Ignatious Chawasarira v The Minister of Local Government, Public Works and National Housing and 7 Others

### Preamble
1
HH 564-25
HCH 302/25
HCH 302/25
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IGNATIOUS CHAWASARIRA

versus

THE MINISTER OF LOCAL GOVERNMENT,

PUBLIC WORKS AND NATIONAL HOUSING

and

THE NATIONAL COUNCIL OF CHIEFS

and

THE PROVINCIAL ASSEMBLY OF CHIEFS

(MASHONALAND EAST)

and

THE DISTRICT DEVELOPMENT COORDINATOR

(GOROMONZI DISTRICT)

and

THE PRESIDENT OF THE REPUBLIC OF ZIMBABWE

and

LISTER CHIDZIVA

and

ELIA MUSAKWA

and

RICHARD JEYI SHAMBARE

HIGH COURT OF ZIMBABWE

TAKUVA J

Harare 17 March 2025 and 24 September 2025

Urgent Court Application

P Chikandaise, for the applicant

Miss A Zikiti, for 1st, 2nd, 3rd ,4th and 5th respondents

No Appearance for the 6th   and 7th respondents

C Bushe Bwititi, for the 8th respondent

TAKUVA J:   This is an urgent court application where in the Applicant seeks the following relief:

“1.	The Application be and is hereby granted.

2.	The appointment of the eighth Respondent as Chief Chinamora by the fifth Respondent be and is hereby set aside.

3.	The decision by the first – fourth Respondents to recommend the eighth Respondent to the fifth Respondnent for appointment as Chief Chinamora and the recommendation itself be and is here by set aside.

4.	Having undertaken to abide by the decision of the court under HCH 439/24, the fifth Respondent’s appointment of the eighth Respondent as Chief Chinamora be and is hereby declared a nullity.

5.	Consequently, the substantive dispute whether the nomination of the eighth Respondent was appropriate or otherwise will be determined under HCH 4303/24.

6.	The application for the expedited hearing of the cause under HCH 4303/24 be and is hereby granted.

7.	Within 3 days of this order, the parties shall appear before the Registrar to agree on timelines which (sic) to file the outstanding papers under HCH 4303/24, failing which the matter may be referred to a Judge in chambers for case management.

8.	The eighth Respondent shall pay costs of suit.”

Background

This dispute originates from the Shawasha people’s customs and traditions when it comes to ascending to chieftainship. Specifically, it is the Chinamora chieftainship that has not been resolved since 2016 until the appointment of the eighth Respondent, by the fifth Respondent on 11 December 2024.  The saga commenced when Simon Chidziva (Chinamora 15th) died in 2016 and his son Lister Chidziva became acting chief.  The process to replace a chief is initiated at provincial level by the Provincial Assembly of Chiefs which in turn reports to the second Respondent which reports to the Minister of Local Government (first Respondent).  The second and third Respondents’ roles are under the auspices of the first Respondent while the fourth Respondent is responsible for coordinating the entire process.

In line with this procedure numerous teams were dispatched to obtain information and consensus as to who was supposed to be nominated as Chief Chinamora.  The teams arrived at different conclusions.  Finally, a team led by Chief Nyajinha nominated Richard Jaya Shambare (eighth Respondent) which selection is disputed by the Applicant under HCH 4303/24.  The fifth Respondent, the appointing authority was cited therein and he undertook to abide by the decision of the court.  In HCH 4303/24 what was sought was the setting aside of the nomination of the eighth Respondent and ancillary relief. Despite the part that the litigation under HCH 4303/24 is pending and not withstanding his undertaking the fifth Respondent went ahead and appointed the fifth Respondent as Chief Chinamora.

Aggrieved by that appointment, Applicant filed this application for the review of the conduct of the fifth Respondent, relying on provisions of S.3 of the Administrative Justice Act [Chapter 10:28].

The application was opposed by the first – fifth Respondent and the eighth Respondent mainly on the basis that the court has no jurisdiction over the dispute and that the applicant has not exhausted internal remedies, both points-based on the law which provides that disputes relating to the appointment of Chiefs are to be resolved by the President in terms of the Constitution.  In essence, the first – fifth and eighth Respondents took two points in limine namely that this court has no jurisdiction by virtue of the provisions of s 283 of the Constitution and that the Applicant ought to have exhausted domestic remedies first before mounting this application.

