Clever Kumbirai Mazano v The President of the Republic of Zimbabwe & 5 Ors

### Preamble
1
HMA 24-25
SUM 24-23
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CLEVER KUMBIRAI MAZANO

And

THE PRESIDENT OF THE REPUBLIC OF ZIMBABWE

And

THE MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS

AND NATIONAL HOUSING N.O.

And

THE PRESIDENT OF THE NATIONAL COUNCIL

OF CHEFS N.O.

And

THE CHAIRMAN OF THE PROVINCIAL COUNCIL OF CHEFS N.O.

And

THE DISTRICT ADMINISTRATOR N.O.

And

JESTIA MUZENDA

HIGH COURT OF ZIMBABWE

ZISENGWE J

MASVINGO 23 January 2025

Judgment on 17 June 2025

Civil trial (Special case)

K. Mambara and P Nyevera for the Plaintiff

T. Undenge for the first to fifth Defendants

J.G. Mpoperi for the sixth Defendant

ZISENGWE J. 	This is yet another dispute over the process leading to the appointment of an individual to the prestigious and respected position of chief.  The chieftainship in question is that of the Makore community of Gutu in Masvingo province.  What probably sets this dispute apart, however, is the rather unique manner in which the individual concerned, namely Jestia Muzenda (the sixth defendant) ascended to the throne.  He rose to become Chief Makore after his father Johannes Chadzimira Chihambakwe ceded his nomination for the throne to him.  He did so via an affidavit to that effect in October 2018.  The cession was apparently ratified by both the Provincial Assembly of Chiefs and the National Council of Chiefs.  It also got the nod of the Minister of Local Government and National Housing before receiving the Presidential seal of approval, so to speak, culminating in his appointment to the position. However, the plaintiff does not agree.  He holds the view that the cession of one’s Chieftainship (via affidavit or otherwise) is irregular, flawed and alien to the customs and traditions of the Makore people. According to him the representations he made to the President (the first defendant) and the Provincial Assembly of Chiefs objecting to the sixth defendant’s appointment fell on deaf ears as the latter proceeded to recommend the sixth respondent for appointment.

He further asserts that the appointment of the sixth defendant as Chief Makore was an aberration of the customs of the Makore community and that the provisions of the Constitution and the traditional Leaders Act, [Chapter 29:17] were flouted. He expresses the view that an enquiry must be conducted on the prevailing customary principles of succession applicable to the community in so far as the correct nomination procedure is concerned.

He also laments that the community in question was not consulted before the appointment was made. He claims that as that as a matter of fact the community is averse to the appointment.

He therefore seeks an order firstly setting aside the appointment of the sixth defendant as Chief Makore and secondly setting into motion a fresh selection process consistent with the traditions, culture and customs of that clan.  To that end he sued out summons from this court seeking an order seeking:

An order declaring the nomination and subsequent appointment of sixth Defendant as the substantive Chief Makore, null and void.

An order reinstituting the process of the appointment of substantive Chief Makore

An order that sixth Defendant pays the costs of suit.

The first to fifth defendants’ plea

The claim is resisted by all the six defendants who insist that the process of ceding one’s nomination for possible appointment to the throne is part of the customs, culture and traditions of the Makore people.  In particular they aver that there was nothing amiss about the cession of one’s nomination to another person of royal lineage in that community. They therefore aver that the appointment of the sixth defendant was above reproach and should not be rescinded.

In their collective plea, the first to fifth defendants deny that the provisions of the Constitution were disregarded or otherwise violated. Above all they aver that the President appointed the sixth defendant to the position of substantive Chief Makore on the recommendation of the Provincial Assembly of Chiefs, for Masvingo province, through the National Council of Chiefs and the Minister responsible for traditional leaders and that that process was consistent with the s 283 of the Constitution and s 3 of the Traditional Leaders Act.

The sixth defendant’s plea

For all intents and purposes the sixth defendant’s plea mirrors that of the first to fifth defendants.

Ultimately, however the parties agreed that factually there was little to separate between their respective versions.  They therefore agreed to dispensing with the leading of oral testimonies and for the matter to proceed by way of special case, sometimes referred to as a “stated case” as contemplated in rule 52 of the High Court Rules, 2021.  They therefore filed written submissions for the court’s consideration.

The agreed facts

Although there are minor differences in the facts presented by the parties, the material facts forming the bedrock of the dispute are common cause and are the following.  The Makore chieftainship consists of four eligible families or to put it in the commonly employed parlance, “houses”.  These houses are:

Rispambi

Chihambakwe

Mugore

Mazando

The community in question subscribes to the collateral system of succession.  It is also one that is based on seniority.  In 2014, one Shonhi Muzenda of the Chihambakwe house was appointed as substantive chief Makore.  Due to his ill health and advanced age, the sixth defendant was selected to assist him as his assistant.  When Shonhi Muzenda died that very year, the sixth defendant continued as acting chief, a position he held until the disputed appointment as substantive Chief Makore.

