Godfrey Matotote v Headman Nyange (Boas Zevezai Gomba)

### Preamble
1
HH 504-18
CIV’A’ 243/17
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GODFREY MATOTOTE

versus

HEADMAN NYANGE (BOAS ZEVEZAI GOMBA)

HIGH COURT OF ZIMBABWE

MUREMBA & CHIRAWU-MUGOMBA JJ

HARARE, 17 July 2018 and 29 August 2018

Civil Appeal

K Gama, for the appellant

V. Makuku, for the respondent

MUREMBA J: This is an appeal against the whole judgment of the Magistrates Court sitting at Bikita wherein the magistrates court dealt with an appeal from the local court and gave judgment in favour of the respondent.

The facts of the matter are as follows. The respondent is a headman under Chief Mukanganwi in Bikita. He sued the appellant in his court (the headman’s court). There were two complaints against him according to the LC4 form from his (Headman Nyange) Primary Court. Firstly, the appellant was alleged to have blocked a cattle path which leads to the dip tank. Secondly, he was alleged to have caused the dam wall to be destroyed by the cattle whose path had been closed and thus had to walk over the dam wall to the dip tank. He was found guilty and was made to pay $25.00 and $200.00 respectively.

The appellant filed an appeal in the Magistrates Court at Bikita. In his notice of appeal and grounds of appeal the appellant stated that he was appealing against both the decisions of the Community Court of Chief Mukanganwi made on 20 May 2017 and the purported Primary Court of Headman Nyange, Bikita made on 30 March 2017. In his prayer, the appellant prayed that the appeal be allowed and that the decisions of the community court and primary court be set aside. The impression given by the appellant was that he had appealed against the respondent’s decision to the community court of Chief Mukanganwi who had dismissed his appeal.

The record of proceedings shows that when the magistrate dealt with the appeal at the very beginning of the proceedings she wrote, “The appeal court has set aside the judgment and sentence of Headman Nyange.” The magistrate then went on to rehear the matter afresh by the parties leading evidence and thereafter giving judgment. In its judgment the court said;

“The defendant is therefore found to be liable for the heavy siltation and contribution to the destruction of the dam as he heavily silted the river barely 100m from the dam wall which supplies water into the dam. The defendant should pay four goats or a beast or $200.00 to the community leadership, i.e. the headman’s primary court. The defendant shall bear the costs of suit.”

In appealing against the judgment of the Magistrates Court the appellant raised the following 5 grounds of appeal and the following relief.

“Grounds of appeal

The court a quo, in exercising an appellate jurisdiction, erred in hearing fresh claims which were not property before it.

The court a quo erred in rehearing a matter which the community court and primary court did not have jurisdiction to determine.

The court a quo erred in rehearing the matter after setting aside the local courts’ decisions.

The court a quo further erred in finding appellant liable to respondent for carrying out stream bank cultivation which was not a wrong under customary law or the common law.

The court a quo erred in ordering appellant to hand over a bovine or four goats, or to pay $200.00, to the respondent for engaging in stream bank cultivation.”

We will deal with the grounds of appeal seriatim.

The court a quo, in exercising an appellate jurisdiction, erred in hearing fresh claims which were not property before it.

Mr Gama argued that whereas the complaints that had been before the primary court of the respondent were for blocking the cattle path and causing the destruction of the dam wall by blocking the cattle path, when the magistrates court reheard the matter it eventually found him liable for the heavy siltation and contribution to the destruction of the dam due to heavy siltation, a complaint which had not been the one in the primary court.

It was Mr Makuku’s argument that the decision of the magistrate was correct in the circumstances because in terms of s 24 (2) of the Customary Law and Local Courts Act [Chapter 7:05] the magistrate is entitled to rehear the matter and give such decision, order or direction as it thinks fit. Section 24 (2) provides:

“upon an appeal being made in terms of subsection (1), the magistrate shall rehear the case and shall give such decision, order or direction as he thinks fit.”

