MALABA DCJ: This is an appeal
against the judgment of the High Court given on 19 January 2012. The High
Court discharged a provisional order under HCB 1396/09. It also dismissed
an application for review under case No. HCB 1410/09.
The
provisional order which had been granted on 10 September 2009 reads:
“TERMS OF FINAL ORDER SOUGHT
1.
That the installation ceremony of the first respondent as substantive Chief
Bunina set for the 18th September 2009 be and is hereby stayed
and/or postponed pending the hearing of an application for review of the
decision to appoint the first respondent as Chief Bunina of Lower Gweru.
2.
That the applicant shall forthwith file and serve his review application upon
the respondents who shall have the right to oppose same in terms of the rules
of court.
3.
That the costs of this application shall be borne by the respondents' only if
they oppose it.
INTERIM RELIEF GRANTED
4.
That the installation ceremony of 1st Respondent as substantive
Chief Bunina be and is hereby stayed and/or postponed pending the determination
of the review application filed of record.”
The order sought in the review
application under case No. HCB 1410/09 reads:
“IT IS ORDERED:
1.
That the decision to appoint 1st respondent as substantive Chief
Bunina be and is hereby set aside.
2.
That the matter be and is hereby remitted to the office of the 2nd
respondent who shall reconvene a selection meeting of all interested parties
which shall select a candidate for appointment as Chief Bunina in accordance
with the customary principles of succession of the Bunina clan.
3.
That the costs of this application shall be borne by the Respondents only if
they oppose.”
The court a quo discharged
the provisional order on the return day and dismissed the application for
review of the actions of the officials of the Local Government, Rural and Urban
Development which formed the basis of the decision by the fifth respondent to
appoint the first respondent as substantive Chief Bunina.
The relief sought on appeal is an
order setting aside the court a quo's judgment and substituting in its
place an order confirming the interim order; and granting the application for
review and setting the decision of the fifth respondent aside. The
granting of the relief relating to the interim order is no longer possible
because the first respondent was installed as substantive Chief Bunina of Lower
Gweru on 18 September 2009. He had been appointed on 7 May 2007.
The appellant is the eldest son of
Jackson Moyo, the last Chief Bunina of Lower Gweru, who died in June
2003. The late Jackson Moyo had taken over the chieftainship from his
late father Mantiya. After the death of Jackson Moyo the appellant was
appointed acting Chief Bunina of Lower Gweru in May 2004 until the expiry of
his term in May 2006. The first respondent's father was Mkoba. He was
one of the sons of Chief Bunina born of a younger wife. The other direct
descendants of Chief Bunina are Mpabanga, Dick Ndudzo and Lugwalo.
Mpabanga and Mkoba were brothers born of the same mother. They were
brothers in one house.
The process of choosing a
substantive Chief Bunina started in 2005. The appellant alleged in the
answering affidavit in the application to the court a quo that the
dispute over the chieftainship succession arose because the first respondent
objected to his succession to the chieftainship following his father's
death. On 19 August 2005 a meeting of all the members of the Bunina
family was convened. In attendance were Mr Mukwaira the Deputy Secretary
in the fourth respondent's ministry, the Provincial Administrator, the District
Administrator for Gweru and the District Administrator for Kwekwe.
The meeting which had been called to
discuss and resolve the question of who should succeed the late Jackson Moyo as
substantive Chief Bunina was not conclusive. The question which remained
unresolved was whether the prevailing customary principles of succession to the
chieftainship applicable to the community over which the substantive Chief
Bunina would preside were based on patrilineal or collateral successon.
The question was not who amongst the Bunina family members was to be elected
Chief Bunina.
The meeting was reconvened on 20
October 2005. The Mantiya family, Mpabanga family, Mkoba family, and
Lugwalo family all being direct descendants of Chief Bunina were present.