The process for the appointment of substantive Chief Makore to replace the late Shonhi Muzenda commenced in 2016.  It was a process that saw the sixth defendant’s father Johannes Muzenda Chihambakwe being nominated for the position.  It is common cause that Johannes Muzenda Chihambakwe deposed to an affidavit effectively ceding his nomination to the sixth defendant and died a few years later.

The affidavit in was deposed to in the ChiShona language and was translated for purposes of current proceedings to read:

“I Johannes Chadzimira Chihambakwe [14-034513P2] residing at Chihamabakwe Primary School Box 152 Gutu do hereby solemnly and sincerely swear/declare the following: It is now my turn to take up the Makore Chieftainship. I wish to pass the chieftaincy to my son Jestia Muzenda I.D 27-149976S27 for the reason that I am now old of age and I also trust and believe in my chosen son. We have agreed to this arrangement with all my children. I have made this decision out of my free will, wholeheartedly whilst in my sound and sober senses.”

The issue

The sole issue for determination is whether a member from an eligible house who has been properly nominated as the next candidate for appointment as chief can cede such nomination to someone else for consideration.

The applicable Legal framework

The parties are in agreement that the appointment of a chief must be consistent with Section 283 of the Constitution as read with Section 3 of the Traditional Leaders Act [Chapter 29:17]

Section 283 of the Constitution provides 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;

... [Not relevant]

Meanwhile Section 3 of the Traditional Leaders Act [Chapter 29: 17] provides as follows:

(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; and

(b) wherever practicable, shall appoint a person nominated by the appropriate persons in the community concerned in accordance with the principles referred to in subparagraph (i) of paragraph (a):

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.

(3) … [Not relevant]

The Plaintiff’s submissions

The main thrust of the plaintiff’s argument is that the nomination of a candidate is the sole prerogative of the clan not an individual as the sixth defendant’s father purported to do.  Reliance was placed in part on a passage from the case of Mbedzi v Mbedzi HB-145-11 where the following was said:

“The process of nominating a candidate is the province of the clan and the above cited statutory provision does not envisage a situation where government officials take over the process and dictate to communities who their chief should be. The nomination process calls for soberness and a deep understanding and appreciation of the norms and customs of the clan in question. It is a process that cannot be left to the caprices of outsiders and civil servants in a hurry to bring about an outcome at all costs” in line with their prevailing customary principles of succession.”

His bone of contention therefore is that unlike the nomination of his father before him, the four “royal” houses of the Makore clan were not consulted when the sixth defendant was purportedly recommended for the position of chief.  He further argues that in any event Johannes Muzenda Chihambakwe was merely a nominee when he deposed to the affidavit.  Not having been appointed yet to the position he could not cede the chieftainship to someone else.

The plaintiff further submits that there was no proof of the use of an affidavit to cede one’s nomination to another having gained sufficient foothold to be accepted as a custom.  He contends that the sixth defendant is not the ‘eldest surviving father” amongst the four royal houses of the Makore people and could not ascend to the throne during his (i.e., plaintiff’s) lifetime.  Even assuming that the plaintiff is no longer alive, the plaintiff quipped, the sixth defendant would still be ineligible as he is not the “eldest surviving father”.

The first to fifth Defendants’ submissions

In a rather terse fashion, the first to fifth defendants dismiss the plaintiff’s contention on the appointment of the sixth respondent.  They submit that there is nothing irregular among the Vaduma people of the Karanga tribe with the cession of one’s own nomination for chieftainship to a suitable individual.  Reference was made to a precedent set as far back as 7 March 1945 when one Mawarire Chihambakwe having been nominated as substantive Chief Makore ceded his nomination to his younger brother.  He did so on the basis of his advance age.

It is further submitted that the second to fifth defendant in their recommendation for the appointment of the sixth defendant paid due regard to the customs and traditions of the clan concerned- the Makore people.

The Sixth defendant’s submissions

It is averred by the sixth defendant that there was no evidence suggesting that the President (the first defendant) did not give due consideration to the prevailing customary principles of succession and administrative needs of the Makore people prior to his appointment as Chief Makore as behoves him under Section 3 of the Traditional Leaders Act.

He too refers to the precedent set by (or otherwise followed) cession by Mawarire Chihambakwe on 7 March 1945.  He argues that this custom of the Makore people has never been challenged in the aftermath of that precedent.

