Marange and ordered that this appointment be set aside. However, having so concluded, the learned judge did not proceed to decree any corrective measure to rectify the irregularity. He simply left the parties to their own initiatives and devices.</p> <p> </p> <p>What can be gleaned from all of the foregoing is the implied finding that the appellant’s appointment as Chief Marange was not in accordance with the customs and practices of the Marange clan. In this respect, therefore, there is some merit in the appellant’s fourth ground of appeal, to the extent that the court itself was ill-equipped to venture into that particular field. In effect, the court appears to have overruled the decisions taken by the Minister and the President without having been possessed of the expertise or qualifications necessary to do so.</p> <p> </p> <p>It is settled law that the courts should not take over the functions of an administrative authority and interfere with its actions or decisions by substituting them or setting them aside. See <em>Affretair (Pvt) Ltd &amp; Anor</em> v <em>M.K. Airline (Pvt) Ltd</em> 1996 (2) ZLR 15 (S), at 21; <em>Zimbabwe School Examinations Council</em> v <em>Mukomeka &amp; Govhati</em> SC10/20, at pp. 17-18. I would extend this broad principle to postulate that, in certain limited circumstances, it might become necessary and appropriate to invoke such judicial restraint, even where the administrative action or decision in question is shown to have been procedurally irregular. This might arise, for instance, where judicial interference would entail serious administrative disruption or result in some grave miscarriage of justice.</p> <p> </p> <p>In any event, the general principle of judicial non-interference is not immutable and may be departed from in exceptional cases: where the end result is a foregone conclusion and it would be a waste of time to remit the matter for corrective action; where further delay would prejudice the applicant; where the extent of bias or incompetence displayed is such that it would be unfair to force the applicant to submit to the same administrative jurisdiction; where the court is in as good a position as the administrative body or functionary to make the appropriate decision. See the <em>Affretair</em> case, <em>supra</em>, at 24-25; <em>Gurta AG</em> v <em>Gwaradzimba N.O.</em> HH 353-13, at pp. 9-10; <em>C.J. Petrow &amp; Co (Pvt) Ltd</em> v <em>Gwaradzimba N.O.</em> HH 175-14, at pp. 8-9.</p> <p> </p> <p><em>In casu</em>, I do not perceive any of the above exceptions as having been applicable to the circumstances before the court <em>a quo</em>. The remittal of the matter to the Minister for corrective action would not have been a waste of time. Indeed, corrective action was eminently necessary on the facts of the case. Further delay would not have prejudiced the applicant (the first respondent herein) given the genesis of the succession dispute in 2005 and the protracted period of time over which it had remained unresolved. There was no evidence before the court <em>a quo</em> that the Minister or the President had displayed such bias or incompetence as would have operated to subject the applicant to any further administrative unfairness. And lastly, it cannot possibly be said that the learned judge was sufficiently conversant with the requisite criteria for appointment to the Marange chieftainship, to wit, the prevailing customary principles of succession and the administrative needs of the Marange community (<em>cf.</em> s 3(2)(a) of the Traditional Leaders Act).</p> <p> </p> <p>There can be no argument against the finding <em>a quo</em> that the Minister acted unprocedurally in establishing and relying upon the recommendations of the various commissions of inquiry that were instituted to resolve the succession dispute over the Marange chieftainship. The most competent body to which this matter should have been assigned, within the broad scheme of s 283 of the Constitution and the Traditional Leaders Act, would have been the provincial assembly of Chiefs responsible for the Marange community. Given the Minister’s failure to do so, the most salutary corrective measure would be to remit the matter to him and direct him to consult the provincial assembly with a view to seeking its recommendations on the resolution of the succession dispute.</p> <p> </p> <p>Additionally, it would also be necessary to address the appointment of the appellant as the substantive Chief Marange. The most obvious remedy in that connection would be to set aside that appointment as having emanated from a gross procedural irregularity. However, this would lead to a <em>lacuna</em> in the leadership of the Marange clan and resultant uncertainty in the administration of the clan’s affairs. In order to obviate this undesirable contingency, it seems to me that the preferable and less disruptive alternative would be to leave the appellant <em>in situ</em> as the clan’s chief, albeit in an acting capacity, pending the final resolution of the chieftainship dispute. In my view, this would serve to ensure administrative continuity in the interests of good governance within the Marange community.</p> <p> </p> <p>Disposition</p> <p>Mr <em>Mubaiwa</em>, for the first respondent, submits that there is presently no law providing for the resolution of disputes by provincial assemblies. This position is not entirely correct in light of my earlier interpretation of the continuing applicability, <em>mutatis mutandis</em> so as to conform with the dictates of s 283 of the Constitution, of ss 35 and 36 of the Traditional Leaders Act. In any event, Mr <em>Mubaiwa</em> accepts that the High Court has inherent jurisdiction to remit the matter to the Minister for onward referral to the provincial assembly concerned.</p> <p> </p> <p>Mr <em>Magwaliba</em>, for the appellant, agrees that ss 35 and 36 of the Act afford suitable mechanisms for the resolution of the dispute <em>in casu</em>. He submits that the Minister can lawfully convene the provincial assembly and administratively refer the chieftainship dispute <em>in casu</em> to the provincial assembly for its recommendations. I fully concur with that position.</p> <p> </p> <p>In view of my earlier conclusions and intended disposition of this matter, the third and fourth grounds of appeal are rendered redundant and do not call for further consideration or determination. As for costs, given that both the appellant and the first respondent have enjoyed relative success in relation to the first and fourth grounds of appeal, I think it appropriate that each party should bear its own costs, both in the court below and herein on appeal.</p> <p> </p> <p>In the result, I make the following order:</p> <ol> <li>The appeal is partially allowed with each party to bear its own costs.</li> <li>The judgment of the court <em>a quo</em> is set aside and substituted with the following:</li> </ol> <p>               “(i) The appointment of the first respondent as substantive Chief Marange</p> <p>                      be and is hereby set aside.</p> <p>               (ii) The matter is remitted to the second respondent who is hereby directed:                                    (a) to convene a meeting of the provincial assembly of Chiefs                                           responsible for the Marange community, at the earliest available                                     opportunity, to consider and report back to him with its</p> <p>                                 recommendations on the resolution of the dispute concerning</p> <p>                                 the appointment of a substantive Chief Marange; and</p> <p>                                    (b)  to submit the aforesaid recommendations to the third respondent</p> <p>                                          to enable him to resolve the aforesaid dispute in accordance with</p> <p>                                          the             provisions of s 3 of the Traditional Leaders Act</p> <p>                                          [<em>Chapter 29:17</em>].</p> <p>                         (iii) Pending the resolution by the third respondent of the aforesaid dispute,                   the first respondent shall perform the functions of acting Chief</p> <p>                                Marange pursuant to section 4 of the Traditional Leaders Act</p> <p>                                [<em>Chapter 29:17</em>].