PATEL
JA: This
is an appeal against the whole judgment of the High Court setting
aside the appointment of the appellant to the Marange chieftainship
in 2016. It is a matter concerning the procedure to be followed in
the appointment of chiefs in Zimbabwe pursuant to the advent of the
current Constitution in 2013.
Background
The
substantive Chief Marange died on 6 September 2005. Two of his
relatives acted in his place and stead following his death. Following
a long and arduous selection process, the appellant was eventually
installed as Chief Marange on 27 October 2016.
The
first respondent challenged this appointment as having taken place
irregularly and improperly. In particular, he averred that he was the
people's preferred candidate for the position and that the second
respondent (the Minister) had hand-picked the incumbent and imposed
him on the people against their wishes.
The
first respondent moved the court a
quo
to review the conduct of the Minister and to set aside the
appointment of the appellant as Chief Marange. The appellant,
together with the other respondents a
quo,
opposed the application on the basis that the court lacked
jurisdiction to hear and determine the application by reason of the
provisions of s283 of the Constitution.
Judgment
of the High Court
The
court a
quo
rejected the point in
limine
taken by the respondents before it. It found that it did have the
jurisdiction, by virtue of ss26 and 27 of the High Court Act [Chapter
7:06],
to inquire into the conduct of the Minister, as an administrative
authority, and to ascertain whether that conduct fell within the law.
The
court further found that the people chosen by the Minister to advise
him on the selection process were not conversant with the customs and
traditions of the Marange people.
The
court took the view that the chieftainship dispute should have been
resolved by the Minister in terms of s283(c)(ii) of the Constitution.
He should have referred the dispute to the provincial assembly of
Chiefs to consider the matter and report back to him as provided by
s42(3) of the Traditional Leaders Act [Chapter
29:17].
Instead, he acted outside the law in accepting the recommendation of
one of the commissions that had been illegally set up by him to
identify a suitable candidate for the chieftainship. Consequently, he
acted ultra
vires
the Constitution in appointing the appellant as Chief Marange.
As
regards the first respondent's claim to the chieftainship, the
court a
quo
found that the documents that he had produced did not substantiate
his allegations. He did not produce anything to support his claim to
be the people's choice. On the other hand, the court held that the
first respondent had proved his case, for the setting aside of the
appellant's appointment, on a balance of probabilities.
The
court accordingly ordered that the appointment of the appellant as
the substantive Chief Marange be set aside. Additionally, the
appellant and the Minister were ordered to pay the costs of the
application. In effect, the third respondent (the President) was
entirely absolved of any responsibility for the Minister's unlawful
conduct.
Grounds
of Appeal and Relief Sought
The
four grounds of appeal herein impugn the judgment of the court a
quo
on the following bases.
(i)
The first is that the jurisdiction of the court to deal with
chieftainship disputes was ousted by s283 of the Constitution.
(ii)
The second is that the dispute in this case arose when the first
respondent challenged the appellant's appointment and it is at that
point that the Minister should have referred the dispute for
resolution by the President.
(iii)
The third takes issue with the court, having found that the first
respondent had not proven his case, but nevertheless granting the
relief sought by him setting aside the appellant's appointment.
(iv) The fourth attacks the implied finding of the court to the
effect that the appellant's appointment was not in accordance with
the custom and practice of the people of Marange.
The
relief sought by the appellant is that the appeal be allowed with
costs and that the judgment a
quo
be set aside and be substituted with an order dismissing the
application with costs.
The
Governing Provisions
Section
280 of the Constitution recognises the institution, status and role
of traditional leaders under the Constitution, while s281 underscores
the principles to be recognised by traditional leaders. Section 282
spells out the functions of traditional leaders within their
respective areas of jurisdiction.
Sections
285 and 286 of the Constitution provide for the establishment and
functions of the National Council of Chiefs and provincial assemblies
of Chiefs.
In
terms of s285(2), a provincial assembly of Chiefs must be established
for each province by an Act of Parliament. By virtue of s286(1)(f),
one of the functions of a provincial assembly is “to facilitate the
settlement of disputes between and concerning traditional leaders”
within its province.