Rehearing a case, in the circumstances means conducting a hearing or a trial anew on the motion of the plaintiff as it was tabulated in the primary court. In other words the plaintiff’s claim or complaint remains the same as it was in the primary court. The plaintiff cannot make a fresh claim or complaint in the magistrates’ court. It cannot be a different claim because whilst the trial or hearing is conducted anew, the matter would have come as an appeal and as such it remains an appeal. The reason why the matter has to be heard afresh is that there are no records of proceedings from the local courts i.e. both the community court and the primary court. All there is, is the LC4 form. The magistrate has no other way of determining the appeal other than by rehearing the matter afresh. In doing so the parties are entitled to lead whatever evidence they want to lead for purposes of proving their claim or defending their matter. They are also free to call whatever witnesses they want to call for the purpose of proving their case, even those that did not testify in the local courts. The one thing that they cannot do is to change the claim from the one that was before the local courts.

In casu the record of proceedings shows that the magistrate heard fresh claims. The now respondent (the headman who was the then plaintiff) was the first to lead his evidence and he said a whole lot of complaints against the now appellant: that he regards himself as a village head when he is not, he allocates people gardens and fields, he closes roads that lead to the dip tank and he was destroying the dam and the stream. The court even went for an inspection in loco during the hearing, and in carrying out the inspection the court concentrated on the issue of siltation of the dam and tried to ascertain who the owners of the gardens which were erected in the dam were, yet these were not the complaints that had been before the primary court.

In her judgment the magistrate dealt with the issue of the appellant ploughing in the river which supplies the dam leading to heavy siltation and the silt that was causing the dam to dry up and the dam wall to crumble. The magistrate did not deal with the issue of the cattle path having been blocked. She did not deal with the dam-wall having been damaged by the cattle after their path had been blocked. That was a clear misdirection. In exercising his or her discretion in terms of s 24 (2) of the Customary Law and Local Courts Act, the magistrate is not empowered to give a decision, order or  direction which is not related in any way to the initial claim or complaint that was made by the plaintiff in the local court. The discretion should be exercised in the context and premises of the initial claim or complaint.

In the result, we uphold this ground of appeal.

The court a quo erred in rehearing a matter which the community court and primary court did not have jurisdiction to determine.

Mr Gama submitted that the community court and the primary court did not have jurisdiction to hear and determine the claims made before them because these are issues to do with environmental management laws which are outside the jurisdiction of the local courts. He argued that stream bank cultivation is alien to customary law and siltation is not known under customary law. He argued that these are matters that are dealt with under the Environmental Management Act [Chapter 20:27]

In response Mr Makuku submitted that the respondent being a traditional leader had jurisdiction to hear and determine the matter involving the use of land in terms of s 9 of the Traditional Leaders Act [Chapter 29:17] which empowers him to enforce environmental conservation and planning laws including local boundaries on behalf of the Chief, the Rural District Council and the State. He submitted that issues of stream bank cultivation, destruction of the dam and blocking of roads are covered by these laws.

The Customary Law and Local Courts Act’s preamble provides that it is,

“An Act to provide for the application of customary law in the determination of civil cases, to provide for the constitution and jurisdiction of local courts.”

In terms of s 15 thereof

“A local court shall have jurisdiction to hear, try and determine any civil case in which customary law is applicable…”

In terms of s 16 (1) (a),

“A local court shall have no jurisdiction to in any case where the claim is not determinable by customary law.”

In terms of s 16 (1) (g) local courts cannot also hear, try and determine rights in respect of land or other immovable property.

In short the local courts only have jurisdiction to hear, try and determine civil matters in which customary law is applicable. The issues before the primary court were about the blockage of the cattle path and the destruction of the dam wall by the cattle after their path had been blocked. However, in rehearing the matter on appeal, the Magistrates Court grossly misdirected itself by hearing fresh claims that had not been before the primary court and proceeded to determine those fresh claims. In terms of the Customary Law and Local Acts Act, if a matter is heard in the Primary Court an appeal from there goes to the Community Court and then to the Magistrates Court. See s 23 and 24 which provide:

“23 Appeals from primary courts

(1) Any person who is dissatisfied with any decision of a primary court may, in the time and manner prescribed, appeal against such decision to the community court within whose area of jurisdiction the primary court is situated.

(2) Upon an appeal being made in terms of subsection (1) the community court shall rehear the case and shall give such decision, order or direction as it thinks fit.

