Judgment record
Tendayi Chitinhe v Cornelius Chivesani Chengera & 4 Ors
HH 137-22HH 137-222022
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TENDAYI CHITINHE
versus
CORNELIUS CHIVESANI CHENGERA
and
THE DISTRICT AMINISTRATOR, CHEGUTU
and
PROVINCIAL ADMINISTRATOR, MASHONALAND WEST
and
THE MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND NATIONAL
HOUSING
and
THE PRESIDENT OF THE REPUBLIC OF ZIMBABWE
HIGH COURT OF ZIMBABWE
CHIRAWU-MUGOMBA J
HARARE, 11 February, 7, 8 and 9 March 2022
K Maeresera, for the applicant
T. Matiyashe, for the 1st respondent
R.B Madiro, for the 2nd and 3rd respondents
Opposed application
CHIRAWU-MUGOMBA J: This application was initially set down for hearing on
the 8th of February 2022. The applicant, then a self-actor, made an application for a
postponement on the basis that he had engaged a legal practitioner but had not yet finalised
with him. Although the application was opposed, the court granted the application and
indicated to him that the matter would proceed on the 11 th of February 2022. On that date, the
applicant’s legal practitioner appeared and indicated that the Advocate whom they had
engaged had advised him that morning that she was unavailable due to ill-health. The court
indicated that the matter would be stood down to 2:00pm so that the applicant’s legal
practitioner would prepare to argue the matter. This was influenced by the fact that the
applicant whilst self-acting had filed comprehensive heads of argument and had covered even
the points in limine raised by the respondents.
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The applicant seeks the setting aside of the appointment of the first respondent as the
substantive Chief Chivero and that he be declared as the substantive Chief. He also seeks an
order for payment of costs on a higher scale. In his affidavit, he narrates a long history of the
appointment of the first respondent and cites what he considers are irregularities.
At the hearing, Mr Matiyashe and Mr Madiro, took points in limine as follows.
i. Material disputes of fact
There are material disputes of fact which cannot be resolved on paper. The applicant
ought not to have proceeded by way of application but action. It is evident that the 1 st
respondent disputes each and every allegation. The court cannot make a determination
without hearing evidence. The applicant should have seen such conflict coming.
ii. General court application vs application for review
The applicant filed a general court application instead of one for review. The relief
sought can only be granted through an application for review and not a general court
application.
iii. Incompetence of order sought
The applicant is calling upon the court to deal with issues of substantive customary
law. It is evident from the whole founding affidavit that each and every allegation refers to
issues of substantive customary law. This court does not have jurisdiction to deal with such
issues especially on succession and ascendency. The order sought is also incompetent in so
far as it seeks that the applicant be declared the substantive chief because courts cannot make
such appointments. The appointment can only be done by the 5 th respondent upon
recommendation from the Chief’s Council.
iv. Lack of jurisdiction to hear matter
In terms of s283 of the Constitution, matters of appointment, removal and suspension
of chiefs lies within the purview of the fifth respondent. A specific process is done and there
are specific remedies provided. The courts cannot interfere with such processes. The
applicant has failed to exhaust the remedies provided in s283 and therefore the court must
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decline jurisdiction. Even ss 35 and 36 of the Traditional Leaders Act also support the same
notion.
Mr Maeresera had nothing to state in response as he insisted that the applicant
reserved his right to be represented by a legal practitioner of his choice. Nonetheless, the
court was guided by the heads of argument filed and also by the fact that the preliminary
issues raised were more matters of law than facts and they would determine whether the
matter ought to proceed on the merits or not.
I will proceed to deal with the issue of jurisdiction of this court to hear the matter.
Section 283 of the Constitution reads as follows:-
“283 Appointment and removal of traditional leaders
An Act of Parliament must provide for the following, in accordance with the prevailing culture,
customs, traditions and practices of the communities concerned—
(a) the appointment, suspension, succession and removal of traditional leaders;
(b) the creation and resuscitation of chieftainships; and
(c) the resolution of disputes concerning the appointment, suspension, succession and removal of
traditional leaders; but—
(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;
(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.”
In interpreting s283, in Munodawafa vs. The District Administrator Masvingo and
ors, 2015(1) ZLR 957, it was held as follows (as per headnote)
“that as regards disputes, s 283(c)(ii) makes it clear that the President must deal with such
disputes and that the recommendation must come to him through the Provincial Assembly of
Chiefs and the Minister responsible for chiefs. In other words, the Provincial Assembly of
Chiefs actively plays a role in the resolution of the dispute in accordance with the traditional
practices and traditions of the communities concerned. It is their efforts or recommendations
which are then communicated to the Minister who in turn communicates with the President
for action. As regards the appointment, removal and suspension of a chief, as distinct from
any dispute, s 283(c)(i) stipulates that the President is again the one who must act, on the
recommendation of the provincial assembly of chiefs through the National Council of Chiefs
and the Minister responsible for chiefs. The starting point is therefore at the provincial level.