</p> <p>                        (iv) Each party shall bear its own costs.”</p> <p>   </p> <p>                        <strong>GWAUNZA DCJ</strong>:                            I agree</p> <p> </p> <p>                        <strong>BERE JA:</strong>                                          (No longer in office)</p> <p> </p> <p><em>T. Pfigu Legal Practitioners</em>, appellant’s legal practitioners</p> <p><em>Warara and Associates</em>, 1st respondent’s legal practitioners</p> <p><em>Civil Division of the Attorney-General’s Office</em>, 2nd and 3rd respondents’ legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2021/1/2021-zwsc-1.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=36697">2021-zwsc-1.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2021/1/2021-zwsc-1.pdf" type="application/pdf; length=279503">2021-zwsc-1.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/a">A</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/administrative-law">ADMINISTRATIVE LAW</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/administrative-authority">Administrative authority</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/administrative-decisions-and-acts">Administrative decisions and acts</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/limited-grounds-which-court-may-interfere-such-decision">limited grounds on which court may interfere with such decision</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/customary-law">CUSTOMARY LAW</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/chieftainship">Chieftainship</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/appointment-chiefs-president">appointment of chiefs by President</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/consideration-applicable-customary-principles-succession">consideration to applicable customary principles of succession</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/shona-system-succession">Shona system of succession</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2020/10">ZIMSEC v Mukomeka &amp; Anor (SC 10-20, Civil Appeal No. SC 765/18) [2020] ZWSC 10 (14 February 2020);</a></div><div class="field-item odd"><a href="/zw/judgment/harare-high-court/2013/353">Gurta AG v Gwaradzimba N.O. (HC 855/13) [2013] ZWHHC 353 (15 October 2013);</a></div><div class="field-item even"><a href="/zw/judgment/harare-high-court/2014/175">C J Petrow &amp; Company (Pty) Ltd v Gwaradzimba (HC 13496/12) [2014] ZWHHC 175 (15 April 2014);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1981/29">High Court Act [Chapter 7:06]</a></div><div class="field-item odd"><a href="/zw/legislation/act/1998/25">Traditional Leaders Act [Chapter 29:17]</a></div><div class="field-item even"><a href="/zw/legislation/act/2013/amendment-no-20-constitution-zimbabwe">The Constitution of Zimbabwe Amendment (No. 20) Act, 2013</a></div></div></div> Mon, 31 May 2021 11:32:41 +0000 Sandra 10010 at https://old.zimlii.org Chirumhanzu Chieftainship Dynasty v Midlands Provisional Assembly of Chiefs (HMA 46-20, HC 279/19) [2020] ZWMSVHC 46 (09 September 2020); https://old.zimlii.org/zw/judgment/masvingo-high-court/2020/46 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p> </p> <p> </p> <p> </p> <p>CHIRUMHANZU CHIEFTAINSHIP DYNASTY</p> <p>(TRADITIONAL LEADERS STEERING COMMITTEE)</p> <p>versus</p> <p>MIDLANDS PROVINCIAL ASSEMBLY OF CHIEFS</p> <p> </p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>WAMAMBO J</p> <p>MASVINGO, 9 JULY &amp; 9 SEPTEMBER, 2020</p> <p> </p> <p> </p> <p> </p> <p><strong>Unopposed Application</strong></p> <p> </p> <p> </p> <p> </p> <p> </p> <p>WAMAMBO J:   This matter came before me on the Unopposed Roll. I requested for heads of argument after raising issues with regard to the applicant’s <em>locus standi</em> in the matter. The supplementary heads of argument were indeed filed.</p> <p>The applicant seeks an Order in the following terms:-</p> <ol> <li><em>The application compelling respondent to release information be and is hereby granted.</em></li> </ol> <p> </p> <ol> <li><em>The respondent and all those claiming rights through her be and are hereby ordered to furnish the name of the recommended candidate selected for appointment as Acting Chief Chirumhanzu and the reasons thereof in writing be supplied to the applicant within 7 days of this order having been granted and saved upon them.</em></li> </ol> <p> </p> <ol> <li><em>Respondent be and is hereby ordered to pay costs of suit on an attorney-client scale in the event that it is opposed to this application</em>.</li> </ol> <p> </p> <p>The founding affidavit brings out the following:-</p> <p> </p> <p>In January 2019 Gerald Mudzengi who was Chief Chirumanzu died. On 6 April 2019 applicant and other relevant families held a meeting to nominate the Acting Chief to be recommended for appointment by the President. The nominee was Julius Chimbi Chigegwe. The Provincial Development Coordinator Office, Gweru and Secretary for Ministry of Local Government and Urban Development directed that another meeting including the representatives of the Provincial Chiefs Assembly should be held. Such meeting was held on 11 June, 2019. At this meeting the name of Julius Chimbi Chigegwe was forwarded after it was seconded by six out of the eight families eligible for the Chieftainship. Respondent’s representatives did not announce the name of the candidate to be recommended to the President. Efforts including letters of request from legal practitioners to obtain the name of the recommended candidate for appointing to the Acting Chief position were all in vain.</p> <p>The applicant is of the forceful view that the name of the candidate recommended for the Acting Chief position should be published and communicated to it.</p> <p>To bolster the position that applicant has <em>locus standi</em> to launch this application its Constitution was filed along with heads of argument.</p> <p>The heads of argument reflect as follows:-</p> <p>Applicant has a legal right to institute these proceedings as Section 3 of its Constitution empowers it to sue or be sued.</p> <p>That applicant represents the Chirumhanzu Chieftainship Clan and has capacity to take legal action in issues concerning the rights and interests of its members.</p> <p>The applicant requires information in terms of Section 62(1) of the Constitution.</p> <p>In terms of Section 85(1) (e) of the Constitution applicant has the right to make the application to enforce fundamental human rights and freedoms.</p> <p>In terms of Order 2 A Rule 7(b) of the High Court Rules, 1971, applicant qualifies as an association.</p> <p>I have given due consideration to the submissions and the supporting documents filed by the applicant and find that indeed applicant are clothed with locus standi to institute the instant application.</p> <p>The relief applicant seeks however needs close scrutiny.</p> <p>Section 283 of the Constitution provides that an Act of Parliament must provide among thing the appointment, suspension, succession, removal of Chiefs, creation and resuscitation of Chieftainship.</p> <p> </p> <p> </p> <p>The Traditional Leaders Act [<em>Chapter 29:17</em>] provides in section 4 as follows:-</p> <p>“<em>4.(1)   Subject to subsection (2), in the event of the office of a chief becoming vacant through the death of the chief, or his removal or suspension from office in terms of this Act, the President may appoint an acting chief to preside in his stead for such period or periods as the President may fix.</em></p> <p> </p> <ol> <li><em>    An appointment in terms of subsection (1) shall cease to have effect—</em></li> </ol> <p> </p> <ol> <li><em>on the date the President, in terms of subsection (1) of section three, appoints a chief for the community concerned; or</em></li> </ol> <p> </p> <ol> <li><em>on the cancellation of the suspension of the chief of the community concerned in terms of subsection (3) of section seven; or</em></li> </ol> <p> </p> <ol> <li><em>when the President cancels the appointment</em>.”</li> </ol> <p> </p> <p> </p> <p>A number of cases decided in the High Court are relevant among them: <em>Milton Munodawafa</em> v <em>District Administrator, Masvingo and Others</em> HH 571-15, <em>Tafireyi David Gweshe</em> v <em>The President of the</em> <em>Republic of Zimbabwe</em> HH 542-16 and <em>Zvarikura Shumba and Others </em>v <em>Reuben Mupasi Marinda</em> <em>&amp; Others</em> HH 79-18, <em>Jefureti Manganda Madondo</em> v <em>The Minister of Local Government, Public Works and National</em> <em>Housing NO and Others</em> HH 526-14 and <em>Elias Gambakwe &amp; Others</em> v <em>Herbert Chimene &amp; Others</em> HH 465-15.