PRIKISI MUTIMHODYO

versus

SANANGURAI KUBIKU

and

GUTU DISTRICT ADMINISTRATION

and

MASVINGO PROVINCIAL ADMINISTRATION

and

MINISTER OF LOCAL GOVERNMENT

PUBLIC WORKS AND NATIONAL HOUSING

HIGH COURT OF ZIMBABWE

CHIWESHE JP

HARARE, 7 October 2010

Miss Magorimbo, for the applicant

Mr L. Makanza, for the first respondent

Miss Hove, for the 2^nd to 4^th respondents

            CHIWESHE JP:  This is an application for review seeking the nullification of the nomination and appointment of the first respondent as Chief of the Munyikwa people.  The applicant avers that the customary principles of succession to the Munyikwa chieftainship were not followed and as a result the wrong person was nominated for appointment.

            The second, third and fourth respondents have opposed this application.  In their opposing affidavit sworn to by Partson Itai Mbiriri, the Permanent Secretary in the Ministry of Local Government, Public Works and Urban Development, they aver as follows.

            The appointment of the first respondent was done in accordance with the customs and traditions of the Munyikwa Community and in line with the provisions of s 3 (2) of the Traditional Leaders Act [Cap 29:17].  The succession custom followed by the Munyikwa chieftainship is that the eldest or the most senior surviving male family member is appointed chief.  The Munyikwa community held five meetings to nominate a substantive chief.  Ministry officials were present at all these meetings to ensure that the provisions of the Act were adhered to.  In all these meetings first respondent was nominated as the suitable candidate as he was the eldest surviving male person from the Kubiku house.  All the necessary procedures were followed in coming up with the substantive chief.

            The first respondent has not filed any opposing papers.  His failure to do so does not in my view affect the outcome of this application.  This is so because in essence what is on review are the administrative commissions and or omissions of the second, third and fourth respondents vis-a vis their obligations in terms of the provisions of the Traditional Leaders Act [Cap 29:17].

            The fifth respondent, the President of the Republic of Zimbabwe, should not have been cited.  The applicant has amended the papers accordingly.

            The applicant insists that the correct procedures were not complied with in the appointment of the first respondent.  The grounds for seeking review are as follows:

1.   The appropriate people were not consulted.
2. The prevailing customary principles of succession applicable to the Munyikwa people were not followed in that:
   1. First defendant’s family members are ineligible to become chiefs because their great grandfather committed murder and their descendants were banned from ascending the chieftainship.
   2. In any event the family tree, starting with those at the top, was not followed.
   3. It is the custom of the Munyikwa clan that the eldest of those eligible to become chief is appointed.  Applicant is older than the first respondent.
3. The first respondent was not nominated by the people.  It is the applicant who was nominated.
4. The first respondent was nominated whilst there was still an appointed chief.

In his heads of argument the applicant identifies the issues for determination as  follows:

“3.1   What are the prevailing customary principles of succession to the Munyikwa

                      Chieftainship?

  3.2.  Whether such prevailing customary principles of succession were  followed

            when first respondent was nominated for appointment.

         3.3    Legal implications of non- compliance with the prevailing customary

                  principles of succession.”

            The first and second issues can only be determined by lodging an inquiry to establish what the customary principles of succession to this particular chieftainship are.  Once that is known with a degree of certainty, such as the views of the majority in the clan, one may then substantially determine whether these were followed or complied with.  Both stages of such an inquiry require that the factual basis of any conclusion one might come to be interrogated.

            In the present application it is patent that the facts upon which the applicant seeks to support his case are, despite his assertion to the contrary, far from being common cause.  These facts cannot be resolved without hearing “viva voce” evidence.

            For example the applicant insists he is older than the successful nominee, the first respondent.  The respondents say it is the nominee who is the eldest of the persons eligible for appointment.

            The applicant avers that the nominee’s family is not eligible for chieftainship on account of murder committed by their great grand-parents.  The respondents insist that the appointment was done in line with the clan’s customary law principles.

            The applicant states that another nominee had been recommended by the people.  That nominee was Zivanai.  Whilst awaiting installation, the clan was told that the first respondent had in fact been nominated.  The respondents aver there was only one nominee, the first respondent.

            The applicant says after Zivanai’s death he was nominated by the people for appointment, more so because he was older than first respondent.  The respondents would beg to differ.

            These and other factual disputes cannot be resolved on the papers as they stand.  The applicant should have proceeded by way of action rather than application.  That being so, it is within my discretion to dispose of this application by either dismissing it, or proceeding with it and calling such viva voce evidence as the court and the parties may determine, or, simply refer the matter to trial. I prefer the last option as it enables a full, exhaustive and conclusive inquiry into the issues the parties have put forward for determination.

            Accordingly it is ordered as follows:

1.  That the matter be and is hereby referred to trial.
2. That the present papers be converted to pleadings.
3.  That costs be costs in the cause.

Messrs Hogwe, Dzimirai and Partners, applicant’s legal practitioners

Mwonzora & Associates, first respondent’s legal practitioners

Civil Division of the Attorney General’s Office, 2^nd to 4^th respondents’ legal practitioners