The
critical provision for consideration in
casu
is s283 of the Constitution relating to the appointment and removal
of traditional leaders. It is necessary to set it out in full as
follows:
“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;
(iii)
the Act must provide measures to ensure that all these matters are
dealt with fairly and without regard to political considerations;
(iv)
the Act must provide measures to safeguard the integrity of
traditional institutions and their independence from political
interference.” (My emphasis)
Turning
to the Traditional Leaders Act, s3(1) of this Act empowers and
obligates the President to appoint chiefs to preside over communities
inhabiting Communal Land and resettlement areas. In performing this
function, the President is enjoined by s3(2) to give due
consideration to the prevailing customary principles of succession
and, wherever practicable, to appoint a person nominated by the
appropriate persons in the community concerned in accordance with
those principles. In the event that such nomination is not made
within two years after the chieftainship became vacant, the
responsible Minister is then required, in consultation with the
appropriate persons, to nominate a person for appointment as chief.
Section
3(3) of the Act enables the President, where he is of the opinion
that good cause exists, to remove a chief from office. This power is
subject to s7 which prescribes the disciplinary procedures to be
followed where a chief commits or is alleged to have committed a
specific offence or act of misconduct.
Part
IX of the Act provides for the establishment and functions of
provincial assemblies and the Council of Chiefs.
In
terms of s35(1), there is constituted a provincial assembly for each
province of all the chiefs of that province.
Section
35(2) requires every provincial assembly “to meet at least twice a
year at such time and place as the Minister may from time to time
determine”.
One
of the principal functions of a provincial assembly, as stipulated by
s36(b), is “to consider and report on any matter which is referred
to it by the Minister, the Council or a member of such provincial
assembly”.
Following
exchanges with the Court, it was accepted by both counsel that s283
of the Constitution does not constitute the actual code that governs
the appointment and removal of chiefs or the resolution of disputes
in that connection. What s283 does is to enunciate the template to be
applied in the formulation and implementation of that code.
It
is also common cause that the Traditional Leaders Act, duly modified
so as to fully conform with the Constitution, provides the requisite
legislative framework contemplated by s283 of the Constitution.
Thus,
even without having been exactly aligned to the Constitution, the Act
makes it clear that it is the President who is vested with the power
to appoint and remove chiefs from office and that he must do so in
accordance with the prevailing customary principles of succession,
following nominations by the local community and/or the responsible
Minister.
To
a significant extent, therefore, the provisions of the Act that I
have alluded to are perfectly capable of being applied in accordance
with the requirements of s283 of the Constitution.
I
am amply fortified in adopting this approach by having regard to para
10 of the Sixth Schedule to the Constitution, which dictates the
continuation in force of all existing laws to be construed in
conformity with the Constitution.
Jurisdiction
to entertain chieftainship disputes
As
I have already stated, s283 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 s26 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 s28 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 s283 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 s3
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 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
SC35/2013; Munodawafa
v Masvingo
District Administrator & Ors
HH571-15.
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 s283 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.
Appointment
to substantive chieftainship
The
court a
quo
proceeded on the basis that the commissions of inquiry established by
the Minister were not provided for in the current Constitution or in
the Traditional Leaders Act. One such commission identified the
appellant as a suitable candidate for the position of Chief Marange.
This, according to the learned judge, offended s283 of the
Constitution. Both the commission and the Minister acted ultra
vires
the Constitution. Their actions were nullities and therefore could
not be allowed to stand.
The
Minister was called upon to revisit the matter “properly guided by
s283 of the Constitution of Zimbabwe as read with s42(3)(b) of the
Traditional Leaders Act”.
In
the event, the court was satisfied that the applicant (the first
respondent herein) had proved his case on a balance of probabilities.
It accordingly ordered that the appointment of the first respondent
(the appellant herein) as the substantive Chief Marange be set aside.
Both
counsel are in agreement that the court a
quo
relied upon and applied the wrong provisions in setting aside the
decision of the Minister and the appointment of the appellant.
As
I have concluded earlier, s283 of the Constitution is not directly
applicable to the resolution of the dispute in
casu.
As
for s42(3)(b) of the Traditional Leaders Act, which was referred to
by the court a
quo,
there is no such provision in the Act. This provision simply does not
exist.