A total of twenty two people represented the families. It is alleged that
at the meeting Mr Mukwaira said that since the Bunina clan was Rozvi by origin
they should choose the substantive chief using the collateral customary
principles of succession. He went on to direct the members of the
families present to elect the person they wanted to become the substantive
Chief Bunina. Members of Mkoba, Mpabanga and Lugwalo families voted for
the first respondent. Members of Mpabanga and Mkoba families being
descendants of brothers should have been counted as one house if an election
was an appropriate method of succeeding to the chieftainship. The first
respondent was then recommended to the President for appointment as substantive
Chief Bunina. The appellant challenged the decision alleging that he was
the rightful heir to the Bunina chieftainship.
The second and third respondents'
reports to the fourth respondent confirm that the Bunina customary principles
of succession to the chieftainship are patrilineal. A report made by one
R Dzingirai of the office of the Provincial Administrator, Midlands, to the
Governor of the Midlands Province on 27 October 2005 is to this effect:
“Records in the file indicate that
the Ndebele custom is the preferred mode of succession. An undated family
tree supports this contention (find attached). Correspondences in the
Chieftainship file suggest that Mantiya was the rightful heir as he is the
first born by the senior wife Mavu.
However due to his youth he was
unable to take up his post, therefore Mpabanga was appointed as regent
Chief. Mpabanga only ruled for two years at which time Mkoba was
nominated to the same position. When Mantiya was of age, he was unable to
regain his chieftainship on the basis that Mkoba was unwilling to relinquish
the chieftainship.
Reference is made to the District
Commissioner's notes dated 12 June 1972 Ref: Per/4/Mkoba/Bunina Page 3 which
states that Mkoba was “... a tough, violent, relentless, self centred despot
... who brooked no opposition, dealt physically violently with anyone who
offended or opposed him”. It is argued by the then District Commissioner
that Mantiya adhered to the trusty adage that “better a living coward than a
dead Hero”. In his writings the District Commissioner even went further
to note, “By appointing Mantiya, we re-affirm the principle repeatedly averred
to by the tribal elders, that their custom of succession is patrilineal not
collateral. His son Jackson will follow him.
With the above observations, in mind
it would be pertinent to point out that the same sentiments emerged at the
following selection meeting, the purpose of which was to appoint substantive
chief after the death of Mantiya. At a meeting held on the 19th
of May 1989, which was chaired by the Acting District Administrator for Gweru
Mr Rushwaya, members present “unanimously agreed to follow the Ndebele custom
of Chief begets a chief hence Mavu, first wife of Bunina, had borne a chief in
Mantiya”. One would assume that the same adage was adopted upon Jackson's
death, with Golden Moyo, his son acting.
At all these previous meetings, what
is consistent is the clan's agreement that the selection system is Ndebele and
that Mantiya is the rightful heir of the chieftainship. The two meetings
held in August and October 2005 respectively acknowledge that the people of
Bunina are of the Rozvi origin, but the mode of succession has always been
aligned more to the Ndebele patrilineal system than the Rozvi.”
What is clear from the report which was written seven days after the meeting of
20 August is that the decision of Mr Mukwaira was challenged as not having been
based on the prevailing customary principles of succession to the Bunina clan
chieftainship as reflected by the official records.
In another report by Mr Mupeta who
was the Acting District Administrator for Gweru to the Provincial
Administrator, dated 28 October 2005, it was confirmed that the Bunina system
of succession to chieftainship was endemically Ndebele, although they were
Rozwi. It was only after Mr Mukwaira interfered with the debate and
advised that in his opinion if they were Rozvi they should follow the house to
house system of succession to chieftainship that the first respondent emerged
as a contender to succeed Jackson Moyo as Chief Bunina.
The report
records that before meeting members of the Bunina family on 19 August 2005 the
officials held a caucus meeting of their own. The report shows that the
officials agreed that the patrilineal succession was the prevailing customary
principle to be applied. The agreement was not implemented because the
first respondent claimed that the family had chosen their own chief. The
meeting was then adjourned to 20 October 2005. The report states that at
the meeting of 20 October members of the Bunina family indicated that although
they were Rozvi by origin they had followed patrilineal customary principles of
succession to their chieftainship. It was then that Mr Mukwaira said if
they are Rozwi by origin they should follow the house to house system of
succession to chieftainship.