Respondents’ submissions

Jurisdiction

It was submitted that Applicant has approached this court prematurely in that he should have approached the President who has the constitutional mandate to resolve disputes concerning the appointment suspension and removal of traditional leaders on the recommendation of the Provincial Assembly of Chiefs through the minister responsible for traditional leaders.  The application under HCH 4303/24 has no judgment and is still pending.  More importantly, it has not interdicted the President from making appointments.  It was further argued that the Applicant has failed and or neglected to lodge a formal complaint in terms of the constitution, meaning this application and any other are not yet ripe to be heard by the courts.  It was denied that the fifth Respondent has undercut any legal process and the appointment of the eighth Respondent as the substantive Chief was within the bounds of the law in that it was done in terms of section 283 of the constitution of Zimbabwe Amendment (N020) Act.

THE APPLICANT’S SUBMISSION

As regards the point in limine on jurisdiction, Applicant contended that it has no merit in that case No HCH 4303/24 was filed to forestall an appointment.  At the time of filing there was no appointment.   Therefore, the court retains the power to determine the cause under HCH 4303/24 and it must be allowed to determine that dispute effectively.

It was further submitted that in the present case what is not in issue is whether the eighth Respondent is the rightful Chief Chinamora or otherwise.  That will be determined under HCH 4303/24.  “Accordingly, so the argument went, “s 283 of the constitution is not engaged.”  Applicant’s argument is that this case is all about “Whether the fifth Respondent could undermine the legal process under HCH 4303/24.  The gravamen of this application is whether the fifth Respondent was entitled to appoint 8th Respondent notwithstanding the position he had taken to abide by the decision of the court under HCH 4303/24.”  This is not a dispute about appointment to chieftainship.  This is a dispute about whether the fifth Respondent complied with the Administrative Justice Act and the common law”. (my emphasis)

Finally, Applicant argued that this case is “not about the substance of the nomination of appointment of the eighth Respondent.  For that reason, this Court has jurisdiction over the matter.   The point in limine on jurisdiction is without merit.” (the underlining is mine)

The law and Analysis

I take the view that the global issue is whether or not the fifth Respondent’s decision of appointing the eighth Respondent as the substantive Chief Chinamora was unlawful and ought to be set aside by this court. It is common cause that disputes concerning the removal of traditional leaders are resolved by the President in terms of s 283 of the Constitution.  The section provides;

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

The appointment, suspension, succession and removal of traditional leaders.

The creation and resuscitation of Chieftainship; 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 recommendation 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 safe guard the integrity of traditional leaders’ institutions and their independence from political interference.”

These provisions are clear and straightforward in my view.  To that extent all that is required is a grammatical interpretation that focuses on the Linguistic and grammatical interpretation of the words, phrases, sentences and other structural components of the text.

In ELIAS GAMBAKWE AND 3 ORS v HEBERT CHIMENE AND 3 ORS HH 465/15, the court when declining its jurisdiction on a dispute concerning the appointment of a chief stated the following; “.................in this case from the use of the word “must” in s 283 (c) (ii) of the Constitution intended to give that responsibility to the President.  My view is strengthened by the provisions of s 342 (i) of the Constitution which provide as follows;

342 (i), A person, jurisdiction or right conferred by this Constitution may be endorsed and a duty imposed by this Constitution must be performed whenever it is appropriate to do so.

As already said, the requirement in s 283 (c) (ii) of the Constitution concerning the appointment of chiefs” must be resolved by the President on the recommendation of Provincial Assembly of Chiefs through the Minister responsible for traditional Leaders”, imposes a duty on the President and its indicative of the legislature’s intention that only the President should resolve such disputes.  Otherwise, how must the President resolve such disputes if the courts can resolve them?  The use of the word “must” means that he is obliged to resolve every such dispute.”

See also CHIPFUYAMITI v NYATINA & ANOR 1992 (2) ZLR 148 (H), where the court said, “In exercising his powers in this regard the President, as was the case with his predecessors, has an absolute discretion unfettered by any statutory shackles other than the duty to give due consideration to customary principles, if any applicable to the community over which such chief is to preside.  The law does not give any person the right to claim that he shall be appointed chief, it is only the President who can determine who shall be appointed.

