David Samambwa v Samuel Samambwa & 5 Ors

### Preamble
1
HH 811-18
HC 1145/18
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DAVID SAMAMBWA

versus

SAMUEL SAMAMBWA

THE DISTRICT ADMINISTRATOR-KWEKWE

THE PROVINCIAL ADMINISTRATOR MIDLANDS PROVINCE

THE MINISTER OF LOCAL GOVERNMENT PUBLIC WORKS AND NATIONAL HOUSING

THE PRESIDENT OF THE REPUBLIC OF ZIMBABWE

and

THE REGISTRAR-GENERAL OF BIRTHS AND DEATHS

HIGH COURT OF ZIMBABWE

TAGU J

HARARE, 6 NOVEMBER  &  12 DECEMBER 2018

Opposed Application

R Mabwe with T Maune and E Makaranga, for applicant

K Mahereni, for 1st respondent

LT Muradzikwa, for 2nd to 6th respondents

TAGU J: This is an application to uphold the appointment of the applicant on 20th October 2016 as the substantive Chief Samambwa and for a declaration as invalid, null and void the purported appointment on 19th December 2017 of the first respondent to the same office by the fifth respondent. The facts are that the applicant was appointed the substantive Chief Samambwa of Zhombe, Kwekwe District, Midlands Province in Zimbabwe on the 20th of October 2016 by the then President of the Republic of Zimbabwe, Mr Robert Gabriel Mugabe following several disputes and meetings over the prevailing Samambwa Chieftainship succession customs. Following operation restore legacy that saw the resignation of Mr Robert Gabriel Mugabe the applicant was removed as Chief Samambwa and the first respondent was appointed as Substantive Chief Samambwa by the current President of the Republic of Zimbabwe Mr Emmerson Dambudzo Mnangagwa on 19th December 2017 after a review of the prevailing Samambwa succession customs. The second respondent is the District Administrator for Kwekwe District and he played a facilitatory role in the process of nomination and selection of a candidate for appointment as Chief. The third respondent is the Provincial Administrator for the Midlands Province and he also played a facilitatory role in the process of nominating and selecting a candidate for the appointment of Chief. The forth respondent is the Minister responsible for administering the Traditional Leaders Act [Chapter 29:17] and Chiefs fall under his Ministry. The fifth respondent is the President of the Republic of Zimbabwe. He is constitutionally empowered to appoint, suspend and remove Chiefs on the recommendations of the provincial assembly of Chief made through the National Council of Chiefs and the forth respondent and in accordance with the traditional practices and traditions of the communities involved. In terms of the Constitution of Zimbabwe Amendment (No. 20) Act 2013 the President must in his executive capacity resolve disputes concerning the appointment and removal of Chiefs. The sixth respondent was cited merely as the Registrar- General of Births and Deaths whose office is the central registering office for all notices of births, still –births and deaths in Zimbabwe.

The applicant disputes the selection made by the current President and has approached this court on review seeking the following relief-

“1. 	Applicant be and is hereby declared to be the duly appointed substantive Chief

Samambwa of Kwekwe District Midlands Province in Zimbabwe.

2. 	The appointment of Applicant as Substantive Chief Samambwa of Kwekwe District Midlands Province in Zimbabwe by the 5th Respondent on 20th October 2016 be and is hereby upheld.

3. 	5th Respondent’s appointment of 1st Respondent as substantive Chief Samambwa of Kwekwe District Midlands Province in Zimbabwe on December 19th 2017 be and is hereby declared null and void.

4. 	The 2nd, 3rd and 4th Respondents be and are hereby directed to install Applicant as substantive Chief Samambwa of Kwekwe District Midlands Province in Zimbabwe within ten (10) days of the granting of this order.

5.	 The Zimbabwe National Registration cards issued as numbers 58-036593 C 58 and 58-009374 R 58 to Applicant and 1st Respondent respectively by the 6th Respondent be and are hereby declared to be valid.

6. 	The 1st, 2nd, 3rd, 4th, 5th and 6th Respondents shall pay the Applicant’s costs of suit jointly and severally the one paying the others to be absolved.”

At the hearing of this matter points in limine were raised by the applicant as well as by the forth respondent. The point in limine raised by the applicant was that the second, third, fifth and sixth respondents were not properly before the court because they did not file opposing affidavits nor did they file supporting affidavits, power of attorney nor authorized the forth respondent to file opposing affidavits on their behalf. The counsel for the forth respondent at first submitted that the office of the forth respondent administered the other offices hence it had the authority and mandate to administer and represent the other respondents. However, the counsel for the forth respondent in my view later correctly conceded that only the fourth respondent was properly before the court and urged the court to give an order which he thought would not affect the other respondents.