24 Appeals from community courts

(1) Any person who is dissatisfied with any decision of a community court may, in the time and manner prescribed, appeal against such decision to a magistrate for the province within which the community court is situated.(My emphasis)

(2) Upon an appeal being made in terms of subsection (1), the magistrate shall rehear the case and shall give such decision, order or direction as he thinks fit”

Irrespective of whether or not the local courts had jurisdiction to deal with the matter that was before them, the Magistrates Court had jurisdiction to rehear the matter and make a determination on it when the matter was brought before it on appeal. Section 24 (1) obligates it to hear the appeal by rehearing the matter and then making a determination. So rehearing the matter was not a misdirection at all. The Magistrates Court has no powers to refuse to hear a matter coming to it on appeal from the local courts simply because the local courts lacked jurisdiction to hear, try and determine the matter. Hearing the appeal is one thing and it is allowed by the enabling statute, but upholding a wrong determination made by the local courts in a matter these courts do not have jurisdiction is another thing. This ground of appeal is without merit because it criticises the Magistrates Court for doing that which it is empowered to do by the Customary Law and Local Courts Act. We thus dismiss this ground of appeal.

The court a quo erred in rehearing the matter after setting aside the local courts’ decisions.

Mr Gama submitted that after setting aside the local courts’ decision, the magistrate should not have reheard the matter. Mr Makuku did not respond to this ground of appeal in his heads of argument. Even at the hearing he did not. We also made an oversight of the fact that he did not respond to this issue.

Be that as it may, whilst s 24 (2) of the Customary Law and Local Courts Act states that in dealing with an appeal, the magistrate shall rehear the matter, it does not mean that in terms of procedure the magistrate should start by setting aside the decision of the local court before commencing the rehearing of the matter. Whilst the matter is entitled to be reheard it remains an appeal. Any court dealing with an appeal does not start by setting aside the decision appealed against, what if it then upholds the decision of the lower court? Setting aside means that the court has considered the matter and made a determination. Procedurally the court cannot start by making a determination and then proceed to rehear the matter.

It was indeed a misdirection for the magistrates court to rehear the matter after setting aside the local courts’ decision.

The court a quo further erred in finding appellant liable to respondent for carrying out stream bank cultivation which was not a wrong under customary law or the common law.

As we have already discussed in ground (a) above, the complaints before the primary court had nothing to do with stream bank cultivation. The magistrate erred by dealing with this fresh complaint on appeal. She had no jurisdiction to do so. So we will not even go into the merits of whether or not stream bank cultivation was not a wrong under customary law or common law. The ground of appeal itself is unmerited and is thus dismissed.

The court a quo erred in ordering appellant to hand over a bovine or four goats, or to pay $200.00, to the respondent for engaging in stream bank cultivation

We reiterate that the magistrate had no jurisdiction to deal with the issue of stream bank cultivation on appeal. That was not the appeal before her. She erred. The ground of appeal is thus upheld.

The grounds of appeal we have upheld warrant that the appeal succeeds.

REVIEW

Before concluding the appeal we feel obligated to deal with some irregularities or defects that we noticed as we perused the record of proceedings in preparation of this appeal. In Midzi v Estate Harry 2006 (2) 310 (H) it was held that when exercising its appellate jurisdiction, the High Court can also exercise its review jurisdiction when faced with a patent irregularity or illegality in the proceedings of the lower court subject to affording the interested parties a right to be heard before a relief is granted following the review. The court exercises this in terms of its inherent jurisdiction as the sole superior court of first instance to correct injustices whenever it sees them.

The first anomaly is that the matter in the primary court which should, in terms of s 11 (1) (a) of the Customary Law and Local Courts Act, be presided over by a headman was presided over by one Vakai Machinga as the presiding officer with the assistance of 2 assessors. Section 11 (1) (a) reads,

“Every primary court shall be presided over by a headman or other person who (a) 	shall be appointed to his office by the Minister or by a designated officer authorised 	thereto by the Minister.”

The respondent is the headman in his area and him being the plaintiff in the matter he could not preside over this case. Vakai Machinga was made to preside over the matter. Vakayi Machinga not being a headman, it was an irregularity for him to preside over the respondent’s primary court. This renders the whole proceedings a nullity on this basis alone.

