Online Reporter
Fidelis Munyoro
Chief Court Reporter
THE High Court has thrown out an application seeking to overturn the appointment of Headman Makwarimba in Wedza, ruling that the dispute must be resolved through Zimbabwe’s traditional leadership structures and not by the courts.
In a judgment delivered last week, Justice Joel Mambara upheld a preliminary objection raised by appointed Headman Beaven Makwarimba and dismissed an application brought by Tichawona Muchinjiko, who sought to nullify the nomination process and set aside Makwarimba’s appointment.
Instead, the judge ordered that the long-running dispute be referred back to the Mashonaland East Provincial Assembly of Chiefs for consideration and recommendation through the Minister responsible for traditional leaders to the President, in terms of section 283 of the Constitution.
“The court has no jurisdiction to grant that declaratory relief at this stage,” ruled Justice Mambara.
The dispute centres on the Makwarimba headmanship under Chief Svosve, where rival claims have emerged over succession, lineage and customary practice.
Muchinjiko argued that the nomination process disregarded local custom, excluded certain houses within the clan and ignored objections that had been raised before the appointment was made.
Headman Makwarimba disputed those allegations, maintaining that the appointment was conducted in accordance with the applicable customary rules and the Traditional Leaders Act.
However, the High Court deliberately avoided entering the merits of those competing claims.
“It is not necessary and it would be improper, for this court to decide the competing claims regarding the customary rotational system, the eligibility of the various houses, the alleged exclusion of the Muchinjiko household, or the propriety of the third respondent’s appointment,” Justice Mambara said.
According to the court, the Constitution provides a clear pathway for resolving disputes involving traditional leaders. Section 283 places responsibility for handling such disputes on traditional leadership institutions, with the President ultimately making the final determination after receiving recommendations from the Provincial Assembly of Chiefs through the responsible Minister.
“The language of s 283 is deliberate,” the judge observed. “Traditional leadership disputes are not ordinary civil disputes in which the court should readily decide who is, or is not, the proper occupant of a traditional office.”
Justice Mambara noted that such disputes involve questions of custom, lineage, family history and community acceptance that are better suited to traditional institutions than judicial determination.
The judge also addressed confusion surrounding the role of Chief Svosve in the matter. During proceedings, the court was informed that when the dispute was previously tabled before the Provincial Assembly of Chiefs, the chief was unable to attend because he was indisposed. That explanation differed from suggestions in some court papers that he had refused to allow the issue to be discussed.
Although the court made no finding on that issue, Justice Mambara said the explanation demonstrated that the constitutional process had not reached a dead end and could still be pursued.
Chief Svosve filed a consent indicating that the dispute should be revisited. The judge described that position as constructive but stressed that consent could not create jurisdiction where the Constitution had assigned authority elsewhere.
“A court cannot grant a declaratory order merely because one of the parties consents to it if the order would require the court to determine a traditional leadership dispute that must first be dealt with under s 283 of the Constitution,” he said.
The judgment relied on several previous decisions, including a Supreme Court authority affirming that while the High Court retains limited review powers over administrative conduct, it should not substitute itself for traditional institutions in deciding substantive succession disputes.
Justice Mambara emphasised that the complaints raised by Muchinjiko may still require investigation and determination.
“The applicant’s complaints may be serious. They may require proper investigation. They may also require the Assembly to hear the relevant houses, consider the applicable custom, and make a reasoned recommendation through the Minister to the President,” he said.
“But those questions are not for this court to decide on the merits in the present application.”
In the final order, the court upheld the point in limine, dismissed the application and referred the matter back to the Mashonaland East Provincial Assembly of Chiefs. Each party was ordered to bear its own legal costs.