Following
complaints by the appellant and other members of his family to the fourth
respondent through the office of third respondent another meeting of members of
the Bunina families was held on 21 June 2006. Although the purpose of the
meeting was for the members of the Bunina families to agree on the customary
principles of succession no such agreement was reached or sought to be
encouraged by the officials present. At the end of the meeting the
families were asked to vote for those they wanted to be Chief Bunina.
Those who voted for the first respondent did so because he was the oldest
surviving grandson of Chief Bunina.
The report
states:
“Chief Sogwala and Chief Malisa from
the same area who also are Rozvi by origin were at the meeting. They
expressed dismay at the development. They encouraged the Bunina families
not to change their tradition in order to impose a candidate. They urged
the parties not to waive family tradition to facilitate the ascension of an
ineligible candidate. The record of the meeting of 21 June 2006 shows
that the first respondent was not chosen because he belonged to the
house which according to the collateral principle was entitled to succeed to
the chieftainship.”
In the memorandum dated 28 August 2006 to the fourth respondent, the Provincial
Administrator refers to the election of the first respondent as Chief Bunina on
21 June 2006 and then states that:
“... Though there was no succession
among the family members 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
bi-lateral or collateral system was welcome by this office in the best
interests of the Chieftainship...”
The report on the meeting of 21 June 2006 had stated that:
“Records dating back to 1985 showed
deliberations made by the respective families which clearly showed that they
were following a Ndebele custom and the Mantiyas were the rightful heirs to the
chieftainship (minutes of 4 November 1985). The Mpabanga family asserted
that the system of succession was from father to son. Even Stephen Mkoba
said that it was from father to son. This was a selection meeting after
the death of Mantiya.”
The court a quo found
that:
“The first respondent's claim to the
chieftainship does not seem to be based on a recognisable Ndebele system of
succession, custom or tradition of the clan but merely on some kind of election
or poll conducted by Local Government officials.”
The court a quo went on to say:
“In the 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.
It is trite that although chiefs are
envisaged 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 due consideration to the customary principles
of 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 he thinks best in the interests of
good governance of the community.”
The question is whether the
recommendation of the fourth respondent to the President, to appoint the first
respondent as Chief Bunina, was in accordance with the customary principles of
succession of the Bunina clan. The first respondent does not find
anything amiss in the fact that he was chosen by means of a poll, as candidate
for appointment as Chief Bunina. What is very clear from the letter of 28
August 2006 is that the recommended appointment of the first respondent as
Chief Bunina was not in accordance with any prevailing customary principles of
succession to the chieftainship. It was for the convenience of the
administration.
Section 3 of the Traditional Leaders Act [Cap. 29:17](“the Act”)
provides that:
“(1)
Subject to subsection (2), the President shall appoint chiefs to preside over
communities inhabiting Communal Land and resettlement areas.
(2)
In appointing a chief in terms of subsection (1), the
President-
(a) Shall give due consideration to –
(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
interests of good governance.”
The appellant contends that the court a quo misdirected itself in
concluding that the President's discretion in the appointment of a chief is
unfettered. The court a quo said:
“...section 3 of the Act provides
the President with unfettered discretion in the appointment of a Chief ... this
exercise of executive powers by the President cannot be reviewed.”
The appellant takes issue with the holding by the court a quo that s
3(2) of the Act only requires that there be an investigation into the prevailing
customary principles of succession applicable to the community over which the
chief is to preside. The court held that the investigation has no bearing
on how the President should exercise his powers. The appellant argues
that the exercise of discretion in appointing a chief by the President, is
impeachable where it is based on incorrect, irrelevant or improper
considerations.