Therefore, the application must be dismissed.  I would add however that there is nothing in the Chief’s and Headman Act 1982 which would preclude or prevent the President from resuscitating the chieftainship claimed by the applicant.  The court has no say in such a matter and should not in my view, even venture to make a recommendation. “(my emphasis).

In casu, I disagree with the Applicant’s submission that the dispute is not about the appointment of a chief.  It indeed concerns the appointment of the eighth Respondent by the fifth Respondent.  I take the view that to argue that this application is about whether the fifth Respondent could appoint eighth Respondent notwithstanding the position he had taken earlier is to split hairs.  In my view, this argument is a resuscitation of issues raised in HC 4303/24.  Put differently, to challenges the President’s powers through the provisions of the Administrative Justice Act offends s 283 of the Constitution. While procedural steps concerning nomination can be challenged (as in HC 4303/24) once the President has made an appointment, the court’s jurisdiction is ousted.  See PARTRIOTIC FRONT ZIMBABWE AFRICA PEOPLES UNION v MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFRICA 1985 (1) ZLR 305(SC)

The submissions by the Applicant that the fifth Respondent was aware of ongoing dispute and has undertaken to abide by the court’s decision is neither here nor there.  The fifth Respondent does not challenge or support the process leading to recommendations thus, if there are any irregularities, the court will decide.  If the court finds fault with the process, it may order as it deems fir and the President would have to abide by the court order.  In the absence of a court order, there is nothing that stops internal proceedings.

In Moyo v Mkoba 2013 (2) ZLR 137 (S), the court emphasized that it is not and would not be the ultimate decision of the President that is subject to review but only the process preceding it.  It reasoned that what could be subjected to review was only the process by which the Tribunal makes its recommendations.

In the present matter, from the draft order and the founding affidavit of the Applicant, it is clear that what the Applicant seeks to review is the decision that was made by the fifth Respondent and he seeks further that the decision be made, null and void and be set aside.  This court has no jurisdiction to grant such an order in light of s 283 of the Constitution.  Further the matter is not reviewable because the fifth Respondent did not exercise his prerogative power and has no discretion whatsoever once recommendations had been made concerning the question of the appointment of a chief.

In in Gcaba v Minister for Safety and Security [2209] ZACC 26; 2010 (1) SA 238 (CC) at para 75, the court held that;

“Jurisdiction is determined on the basis of the pleading as Langa CJ held in CHIRWA and not the substantive merits of the case............... In the event of the Court’s jurisdiction being challenged at the outset (in limine), the applicant’s pleadings are the determining factor.  They contain the legal basis of the claim under which the applicant has chosen to invoke the Court’s competence while the pleadings including in motion proceedings, not only the formal terminology of the notice of motion but also the contents of the supporting affidavit must be interpreted to establish what the legal basis of the applicants claim is, it is not for the court to say that the facts asserted by the applicant would also sustain another claim cognizable only in another court.”

In casu, the Applicant’s pleadings make it abundantly that they involve issues exclusively bestowed upon the President of Zimbabwe.  As a result, the jurisdiction of this court is ousted by s 283 of the Constitution.  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 AFFRETAIR (Pvt) Ltd & Anor v M.K AIRLINE (Pvt) Ltd 1996 (2) ZLR 15 (5) at 21; ZIMBABWE SCHOOL EXAMINATIONS COUNCIL v MUKONEKA & GOVHATI SC 10/ 20 at pp17-18

In light of the fact that the Applicant is seeking the decision of the fifth Respondent to be declared a nullity and to be set aside which decision relates to the role of the fifth Respondent in appointing the eighth Respondent as the substantive chief, I find that this court lacks jurisdiction by virtue of the provisions of s 283 of the Constitution of Zimbabwe Amendment (No 20) ACT 2013.

In the result the application is hereby struck off the role with costs.

Takuva J:...................................................................................

Maposa and Ndomene Legal Practitioners, Applicant’s Legal Practitioners

Civil Division of The Attorney General, 1st ,2nd ,3rd ,4th ,5th Respondents’ Legal Practitioners

Zvavanoda Law Chambers, 8th Respondent’s Legal Practitioners