Morris Nyikadzino v Richard Morgan Tsvangirai

### Preamble
1
HH 166-2012
DCA 26/12 – GCD 424/11
MORRIS NYIKADZINO
versus
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MORRIS NYIKADZINO
versus
RICHARD MORGAN TSVANGIRAI

HIGH COURT OF ZIMBABWE
PATEL & KUDYA JJ

Civil Review

HARARE, 25 April 2012

PATEL J: The Provincial Magistrate for Mashonaland Central, sitting at Bindura Magistrates Court, has referred this matter to the Registrar for review and directions. The plaintiff is cited as Morris Nyikadzino of Shenjere Shrine, Mazowe. However, his specific role and standing in the matter are not clear. The defendant is Hon. Richard Morgan Tsvangirai, the Prime Minister of Zimbabwe. The background to the case is as follows.

The claim against the defendant arises from a highly publicised customary law marriage that occurred in November 2011. It was claimed that the marriage was taboo because it took place in mwedzi we mbudzi, the sacred month of November. On 7 December 2011, Chief Negomo (Luscious Chitsinde) personally served summons on the defendant in Harare, requiring him to attend his court at Gweshe Business Centre, Mazowe, on the 10th of December 2011. Chief Negomo himself was cited as the plaintiff in the summons. On 9 December 2011, the defendant’s lawyers (Dube, Manikai & Hwacha) wrote to Chief Negomo, questioning his authority and jurisdiction on various grounds.

Notwithstanding this challenge, Chief Negomo proceeded to hear and deal with the case in his community court on 10 December 2011. The record of proceedings cites Morris Nyikadzino as the plaintiff, claiming two bovines and two sheep from the defendant. The grounds for this claim were that the defendant “married Locardia Karimatsenga in the sacred month of November which is taboo, the spirits need appeasement, the rains have failed to fall”.


Judgment was granted by default and the defendant was ordered to pay “two bovines and two sheep, ten metres white cloth and one ball of snuff (chambwa) for spiritual appeasement and land cleansing”.

This default judgment was confirmed, without any detail or elaboration, by a Magistrate in Bindura on 30 December 2011. On 22 February 2011, the defendant’s lawyers wrote to the Provincial Magistrate in Bindura, attaching their letter of 9 December 2011 and requesting that the judgment of Chief Negomo’s court be reviewed in terms of section 25 of the Customary Law and Local Courts Act. On 2 March 2012, the Provincial Magistrate reviewed the matter and found that there were several flaws in the proceedings of the local court. He then directed that its judgment be set aside. He further directed that the correct plaintiff sue in a court of competent jurisdiction and that the matter be heard *de novo* in that court. Subsequently, he realised that the same judgment had previously been confirmed by his brother Magistrate. He now requests that the matter be reviewed by this Court.

The grounds advanced by the defendant’s lawyers for impugning Chief Negomo’s authority and jurisdiction in the matter are: (i) that the summons that he issued cites him as both presiding officer and plaintiff; (ii) that service of the summons was effected unlawfully outside his area of jurisdiction; (iii) that he is not authorised to convene a local court and Gweshe Business Centre is not a designated court; and (iv) that he does not have jurisdiction over the defendant by dint of residence, consent or cause of action.

**Governing Statutory Provisions**

Section 10 of the Customary and Local Courts Act [*Chapter 7:05*] constitutes local courts as follows:

“(1) The Minister may, by warrant published in a statutory instrument, constitute—

(a) primary courts; and

(b) community courts; for such areas as may be specified in the warrants.
 (2) A local court constituted in terms of subsection (1) shall be a court of law and, within the area specified in the warrant by which it is constituted, shall exercise so much of the jurisdiction conferred by this Act as is specified in the warrant.

(3) The Minister may, by statutory instrument, amend or revoke any warrant referred to in subsection (1).”

The composition of community courts is prescribed in section 11(2) of the Act:

“Every community court shall be presided over by a chief or other person who—

(a) shall be appointed to his office by the Minister or by a designated officer authorised thereto by the Minister; and

(b) may be removed from his office by the Minister or by a designated officer authorised thereto by the Minister.”

Section 15 of the Act spells out the jurisdiction of local courts as follows:

“Subject to this Act and any other enactment and in particular to section sixteen, a local court shall have jurisdiction to hear, try and determine any civil case in which customary law is applicable where—

(a) the defendant is normally resident within the area of jurisdiction of the court; or

(b) the cause of action or any element thereof arose within such area; or

(c) the defendant consents to the jurisdiction of the court.”

Section 19(1) provides for the summoning of parties and witnesses:

“Subject to this Act, every local court shall have the power to summon before it any person who is—

(a) the defendant in a case before that court; or

(b) required to give evidence before that court.”

Part VI of the Act deals with appeals from and the review of decisions of local courts. More specifically, section 25 relates to reviews by magistrates. Subsections (1) and (3) provide as follows:

“(1) Where it comes to the notice of a magistrate that a local court within his province may have given a judgment or order which it was not competent to give, he shall direct the local court to refer the case to him, together with such report thereon as the person presiding over the community court or primary court may wish to give.

