Bona Mutsahuni-Mugabe N.O. and Tinotenda Robert Mugabe and Bellarmine Chatunga Mugabe v Tinos Manongovere

Chief Zvimba issued a default judgment on 20 May 2021 against Grace Mugabe (mother of the appellants) in a matter brought by the respondent concerning the burial of the late former President Robert Gabriel Mugabe. The judgment ordered Grace Mugabe to: facilitate exhumation and reburial of the deceased at National Heroes Acre, collect the deceased's personal articles from various State residencies, and pay five heifers and a goat for cleansing. The appellants appealed to the Chinhoyi Magistrates Court in terms of section 24(1) of the Customary Law and Local Courts Act. The first appellant was the executrix of the deceased's estate, and the second and third appellants were sons of the deceased. They claimed real and direct interest as the orders affected their personal property and fiduciary functions. The magistrate dismissed the appeal, holding that only parties to proceedings before the community court could appeal under section 24(1) of the Act. The appellants then appealed to the High Court.

• Whether the phrase 'any person' in section 24(1) of the Customary Law and Local Courts Act [Chapter 7:05] permits non-parties to appeal decisions of community courts
• Whether persons with a direct and real interest in a community court decision but who were not parties to the proceedings have locus standi to appeal
• Whether the magistrate erred in suggesting interpleader summons as an alternative remedy when section 24(1) provides a statutory right of appeal
• The proper interpretation of statutory provisions in the context of customary law

The appeal was allowed with costs. The judgment of the Chinhoyi Magistrates Court was set aside and substituted with an order dismissing the first preliminary point, with costs to be in the cause. The matter was remitted back to Chinhoyi Magistrates Court for continuation of the hearing.

The phrase 'any person' in section 24(1) of the Customary Law and Local Courts Act [Chapter 7:05] must be given its ordinary grammatical meaning and includes persons who were not parties to proceedings before the community court, provided they can demonstrate that they are aggrieved by the decision. In the context of customary law, which is marked by procedural flexibility in permitting aggrieved parties access to courts, the right of appeal should not be restricted only to parties in the community court proceedings. Persons aggrieved are not limited to parties but include any person with a real and direct interest in the outcome who can demonstrate specific grounds for being aggrieved (such as effects on personal property or fiduciary functions), thereby distinguishing themselves from mere busybodies. The statute's incorporation of 'any person' aligns with customary processes of justice and should not be subjected to formalistic interpretations that undermine these positive procedural customary aspects.

The Court observed that under customary law, the quest for justice is marked by procedural flexibility in permitting aggrieved parties to access the court at any time, and it is vital that courts do not fall into the dangerous trap of downplaying these positive procedural customary aspects by thrusting formalistic interpretations upon them. The Court also noted that the requirement for 'nature of relief sought' in Magistrates Court Rules differs from the Supreme Court Rules requirement that relief be 'exact', and therefore Supreme Court authorities on this point are not directly applicable to magistrates court appeals. The Court further commented that in examining grounds of appeal, substance should prevail over form, and what is important is that the grounds disclose the basis upon which the lower court's decision is impugned in a clear manner, recognizing that legal practitioners may exhibit different styles in formulating grounds of appeal.

This case is significant in Zimbabwean customary law jurisprudence as it establishes a broad interpretation of standing to appeal decisions of community courts. It recognizes that customary law procedures embrace flexibility and accessibility to justice, which should not be undermined by overly formalistic interpretations. The judgment affirms that persons with direct and real interests, even if not parties to community court proceedings, have locus standi to appeal under section 24(1) of the Customary Law and Local Courts Act. This promotes substantive justice and protects property rights and fiduciary duties that may be affected by community court decisions. The case also clarifies the relationship between customary law remedies and common law procedures, holding that statutory remedies should be preferred over more cumbersome alternatives.