</p> <p>Section 283 of the Constitution reads as follows:-</p> <p><strong><em>“283    Appointment and removal of traditional leaders </em></strong></p> <p> </p> <p><em>An Act of Parliament must provide for the following, in accordance with the prevailing culture, customs, traditions and practices of the communities concerned-</em></p> <p> </p> <ol> <li><em>      the appointment, suspension, succession and removal of traditional leaders; </em></li> </ol> <p> </p> <p><em>(b)       the creation and resuscitation of chieftainships; and </em></p> <p> </p> <p><em>(c)        the resolution of disputes concerning the appointment, suspension, succession and removal of traditional leaders; but -</em></p> <p> </p> <p><em>(i)        ----------- </em></p> <p><em>(ii)       disputes concerning the appointment, suspension and removal of traditional leaders must be resolved by the President on the recommendation of the provincial assembly of Chiefs through the Minister responsible for traditional leaders; </em></p> <p> </p> <p><em>(iii)      ------------- </em></p> <p><em>(iv)      -------------”</em></p> <p> </p> <p>I find Section 283 (c) (ii) relevant to this matter. The issue in this case concerns a dispute on the appointment of a traditional leader. The question of what name has been forwarded to the President amounts to a dispute in the circumstances in that implicit in the application is that applicant have their own named candidate they prefer for the post of Acting Chief. A dictionary definition of dispute is : disagreement or argument”.</p> <p>In interpreting Section 283 (c)(ii) of the Constitution, UCHENA J (as he then was) in the <em>Elias Gambakwe &amp; Others</em> v <em>Herbert Chimene &amp; Others</em> (supra) at page 5 found as follows:-</p> <p>“<em>Miss Hove for the second to fourth respondents submitted that the word “concerning” which precedes the disputes to be resolved which includes appointment of Chiefs means “about” and involving. This she argued means the disputes to be resolved include those which arise before the appointment of a Chief or Acting Chief.  I agree. The use of the word “concerning” which means something about or involving the appointment of Chiefs include disputes which arise before a Chief is appointed as long as they have something to do with a Chief’s appointment</em>.”</p> <p>Perhaps it is high time the Act of Parliament referred to in Section 283 of the Constitution was promulgated. This would give ventilation to the Constitution in more detail. This detail sharpened by the various suits brought before the courts will resolve issues more effectively. The Act would necessarily categorically state the processes, procedures and considerations in the issues raised in section 283 of the Constitution.</p> <p>As things stand I find that section 283(c) (ii) provides that disputes such as in the instant case should be resolved by the President on the recommendation of the Provincial Assembly of Chiefs through the Minister responsible for traditional leaders not through the courts.</p> <p>In the circumstances I make an order as follows:-</p> <p>The application is dismissed.</p> <p> </p> <p> </p> <p><em>Ruvengo, Maboke and Company</em>, applicant’s legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/masvingo-high-court/2020/46/2020-zwmsvhc-46.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=22619">2020-zwmsvhc-46.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/masvingo-high-court/2020/46/2020-zwmsvhc-46.pdf" type="application/pdf; length=204918">2020-zwmsvhc-46.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/customary-law">CUSTOMARY LAW</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/chieftainship">Chieftainship</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appointment-chiefs-president">appointment of chiefs by President</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/consideration-applicable-customary-principles-succession">consideration to applicable customary principles of succession</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/harare-high-court/2015/571">Munodawafa v Masvingo District Administrator &amp; Others (HC 8352/11) [2015] ZWHHC 571 (23 June 2015);</a></div><div class="field-item odd"><a href="/zw/judgment/harare-high-court/2018/79">Shumba &amp; Others v Marinda (Chief Chiwara Designate) &amp; Others (HH 79-18 , HC 630/15) [2018] ZWHHC 79 (14 February 2018);</a></div><div class="field-item even"><a href="/zw/judgment/harare-high-court/2015/465">Gambakwe &amp; Others v Chimene &amp; Others (HC 4443/12) [2015] ZWHHC 465 (19 May 2015);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2013/amendment-no-20-constitution-zimbabwe">The Constitution of Zimbabwe Amendment (No. 20) Act, 2013</a></div><div class="field-item odd"><a href="/zw/legislation/act/1998/25">Traditional Leaders Act [Chapter 29:17]</a></div></div></div> Wed, 21 Oct 2020 14:56:40 +0000 Sandra 9894 at https://old.zimlii.org Mlotshwa v District Administrator Hwange N.O & Anor (HB 94-20, HC 921/18) [2020] ZWBHC 94 (25 June 2020); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2020/94 <div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2020/94/2020-zwbhc-94.pdf" type="application/pdf; length=4766483">2020-zwbhc-94.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/customary-law">CUSTOMARY LAW</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/chieftainship">Chieftainship</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appointment-chiefs-president">appointment of chiefs by President</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/consideration-applicable-customary-principles-succession">consideration to applicable customary principles of succession</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/human-rights">HUMAN RIGHTS</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/substantive-rights">Substantive rights</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/equality-and-non-discrimination">Equality and non-discrimination</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/m">M</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/mandament-van-spolie-see-spoliation">MANDAMENT VAN SPOLIE See SPOLIATION</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2013/35">Moyo v Mkoba &amp; Others (Civil Appeal No. SC 26/12) [2013] ZWSC 35 (06 August 2013);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1998/25">Traditional Leaders Act [Chapter 29:17]</a></div><div class="field-item odd"><a href="/zw/legislation/act/2013/amendment-no-20-constitution-zimbabwe">The Constitution of Zimbabwe Amendment (No. 20) Act, 2013</a></div></div></div> Wed, 08 Jul 2020 08:37:42 +0000 Sandra 9774 at https://old.zimlii.org Mapingure v Provincial Assembly of Chiefs Masvingo Province (HH 841-19, HC 3009/18) [2019] ZWHHC 841 (19 December 2019); https://old.zimlii.org/zw/judgment/harare-high-court/2019/841 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>FAINIOS MIHWA MAPINGURE</p> <p>versus</p> <p>PROVINCIAL ASSEMBLY OF CHIEFS MASVINGO PROVINCE</p> <p>and</p> <p>SENATOR CHIEF CHITANGA</p> <p>and</p> <p>FORTUNE ZEPHANIA CHARUMBIRA</p> <p>and</p> <p>MINISTER OF LOCAL GOVERNMENT PUBLIC WORKS AND NATIONAL HOUSING</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE<br /> TSANGA J </p> <p>HARARE, 14 June &amp; 19 December 2019</p> <p> </p> <p><strong>Opposed application</strong></p> <p> </p> <p><em>F Mukwewa, </em>for the applicant<br /> <em>L Madhuku, </em>for the 2nd respondent<br /> <em>T Mpofu with W Chinamhora, </em>for the 3rd respondent</p> <p> </p> <p>TSANGA J: The applicant seeks to compel the Provincial Assembly of Chiefs in Masvingo Province to constitute and convene an investigative committee to look into the complaint and dispute concerning the appointment of the Charumbira Chieftainship. The applicant is member of the Karanga tribe. At the heart of his complaint is that the appointment of Fortune Zephania Charumbira as substantive chief of the Charumbira chieftaincy, is illegal because it was done contrary to the prevailing cultural, customary and traditional principles of succession of the community concerned. His appointment is said to have been by primogeniture contrary to karanga tradition whereby appointment is collateral in that it rotates according to the seniority of houses of those entitled to chieftaincy. The introduction of an appointment format alien to karanga custom is said to have had its origin from the colonial era when specifically Chief Madyira died in 1943 and his son Mazhira was appointed chief due to his proximity to the white colonial regime. Thereafter Chief Zephania Charumbira, the third respondent’s father was appointed. The incumbent chief is said to have been appointed substantive chief in 2000 despite protest from other houses.