The second gross irregularity is that in terms of s 23 (1) of the Customary Law and Local Courts Act, any person who is dissatisfied with the decision of  the primary court, may appeal against such decision to the Community Court within whose area of jurisdiction the primary court is situated. Upon an appeal being made, the community court shall rehear the case and give such decision, order or direction as it thinks fit. Any person who is dissatisfied with any decision of a community court may appeal against such decision to a magistrate for the province within which the community court is situated. See s 24 (1) of the Customary Law and Local Courts Act. In casu the record of proceedings from the magistrates court does not show that there was ever an appeal to the community court of Chief Mukanganwi from the primary court of Headman Nyange (the respondent). What only forms part of the record is the LC4 form from Headman Nyange’s primary court. There is no LC4 form from the community court of Chief Mukanganwi it being the community court within whose area of jurisdiction the primary court of headman Nyange is situated. We queried this with Mr Gama, counsel for the appellant, but he was adamant that an oral appeal had been made to the Community Court of Chief Mukanganwi who dismissed the appeal orally. He also argued that there is no requirement that proceedings in the local courts be written. He argued that an oral appeal will suffice warranting the lodging of an appeal to the Magistrates Court. Mr Gama submitted that because there had been an oral appeal to the community court, this explains why the appellant in his appeal to the magistrates court had in his notice and grounds of appeal indicated that he was appealing against the decisions of both the community court of Chief Mukanganwi and the primary court of Headman Nyange. This notice and grounds of appeal form part of the present record.

We are dissatisfied that there was an appeal to the community court for the following reason. In hearing the appeal, the magistrate’s record of proceedings shows that she was dealing with the appeal from the respondent’s court (the primary court or Headman Nyange) because before commencing proceedings she started by setting aside the judgment and sentence of Headman Nyange. She did not set aside the judgment of Chief Mukanganwi. If she was dealing with an appeal from the community court of Chief Mukanganwi then she would have set aside the judgment of that court instead of the judgment of the primary court of Headman Nyange.

In terms of s 26 of the Customary Law and Local Courts Act it is a requirement that there be evidence of proceedings in local courts. The section reads:

“26 Evidence of proceedings in local courts

A certificate which purports to be signed by the person presiding over or clerk of a local court and which specifies—

(a) that a particular person appeared before that local court on a specified date; and

(b) the grounds for, or cause of action in, the proceedings before that court; and

(c) the result of such proceedings;

shall be prima facie proof of the fact stated in it on its mere production by any person in any proceedings in any court.”

This means that an LC4 form which is evidence of the proceedings in the community  court should be completed by the chief. The non-availability of this evidence of the proceedings renders it impossible for the magistrate to hear any appeal from the community court. Without it, the magistrates court cannot know the persons who appeared before the community court, the grounds for, or cause of action in the proceedings before that court and the result of such proceedings. It is therefore incorrect for Mr Gama to argue that an appeal from the community court can be taken up to the magistrates court without any evidence to prove that the matter was determined by the community court.

In casu the magistrate’s court went ahead and heard the appeal yet there was no evidence of proceedings in the community court. In fact, as the record of proceedings shows, the magistrate dealt with an appeal from the respondent’s court (the primary court). This was a gross irregularity. The magistrate’s court’s jurisdiction is to hear appeals from the community court and not from the primary court. It was a misdirection for the magistrate to proceed to deal with the appeal when the appellant’s notice and grounds of appeal indicated that the appeal was against two decisions of two different local courts, the primary court and the community court. As already discussed above, the magistrates court is only entitled to hear appeals from the community court. On this basis that the magistrates court dealt with an appeal from the primary court instead of an appeal from the community court the proceedings in the magistrates court are a nullity. There was no appeal before it.

Conclusion

In the result, it is ordered that the:

The appeal is allowed with costs.

The decisions of the Magistrates Court and the Primary Court of Headman Nyange are hereby set aside and substituted with the following:

“The plaintiff’s claim is dismissed.”

CHIRAWU-MUGOMBA J …………………….

Gama & Partners, applicant’s legal practitioners

Ndlovu & Hwacha, respondent’s legal practitioners