(3) Where a case has been referred to him in terms of subsection (1) or (2), a magistrate may, if he considers that—

(a) the local court concerned had no jurisdiction but another local court does, annul the proceedings and direct the case to be heard, *de novo*, before such other local court;

(b) the local court concerned had jurisdiction—

(i) set aside the judgment or order concerned and return the case for further hearing with such advice or directions as appear to him to be necessary or desirable; or

(ii) set aside the judgment or order concerned and direct the case to be heard, *de novo*, before the same or another local court with such advice and directions as appear to him to be necessary or desirable; or

(iii) confirm the judgment or order concerned: Provided that ............;

(c) no local court has jurisdiction, annul the proceedings: Provided that a magistrate shall not exercise the powers conferred upon him by this subsection in any case—

(a) unless the parties concerned have been afforded a reasonable opportunity of making representations as to the proposed exercise of any such powers; or

(b) which was determined more than twelve months prior to the case being referred to him.”

Validity of Summons

As I have already indicated, the summons *in casu* cites Mambo Negomo as the plaintiff, while in the record of proceedings the Morris Nyikadzino is named as the plaintiff. There is nothing in the record to explain this change in identity of the plaintiff. In any event, and more critically, the citation in the summons of the plaintiff and the presiding officer as being one and the same person is an affront to every acceptable notion of justice and procedural fairness. Indeed, it hearkens back to feudal forms of justice that have no place whatsoever in any modern legal system. It should be blindingly obvious to any judicial officer that he cannot institute a claim or complaint and also adjudicate it himself. It follows that the summons issued by Chief Negomo is fundamentally flawed. For this reason alone, the proceedings pursuant to that summons constitute a nullity and must be treated as being void *ab initio*. Nevertheless, for the sake of completeness and future guidance of incumbents of all local courts, I think it necessary to consider and evaluate all the other aspects of this case.

**Service of Summons**

The defendant’s lawyers aver that the summons in this matter was served on the defendant at Charter House in Harare by Chief Negomo himself accompanied by others. In terms of rule 4(1) of the Local Courts Rules 1991 (S.I. 115 of 1991), a summons must be drawn up by the presiding officer and delivered to the messenger for service upon the defendant. Rule 4(2) requires the messenger to serve the summons on the defendant or any responsible member of his household. By virtue of rule 4(3):

> “A messenger shall be competent to serve a summons only upon a defendant who resides or works within the area of jurisdiction of the court.”

Two things emerge very clearly from these Rules. Firstly, a summons may only be served by the messenger of court, and not by the presiding officer. Secondly, the messenger must serve the defendant (or other responsible person) at his residence or place of work only within the area of jurisdiction of the court.

In the instant case, the face of the summons shows that service was effected by one Watson Baziwell, not Chief Negomo. However, there is no indication as to the person upon whom the summons was served. Equally significantly, the summons was served in Harare, well outside the remit of the court’s jurisdiction. In the premises, it must be concluded that service of the summons in this case was irregular and fatally defective. Consequently, the defendant cannot be held to have been “in wilful default” as was determined and recorded by the court.

**Constitution and Site of Community Court**


Section 10(1) of the Act empowers the Minister of Justice, by warrant published in a statutory instrument, to constitute primary courts and community courts for such areas as may be specified in the warrants. In terms of section 10(2), every local court is entitled, within the area specified in the warrant by which it is constituted, to exercise so much of the jurisdiction conferred by the Act as is specified in the warrant.

In their letter of complaint to Chief Negomo, the defendant’s lawyers rely upon the warrant published in Statutory Instrument 107 of 1995 to contend that he is not included in the list of chiefs entrusted with jurisdiction to convene local courts. Their reference to this warrant is patently inapposite and misplaced, as it deals exclusively with the constitution and jurisdiction of local primary courts, which are presided over by headmen.

The warrant that constitutes local community courts, presided over by chiefs, is to be found in the Customary Law and Local Courts (Community Courts) Warrant 2002 (S.I. 95 of 2002). Sections 2 and 3 of the Warrant provide as follows:

“2. The community courts specified in the first column of the Schedule are hereby constituted for the areas specified opposite thereto in the second column and shall sit at the place indicated in the third column.

3. The courts specified the Schedule shall be entitled to exercise all the jurisdiction conferred on community courts by the Act.”

In the Schedule to the Warrant, the Mazowe District is covered by seven community courts. One of the designated courts is Negomo Community Court, the area of jurisdiction of which is specified as Chiweshe Communal Land (Kanhukamwe Area). The place of sitting of this court is indicated as Kanhukamwe School. It follows that Negomo Community Court is a duly constituted community court, endowed with all the jurisdiction conferred by the enabling Act, in respect of the Kanhukamwe Area.