</p> <p>The first respondent is the Provincial Assembly of Chiefs Masvingo, whilst the second respondent Senator Chief Chitanga is its chairperson. The third respondent, Fortune Charumbira, is the incumbent chief of the Charumbira clan. The fourth respondent is the Minister of Government Public Works and National Housing. The first and fourth respondents chose to abide by the final decision of this court and were therefore not represented at the hearing.</p> <p>Applicant says that the first and second respondents have a duty to preside over disputes and as such what he seeks is that they be compelled to act in terms of hearing the dispute pertaining to the Charumbira chieftaincy, within 30 days of the order. He says he wrote to the first respondent on the 12th and 13th of September 2017, asking the first and second respondent to constitute a committee. They have failed to do so. Notably, in his supporting affidavit, the second respondent as chairperson of the Provincial Assembly of Chiefs denies ever receiving the letter in question written in September 2017.</p> <p>It is applicant’s averment that he is entitled to administrative justice in terms of s 68 of the Constitution, a section which calls for administrative conduct that is lawful, prompt, efficient, reasonable and procedurally fair. Section 3 of the Administration of Justice Act is equally drawn with regard to these principles. Applicant also relies on s 286 of the Constitution as read with the Traditional Leaders Act [<em>Chapter 29:17</em>] regarding the right to choose a chief or traditional leader in accordance with the tradition, custom and culture of the people concerned. The right to equal protection of the law in terms of 56 is equally emphasised.</p> <p>The application is opposed and several points have been raised <em>in limine</em> by the incumbent chief and supported by Senator Chief Chitanga as the chairperson of the Provincial Assembly of Chiefs. The main point <em>in limine</em> emphasised on behalf of the second and third respondents was that there is no cause of action as applicant cannot found his contentions on the Traditional Leaders Act that was not in place at the time that the action the he complains of arose. The Traditional Leaders Act came into force on the 1st of January 2000. The reality is that though the incumbent chief, Fortune Charumbira, was initially made acting chief in 1992, he was in fact sworn in or inaugurated as substantive chief on 24 May 2000. Having been only appointed as <strong>substantive chief</strong> in May 2000 after the Act commenced, this means that at the time of his actual appointment as a chief, the Traditional Leaders Act was in already in place. Section 3(2) (a) (i) which speaks to giving due consideration to “the prevailing customary principles of succession, if any, applicable to the community over which the chief is to preside’’ would have been applicable. It is this provision that the applicant has founded his cause of action on. The point <em>in limine </em>that the legislation was not in place at the time of his appointment lacks merit and is dismissed. However, there are other critical points <em>in limine </em>raised.</p> <p>A critical issue is that of the non-joinder of the President of the Republic of Zimbabwe to this application. It is said to be fatal to the application on the ground that the appointment and resolution of chieftainship disputes is the President’s prerogative. The first respondent’s role, as the Provincial Assembly of Chiefs, is said to be to make recommendations to the President but that the initiation of the entire process itself, as the argument goes, must be done by the President himself. As such, this application which seeks to compel the Provincial Assembly of Chiefs and its chairperson to come up with recommendations, is said to essentially put the cart before the horse in circumstances where the President has not acknowledged the existence of a dispute. It is therefore emphasised by Chief Fortune Charumbira that the Provincial Assembly of Chiefs and its cited Chairperson cannot set off a process which is not sanctioned by the President or impose upon the President recommendations which he has not sought.</p> <p>The applicant’s core response to this point <em>in limine</em> is that s 283 (c) does not stipulate that it is the President who must initiate the process. He argues that the President’s main role as gleaned from the provision, is to act on the recommendations that are given to him through the Minister from the Provincial Assembly of Chiefs. Applicant also relies on rule 87 of the High Court rules that non joinder is not an issue and that in any event a party can be joined at any stage.</p> <p>An additional point <em>in limine </em>raised is prescription on the basis that the failure to follow customs is said to have started in 1943 up to the present day. In particular, the relief sought being that of a <em>mandamus,</em> which falls under general law, the issue is said to have been affected by extinctive prescription following failure to challenge the affront within a three year period from the knowledge of it. Applicant’s response to this point <em>in limine</em> is that the matter is governed by customary law which is not affected by prescription and that the remedy he seeks is essentially akin to an interdict. Related to this issue of prescription is also raised that of estoppel whereby it is argued that the applicant is estopped from challenging Chief Fortune Charumbira’s chieftaincy, having never approached the court in the last 26 years but has instead lived with the Charumbira’s chieftaincy. It is further averred that entertaining this application would set a bad precedent whereby people accept a position only to turn around and adopt a position inconsistent with their previous actions.</p> <p><strong>Failure to join the President</strong></p> <p>Our courts have been very clear that any dispute concerning chieftaincy now falls to be resolved through s 283 of the constitution. Unless remedies mentioned therein have been exhausted, the High Court has made it clear in cases such as <em>Gambakwe and Others</em> v <em>Chimene and others</em> HH 465/15; <em>Munodawafa and Others</em> v <em>District Administrator Masvingo</em> HH 571/15; <em>Silibaziso Mlotshwa </em>v<em> District Administrator, Hwange District N.O &amp; Ors </em>HB 161/16 to mention a few that it will decline to exercise jurisdiction in light of s283 of the Constitution which deals with disputes. That said, the applicant in this case is not trying to skirt s 283 by coming to court but is in fact seeking to enforce s 283 by getting the Provincial Assembly of Chiefs to play its role as per that section. In other words, he is only before the High Court because the Provincial Assembly of Chiefs is, according to him, not acting as mandated in the relevant constitutional provision. He thus wants it to be compelled to take action. He believes that his quest for action does not need to involve the President because from the applicable provision, the President’s role in a dispute comes in later after the Provincial Assembly of Chiefs has acted.</p> <p>It is on this point that respondents who have challenged him differ with him and where they say he is offside. They emphasise that it is only the President who can declare a dispute and set the Provincial Assembly of Chiefs in to motion to make its recommendations. Senator Chief Chatanga, the chairperson of the Assembly averred to having never received any communicating regarding a dispute. This is disputed by applicant.