Among the duties of the national and provincial councils of chiefs, as stipulated in s 286(1)(f)
is “to facilitate the settlement of disputes between and concerning traditional leaders”.
further, that in cases such as this, where the President has the ultimate discretion on whom he
appoints as chief in terms of both the Constitution and the Traditional Leaders Act [Chapter
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29:17],what is reviewable by the courts is not how the President exercises his discretion but
whether those who formulate their advice to him acted on sound principle. The Minister’s
advice, which he relays to the President, is reviewable on three grounds: illegality,
irrationality and procedural impropriety. What would thus be reviewable in the present matter
would be the Minister’s advice in accordance with the channels stipulated in s283(c)(i) and
(ii). Held, further, that constitutionally, as provided for by s 171, the High Court has inherent
jurisdiction to hear all civil and criminal matters throughout Zimbabwe. The High Court is
therefore always a forum of jurisdiction that can be selected by the parties and the court will
exercise its jurisdiction where it is clear that it should do so. Critically, however, where
domestic remedies for resolving the issue are provided, as here, the court will want to know
why it should exercise its inherent jurisdiction if such remedies have not been exhausted.
There was no reason why the remedies provided in s 283 of the Constitution should not be
exhausted first.”
See also Gambakwe vs Chimene and ors, 2015(1) ZLR 710 and Mlotshwa vs DA,
Hwange and ors HB-161-16.
The Supreme Court however put the issue of jurisdiction vis-à-vis s283 beyond doubt
in Marange vs Marange and ors, SC-1-21 as follows:
“Jurisdiction to entertain chieftainship disputes
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, inter alia, the
resolution of chieftainship disputes. Consequently, it cannot be construed, per se, as
ousting the jurisdiction of the courts over such disputes.
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”.
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.
It follows from the foregoing that the court a quo 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
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formulate their advice to him acted on sound principle. See Rushwayo v Minister of
Local Government & Anor 1987 (1) ZLR 15 (S), at 18F-19B; Chigarasango v
Chigarasango 2000 (1) ZLR 99 (S); Moyo v Mkoba & Ors SC 35/2013; Munodawafa
v Masvingo District Administrator & Ors HH 571-15. It further follows that the first
ground of appeal challenging the assumption of jurisdiction by the court a quo 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.”
It follows therefore, that the contention by the second to the fifth respondents’ legal
practitioner that this court has no jurisdiction is misplaced.
I will now turn to the other points in limine. Whether or not a litigant should have
made an application for review has received attention in Gwaradzimba N.O vs Gurta AG,
2015(1) ZLR 402 (S). The fact that the application is not headed ‘Court application for
review” is neither here nor there.
On the incompetency of the order sought, it is clear that whilst the court cannot
appoint a chief, the main relief sought is that of the removal of the first respondent and if that
were to be granted, the procedure for appointment would have to be followed. On the
customary law applicable, the courts have adjudicated on matters involving appointment of
chiefs and as in the Munodawafa decision, the issue is whether those that advise the 5 th
respondent acted on sound principle. The court can also resort to s9 of the Customary Law
and Local Courts Act [Chapter 7:05] in ascertaining customary law.
Where the application stutters however, is in bringing to this court a matter that is
replete with disputes of fact, not only that but material disputes. How the applicant convinced
himself that this court would be in a position to decide the matter on paper is beyond
comprehension. However instead of dismissing the application, the most prudent legal
course to take is to refer it to trial so that the issues can be fully ventilated- see Gweshe vs.
The President of the Republic of Zimbabwe, N.O, HH-542-16.
The applicant should have foreseen that this matter is not capable of resolution on the
papers and he must accordingly pay the costs.
DISPOSITION
1. The application is referred to trial under the same case number.
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2. The applicant shall be cited as the plaintiff and the respondents as 1 st to the 5th
defendants as appropriate.
3. The applicant shall file and serve his declaration on the respondents within ten (10)
days from the date of this order.
4. Thereafter the matter shall proceed in terms of the rules of the HC, 2021.
5. The applicant shall pay costs of suit on the ordinary scale.
Chizengeya, Maeresera and Chikumba, applicant’s legal practitioners
Matiyashe Law Chambers, 1st respondent’s legal practitioners
Civil Division of the Attorney- General’s Office, 2nd – 5th respondent’s legal practitioners