He further submits that in any event the President is not bound by the customary principles of succession- all he needs to do is to give due consideration to the prevailing principles of succession are the administrative needs of the community concerned.  Reliance was placed for this proposition on the case of Ruzane v Paradzai & Another 1991 (1) ZLR (S) at p280-21 where the following was said;

“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”.

It was accordingly submitted that even if one were for a moment to accept that the customary principles of succession were not followed in the appointment of the sixth defendant by the President was still proper: A fortiori, however, it was submitted that the cession in question having been ratified by both the Provincial Council of Chiefs and the National Council of Chiefs who were satisfied of its propriety, the appointment cannot be impeached.

Analysis

The plaintiff unfortunately conflated the cession of a nomination and cession of the Chieftainship.  What the late Johannes Muzenda Chihambakwe ceded was his nomination for the position.  Should he not have ceded his nomination, he, i.e., Johannes Muzenda Chihambakwe would still have had to be considered by the functionaries involved in the appointment process. His appointment to the throne, though likely, would not have been automatic.  Therefore, to the extent that plaintiff’s argument is anchored on the principle that one cannot give what one does not have, such argument is flawed.

Secondly and perhaps more importantly, the plaintiff failed to demonstrate that the cession of one’s nomination for the position of chief is not part of this particular group of people.  Although there are indeed similarities in customary practices among the various ethnic groupings strewn across the length and breadth of Zimbabwe, there are significant variations among them. The plaintiff needed to therefore zone in on the Vaduma people of the Karanga tribe to which the Makore clan belongs.  The composition of the Zimbabwean ethnic groupings is not homogeneous.  The case of Moyo v Mkoba SC-26-2012 which the plaintiff ironically refers to buttresses the very point that not every clan employs the same selective process for nomination.  The clan in that case used an elective process.

To the contrary there are clear indicia of this custom being part of the Makore culture. In this regard I do not believe that the inquiry should be limited to cession via an affidavit per se, but by any appropriate means, say for instance by word of mouth.  Firstly, it is hardly likely that the Provincial Council of Chiefs and the National Council of Chiefs would have been blind to the need to establish whether or not such a custom was applicable. They obviously did and concluded that such a custom indeed existed.

Further, the Director for Local government Services in Masvingo in a letter dated 8 January 2024 confirmed the existence of such a custom.  He equivocally stated that the appointment of the sixth respondent was above board.  He stated therein that from the available records such cession is a recognised custom and practice of the Karanga and Vaduma people that an individual nominated to become the next substantive Chief could cede his right to another family member of his choice if unable, for whatever reason to take up the appointment.  He also pointed out that this particular practice and custom has been recognised and adopted in the appointment of the current Chief Bota, Murinye and Makore Chieftainship. Such a position deals a body blow to the plaintiff’s contention. Perhaps the outcome of this case would have been different had it been shown that such a practice is without precedent in either the community in question or in neighbouring communities sharing identical or similar customs.

Ultimately, when everything is said and done, it must be borne in mind that to every rule, tradition and custom there is an exception. This is borne out of an appreciation that an inflexible application of a particular rule or custom may yield an unfair, absurd or untenable outcome. Circumstances may dictate a departure from the norm.

In the context of this case what needed to be established was whether as an exception to the strict collateral and rotational system of succession an individual who had been nominated who could not for any good reason take up the throne, could cede it (i.e., the nomination) to someone else. There, of course, was need for the defendants to show a precedent of the application of this exception in this community. This, the defendants were able to do as discussed hereinbefore.

The plaintiff, either deliberately or through inadvertence directed his focus solely towards the normal or usual process of ascension and failed to appreciate that was sought to be interrogated was whether the situation constituted one of the exceptions to the general rule.  In other words, he failed to direct his mind to the question as to what the traditions and customs provide in a situation where a nominated candidate cannot for any appropriate reason (such as physical or mental infirmity, old age, religious inclination, etc) is unable to take up the position. This was the narrow issue which the plaintiff needed to interrogate. According to the defendants when such a situation arises, cession of such nomination may kick in. The plaintiff did precious little to controvert that position.

Ultimately therefore, the plaintiff failed to establish on a balance of probabilities that he is entitled to the relief that he seeks and accordingly his claim has to fail.

Costs

The general rule is that the successful party is entitled to his or her costs.  I see no reason why the present matter should be an exception.

Accordingly, the plaintiff’s claim is hereby dismissed in its entirety with the plaintiff meeting the sixth defendant’s costs.

ZISENGWE J

Mavhiringidze & Mashanyare (Kwekwe); The plaintiff’s legal practitioners.

The Civil Division, of the Attorney General’s office, first and fifth Defendant’s Legal Practitioners.

Saratoga Makausi Law Chambers; the sixth defendant’s legal practitioners.