MATHONSI J: This is an urgent application in which the
applicant seeks to interdict the first and second respondents from forwarding
the name of the third respondent for appointment as substantive Chief Ngezi.
The basis of the
application is that in compliance with s 3 of the Traditional Leaders Act [Cap 29:17] a nomination process was
embarked on to select a candidate for appointment as Chief Ngezi. That process
came up with the name of the applicant as the candidate for appointment by the
President. The minutes that have been placed before me, clearly demonstrate
that.
Notwithstanding
the selection of the applicant as a candidate for appointment, the first and
second respondents have commissioned a commission to investigate the selection
of the applicant. This has halted the process under circumstances, suggesting
interference with the process of selection.
The process of
nominating a candidate is the province of the clan and s 3 of the Act, does not
envisage a situation where government officials interfere with that process and
dictate what should be done, whether in the form of commissions, or otherwise.
See Mbedzi v Mbedzi & Ors HB 145/11.
It is in view of
the activities of the commission set up by the first and second respondents
which applicants says, have reversed the will of the appropriate members of the
community that a summons has been issued out of this court as Case No HC
797/12. In that action the applicant seeks a declarator that he is the rightful
candidate to be appointed Chief Ngezi.
He has therefore
approached the court seeking to interdict the first and second respondents from
processing the third respondent's papers until such time that the respective
rights of the parties have been determined by the court.
Ms Hove for the
first and second respondents has argued that the actions of the applicant are
premature regard being had to the fact that the commission is still to submit
its findings. I do not agree. What is clear from the papers is that the
commission has rejected the selection process and the outcome of the meetings
held by the clan. That commission therefore is unlikely to do anything
favourable to the applicant. There is therefore a reasonable apprehension that
the interests of the applicant may be prejudiced by the secondment of the third
respondent for appointment by the president ahead of the applicant.
For that reason
I am satisfied that the applicant has made a good case for the relief sought.
In the result I
grant the provisional order in terms of the amended draft order.
Jarvis
Palframan, applicant's legal practitioners
Attorney General's Office, respondents' legal practitioners