</p> <p>The provision in question upon which joinder is said to be essential is worded thus:</p> <p><strong>“</strong><strong>283 Appointment and removal of traditional leaders </strong></p> <p>An Act of Parliament must provide for the following, in accordance with the prevailing culture, customs, traditions and practices of the communities concerned—</p> <p>(<em>a</em>) the appointment, suspension, succession and removal of traditional leaders;</p> <p>(<em>b</em>) the creation and resuscitation of chieftainships; and</p> <p>(<em>c</em>) the resolution of disputes concerning the appointment, suspension, succession and removal of traditional leaders;</p> <p>but—</p> <p>(i) the appointment, removal and suspension of Chiefs must be done by the President on the recommendation of the provincial assembly of Chiefs through the National Council of Chiefs and the Minister responsible for traditional leaders and in accordance with the traditional practices and traditions of the communities concerned;</p> <p>(ii) disputes concerning the appointment, suspension and removal of traditional leaders must be resolved by the President on the recommendation of the Provincial Assembly of Chiefs through the Minister responsible for traditional leaders;</p> <p>(iii) the Act must provide measures to ensure that all these matters are dealt with fairly and without regard to political considerations;</p> <p>(iv) the Act must provide measures to safeguard the integrity of traditional institutions and their independence from political interference.”</p> <p> </p> <p>Notably, as has been observed in the cases cited above, no new Act of Parliament has yet been put in place setting out the actual guidelines to be observed when a dispute erupts. This lament was put thus in <em>Silibaziso Mlotshwa </em>v<em> District Administrator, Hwange District N.O &amp; Ors (supra)</em>:</p> <p>“The current Act of Parliament providing for matters referred to in s283 is the Traditional Leaders Act [Chapter 29:17]. As has been said repeatedly about the delays in aligning the laws to the current constitution that Act is still lagging behind awaiting alignment. For instance, the Act does not provide a dispute resolution mechanism regarding the appointment and succession of chiefs. While it does provide for a provincial assembly of chiefs in s35 it does not have as one of its functions making recommendations to the President envisaged by the constitution.”</p> <p> </p> <p>Without properly articulated guidelines, interpretative disputes are bound to arise. Despite the arguments by the second and third respondents that the process is initiated by the President, it is obvious from a reading of the provision that nowhere does it state so in the actual provision itself. The two respondents say it is the practice in reality. The provision lends itself to ambiguities or vagueness in determining whether the process is to be top down or bottom up as far as the President’s role is concerned.</p> <p>The interpretation of the provision in the case<em> Mlotshwa </em>v <em>District Administrator, Hwange District N.O </em>&amp; <em>Ors</em> would in fact suggest that the process is bottom up.</p> <p> </p> <p>“What is clear though is that s283 of the constitution has created domestic or internal remedies for a party who is aggrieved by a process of selecting a chief. <strong><em>Such person is at liberty to approach the provincial assembly which is reposed with the authority to make recommendations to the President, or to submit a grievance to the President for resolution. </em></strong>To the extent that such remedies are available, this court will not readily exercise jurisdiction”. (My emphasis)</p> <p> </p> <p>It is in fact a crucial provision which rests on a fundamental issue of interpretation of the constitutional values and underlying purposes that were intended by the provision. Was the intention to genuinely mainstream and devolve democratic customary values in decision making from the bottom up or was it to essentially maintain the colonial legacy of administratively driven justice with seeming undertones of democracy. It would do well in a proper case for the Constitutional Court to definitively interpret the import of this provision for the avoidance of doubt.</p> <p>Materially, whether the President declares the dispute and sets the process in motion of having the matter investigated through the appropriate channels, or, whether the process is truly energised and escalated from below in seeking the President’s final input, goes beyond the issue of the President’s joinder in a dispute.</p> <p>It is a provision which is of significance to the rights of many ordinary citizens who are governed by chiefs. Customary law is incorporated into our constitution through sections 16 and 63. Section 63 recognises the personal right to language and culture of one’s choice. Section 3 the Constitution lays out its founding values and principles. In particular s 3 (2) (h) lists among principles of good governance, “the fostering of national unity, peace and stability with due regard to diversity of languages, customary practices and traditions. Furthermore, under national objectives suffice it to observe that s 16 (1) which deals with culture, enjoins the state and all its institutions of government to “promote and preserve cultural values and practices which enhance the dignity and wellbeing and equality of Zimbabweans’. Furthermore, s 16 (2) calls on all state institutions to endeavour to preserve and protect Zimbabwe’s heritage whilst s 16(3) specifically calls for respect for traditional institutions. Against this backdrop, a narrower approach in interpretation which focuses on the President having the key administrative function of a declaratory role in the dispute and in the removal of the chief, placing the issue firmly in his hands from start to finish, would seem to contrast sharply with an interpretative approach that is bottom up, truly post-colonial, and, is informed by a genuine desire to decentralise democratic processes that have to do with the preservation of culture, albeit ultimately bowing to his authority. The provision lends itself just as easily to an interpretation which departs from a colonial legacy of a top down approach with a thrust towards fostering democratic dispute resolution within administrative structures that are central to the people.</p> <p>Be that as it may, regardless of the deeper constitutional interpretative thrust that underlies the provision and indeed this dispute, the issue of the President’s joinder to this matter is one that can be decided. This can be done by answering the question whether he is an interested party who ought to have been cited in these proceedings which seek to compel the Provincial Assembly of Chiefs to act in accordance with its mandate as outlined in s 283 of the Constitution. What is not disputed is that the ultimate task of resolving a dispute is his. It is obvious from a reading of the section that he is an interested party.</p> <p>Against the back drop and import of s 283, there is no order which can be crafted to compel action which would not be of relevance to the President in his role in ultimately resolving the dispute. After all it is the President who appoints a chief at his discretion. Since it is the President who appointed Chief Charumbira, he has a right to be aware of and to be party to any case whatsoever before the courts that touches on that appointment. In other words, he is an interested party and arbiter in any dispute involving chieftaincy on terms of s 283 (c) of the Constitution. As such, joining him to any proceedings brought before the courts is indeed an imperative. Whether the substantive provision is interpreted bottom up or top down, the inescapable conclusion is that the President is an indispensable party to any controversy that involves the removal of a chief he has appointed. He ought to have been cited at the onset more so since ordinarily the courts do not readily exercise jurisdiction in these matters in light of the thrust of s 283 of the new constitution.</p> <p>As regards the non-joinder and misjoinder of parties, Rule 87(1) provides as follows:</p> <p>“No cause or matter shall be defeated by reason of the misjoinder or nonjoinder of any party and the court may in any cause or matter determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the cause or matter.”</p> <p>Non joinder or misjoinder is not fatal and a matter, may still be heard to finality even where there has been non joinder. However as stated in the case of <em>Rodger &amp; Ors </em>v<em> Muller &amp; Ors</em> HH 2 2010 r 87(1) of the High Court Rules, 1971, does not absolve a litigant of the obligation to cite all relevant parties.