CHIWESHE JP: This is an application for review seeking the
nullification of the nomination and appointment of the first respondent as
Chief of the Munyikwa people. The
applicant avers that the customary principles of succession to the Munyikwa
chieftainship were not followed and as a result the wrong person was nominated
for appointment.
The
second, third and fourth respondents have opposed this application. In their opposing affidavit sworn to by
Partson Itai Mbiriri, the Permanent Secretary in the Ministry of Local
Government, Public Works and Urban Development, they aver as follows.
The
appointment of the first respondent was done in accordance with the customs and
traditions of the Munyikwa Community and in line with the provisions of s 3 (2)
of the Traditional Leaders Act [Cap
29:17]. The succession custom
followed by the Munyikwa chieftainship is that the eldest or the most senior
surviving male family member is appointed chief. The Munyikwa community held five meetings to
nominate a substantive chief. Ministry
officials were present at all these meetings to ensure that the provisions of
the Act were adhered to. In all these
meetings first respondent was nominated as the suitable candidate as he was the
eldest surviving male person from the Kubiku house. All the necessary procedures were followed in
coming up with the substantive chief.
The
first respondent has not filed any opposing papers. His failure to do so does not in my view
affect the outcome of this application.
This is so because in essence what is on review are the administrative
commissions and or omissions of the second, third and fourth respondents vis-a vis their obligations in terms of
the provisions of the Traditional Leaders Act [Cap 29:17].
The
fifth respondent, the President of the Republic of Zimbabwe, should not have
been cited. The applicant has amended the
papers accordingly.
The
applicant insists that the correct procedures were not complied with in the
appointment of the first respondent. The
grounds for seeking review are as follows:
1. The appropriate people were not consulted.
2. The
prevailing customary principles of succession applicable to the Munyikwa people
were not followed in that:
(a) First
defendant's family members are ineligible to become chiefs because their great
grandfather committed murder and their descendants were banned from ascending
the chieftainship.
(b) In
any event the family tree, starting with those at the top, was not followed.
(c) It
is the custom of the Munyikwa clan that the eldest of those eligible to become
chief is appointed. Applicant is older
than the first respondent.
3. The
first respondent was not nominated by the people. It is the applicant who was nominated.
4. The
first respondent was nominated whilst there was still an appointed chief.
In his heads of
argument the applicant identifies the issues for determination as follows:
"3.1 What are the prevailing customary principles
of succession to the Munyikwa
Chieftainship?
3.2. Whether
such prevailing customary principles of succession were followed
when first respondent was nominated for
appointment.
3.3 Legal implications of non- compliance with
the prevailing customary
principles of succession."
The
first and second issues can only be determined by lodging an inquiry to
establish what the customary principles of succession to this particular
chieftainship are. Once that is known
with a degree of certainty, such as the views of the majority in the clan, one
may then substantially determine whether these were followed or complied
with. Both stages of such an inquiry
require that the factual basis of any conclusion one might come to be
interrogated.
In
the present application it is patent that the facts upon which the applicant
seeks to support his case are, despite his assertion to the contrary, far from
being common cause. These facts cannot
be resolved without hearing "viva voce"
evidence.
For
example the applicant insists he is older than the successful nominee, the
first respondent. The respondents say it
is the nominee who is the eldest of the persons eligible for appointment.
The
applicant avers that the nominee's family is not eligible for chieftainship on
account of murder committed by their great grand-parents. The respondents insist that the appointment
was done in line with the clan's customary law principles.
The
applicant states that another nominee had been recommended by the people. That nominee was Zivanai. Whilst awaiting installation, the clan was
told that the first respondent had in fact been nominated. The respondents aver there was only one
nominee, the first respondent.
The
applicant says after Zivanai's death he was nominated by the people for
appointment, more so because he was older than first respondent. The respondents would
beg to differ.
These
and other factual disputes cannot be resolved on the papers as they stand. The applicant should have proceeded by way of
action rather than application. That
being so, it is within my discretion to dispose of this application by either
dismissing it, or proceeding with it and calling such viva voce evidence as the court and the parties may determine, or,
simply refer the matter to trial. I prefer the last option as it enables a
full, exhaustive and conclusive inquiry into the issues the parties have put
forward for determination.
Accordingly
it is ordered as follows:
1. That the matter be and is hereby referred to
trial.
2. That
the present papers be converted to pleadings.
3. That costs be costs in the cause.
Messrs
Hogwe, Dzimirai and Partners, applicant's legal practitioners
Mwonzora
& Associates, first respondent's legal practitioners
Civil Division of the Attorney General's Office, 2nd to 4th
respondents' legal practitioners
