KARWI
J: This matter has a long history of a dispute over the ownership of a piece of
communal land, in Mayambara, Seke Communal lands. The parties to the dispute
inherited the dispute from their parents. Appellant's father and the respondent'
brother, who were the original disputants died many years ago. The matter was
further confused by the lack of knowledge of the applicable law on the part of
the parties and Court officials. Along the way, wrong advice was given to the
parties leading to wrong decisions being given in courts.
The
background of this matter is that appellant claims that his father was
allocated the stand in question in or around 1960, while respondent says his
family has enjoyed undisturbed possession of the stand since 1936. Appellant
says that respondent's brother was granted temporary use of the property in
dispute as the appellant's father ordinarily resided in the city. Respondent's brother, used structures built
by appellant's father. Upon the death of appellant's father and the first
respondent's brother continued to stay at the property. Appellant says he was
prepared to compensate respondent for the developments made on the stand being
a blair toilet and borehole.
According
to the appellant s heads of argument, when appellant insisted on the claim to
his father s property respondent refused allegedly insisting that he was the
rightful owner. Legal proceedings were instituted at the Communal Court, presided ever by Chief
Seke on 4 April 2009. The applicant was found to be the rightful owner of the
stand as records at the Rural District office confirmed that the land was in appellant
s family name and that they were paying levies to Council in respect of the
land. The Chief also ordered the eviction of the respondent.
On
or about 5 May 2009 and acting on the wrong advice of the clerk of court, Appellant
issued summons for the eviction of respondent. At that stage, appellant was a
self actor. The presiding Magistrate at the subsequent pre trial conference
held on 3 July 2009 ruled that the Chief
had already ruled on the matter and that respondent were to appeal against that
order if he was not satisfied with the ruling of the Chief. Most importantly,
the Magistrate also ruled that the matter was not to be re instated.
Further
wrong advice by the clerk of court led to more confusion. He advised the appellant
to apply for Summary judgment which was granted in default. On 25 September
2009 respondent applied for the review of the Chief's order of 4 April 2009.
The application for review was heard and granted on 8 October 2009. Appellant
failed to oppose the applications as his request for extension within which to
file opposing papers was denied. It is against the order of the magistrate
granting the review of the chief s order that Appellant is appealing to this
court.
The
application for summary judgment was set down for 4 November 2009 and by the
time it was heard appellant had already noted this appeal.
In
terms of Rule 10(2) of Statutory Instrument 115 of 1991, a successful party at
a hearing at the community court may register the judgment at the Magistrates
court in terms of s 17 of the Magistrates Court Act. Upon being issued with a writ of execution by
the clerk of court at the magistrate's court, such party may obtain execution
on the judgment in all respects as if it were a judgment of the Magistrates
court. Unfortunately, due to ignorance on the part of appellant, who was then a
self- actor, and wrong legal advice of some bush lawyer in the form of the
clerk of court who usurped the proper functions of a legal practitioner, this
was not done in this case. This unfortunately led to serious bungling of the
case much to the expense and delay in the finalization of this case. The respondent
was supposed to appeal against the order of the chief. This again was not done.
It
is my considered view that the essence of the ruling by the Magistrate at the
pre trial conference, if at all it was a ruling than an observation, was to
recognize that the matter had already been entertained at the community court
and that correctly it could not be restated by way of summons. The matter had
to be treated as a completed matter by the chief. Parties had either to accept
the judgment or appeal against it or seek its review in terms of the law. The
magistrate was correct to refuse to deal with the so called pre trial conference
for there was no such conference properly before him in terms of the law. Wrong
procedure had been adopted. The magistrate was therefore correct to observe
that respondent would have to appeal against the chief s order. The matter
should have ended there. It should be added that the essence of the observation
by the magistrate did not amount to a registration of the chiefs order with the
magistrates court as is required by law before one could execute on the
strength of a writ from the magistrates court. The observation did not amount
to absolution, as it is known in law.
After
the Magistrates observation at the ill conceived pre trial conference, parties
resorted to so many other wrong procedures, partly as a result of wrong advice.
Applications for summary judgment and rescission of judgment were some of the
totally unnecessary steps taken by the parties. Whatever decisions taken in
pursuance of those applications were of no force or effect and do not advance
or resolve this case.
Following
his unhappiness with the chief's order, respondent resorted to filing an
application for review at the Magistrates court. This approach is perfectly
allowed in terms of s 25 of the Customary Law and Local Court Act, [Cap 7: 05]. After hearing the matter,
the Magistrate annulled the chief's ruling. His reasons for doing so were that s
26 of the Traditional Leaders Act, [Cap
29; 17] prohibited occupation of communal land other than with the approval
of the Rural District Council. The same section confirms the administrative
jurisdiction of Rural District Council over the control, use and allocation of
all communal land. The Magistrate found that by ordering the eviction of
respondent, the chief had effectively allocated communal land in contravention
of s 26 of the Traditional Leaders Act. The Magistrate had further found that
by evicting respondent, the chief had usurped the powers of Manyame Rural
District Council which had authority over the land in question in terms of s 26(3)
of the Communal Lands Act, [Cap 20:04].
On that basis alone the chief's judgment was annulled on account of lack of
jurisdiction.
It
seems to me that the learned Magistrate erred and misdirected himself in
holding that the chief had no jurisdiction to entertain the matter considering
the correct circumstances of this case. It is my considered view that the chief
only entertained a dispute relating to land and did not allocate land. This is
so because the land in question was already allocated way back. It is correct
that s 16 (g) of the Customary Law and Local Courts Act provides that a local
court shall have no jurisdiction in any case to determine rights in respect of
land or immovable property. It is equally true that s 5 (1) (e) of the
Traditional Leaders Act provides that a chief shall be responsible within his
area for discharging any functions conferred upon him in terms of the Customary
Law and Local Courts Act. Section 5 (1) (n) of the Traditional Leaders Act
specifically provides that the duties of chiefs as;
“A chief shall
be responsible within his area for
………………………………………………..
(n) adjudicating
in and resolving disputes relating to land in his area”
It
is therefore clear that the chief adjudicated and resolved a land dispute in
his area in terms of the law. He did not allocate land. Allocation of land and
resolving of a dispute are totally different things. Allocation of land in my
considered view involves the granting of rights, interest and title to land to
an individual, whereas the resolving of a land dispute involves the entertainment
of a dispute between or amongst individuals over an already allocated piece of
land. The appellant brought a dispute before the chief for resolution not a
request for allocation of land. Appellant would not have brought a case for
allocation of land because his case was to the effect that his father had been
allocated the land in the 1960s and he was paying dues to Council for the piece
of land. The Chief made the ruling confirming that position after satisfying
himself that the piece of land in question was indeed registered in the names
of appellant s father.
Consequently,
the appeal succeeds. The review judgment of the Magistrate in the court a quo is therefore set aside. The respondents
are to pay costs of suit.
OMERJEE J, agrees …………………
O. Matizanadzo & Associates, applicants'
legal practitioners