</p> <p>Also rule 87(2) permits the court in a cause or matter whether on its own motion or <em>mero motu</em> to join a party or dispense with a party at any stage of a cause or a matter.</p> <p>In terms of r 87(2):</p> <p>“At any stage of the proceedings in any cause or matter the court may on such terms as it thinks just and either on its own motion or on application-</p> <ul> <li> </li> <li>order any person who ought to have been joined as a party or whose presence before the court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, to be added as a party.</li> </ul> <p>but no person shall be added as a plaintiff without his consent signified in writing or in such other manner as may be authorised.”</p> <p> </p> <p>Equally, the discretion by the court to join a party is also one that is judiciously exercised. Where a party had an opportunity to rectify the issue of joinder because the other side raised it and yet still chooses to forge ahead without the joinder, the court may not regard the circumstances as warranting a proper exercise of its discretion. The papers will often tell their story as to whether an issue has been raised and a party has elected to proceed regardless.</p> <p>Where a court decides not to exercise its discretion to proceed without joinder or to join a party has who is an indispensable party to the proceedings, then failure to join in the initial instance, by a party who could have done so, is generally fatal. The court can dismiss the claim in the absence of the citation of a necessary party.</p> <p>Non joinder is fatal to this application for the reason that the applicant had ample opportunity to attend to the joining of the President before this hearing. His application was lodged on 4 April 2018. By 26 April 2018 applicant was fully aware of the respondent’s position regarding the failure to join the President. Applicant did nothing to join the President. I am in agreement with the second and third respondents that r 87 of the High Court Rules, cannot be used to hide behind failure to observe an obligation to cite an interested party in the hope that the court will rely on this provision should the party be necessary.</p> <p>Having found that there is critical non joinder it will not be necessary to delve in-depth into the issue of prescription or estoppel, save to say the issue is definitely a customary law one in substance. Moreover, the respondents acknowledge in their heads of argument that the applicant did not exhaust local remedies before approaching the courts. It is argued in paragraph 3.8 and 3.9 that the proper course, given the averment that no complaint was received by the chairperson of the Assembly, would be for the applicant to approach second respondent. Indeed given that Chairperson is now aware, assuming he genuinely was not, then there is no reason why the process laid down for disputes should not be followed. In any event, it is also the Provincial Assembly of Chiefs this is better placed to determine whether the dispute has a long standing history that the applicant has averred.</p> <p>Whilst the point <em>in limine</em> on joinder is upheld, I do not think that an order of costs against the applicant would be appropriate in this case given the absence of harmonisation of the Constitution with relevant legislation. It is ultimately disrespectful of the constitutional status of customary law which impacts on many people’s lives when ordinary people are left to dither for years on end regarding how processes are supposed to operate efficiently due to lack of speedier harmonisation of relevant legislation with the constitution. In the final result;</p> <p>It is hereby ordered that:</p> <ol> <li>The point <em>in limine</em> regarding the fatality of non-joinder of the President of the Republic of Zimbabwe in this application is upheld.</li> <li>The application is dismissed.</li> <li>There is no order as to costs.</li> </ol> <p> </p> <p><em>Mukwewa Law Chambers, </em>applicant’s legal practitioners<br /> <em>Gill Godlonton and Gerrans, </em>2nd and 3rd respondents’ legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="Microsoft Office document icon" title="application/msword" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2019/841/2019-zwhhc-841.doc" type="application/msword; length=68608">2019-zwhhc-841.doc</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2019/841/2019-zwhhc-841.pdf" type="application/pdf; length=336042">2019-zwhhc-841.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/customary-law">CUSTOMARY LAW</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/chieftainship">Chieftainship</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appointment-chiefs-president">appointment of chiefs by President</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/p">P</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/joinder-parties">Joinder of parties</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/principles-joinder-parties">principles (Joinder of parties)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/when-may-be-ordered-joinder-parties">when may be ordered (Joinder of parties)</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/bulawayo-high-court/2016/161">Mlotshwa v Hwange District Administrator N.O. &amp; Others (HB 161-16 HC 3449-15) [2016] ZWBHC 161 (20 June 2016);</a></div><div class="field-item odd"><a href="/zw/judgment/harare-high-court/2015/465">Gambakwe &amp; Others v Chimene &amp; Others (HC 4443/12) [2015] ZWHHC 465 (19 May 2015);</a></div><div class="field-item even"><a href="/zw/judgment/harare-high-court/2015/571">Munodawafa v Masvingo District Administrator &amp; Others (HC 8352/11) [2015] ZWHHC 571 (23 June 2015);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1998/25">Traditional Leaders Act [Chapter 29:17]</a></div><div class="field-item odd"><a href="/zw/legislation/act/2013/amendment-no-20-constitution-zimbabwe">The Constitution of Zimbabwe Amendment (No. 20) Act, 2013</a></div></div></div> Tue, 28 Jan 2020 14:35:31 +0000 Sandra 9466 at https://old.zimlii.org Maware v Chiware (HMA 01-19, HC 228/18) [2019] ZWMSVHC 1 (07 January 2019); https://old.zimlii.org/zw/judgment/masvingo-high-court/2019/1 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>ANNA MAWARE </p> <p>versus</p> <p>EMMANUEL CHIWARE</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MAFUSIRE J</p> <p>HARARE, 29 &amp; 30 October 2018; 7 January 2019</p> <p> </p> <p> </p> <p><strong>Civil trial</strong></p> <p> </p> <p> </p> <p>Mrs<em> S. Moffatt</em>, for the plaintiff</p> <p>The defendant in person</p> <p> </p> <p> </p> <p>MAFUSIRE J:</p> <p>[1]        For 31 years the plaintiff and the defendant lived together as husband and wife in an unregistered customary law union (“<strong><em>the union</em></strong>”). During the subsistence of the union the parties acquired a sizeable number of assets, both movable and immovable. The plaintiff said they pooled their resources and acquired those assets jointly. The defendant denied there was any such pooling of resources, and said that each of them acquired their own assets separately. He further said on the dissolution of the union the plaintiff took the bulk of such items as she herself had acquired.</p> <p> </p> <p>[2]        The trial before me was the plaintiff’s claim for a redistribution of some of the assets acquired during the subsistence of the union. The claim was based on unjust enrichment. In the summons she claimed a lot more property. However, at the pre-trial conference, evidently with the direction and guidance of my Brother Mawadze J who presided over it, the parties reached agreement on the distribution of some of the assets that originally were in contention. The agreement was this:</p> <p> </p> <ul> <li>Of the 10 goats, each party to get 5 each;</li> </ul> <p> </p> <ul> <li>Of the building materials, plaintiff to get 30 asbestos sheets; 6 window frames and 6 door frames, and the defendant to get the remainder (not specified), (originally the plaintiff claimed 20 asbestos sheets; 4 door frames and 3 window frames);</li> </ul> <p> </p> <ul> <li>Of the household goods and effects, plaintiff to get a 4-piece lounge suite; 1 table; 3 chairs; 4 blankets; 7 pots, water tins, dishes, plates, 10 chickens; 5 turkeys and 1 display unit.