It
is clear, therefore, that the learned judge a
quo
misapprehended and misapplied the law governing the appointment of
chiefs. He consequently set aside the decision of the Minister and
the ensuing appointment of the appellant as Chief Marange on the
wrong legal bases.
Equally
critically, it would appear that the court a
quo
opted to delve into the substantive merits of the respective
positions advanced by the contesting parties.
The
first respondent's case was that he was the people's preferred
candidate for chieftainship and that the appellant had been
hand-picked by the Minister and imposed upon the people of Marange
against their wishes. In support of his case, the first respondent
tendered the supporting affidavits of nine other persons and two
seemingly relevant documents. The court a
quo
rejected the first respondent's averments on the basis that he had
failed to substantiate them and had produced nothing to support his
claims.
In
short, it was held that he had failed to prove his case.
The
appellant's case was that the first respondent was disqualified for
appointment as he had seriously violated certain cultural and
customary practices. He therefore failed to meet the criteria to
become a chief. As for himself, the appellant averred that at the
third commission of inquiry he was publicly selected as the only
remaining candidate without any violations of the traditions, customs
and practices of the Marange clan. He defended his appointment as
chief on the basis that he stood in the line of chieftainship of the
clan, that he was the oldest surviving father of the clan without any
customary or traditional infringements, and that proper consultations
had been carried out with the clan leading to his election by the
clan as its chief.
In
weighing up these opposing positions, the court a
quo
commended the Minister's efforts in setting up the commissions of
inquiry. However, the court found that the shortcoming in these
efforts was that the people whom the Minister chose to drive the
process were not in any way conversant with the customs, culture and
traditions of the Marange people.
In
the event, the court found that the appellant had been irregularly
appointed as the substantive Chief Marange and ordered that this
appointment be set aside. However, having so concluded, the learned
judge did not proceed to decree any corrective measure to rectify the
irregularity. He simply left the parties to their own initiatives and
devices.
What
can be gleaned from all of the foregoing is the implied finding that
the appellant's appointment as Chief Marange was not in accordance
with the customs and practices of the Marange clan.
In
this respect, therefore, there is some merit in the appellant's
fourth ground of appeal, to the extent that the court itself was
ill-equipped to venture into that particular field. In effect, the
court appears to have overruled the decisions taken by the Minister
and the President without having been possessed of the expertise or
qualifications necessary to do so.
It
is settled law that the courts should not take over the functions of
an administrative authority and interfere with its actions or
decisions by substituting them or setting them aside. See Affretair
(Pvt) Ltd & Anor
v M.K.
Airline (Pvt) Ltd
1996 (2) ZLR 15 (S), at 21; Zimbabwe
School Examinations Council
v Mukomeka
& Govhati
SC10/20, at pp. 17-18.
I
would extend this broad principle to postulate that, in certain
limited circumstances, it might become necessary and appropriate to
invoke such judicial restraint, even where the administrative action
or decision in question is shown to have been procedurally irregular.
This might arise, for instance, where judicial interference would
entail serious administrative disruption or result in some grave
miscarriage of justice.
In
any event, the general principle of judicial non-interference is not
immutable and may be departed from in exceptional cases:
(i)
where the end result is a foregone conclusion and it would be a waste
of time to remit the matter for corrective action;
(ii)
where further delay would prejudice the applicant;
(iii)
where the extent of bias or incompetence displayed is such that it
would be unfair to force the applicant to submit to the same
administrative jurisdiction;
(iv)
where the court is in as good a position as the administrative body
or functionary to make the appropriate decision.
See
the Affretair
case, supra,
at 24-25; Gurta
AG
v Gwaradzimba
N.O.
HH353-13, at pp. 9-10; C.J.
Petrow & Co (Pvt) Ltd
v Gwaradzimba
N.O.
HH175-14, at pp. 8-9.
In
casu,
I do not perceive any of the above exceptions as having been
applicable to the circumstances before the court a
quo.