The first respondent argued that the President:
1. Has
no obligation to necessarily appoint as chief a person holding traditional
title to the chieftainship.
2. His
discretion in the appointment of a chief is unfettered.
3. The
exercise of his powers is not impeachable in any circumstances.
4. The
appointment of a chief is an exercise of Presidential powers which cannot be
reviewed by the courts.
5. He
is not obliged to follow the recommendations of the second respondent in terms
of the Act.
The Constitution of Zimbabwe
provides for the extent to which the President's executive powers are
justiciable. Section 31K provides:
“Extent to which exercise of
President's functions justiciable
(1)
Where the President is required or permitted by this Constitution or any other
law to act on his own deliberate judgment, a court shall not, in any case,
inquire into any of the following questions or matters-
(a)
Whether any advice or recommendation was tendered to the President or acted on
by him; or
(b)
whether any consultation took place in connection with the performance of the
act; or
(c)
the nature of any advice or recommendation tendered to the President; or
(d)
the manner in which the President has exercised his discretion.
(2)
Where the President is required or permitted by this Constitution or any other
law to act on the advice or recommendation of or after consultation with any
person or authority, a court shall not, in any case, inquire into either of the
following questions or matters-
(a)
the nature of any advice or recommendation tendered to the President; or
(b)
the manner in which the President has exercised his discretion.”
Only the President has the power to
appoint a Chief. It is correct to say that chiefs are Government officials who
hold office during pleasure and contingent upon good behaviour. The
appointment of chiefs has since 1927 been controlled by statute. In
deciding to appoint a particular person as the Chief to preside over a
community, the President acts on his own deliberate judgment. In other
words he is not obliged to appoint that person. In those matters in
respect of which the President is empowered to act in his own discretion, the
manner in which he exercises that discretion is not subject to judicial review
unless he has exercised his discretion outside the law, that is, where the
President has in the exercise of his discretion, made an error of law.
Chipfuvamiti v Nyajina & Anor 1992(2) ZLR 148(H).
The court a quo accepted that
in terms of s 3(2) of the Act an inquiry is required to be carried out on the
prevailing customary principles of succession applicable to the community over
which the person to be appointed chief is to preside. The court went on
to find that once the recommendation was made, the President was free to act as
he thought fit. The court cannot inquire into the question whether
recommendation was made to the President to appoint the first respondent as
Chief Bunina and whether he acted on such advice.
Having accepted that s 3(2) of the
Act required that an inquiry be conducted by the officials of the Ministry of
Local Government, Rural and Urban Development to ascertain the prevailing
customary principles of succession applicable to the community the court ought
to have inquired into the question whether those investigations produced the
information on the matters to which the President is required to give due
consideration.
The President is required to act on
his own deliberate judgment after he has information relating to the prevailing
customary principles of succession applicable to the community to which he must
give due consideration. Whether the information placed before the
President relates to the matters to which, he is required to give due
consideration is a justiciable question. This means that this is not one
of those matters contemplated by s 31K of the Constitution which are not
justiciable.
The validity of the exercise of the
power to appoint a chief is made to be subject to due consideration having been
given to the prevailing customary principles of succession to the chieftainship
applicable to the community over which the chief is to preside. An
appointment of a chief not preceded by a demonstrable compliance by the
President with the obligation to give due consideration to the prevailing
customary principles of succession to the chieftainship would be null and
void.
In Rushwaya v Minister of Local
Government 1987(1) ZLR 15 it was held at 18H that:
“Notwithstanding s 66(3) of the
Constitution, the High Court can review advice given to the President by the
responsible Minister in relation to the appointment of a chief in terms of the
Chiefs and Headmen Act, 1982. The grounds on which such advice can be
reviewed are illegality, irrationality and procedural impropriety.”
Section 66(3) of the Constitution is now s 31K, which spells out the scope or
limit of the executive function the exercise of which is not justiciable.
It is accepted that the Minister's recommendation forms the basis of the
President's decision as it should be based on information relating to matters
to which he is required to give due consideration before acting on his own
deliberate judgment.