</li> </ul> <p> </p> <p>[3]        In passing, I make the comment that for a whole machinery of justice to be called upon to sit in judgment over pots, plates, chickens and turkeys, items over which the parties reasonably ought to have agreed between themselves and their legal practitioners, betrayed unnecessary stubbornness and vindictiveness.</p> <p> </p> <p>[4]        What remained for trial were these issues:</p> <p> </p> <ul> <li>How many cattle were there? Plaintiff said 30. Defendant said 14. Was the plaintiff entitled to a share of the cattle? Plaintiff said yes, and wanted 15, but would go down to 10 if it was shown they were only 14. Defendant said plaintiff was not entitled to any cattle, but was willing to donate to her 1 cattle <em>ex gratia</em>.</li> </ul> <p> </p> <ul> <li>How should the irrigation equipment, comprising a “<em>Jojo</em>” water tank and equipment installed at the former “matrimonial” home in rural Masvingo be redistributed? Plaintiff placed on it a value of $10 000 and claimed half of that. Defendant said the whole equipment, comprising the tank itself ($500); solar pump, panels and stands ($2 800); pipes; sundries and labour, all cost $4 000 to install. He said he was willing to refund plaintiff no more than $1 000 which was her direct contribution.</li> </ul> <p> </p> <ul> <li>Were there 4 beds and 2 mattresses? How were these to be shared? Plaintiff said there were 4 beds and 2 mattresses and that she was entitled to 2 beds and 1 mattress. Defendant said there were no more beds for redistribution as he had donated one to a daughter, taken another to a town house and that none of those beds had any mattresses. Nonetheless, he was willing to offer the plaintiff 1 bed.</li> </ul> <p> </p> <ul> <li>Was an immovable property known as Stand 6681 Victoria Ranch, Masvingo that the plaintiff had been purchasing from some housing co-operative still available to her? Plaintiff said it had been re-possessed for failure to pay the instalments. Defendant said it was still registered in the name of the Plaintiff and was hers. Although none of the parties was laying claim to it, the defendant wanted it taken into account in the re-distribution matrix.</li> </ul> <p> </p> <ul> <li>Should the immovable property known as Stand 19691 Chipembwe Street, Rujeko C, Masvingo (“<strong><em>the Rujeko house</em></strong>”), registered in the name of the defendant, be awarded to the plaintiff in its entirety, or shared? The plaintiff claimed it all on the basis that she had also contributed to its acquisition and development and that the defendant had been awarded their former “matrimonial” rural home which had been fully developed. Defendant denied plaintiff was at all entitled to the Rujeko house or any share of it given that she had not in any way contributed to its acquisition or development, except for a once-off supervision of the offloading and counting of bricks, a task for which he would be willing to make an <em>ex gratia</em> payment of $500 (five hundred dollars). Of the rural home, the defendant said the plaintiff could not possibly award him a communal lands property because it is State land, and that she had made no contribution to its development. Furthermore, the plaintiff had secretly acquired an immovable property of her own, known as Stand 3238 Victoria Ranch, which she had concealed from the pool of the assets to be re-distributed.</li> </ul> <p> </p> <p>[5]        The parties approached the case from various angles to justify their individual stances. These included the constitutional provisions; the general law of the land; their direct or indirect contributions; the law of equity as well as their treatment of each other during the 31 years of their union.</p> <p> </p> <p>[6]        In essence, the plaintiff said at first she was unemployed. But eventually she had improved herself by acquiring secondary and tertiary education, thanks to the financial assistance given her by her parents and siblings. She had eventually qualified as a school teacher. She made direct and indirect contribution to the acquisition and development of their various assets. With the irrigation equipment in particular, she had given the defendant some money towards the drilling of a borehole. During the subsistence of the union she was expending all her income towards the running of the household in food, school fees and other necessaries. Above all, she was cooking for the family and the builders during the construction of the rural home. She also looked after the cattle and other livestock in times when there were no herdsmen. She said the law of the land recognised such contribution in the re-distribution of assets in the event of dissolution of an unregistered customary law union. She claimed the defendant was abusive, at times violent and that he was so stingy that he would count the number of slices of bread the family should consume.</p> <p> </p> <p>[7]        In counter, the defendant said he was a very hard working person. He said even as he was still in secondary school he had managed to acquire some cattle of his own. He said the education and employment that the plaintiff was now flaunting was due to his singular effort. Not only had he conceived the idea that she should improve on her education after she had failed secondary school, but also that he had encouraged her to pursue further studies which he himself proceeded to sponsor. The defendant said the plaintiff kept her money to herself except on the one instance that she had given him an amount towards the irrigation equipment. His family was self-sufficient in food and other necessaries, thanks to his industry and prudent budgeting. He always employed herdsmen for the livestock. The plaintiff continuously complained of ill-health which forced him to employ domestic aid.</p> <p> </p> <p>[8]        The defendant got his nephew, Pardon Chiware, and his (defendant’s) sister, Vinegar Chiware, to testify in support of the narrative that he was a very hardworking person. They said of the cattle in his kraal and on the stock card, only 14 belonged to him . The rest belonged to other people, like his deceased mother and one of his deceased nephews.</p> <p> </p> <p>[9]        I have considered it largely unhelpful, and even futile, to try and recall the parties’ union of 31 years’ duration, place it under a legal microscope and scrutinise who earned what salary, who paid for what, who had been the more hardworking, and the like. Thirty one years is by all accounts a very long time. At times during trial there were some gratuitous attempts by the parties to interest me with who had wronged who and in what manner; who had caused the breakup of the union and, in some cases they both hinted at episodes of unfaithfulness towards each other.</p> <p> </p> <p>[10]      Redistribution of assets in a matter like this is not a matter of metaphysics. A plaintiff cannot be required to establish with some mathematical precision the causal link between his or her contribution, in cash or kind, to the acquisition of the assets and their subsequent appreciation or depreciation in value. After all is said and done the matter calls for a sensible retrospective analysis of what would probably have been the contribution of each party, what would be expected to occur in the ordinary course of human affairs.</p> <p>     </p> <p>[11]      I have considered the evidence placed before me in its totality. I have discounted the parties’ emotional hyperbole evident from the breakup of the union. The parties must appreciate that divorce or the breakup of any conjugal relationship is costly. It is a drain on resources. It is a drain on emotions. It strains social relations. It costs money. Even though the dissolution might have been inevitable and probably the only reasonable way out of an impossible situation, it was nonetheless retrogressive. The parties were  destroying what they had built over the years. It is therefore naïve for the one to think that in parting ways they could get all what they want or what they perceive to belong to them, and for the other to think that they can retain all what they claim belongs to them.</p> <p> </p> <p>[12]      My decision in this matter is largely common sense. It is a value judgment. The parties invested their lives, their emotions, energy and resources in a conjugal relationship that lasted 31 years. By African custom, they were duly married. The relationship produced three children, all of them now grown up. The defendant thinks the plaintiff is being greedy and wants to reap where she did not saw. He insists all the assets in contention were acquired by him alone. He discounts almost to nothing the plaintiff’s contribution during all those years, though at times he was forced to make some concessions.