NDOU
J: There
are two matters in this case.
The
first matter HC1369/09, is for the confirmation or discharge of a
provisional order granted by this court on 10 September 2009. The
second, which is the main matter under case number HC1410/09, is for
the rescission of the decision to appoint the 1st
respondent as substantive Chief Bunina.
In
the latter matter the applicant also seeks that the matter be
remitted to the office of the 2nd
respondent for the reconvening of selection meeting of all interested
parties for the fresh selection of a candidate for appointment as
Chief Bunina.
The background facts of the
matter are the following.
The applicant is the first
born son of Jackson Moyo, the last Chief Bunina of Lower Gweru, who
died sometime in June 2003. In turn, the late Jackson Moyo had taken
over the chieftainship as substantive Chief Bunina from his late
father, Mantiya. After the death of Jackson Moyo the applicant was
appointed acting Chief Bunina in May 2004 and his term as acting
Chief was set to expire and did expire in May 2006.
Meanwhile
meetings were conducted between Ministry of Local Government
officials and the Bunina family to select the substantive Chief
Bunina where the 1st
respondent emerged as a claimant to the throne.
It
is common cause that the late Chief Bunina had more than one family,
i.e. he had different wives, the eldest of which was the mother of
Mantiya, applicant's grandfather who also ruled as Chief Bunina.
1st
respondent's father Mkoba was one of the sons of Chief Bunina's
wives.
1st
respondent's claim to the chieftainship does not seem to be based
on a recognizable Ndebele system of succession, custom or tradition
of the clan but merely on some kind of election or poll conducted by
Local Government officials.
This is captured in the
memorandum dated 28 August 2006 from the Midlands Provincial
Administrator to the Minister of Local Government, Public Works and
Urban Development. In this memorandum the Provincial Administrator
states:
“1.
Subject to the Traditional Leaders Act Chapter 29:17 section 3 the
President shall appoint Chiefs to preside over Communal and
Resettlement areas.
2. Subject to subsection 2,
the President shall give due consideration to the prevailing
customary principles of succession, if any application to the
community over which the chief is to preside, and the administrative
needs of the communities in the area concerned in the interest of
good governance.
3.
The last incumbent in the Bunina Chieftainship was Golden Moyo whose
acting term has since expired. In line with the requirement of
Circular No.38 of 2004, the District Administrator held a selection
meeting on the 21st
of June 2006. The meeting was chaired by D.A. Kwekwe Ms Muzenda
assisted by D.A. Gweru Mr Maguma with the Provincial Administrator
and Mr Mukwaira (Traditional Support Services Director).
Though there was no
succession among the family, what sufficed was that Stephen Mkoba,
was chosen by the majority of the houses. The decision to appoint
Stephen Mkoba from the families, though non-procedural and
non-congruent with either the bilateral or collateral system was
welcome by this office in the best interest of the Chieftainship as
continued squabbles derail the operations of Chiefdom.
4.
This
office support
[sic] the nomination of Stephen Mkoba I.D. 29-063837 B 29 as
substantive Chief Bunina premised
on the above-mentioned light.
…” (Emphasis added)
The
applicant protested this nomination of the 1st
respondent to the President's office resulting in the selection
process being reopened.
The Minister of Local
Government gathered stakeholders in 2007 and advised them to consult
among themselves promising to return to finalise the process.
Before
the above-mentioned recommendation was sent to the Minister, there
was a selection meeting held on 21 June 2006. In this meeting the
Mantiya family, Mkoba family, Lugwalo family and Mpabanga family were
represented. The applicant, the 1st
respondent, 2nd
respondent attended the meeting. A total of twenty-two persons
represented the above-mentioned family.
At this meeting the Mantiya
family traced their chieftainship as having come with Bunina from
Matojeni with a group of followers who came and settled in the Lower
Gweru. According to them, the chieftainship did not cascade across to
the brothers but to the sons i.e. bilateral system of succession. In
this regard, Mavu's descendents, being the eldest wife, were
eligible to the throne. The Mantiya family highlighted the fact that
although the Bunina's were of Rozvi origin, their ancestors
inherited the Ndebele customs and culture following their defeat by
the Ndebele in the pre-colonial era. Accordingly, in terms of the
Ndebele system of succession their chieftainship was passed from
father to son.
