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Deputy Chief Justice, Justice Luke Malaba sitting with Justice Anne-Marie Gorowa and acting Judge of Appeal Justice Meshack Cheda said they needed time to go through the arguments made by both sides.
Early this year, Bulawayo High Court judge Justice Lawrence Kamocha dismissed a claim to the throne by Mr Golden Moyo and ruled that the appointment of Mr Stephen Mkoba as substantive Chief Bunina should stand.
Not happy with the ruling, Mr Moyo lodged an appeal through his lawyer Advocate Thabani Mpofu instructed by Mr Promise Ncube of Coghlan and Welsh Legal Practitioners sighting Mr Mkoba as the 1st respondent.
The Provincial Administrator for the Midlands, the Provincial Governor, Minister of Local Government, Urban and Rural Development, Ignatius Chombo and President Mugabe are cited as the 2nd to 5th respondents.
Mr Moyo is now seeking an order setting aside the decision of the President to appoint Mr Mkoba as the substantive Chief Bunina for the Lower Gweru area.
He further wants the matter to be remitted to the office of the Provincial Administrator who shall convene 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.
He wants the respondents to bear the costs of the application if they oppose the application.
It is his argument that the court a quo misdirected itself by classifying the appointment of a chief as an exercise of executive powers by the President, which cannot be reviewed.
He further argued that the court a quo erred in holding that the President is not bound by customary principles of succession.
He notes that the court a quo accepted that the relevant Minister and his officials did not act on sound principle in formulating their advice to the President.
“The learned judge states that, “1st 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”.
Adv Mpofu further noted that the PA in a letter to the Minister dated 28 August 2006 acknowledged that Mr Mkoba was chosen by the majority of the houses.
The letter stated that the decision to appoint Mr Mkoba from the families though non-procedural and non-congruent with either the bilateral or collateral system “was welcomed by this office in the best interest of the chieftainship as continued squabbles derail the operation of the chiefdom”.
He concluded that it followed that the appointment of Mr Mkoba deviated from the ordinary customs and traditions of the clan in question and that the Minister did not give due consideration to the customary principles of succession before making his recommendation to the President.
“Accordingly the exercise of discretion by the President ought to be impeached as it was based on incorrect, irrelevant or improper considerations and ignores the peremptory considerations imposed by the law,” he submitted.
In response, Mr Mkoba through his lawyer, Advocate Hilda Makusha Moyo argued that he was properly appointed as substantive Chief Bunina in accordance with the provisions of the Traditional Leaders’ Act, Chapter 29:17.
They argued that due consideration was given in the appointment of Mr Mkoba in that several meetings were held between the PA and the Governor and members of the Bunina clan.
Other interested persons in the community also participated in the meetings and the meetings were held over a period of years and the issue of which customary principles were to be applied in selecting a chief was thoroughly debated, she said.
“As a result of these meetings and debates, the minutes of the meetings held on 20 October 2005 show that it was agreed unanimously among the interested person that the Rozvi and not the Ndebele principles of succession applied to the Bunina clan and that the former should in fact be adopted.
“It is not disputed that the Bunina people are Rozwi and not Ndebele. How they came to adopt the Ndebele principles of succession was hotly debated with no clear consensus. It would appear that the decision as to which customary principles to apply was always left to the interested parties to adopt by way of a vote,” she submitted.
She noted that the last chief, Jackson Moyo died in June 2003 and by June 2005 the appropriated persons were still squabbling and had failed to nominate an appropriate person for appointment as chief.
She adds: “The two year period prescribed by the Act having been reached and surpassed, the Minister was in the circumstances obliged in terms of the Act to nominate a candidate for appointment as chief.”
A representative of the Civil Division of the Attorney General’s Office, who was to represent the 2nd to 4th respondents, was not in attendance.
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