</p> <p> </p> <p>[13]      Both parties are, and have been school teachers. Admittedly, as headmaster, and one in formal employment for a longer period, the defendant’s earnings and contribution to the acquisition of the assets were greater than those of the plaintiff. But beyond these general observations I have avoided getting bogged down in the nitty gritty of how each asset was acquired. The plaintiff is definitely entitled to more than what she has already got and what the defendant is offering. As to how much that is will be my value judgment as explained below.</p> <p> </p> <p>[14]      In the final analysis, my award is as follows</p> <p> </p> <p>[i]         <em>Cattle</em></p> <p>They were 30 when the plaintiff left. They are now 28. This is clear from the plaintiff’s evidence and the stock card, marked exhibit 8. The plaintiff has failed to prove all 28 belong to the defendant. I am satisfied from the defendant’s evidence that only 14 belong to him. Of these, plaintiff wants 10. That is too much. The defendant offers 1. That is too little. Given her efforts in generally looking after the union’s household and tending to all aspects including livestock, and given the benefit that she herself must have derived from the livestock, like drought power and milk, I consider a fair award to the plaintiff to be 4 cattle, or their monetary value.</p> <p> </p> <p> </p> <p>[ii]        <em>Beds and mattresses</em></p> <p>I accept the plaintiff’s evidence that there were an extra 4 beds and 2 mattresses when she left. The defendant said he donated one of the beds to their daughter. That was his generosity, but should obviously not be at the plaintiff’s cost. I have not accepted that the beds had no mattresses. I accept the plaintiff’s evidence that these were items that the family had been using. Therefore, the plaintiff should be entitled to 2 beds and 1 mattress, or their monetary values.</p> <p> </p> <p>[iii]       <em>Irrigation equipment</em></p> <p>The defendant demonstrably tried to downplay the value of the irrigation equipment. This probably stemmed from the plaintiff’s persistent reference to the “<em>Jojo</em>” tank which cost only $500. But it was clear the plaintiff was claiming half the value of the irrigation equipment and system as a whole. The plaintiff claimed $5 000. The defendant offered $1 000. Obviously with depreciation and appreciation the replacement value should be far different now from the installation cost. I consider the plaintiff should be entitled to one-third (1/3) of the value of the equipment at the time of this judgment.</p> <p> </p> <p>[iv]       <em>Stand 19691 Chipembwe Street, Rujeko C, Masvingo</em></p> <p>I reject the plaintiff’s claim for the whole house. But I also reject the defendant’s offer of a paltry $500. I accept the plaintiff’s evidence that Stand 6681 Victoria Ranch was repossessed and therefore cannot be taken into account in the redistribution matrix. I accept the defendant’s evidence that the plaintiff acquired the other property, Stand 3238 Victoria Ranch during the subsistence of the union, despite the fact that the formal allocation agreement, exhibit 3, is post the breakup of the union. The agreement is dated 3 May 2017. The union broke up in April 2017.</p> <p> </p> <p>I also take cognisance of the fact that apart from the fully developed rural homestead that the defendant retains, he also has another property, Stand 6725 Victoria Ranch. There were allegations by the defendant that the plaintiff did not refute that she also has a counter bottle in the rural areas. So taking all these factors into account I consider that a fair award to the plaintiff in respect of the Rujeko house is one third (1/3) of its value at the time of judgment.</p> <p> </p> <p>[15]      My judgment has to be efficacious. The defendant must deliver or pay within defined time limits. But he must know what to deliver or how much to pay. Unless the parties are able to reach agreement by themselves, it is necessary for the court to fix these. But there is no information to guide me. I have no evidence of the defendant’s capacity. But that should not be a deterrence to a judgment that is effectual.</p> <p> </p> <p>[16]      Therefore, I direct that unless within thirty (30) days of the date of this judgment the defendant complies by delivering to the plaintiff the 4 head of cattle; the 2 beds and 1 mattress, and paying her the stipulated values of the irrigation equipment and the Rujeko house as shall have been agreed upon by the parties within the same time frame, the plaintiff shall be free to approach the Registrar of this court, or her Deputy, to appoint evaluators for the assessment of the values of the awards due to her in terms of this judgment, whereafter the defendant shall comply within a further sixty (60) days from the date the evaluation report is made available.</p> <p> </p> <p>[17]      Both parties claimed costs of suit, the defendant on an attorney and client scale. The Plaintiff has largely been successful, but only to the extent of roughly a third of her original claim. Therefore, she should be entitled to a third of her costs.</p> <p> </p> <p>[18]      In the final analysis the operative part of this judgment reads:</p> <p> </p> <ul> <li>Judgment be and is hereby entered for the plaintiff as indicated below.</li> </ul> <p> </p> <p>ii)      The following assets are awarded to the plaintiff:</p> <p> </p> <ul> <li>four (4) head of cattle;</li> </ul> <p> </p> <ul> <li>two (2) beds;</li> </ul> <p> </p> <ul> <li>one (1) mattress;</li> </ul> <p> </p> <ul> <li>one-third (1/3) of the value of the irrigation equipment installed at the defendant’s rural homestead at Nemarundwi, Zimuto, Masvingo;</li> </ul> <p> </p> <ul> <li>one-third (1/3) of the value of the immovable property situate Stand 19691 Chipembwe Street, Rujeko C, Masvingo.</li> </ul> <p> </p> <p>iii)        Unless within thirty (30) days of the date of this judgment the defendant delivers to the plaintiff the awards aforesaid, or pays the values thereof in the ratios stipulated as shall have been agreed upon by the parties within the same time frame, the plaintiff may approach the Registrar of this court, or her Deputy, to appoint evaluators for the assessment of the values, whereafter the defendant shall pay within a further sixty (60) days from the date the evaluation report is made available.</p> <p> </p> <p>iv)        The defendant shall pay one-third (1/3) of the plaintiff’s costs of suit.</p> <p> </p> <p>7 January 2019</p> <p><em>Legal Resources Foundation</em>, plaintiff’s legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/masvingo-high-court/2019/1/2019-zwmsvhc-1.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=58197">2019-zwmsvhc-1.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/masvingo-high-court/2019/1/2019-zwmsvhc-1.pdf" type="application/pdf; length=158445">2019-zwmsvhc-1.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/customary-law">CUSTOMARY LAW</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/family-law-customary-law">Family law (CUSTOMARY LAW)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/division-property-following-divorce-family-law-customary-law">division of property following divorce (Family law -CUSTOMARY LAW)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/entitlement-share-matrimonial-customary-law">entitlement to share of matrimonial (CUSTOMARY LAW)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/husband-and-wife-family-law-customary-law">husband and wife (Family law -CUSTOMARY LAW)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/property-rights-under-customary-law-marriage">property rights under customary law marriage</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/unregistered-customary-law-marriage">unregistered customary law marriage</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/family-law">FAMILY LAW</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/husband-and-wife-family-law">Husband and wife (FAMILY LAW)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/divorce-husband-and-wife-family-law">divorce (Husband and wife FAMILY LAW)</a></li></ul></span> Thu, 07 Feb 2019 10:04:06 +0000 admin 9263 at https://old.zimlii.org