The Mkoba version was contrary
to that of the Mantiya family.
The Mkoba version enjoyed the
support of Lugwalo and Mpabanga families. Their version was that
there was a battle between the whites and the Bunina community which
resulted in the latter being victorious and ultimately being
appointed Chief by government of the day.
As is to be expected, the
meeting was acrimonious and hotly debated.
After
all these processes and debates a recommendation was made by the
Minister of Local Government, Public Works and Urban Development (4th
respondent) to the President of the Republic of Zimbabwe (5th
respondent).
In
exercise of his powers the President appointed the 1st
respondent the substantive Chief Bunina on 7 May 2007.
This appointment is in
accordance with the Rozvi principles of succession. The President in
his wisdom and discretion did not follow the Ndebele system of
succession.
It is this appointment really
that resulted in these two matters.
This appointment was done in
terms of section 3 of the Traditional Leaders Act [Chapter 29:17]
(“the Act”) which provides -
“3.
Appointment
of Chiefs
(1)
Subject to subsection (2), the president shall appoint Chiefs to
preside over communities inhabiting communal and resettlement areas.
(2)
In appointing a chief in terms of subsection (1), the President –
(a)
Shall give due consideration –
(i)
The prevailing customary principles of succession, if any, applicable
to the community over which the chief is to preside; and
(ii)
The administrative needs of the communities in the area concerned in
the interest of good governance; and
(b)
Wherever practicable, shall appoint a person nominated by the
appropriate persons in the community concerned in accordance with the
principles referred to in sub-paragraph (i) of paragraph (a):
Provided
that, if the appropriate persons concerned fail to nominate a
candidate for appointment as chief within two years after the office
of chief became vacant, the Minister, in consultation with the
appropriate persons, shall nominate a person for appointment as chief
…”
I have highlighted above that
the most contentious issue is whether the Ndebele or Rozvi system is
applicable in determining the succession battle for the Bunina
Chieftainship.
It is trite that although
chiefs are envisages as hereditary holders of office it is only
official recognition by the President that carries with it the title
of Chief.
In practice the President
frequently appoints the person holding traditional title to the
chieftainship, but he is not obliged to do so.
Section
3(2) of the Act obviously implies that the President “should give
dire consideration to the customary principles succession if any
applicable to the community over which the Chief is to preside,” as
investigated by Ministry of Local Government officials in particular
the 2nd
respondent. But, once the investigation has been made, the President
is free to act as his thinks best in the interests of good governance
of the community – Muwuungani
v Minister
of Native Affairs
1957 R & N 298 (FC) at 300E; 1957 (2) SA 544 (FC) and Ruzane
v Paradzai
& Anor
1991 (1) ZLR 273 (SC) at 280G–281F.
In the latter case MANYARARA
JA at 280H to 281A had this to say -
“The
clear meaning of the provision is that the President is required to
'give due consideration to the customary principles of succession',
not to follow them in making his choice.”
In other words, section 3 of
the Act provides the President with an unfettered discretion in the
appointment of a chief.
The
President has exercised this discretion and appointed the 1st
respondent as substantive Chief Bunina. The President exercised this
discretion after supporters of rival candidates were consulted
through the 2nd,
3rd
and 4th
respondents.
This exercise of executive
powers by the President cannot be reviewed.
Accordingly, the applicant's
case should fail. I therefore order as follows:
(1)
That the provisional order granted by this court on 10 September 2009
under HC1396/09 be and is hereby discharged with costs.
(2)
That the application filed under HC1410/09 be and is hereby dismissed
with costs.
Coghlan
& Welsh,
applicant's legal practitioners
Joel
Pincus Konson & Wolhuter,
1st
respondent's legal practitioners
Civil
Division, Attorney-General's Office,
2nd,
3rd,
4th
and 5th
respondents' legal practitioners
