MATHONSI J: In this matter the applicant is an aspiring
Chief Madziva of Shamva who has approached the court on an urgent basis seeking
the following relief:-
“TERMS OF THE FINAL ORDER SOUGHT
That you show cause to this Honourable Court why a final
order should not be made in the following terms:
(a) Fourth respondent nullify the
nomination and recognition of first or second respondents as the Jongwe to
succeed the throne of Chief Madziva.
(b) First, second respondents and the Mukunga
House are ineligible to succeed to Chief Madziva throne.
(c) Fourth respondent recognises the
applicant as the Jongwe and recommend to third respondent for appointment Chief
Madziva (sic).
(d) First and second respondents pays (sic)
the costs of suit.
INTERIM RELIEF GRANTED
(a) That pending the finalisation of
proceedings under the cover of Case No. HC 8333/13 the following order is
granted:
(i) That the
installation of the first and second respondent as Chief Madziva be put in abeyance.
(ii) That the current
Acting Chief Madziva (Elijah Gatsi) shall remain on the throne until such time
a substantive chief is appointed”.
In his founding affidavit, the
applicant alleges that the Madziva Chieftainship
became vacant 4 years ago when the last substantive chief
Madziva, one Chephas Madziva died. He stated that there are only 2
families which are eligible to ascend the throne, namely the Manyeche and
Madzeka families and he, as the eldest in the Madzeka house, should succeed as
chief given that the last chief was from the Manyeche family. The clan follows
the rotational succession plan between the 2 families.
The applicant stated that in pursuance of that succession formula, he was on 25
August 2012, nominated by the families for appointment as chief Madziva at a
meeting held at Madziva Primary School. After the nomination, the fourth
respondent advised him to fill in the requisite nomination forms, which he did
and in the process submitting all the relevant papers to the fourth respondent.
Much later, and to his chagrin, the fourth respondent advised the families that
his nomination had been rejected necessitating a fresh nomination process.
He went on to say that the fourth respondent interfered with the process
insisting that the chieftainship had to be rotated with other families and
dictated that the next chief must come from the Mukunga family which was alien
to the succession principles of the clan. As a result, the first respondent was
nominated as the next chief, a nomination process which excluded the relevant
family members.
This forced the applicant to institute summons action against the respondents
in HC 8333/13 seeking an order nullifying that nomination, declaring that
Lazarus Mukunga, Matius Mahonde Mukunga and the entire Mukunga house are
ineligible to ascend the Madziva throne and that the District Administrator
should recommend the applicant for appointment. That matter is yet to be
determined.
Notwithstanding the pending litigation, the officials are going ahead with
preparations for the installation of the second respondent as substantive chief
Madziva and have set 16 or 18 October 2013 as the date for the installation
prompting the applicant to make an approach to this court on an urgent basis
seeking interim relief stopping the installation.
That there is a simmering chieftainship wrangle is pretty obvious. This has
resulted in litigation which is still pending in this court which, hopefully
will determine the respective rights of the parties. If a chief is installed
now then that would render nugatory the proceedings that have been initiated
and reduce the outcome to a brutum fulmen. It has not been suggested
that there is an urgent need to instal a new chief and that any harm would be
occasioned by a stay of that process until the dispute is resolved. In fact,
there can be no such urgency given that Elijah Gatsi has enjoyed the honour of
acting as chief Madziva since 2008.
In his opposition, the second respondent submitted that there was indeed a
nomination of the applicant, which was however opposed on the basis that his
family had previously been appointed to rule as chief Madziva. He stated that
he was then nominated as he came from a house that had not had a chance to
rule. He went on to say that the installation ceremony that had been set for 18
October 2013 has since been moved to 25 October 2013.
Ms Murefu for the third and fourth respondents took 2 points in
limine, firstly challenging the certificate of urgency on the basis that
it is signed by a legal practitioner from the law firm representing the
applicant. She relied on the case of Chafanza v Edgars Stores Ltd
& Anor HB 27/05. I am aware of the judgment of CHEDA J in that matter
to the effect that the certificate should not be signed by a legal practitioner
in the firm representing the applicant. However that judgment has not asserted
itself enough to inspire an amendment of
r 242 and r 244 which only require the certificate to be
made by a legal practitioner. For that reason, that point cannot defeat the
application.
Ms Murefu, also took the point that the citation of the third
respondent is defective in that it is not a legal persona. I agree
that the proper person to be cited is the Minister of Local Government and not
the Ministry. I am however of the view that the defect is merely technical and
cannot be fatal to the application. Moreover, this court has the discretion in
terms of r 4C to condone a departure from the rules and also to regulate its
process. It occurs to me that it would suffice to direct the applicant to amend
his papers and cite the Minister.
On the merits of the matter Ms Murefu submitted that the second
respondent has already been appointed by the appointing authority and that the
installation ceremony is merely to congratulate him and nothing more. While
this maybe so, it cannot be disputed that the process of nominating a chief is
the preserve of the clan which knows its succession principles. Once the clan
has nominated the chief the name is forwarded to His Excellency the President
who is the appointing authority. The President is required by s 3 of the
Traditional Leaders Act to have regard to the prevailing customary principles
of succession of the community, in making an appointment.
In the present case, the applicant has approached the court protesting that
those customary principles of succession were flouted and he would like the
court to intervene. An installation ceremony is the announcement to the
community and indeed the whole world that a new chief has ascended the throne.
To my mind it would be wrong to allow the installation to proceed when a matter
is pending before the court to determine the propriety of that appointment.
This court, as I have said, has a duty to regulate and protect its processes
which would be negated by the installation.
For these reasons there is a need to stay the installation ceremony until the
dispute is resolved by the court.
Accordingly, I grant the provisional order as amended, the interim relief of
which reads:-
Pending the determination of this matter, the applicant is granted the
following relief:
(i)
The installation of the first or second respondents as Chief Madziva is hereby
stayed until the finalisation of proceedings in HC 8333/13.
(ii)
The applicant is directed to amend his application and properly cite the
Minister of Local Government as a party.
Nyamushaya Kasuso & Rubaya, applicant's legal practitioners
Civil
Division of the Attorney General's Office, 3rd
& 4th respondents