In PF ZAPU v Minister of Justice, Legal & Parliamentary Affairs 1985(1)
ZLR 305 it is stated in the headnote that:
“The exercise of an executive
prerogative is not necessarily an act the question of the validity of which is
beyond jurisdiction of the court. The term act of State should only be
applied to those acts in respect of which the courts' jurisdiction is
ousted. All other executive acts, whether within the prerogative or not,
are subject to review on the usual grounds.”
At p 313G-H
DUMBUTSHENA CJ stated the general principle in these word:
“In my view an act of State is an
act of the executive in those areas of executive prerogative which oust the
jurisdiction of the courts. But such executive prerogatives are now very
few and far between because whenever the exercise of executive prerogative
affects the private rights, interests and legitimate expectations of the
subjects or citizens the jurisdiction of the courts is not ousted. The
private rights, interests and legitimate expectations of the citizens subject
to judicial review acts of the executive which would otherwise oust the
jurisdiction of the courts.”
The Act governs the appointment of a
person to a particular chieftainship and the recognition and establishment or
abolition of any particular chieftainship. Under the statute the
functions are vested in the President. In exercising these powers the
President has an absolute discretion, unfettered by any statutory shackles
other than the duty to give due consideration to the customary principles of
succession if any, applicable to the community over which such chief is to
preside. It is only the President who can determine who shall be
appointed as chief. The court has no power to investigate, determine or
even recommend to the President who should be appointed as the chief in the
area.
The same principle of law by which
the President is vested with absolute discretion in the exercise of the powers
of appointing chiefs was recognised in Ruzane v Paradzai & Anor
1991(1) ZLR 273(SC) where at pages 280H-281A MANYARARA JA observed that “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 Chagaresango v Chagaresango & Ors 2001 (1) ZLR 99 (S) it is
stated in the headnote:
“... While ordinarily it is not
competent for a court to investigate how the President has exercised his
discretion, it may investigate whether the relevant Minister and his officials,
in formulating their advice to the President, acted on sound principle. Where
it was shown that the appointment of a chief deviated from the ordinary customs
and traditions of the clan in question, and that the Minister had not given due
consideration to the customary principles of succession before making his
recommendation to the President, the court can make the declaration to the
effect that the customary principles of succession to the particular
chieftainship were not given due consideration.”
See also Rushwaya's case supra at pp 154-160 and 18F-19B.
In CCSU v Minister of the Civil Service [1984] 3 All ER 935 (HL) LORD
DIPLOCK, at 950j-951d, put and described the three grounds of judicial review
as follows:
“The first ground I would call
'illegality', the second 'irrationality' and the third 'procedural
impropriety'.
By 'illegality' as a ground for
judicial review I mean that the decision-maker must understand correctly the
law that regulates his decision-making power and must give effect to it.
Whether he has or not is par excellence a justiciable question to be decided,
in the event of dispute, by those persons, the judges, by whom the judicial
power of the state is exercisable.
By 'irrationality' I mean what can
by now be succinctly referred to as 'Wednesburg unreasonableness' (see Associated
Provincial Picture Houses Ltd v Wednesbury Corp [1947] 2 All ER 680, [1948]
1 KB 223). It applies to a decision which is so outrageous in its
defiance of logic or of accepted moral standards that no sensible person who
had applied his mind to the question to be decided could have arrived at
it. Whether a decision falls within this category is a question that
judges by their training and experience should be well equipped to answer, or
else there would be something badly wrong with our judicial system.
I have described the third head as
'procedural impropriety' rather than failure to observe basic rules of natural
justice or failure to act with procedural fairness towards the person who will
be affected by the decision. This is because susceptibility to judicial
review under this head covers also failure by an administrative tribunal to
observe procedural rules that are expressly laid down in the legislative instrument
by which its jurisdiction is conferred, even where such failure does not
involve any denial of natural
justice.”
