Ephias Munodawafa and Chief Murinye N.O v Matubede Mudavanhu and Chief Mugabe N.O and Minister of Local Government and Public Works

The first applicant (Ephias Munodawafa) is the substantive Chief of the Murinye dynasty in Masvingo district, Great Zimbabwe area. The second applicant is Chief Murinye N.O as an institution of traditional leadership. The first and second respondents are Chief Mugabe and Chief Mugabe N.O respectively, also traditional leaders in the same area. The third respondent is the Minister of Local Government and Public Works. The parties share customary and administrative boundaries in the Great Zimbabwe area. The applicants claimed jurisdiction over the Boroma area, stating that in 2014 they made recommendations for appointment of 33 village heads which were accepted by the Minister. On 6 September 2017, the parties entered into an agreement placing Boroma under Murinye Chieftainship, confirmed by the Minister on 8 September 2017 and accepted by the Ministry of Rural Development on 12 September 2017. Despite this agreement, disputes regarding jurisdiction over the Boroma area persisted. The applicants sought a declaratory order under section 14 of the High Court Act declaring that the Boroma area falls under their jurisdiction.

• Whether the founding affidavit was fatally defective due to discrepancies in the place of commissioning
• Whether the applicants had exhausted domestic remedies as required by section 286(1)(f) of the Constitution and sections 35 and 36 of the Traditional Leaders Act
• Whether the relief sought was competent or whether the applicants should have compelled the Minister to exercise his statutory powers
• Whether the High Court has jurisdiction to determine traditional leadership disputes in light of Constitutional provisions establishing the National Council of Chiefs and Provincial Assemblies of Chiefs
• Whether a declaratory order under section 14 of the High Court Act is the appropriate remedy for traditional leadership jurisdictional disputes

The preliminary points regarding non-exhaustion of internal remedies and incompetence of relief were dismissed. The preliminary point regarding the fatal defect in the founding affidavit was upheld. The matter was struck off the roll with costs.

An affidavit that contains material discrepancies regarding the place where it was commissioned is fatally defective and invalid. The place of commissioning is an essential requirement of a valid affidavit because it assists in determining the jurisdiction of the Commissioner of Oaths. The Constitutional provisions establishing the National Council of Chiefs and Provincial Assemblies of Chiefs (sections 285 and 286 of the Constitution) and the Traditional Leaders Act do not oust the unlimited original jurisdiction of the High Court to determine traditional leadership disputes. The jurisdiction to grant declaratory orders under section 14 of the High Court Act is exclusively vested in the High Court; the National Chiefs Council and Provincial Assembly of Chiefs lack adjudicatory power to make declarations of rights or grant enforceable orders at law, as their functions are advisory and facilitative only. Therefore, exhaustion of remedies before traditional leadership institutions is not a prerequisite to seeking declaratory relief from the High Court.

The court observed that there are many dangers in accepting an improperly commissioned affidavit and emphasized that there must be strict adherence to proper methods of commissioning affidavits, as any compromise would bring justice into disrepute. The court noted that a matter may be referred to an administrative authority only in exceptional circumstances, such as where the end result is a foregone conclusion, where further delay would prejudice the applicant, where bias or incompetence is displayed, or where the court is in as good a position as the administrative body to make the appropriate decision. The court also observed that while it added to the list of requirements for a valid affidavit (specifically the requirement to state the place of commissioning), this reflects the importance of strict procedural compliance in commissioning affidavits.

This case clarifies important principles in Zimbabwean law regarding: (1) the strict requirements for properly commissioned affidavits, including the necessity of accurately stating the place of commissioning to determine the Commissioner of Oaths' jurisdiction; (2) the relationship between the High Court's inherent jurisdiction and the constitutional dispute resolution mechanisms for traditional leadership disputes, confirming that Constitutional provisions establishing the National Council of Chiefs and Provincial Assemblies do not oust the High Court's jurisdiction; (3) the exclusive jurisdiction of the High Court to grant declaratory orders under section 14 of the High Court Act, which administrative bodies and traditional leadership institutions cannot grant; and (4) the distinction between advisory/facilitative functions of traditional leadership institutions versus adjudicatory powers of courts. The case reinforces procedural requirements for valid affidavits while simultaneously protecting access to justice for traditional leadership disputes through the High Court.