Fainios Mihwa Mapingure v Provincial Assembly of Chiefs Masvingo Province and Others

The applicant, a member of the Karanga tribe, sought to compel the Provincial Assembly of Chiefs in Masvingo Province to constitute and convene an investigative committee to look into a complaint concerning the appointment of Fortune Zephania Charumbira as substantive chief of the Charumbira chieftaincy. The applicant alleged that the appointment was illegal because it was done contrary to prevailing cultural, customary and traditional principles of succession of the Karanga community. Specifically, the appointment was said to have been by primogeniture contrary to Karanga tradition whereby appointment is collateral in that it rotates according to seniority of houses. The third respondent, Fortune Charumbira, was appointed acting chief in 1992 and was sworn in as substantive chief on 24 May 2000. The applicant wrote to the first respondent on 12 and 13 September 2017 asking them to constitute a committee, but they failed to do so. The second respondent, Senator Chief Chitanga (chairperson of the Provincial Assembly of Chiefs), denied receiving the letter.

• Whether the Traditional Leaders Act was applicable to the appointment of Chief Charumbira in 2000
• Whether the President of the Republic of Zimbabwe was a necessary party to proceedings seeking to compel the Provincial Assembly of Chiefs to investigate a chieftaincy dispute
• Whether the application was barred by prescription or estoppel
• The proper interpretation of section 283 of the Constitution regarding the resolution of disputes concerning traditional leaders
• Whether the dispute resolution process under section 283 is initiated from the top-down (by the President) or bottom-up (by complainants through the Provincial Assembly)

1. The point in limine regarding the fatality of non-joinder of the President of the Republic of Zimbabwe in this application is upheld. 2. The application is dismissed. 3. There is no order as to costs.

The President of the Republic is an indispensable party to any court proceedings that seek to compel action regarding chieftaincy disputes under section 283 of the Constitution. Where the President has appointed a chief, he is an interested party and arbiter in any dispute involving that chieftaincy, and he has a right to be aware of and party to any case that touches on that appointment. The failure to join the President as a party where there was ample opportunity to do so, particularly after being made aware of the objection, is fatal to the application. Rule 87 of the High Court Rules does not absolve a litigant of the obligation to cite all relevant parties, and the court's discretion to allow proceedings without joinder or to join parties at a later stage will not be exercised where a party had opportunity to rectify the issue but chose to forge ahead regardless.

The court made significant obiter observations regarding the need for the Constitutional Court to definitively interpret section 283 of the Constitution, particularly whether the dispute resolution process is genuinely bottom-up (energized and escalated from below seeking the President's final input) or top-down (initiated by the President declaring the dispute). The court noted that this goes beyond the joinder issue and is of significance to the rights of many ordinary citizens governed by chiefs. The court observed that a bottom-up approach would seem more consistent with the constitutional values of fostering democratic dispute resolution and preserving culture (sections 3(2)(h), 16, and 63), while a top-down approach would represent a continuation of colonial legacy. The court also lamented the delays in aligning legislation to the current Constitution, noting that the Traditional Leaders Act does not yet provide a dispute resolution mechanism envisaged by section 283. The court expressed that it is disrespectful of the constitutional status of customary law when ordinary people are left to dither for years regarding how processes should operate due to lack of speedier harmonization of legislation with the Constitution.

This case is significant in South African (Zimbabwean) jurisprudence for several reasons: (1) It clarifies that the President is an indispensable party to any court proceedings involving chieftaincy disputes where the President has appointed the chief in question; (2) It highlights the interpretative ambiguities in section 283 of the Constitution regarding whether dispute resolution processes concerning traditional leaders are initiated top-down (by the President) or bottom-up (from complainants through the Provincial Assembly of Chiefs); (3) It calls for the Constitutional Court to provide definitive interpretation of section 283; (4) It emphasizes the continued challenges of harmonizing legislation with the new Constitution, particularly regarding customary law and traditional leadership; (5) It demonstrates judicial sensitivity to the constitutional status of customary law and the impact of delayed legislative harmonization on ordinary citizens by declining to award costs despite dismissing the application. The case also provides important commentary on the tension between colonial-era top-down administrative justice and post-colonial bottom-up democratic processes in matters concerning traditional leadership.