What is contentious, however, is whether it is permissible for the court to sit at some place other than Kanhukamwe School, as appears to have happened in this case. Gweshe Business Centre is obviously not a place of sitting indicated in the 2002 Warrant. However, it is arguable that the specific location of a local court is irrelevant, particularly as this is not a matter prescribed by the Act itself, so long as it sits within the area specified in the Warrant. On the other hand, it seems to me that every community court, being a creature of statute, is subject to the strictures not only of the parent Act but also of its subsidiary legislation. Whatever powers chiefs' courts may claim by anointed custom and tradition, such powers must be closely circumscribed and exercised within the confines of the constitutive provisions that presently govern their functions. This must also apply to the places of sitting fixed by statute, for two very compelling reasons. Firstly, the location fixed and published by warrant enables litigants and other affected members of the public to know precisely where to attend the sessions of the court. Secondly, to permit a chief to choose any place of sitting that he deems fit may well lead to the selection of a *situs curiae* that is entirely inappropriate and inconsistent with the dignity and decorum of judicial office.

Jurisdiction over Defendant

As appears from section 15 of the Customary Law and Local Courts Act, the criteria for founding the jurisdiction of a local court are threefold, viz. normal residence by the defendant within the area of jurisdiction of the court, or that the cause of action or any element thereof arose within that area, or the defendant’s consent to jurisdiction. These criteria are clearly disjunctive and not conjunctive, so that the establishment of any one of them suffices to found jurisdiction.

In the present matter, it is indisputable that the defendant does not ordinarily reside within the jurisdiction of Chief Negomo’s court. It is equally clear that the defendant did not consent to the jurisdiction of that court. His lawyers argue that the cause of action is speculative but do not make any further submission on the point. In any event, I am unable to perceive anything in the papers relating to the origin of the cause of action in this matter. It is quite possible that the customary marriage in question, or some material element of that marriage, took place within the jurisdictional bounds of Negomo Community Court, i.e. in the Kanhukamwe Area. Therefore, in the absence of further clarification on the point, I am unable to make any definitive finding in this regard.

Disposition

As I have already stated, there are two magisterial decisions reviewing Chief Negomo’s judgment, the first confirming it and the second setting it aside. The decision of the Bindura Magistrate, recorded on 30 December 2012, simply confirms the judgment without further ado. Given the glaring anomalies that I have adverted to in the proceedings and judgment of the local court, the only inference that can reasonably be drawn is that the learned Magistrate completely failed to address his mind to the matter before him. His decision is clearly unsustainable on the papers and must therefore be set aside.

Turning to the review carried out by the Provincial Magistrate on 2 March 2012, his conclusion that the proceedings of the local court were flawed, for the reasons set out in his decision, is generally correct. However, while his finding that the defendant did not reside within or consent to Chief Negomo’s jurisdiction is obviously correct, he does not appear to have considered whether the cause of action arose within the area of jurisdiction. In any event, he properly noted the change in citation of the plaintiff on the summons and in the record of proceedings, which unexplained alteration constituted a material irregularity warranting the setting aside of the proceedings in question.

Nevertheless, despite the overall correctness of his conclusion, the procedure adopted by the Provincial Magistrate is defective on two counts. Although he was properly seized with the matter under section 25(1) of the Act, he should have directed Chief Negomo to provide his report as envisaged by that provision. More importantly, he exercised his power under paragraph (a) of section 25(3) to annul the proceedings and direct the case to be heard *de novo*. However, he appears to have done so without the parties concerned having been afforded a reasonable opportunity of making representations as to the proposed exercise of that power, as is peremptorily required by proviso (a) to section 25(3). There is nothing in the papers submitted by the Provincial Magistrate to show that he complied with these procedural preconditions to the exercise of his powers of review under section 25.

In the final analysis, two possible avenues seem to present themselves for redressing all of the irregularities *in casu*. The first is to set aside the decision of the Provincial Magistrate and direct him to review afresh the proceedings of the local court, after having complied with the procedural requirements of section 25. The second is to uphold his decision and, in particular, the directions that he gave at the end of his decision. It seems to me that the latter option is to be preferred in the interests of expedience and expedition. In view of my earlier findings as to the invalidity and consequent nullity of the local court’s proceedings *ab initio*, I cannot imagine that any report that Chief Negomo might furnish or any representations that the parties might make will alter the eventual outcome of the matter. Although the decision of the Provincial Magistrate is procedurally defective, it is essentially correct in its conclusion and generally in conformity with substantial justice.

In the result:

1. It is ordered that the proceedings, judgment and order of the Negomo Community Court in Case No. GCD 424/2011 be and are hereby annulled and set aside.


2. The proper plaintiff in this matter is given leave to institute proceedings in a court of competent jurisdiction for the matter to be heard *de novo* in that court.

3. The learned Provincial Magistrate is directed to notify Chief Negomo and the parties to Case No. GCD 424/2011 accordingly.

Kudya J: I concur.
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