The
remittal of the matter to the Minister for corrective action would
not have been a waste of time. Indeed, corrective action was
eminently necessary on the facts of the case. Further delay would not
have prejudiced the applicant (the first respondent herein) given the
genesis of the succession dispute in 2005 and the protracted period
of time over which it had remained unresolved. There was no evidence
before the court a
quo
that the Minister or the President had displayed such bias or
incompetence as would have operated to subject the applicant to any
further administrative unfairness. And lastly, it cannot possibly be
said that the learned judge was sufficiently conversant with the
requisite criteria for appointment to the Marange chieftainship, to
wit, the prevailing customary principles of succession and the
administrative needs of the Marange community (cf.
s3(2)(a) of the Traditional Leaders Act).
There
can be no argument against the finding a
quo
that the Minister acted unprocedurally in establishing and relying
upon the recommendations of the various commissions of inquiry that
were instituted to resolve the succession dispute over the Marange
chieftainship.
The
most competent body to which this matter should have been assigned,
within the broad scheme of s283 of the Constitution and the
Traditional Leaders Act, would have been the provincial assembly of
Chiefs responsible for the Marange community.
Given
the Minister's failure to do so, the most salutary corrective
measure would be to remit the matter to him and direct him to consult
the provincial assembly with a view to seeking its recommendations on
the resolution of the succession dispute.
Additionally,
it would also be necessary to address the appointment of the
appellant as the substantive Chief Marange.
The
most obvious remedy in that connection would be to set aside that
appointment as having emanated from a gross procedural irregularity.
However, this would lead to a lacuna
in the leadership of the Marange clan and resultant uncertainty in
the administration of the clan's affairs.
In
order to obviate this undesirable contingency, it seems to me that
the preferable and less disruptive alternative would be to leave the
appellant in
situ
as the clan's chief, albeit in an acting capacity, pending the
final resolution of the chieftainship dispute. In my view, this would
serve to ensure administrative continuity in the interests of good
governance within the Marange community.
Disposition
Mr
Mubaiwa,
for the first respondent, submits that there is presently no law
providing for the resolution of disputes by provincial assemblies.
This
position is not entirely correct in light of my earlier
interpretation of the continuing applicability, mutatis
mutandis
so as to conform with the dictates of s283 of the Constitution, of
ss35 and 36 of the Traditional Leaders Act.
In
any event, Mr Mubaiwa
accepts that the High Court has inherent jurisdiction to remit the
matter to the Minister for onward referral to the provincial assembly
concerned.
Mr
Magwaliba,
for the appellant, agrees that ss35 and 36 of the Act afford suitable
mechanisms for the resolution of the dispute in
casu.
He submits that the Minister can lawfully convene the provincial
assembly and administratively refer the chieftainship dispute in
casu
to the provincial assembly for its recommendations.
I
fully concur with that position.
In
view of my earlier conclusions and intended disposition of this
matter, the third and fourth grounds of appeal are rendered redundant
and do not call for further consideration or determination.
As
for costs, given that both the appellant and the first respondent
have enjoyed relative success in relation to the first and fourth
grounds of appeal, I think it appropriate that each party should bear
its own costs, both in the court below and herein on appeal.
In
the result, I make the following order:
1.
The appeal is partially allowed with each party to bear its own
costs.
2.
The judgment of the court a
quo
is set aside and substituted with the following:
“(i)
The appointment of the first respondent as substantive Chief Marange
be and is hereby set aside.
(ii)
The matter is remitted to the second respondent who is hereby
directed:
(a)
to convene a meeting of the provincial assembly of Chiefs responsible
for the Marange community, at the earliest available opportunity, to
consider and report back to him with its
recommendations on the resolution of the dispute concerning the
appointment of a substantive Chief Marange; and
(b)
to submit the aforesaid recommendations to the third respondent to
enable him to resolve the aforesaid dispute in accordance with the
provisions of s3 of the Traditional Leaders Act
[Chapter 29:17].
(iii)
Pending the resolution by the third respondent of the aforesaid
dispute, the first respondent shall perform the functions of acting
Chief Marange pursuant to section 4 of the Traditional Leaders Act
[Chapter 29:17].
(iv)
Each party shall bear its own costs.”
GWAUNZA
DCJ:
I agree
BERE
JA: (No
longer in office)
T.
Pfigu Legal Practitioners,
appellant's legal practitioners
Warara
and Associates,
1st
respondent's legal practitioners
Civil
Division of the Attorney-General's Office,
2nd
and 3rd
respondents' legal practitioners