It is
clear that what is reviewable is not the executive act of the President. The
court cannot inquire into the fact that the President decided in the exercise
of his discretion to appoint the first respondent instead of any one else as
Chief Bunina. The court cannot inquire into what information was taken
into account by the President in making his decision and whether the decision
was justifiable on the information.
The court a quo failed to appreciate the effect of the position take by
the officials in the fourth respondent's ministry that although the
recommendation to appoint the first respondent as Chief Bunina was
“non-procedural and non-congruent” with either the patrilineal or collateral
customary principles of succession it was considered to be in the best
interests of the chieftainship.
The recommendation was not based on
a finding, as implied by the court a quo, that the customary principle
of collateral succession was found to be the prevailing customary principle of
succession to the chieftainship applicable to the community over which Chief
Bunina presided. The learned judge misdirected himself when he held that
the appointment of the first respondent as Chief Bunina was in accordance with
the Rozvi customary principles of succession.
The effect of the finding of the
fact of the recommendation made to the President not having been based on any
prevailing customary principle of succession is that the President did not have
before him facts on the prevailing customary principles of succession to which
he was required to give due consideration before making the appointment of
first respondent as substantive Chief Bunina.
The method of choosing the person to
be appointed substantive Chief Bunina was the one by which members of some of
the houses of the descendants of Chief Bunina voted for their preferred
candidate. The elective method of choosing a person to become a chief is
not necessarily consistent with customary principles of succession to
chieftainship.
The court a quo said that the
fourth respondent acted in terms of the proviso to s 3(2)(b) of the Act, which
reads:
“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.”
There is nothing in the record of
proceedings to support the submission that the fourth respondent acted in terms
of the proviso. Section 3(2) (b) of the Act only comes into effect where
there has been failure to nominate a candidate in accordance with the
prevailing customary principles of succession applicable to the community over
which the chief is to preside. The circumstances envisaged under the
proviso as the precondition for its application did not arise in this case.
The recommendation to the President was contrary to the evidence that the
prevailing customary principles of succession to the chieftainship were
patrilineal. The officials of the Ministry of Local Government, Rural and
Urban Development did not base their recommendation on the evidence. They
decided that because the clan was Rozvi by origin they had to apply the
collateral principles of succession to the chieftainship. That decision
was contrary to the evidence to the effect that succession to the chieftainship
after the death of the original Chief Bunina was based on the patrilineal
principles of succession because there were no brothers who would have
contested the right to succeed him in terms of the collateral principles of succession.
The development was important to consider because it is according to the
customary principle of collateral succession that a son should not succeed his
father as chief.
The problem with this case is that whilst the first respondent claimed that the
collateral principles of succession were applicable he was not himself
appointed in terms of those principles. He was chosen on the basis of a
vote by members of the other three families. He must have known that on
the house to house customary principles of succession he had no claim to the
chieftainship. The Mkoba house would have had its turn if the primacy of
rotational succession was observed. The houses that would have been
entitled to succeed to the chieftainship were those of the descendants of
Lugwalo, Dick Ndudzo and Mpabanga. Those who voted for him did so out of
deference because he was the oldest of the surviving descendant grandsons of
Chief Bunina. No evidence was led of the fact that it was a customary
principle of succession to the chieftainship that the oldest surviving
descendant of Chief Bunina has a right to succeed to the chieftainship even if
his house is not next in the line of succession.
The
appointment was not supported by the community over which the chief was to
preside. The evidence showed that whilst the Bunina family may have
migrated from Matojeni Area and were Rozvi by origin they settled in an area
inhabited by a community which is predominantly Ndebele. Over many years
they practised the customary principles of succession to the patrilineal
chieftainship in line with the customs of the community over which they
presided. If that practice had changed the officials of the Ministry of
Local Government, Rural and Urban Development should have gathered sufficient
evidence of the fact of that change from the community. Instead of
gathering the evidence they imposed their own views on which customary
principles of succession should be applied.