The fourth respondent then raised two points in limine. The first point was that this court does not have jurisdiction to entertain this matter. The second point in limine was that there were disputes of facts which could not be resolved on papers. Counsel for the applicant submitted that where a decision has been made, this court has the jurisdiction to review that decision particularly under common law the other party should have been heard in terms of section 67 of the Constitution. She however conceded that if it was a mere dispute then this court has no jurisdiction. As regards the second point in limine counsel for the applicant submitted that the second point was frivolous and vexatious because the deponent to the opposing affidavit had not raised it before and the counsel cannot raised it from the bar. In my view the second point in limine if it has substance can be raised at any point as long as it is a point of law. What I have to look at critically is the first point in limine.

WHETHER THIS COURT HAS JURISDICTION TO ENTERTAIN THIS MATTER.

It is trite that where a dispute arises during the selection of a Chief, that dispute can be resolved by the President alone. Where the President just makes a decision depending on the circumstances such decision may be subject to review if not made in terms of the law and the prevailing customs of the people concerned. Going by what the applicant said in his founding affidavit, the President did not just mero motu remove the applicant and installed the first respondent. I say so because the applicant in paragraphs 52, 54, 57 and 58 of his founding affidavit alluded to some meetings and recommendations made by officials to the President before his removal from the office of the Chief. For avoidance of doubt the applicant said among other things that-

“52. 	So is the recommendation contained in a Memorandum by Mr July Moyo, the current occupant of the office of the 4th respondent which triggered that removal…

54. 	Copies of signed Cabinet Minute approving my purported removal as substantive Chief Samambwa, the Memorandum recommending such removal and 4th Respondent’s letter communicating 1st Respondent’s purported appointment as Substantive Chief Samambwa are attached hereto as Annexures ‘’22”, “23” and “24” respectively…

57. 	Even the so called verification meeting of August 19th 2016 at Donjane St Georges Primary School is no foundation to purport to revoke my appointment.

58. 	I do not have a copy of the minutes of that meeting, but can state that the 4th Respondent through his officials, using affidavits deposit to by 1st Respondent and his sympathisers, made the untenable observation that despite our accepted dates of birth as officially recorded by 6th Respondent, 1st Respondent was “culturally older” than me. I refer to annexure “23” in this regard.”

My reading of annexures “22”, “23” and “24” clearly shows that the applicant was aware that a dispute had arisen again as to who should be appointed Chief Samambwa despite an earlier appointment by Mr Robert Gabriel Mugabe. It would be wrong for the applicant to submit that there was no dispute for the current President, the fifth respondent herein to resolve. The dispute was far from over. This dispute can be traced as follows:

On 19th February 2015 at a Samambwa Chieftainship Selection Meeting held at Donjani Primary School in Kwekwe the applicant was selected for appointment as substantive Chief Samambwa.

On 26th March 2015 another selection meeting was held at Zibabwe Rural District Council sub offices following complaints to forth respondent by the first respondent and his symphathisers within the clan that the wrong succession custom had been used in selecting the applicant for appointment as substantive Chief Samambwa. The applicant’s selection was set aside and the applicant together with his other brothers from the third house and their families walked out of the selection meeting in protest over the officials’ conduct about the correct prevailing succession custom applicable to their Chieftainship. The first respondent was then selected for chieftainship.

On 27 March 2015 the applicant again co-authored a letter to the forth respondent complaining about the proceedings and outcome of the meeting of 26th March 2015. Several other meetings then followed.

On 16th December 2015 the first respondent was removed as substantive Chief Samambwa.

On 20th October 2016 the then President Mr Robert Gabriel Mugabe duly reappointed the applicant as the substantive Chief Samambwa.

On 12th December 2017 the current President Emmerson Dambudzo Mnangagwa following recommendations from the relevant officials removed the applicant from Chieftainship.

On the 19th December 2017 the first respondent was again reinstalled as the Substantive Chief Samambwa by Mr Emmerson Dambudzo Mnangagwa, the current occupant of the office of the fifth respondent.