A thorough
investigation of the matter was of paramount importance because the last
substantive Chief Bunina had succeeded to the chieftainship on the basis of the
patrilineal principles of succession. The evidence on record shows that
the first respondent approved in 1985 of Jackson succeeding to the chieftainship
following the death of his father Mantiya on the basis of the customary
principles of patrilineal succession. He must have accepted that Mkoba had held
the office as a regent Chief Bunina because Mantiya was a minor. The act by the
President was initiated by a recommendation not based on facts or findings
arrived at by a process prescribed by law. The court a quo did not
address this question of compliance by the officials concerned with the due
process. Where the law requires that a particular thing be done in a
particular way and something else is done there is not only a procedural
impropriety the resultant decision is irrational.
The President was made to act on what the officials decided was the customary
principles of succession to the Bunina clan chieftainship without reference to
evidence including the official records. He was made to appoint a person
as a chief who was not chosen by his own people in terms of the very customary
principles of succession the officials had sought to impose on the
community. The first respondent was elected by members of the Bunina
family who were at the meeting of 26 June 2006 because he was the oldest
surviving grandson of the Chief Bununa. He was not chosen because he was
the eldest son in the house which was entitled to succeed to the chieftainship
according to the customary principles of collateral succession.
The
President did not act on the basis of what was considered by the community to
be the prevailing customary principle of succession as required by law.
In other words what was placed before the President to enable him to exercise
his own judgment in reaching the decision to appoint the chief was not what the
statute required to be placed before him. The power vested in the
President did not extend to taking into account unlawful matters. It is a
question of the limit of the power as opposed to the manner of its
exercise. See Dhlamini v Carter 1968(2) SA 445(RAD) at
453D-F.
For the
President to give due consideration to the matters specified in s 3 (2) of the
Act before he can act on his deliberate judgment to appoint a chief he must
have relevant facts which have a bearing on those matters. Mosome v
Makapan N.O. & Anor 1986(2) SA 44. 'Due' consideration means 'proper'
consideration. By making the validity of the exercise by the President of
the power to appoint a chief depended upon compliance with the requirements of
subs (2) of section three the Act underlines the importance of having to give
the due consideration to the prevailing customary principles of succession in
the appointment of a chief.
The
memorandum of 28 August 2006 and the finding of the court a quo show
that the question as to the prevailing customary principles of succession to
the Bunina chieftainship remains unresolved. The question was not
thoroughly and objectively investigated by the officials of the fourth
respondent's Ministry. The prevailing customary principles of succession
applicable to the community over which the chief was to preside had to be
established before the President exercised his powers under s 3(1) of the
Act. The other matters the President is enjoined by s 3 (2) (ii) of
the Act to take into account can only be considered where there is “due
consideration” of the prevailing customary principles of succession to a
chieftainship. There cannot be “due consideration” of something which has not
been established as a fact.
Accordingly, the appeal is allowed with costs. The costs are to be paid
by the first and fourth respondents jointly and severally, the one paying the
other to be absolved.
The judgment of the court a quo is set aside and the following is
substituted instead that:
(1)
It is hereby declared that the customary principles of succession to the Bunina
chieftainship were not ascertained and given due consideration in the
appointment of the first respondent as Chief Bunina of Lower Gweru.
(2)
The fourth respondent, forthwith make a recommendation to the President for the
removal of the first respondent from the chieftainship of the Bunina clan.
(3)
The second, third and fourth respondents cause a meeting of all interested
parties to investigate and deliberate on the prevailing customary principles of
succession to the Bunina chieftainship for due consideration by the President
in the appointment of a substantive Chief Bunina.
(4)
The respondents are to pay the costs of the application; jointly and severally,
the one paying the others to be absolved.
GOWORA
JA:
I agree
CHEDA
AJA:
I agree
Coghlan & Welsh, appellant's legal practitioners
Joel Pincus & Wolhuter, first respondent's legal practitioners