With this history the question is does this court have jurisdiction to entertain this case on review? The counsel for the forth respondent submitted that disputes concerning the appointment, suspension and removal of traditional leaders are resolved by the President in terms of section 283 of the Constitution of Zimbabwe. He further submitted that in terms of section 283 of the Constitution this Honourable court has no jurisdiction to entertain disputes concerning the appointment, removal and suspension of Chiefs. He said these disputes are resolved by the President on recommendation of Provincial Assembly of Chiefs through the National Council of Chiefs and Minister responsible for traditional leaders. He said the President alone has executive power to determine Chieftainship. He said the applicant in casu never approached the President to seek redress when the dispute arose again. The applicant therefore jumped the gun to rush to the High Court without exhausting the domestic remedies available to him. For these submissions the counsel for the forth respondent referred the court to the cases of Elias Gambakwe and Sanangurai Muchakabarwa and Marwisa Muzokura and Chimene Mbudzi v Hebert Chimene and Bikita District Administrator and Masvingo Provincial Administrator and Mimister of Local Government Rural and Urban Development N.O. HH-465-15; Tafaneyi David Gweshe v The President of the Republic of Zimbabwe N.O. and Minister of Local Government, Rural and Urban Development NO. and Acting Chief Negomo- Lucious Chitsinde HH-542-16 and Golden Moyo v (1) Stephen Mkoba (2) District Administrator for Lower Gweru (3) Governor of Midlands Province (4) The Minister of local Government, Rural & Urban Development (5) The President of the Republic of Zimbabwe SC -35-2013.

Section 283 of the Constitution referred to by the counsel for the forth respondent provides as follows:

“An Act of Parliament must provide for the following, in accordance with the prevailing culture, customs, traditions and practices of the communities concerned-

the appointment, suspension, succession and removal of traditional leaders,

the creation and resuscitation of chieftainships; and

the resolution of disputes concerning the appointment, suspension, succession and removal of traditional leaders;

but-

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;

disputes concerning the appointment, suspension and removal of traditional leaders must be resolved by the President on the recommendations of the provincial assembly of Chiefs through the Minister responsible for traditional leaders;

the Act must provide measures to ensure that all these matters are dealt with fairly and without regard to political considerations;

the Act must provide measures to safeguard the integrity of traditional institutions and their independence from political interference.”

Section 283 (c) (i) therefore provides for the appointment of a chief by the President in accordance with the traditional practices and traditions of the communities concerned. In Prikisi Mutimhodyo v Sanangurayi Kubiku & Ors HH- 173/12 the court held that the power of the court in chieftainship disputes is limited to administrative review of the process leading to the appointment. The court was quick to point out that this power does not extend to reviewing the decision of the President to appoint one a chief. Similar sentiments were expressed in Moyo v Mkoba and Ors supra where the Supreme Court held that when the President has in his discretion made a decision appointing a chief, his decision may not be subject to judicial review unless he has exercised his discretion outside the law. I am therefore bound by the decision of the Supreme Court that only the President has the power to appoint a Chief. The President is required to act on his own deliberate judgment after he has information relating to the prevailing customary principles of succession applicable to the community to which he must give consideration. The court has no power to investigate, determine or even recommend to the President who should be appointed as the chief in an area. I therefore share the same sentiments with the counsel for the forth respondent that this court has no jurisdiction to entertain this matter where the President has made a decision. In Karimatsenga v Tsvangirayi and Ors HH -369-12 the court held that the High Court cannot invoke its inherent jurisdiction to take away any powers which have been given to another court or person in any Act of Parliament. Section 2 of the Constitution provides that the Constitution is the supreme law of this country. Any law, practice, custom or conduct inconsistent with it is invalid to the extent of the inconsistency.

In casu the President is the only person who can appoint, remove and or suspend a Chief on the basis of information given to him. The applicant ought to have petitioned the President for relief when he realized that a dispute had arisen again and that recommendations had been made for his removal as Chief Samambwa and that his brother Samuel Samambwa was being reappointed Chief Samambwa. I therefore agree with the counsel for the forth respondent that this court has no jurisdiction to entertain this matter. The point in limine is sustained and the application to review the decision of the President is dismissed without dealing with the merits of the application.

IT IS ORDERED THAT

The application to review the decision of the 5th respondent appointing Samuel Samambwa as the substantive Chief Samambawa is hereby dismissed.

The 5th Respondent’ appointment of the 1st Respondent as substantive Chief Samambwa of Kwekwe District Midlands Province in Zimbabwe on 19th December 2017 be and is hereby upheld.

The 2nd, 3rd,and 4th Respondents be and are hereby directed, if they had not done so, to install 1st Respondent as substantive Chief Samambwa of Kwekwe District Midlands Province in Zimbabwe within ten (10) days of the granting of this order.

The applicant shall pay costs of suit.

Gutu & Chikowero, applicant’s legal practitioners

Mutate & Partners, 1st respondent’s legal practitioners

Civil Division of the Attorney General’s Office, 2nd to 5th respondents’ legal practitioners