Herod Chikuku v Willard Chikuku and Others

On 24 September 2024, the plaintiff filed summons challenging the appointment of the first defendant as headman Chikuku. The plaintiff alleged that the first defendant was not eligible for appointment as his family is of the 'house of spirits' and that the appointment violated the customary succession principles of the Chikuku clan. The plaintiff further alleged that his correspondence to the defendants was not responded to, violating his administrative and Constitutional rights to be heard. The first and second defendants raised three points of law: (a) that the plaintiff has no cause of action; (b) that the plaintiff adopted the wrong procedure; and (c) that the relief sought is incompetent. At the Pre-Trial Conference, the matter was set down on the opposed roll for determination of these points in limine.

• Whether the plaintiff had a cause of action in terms of the Traditional Leaders Act
• Whether the plaintiff adopted the wrong procedure by bringing an action instead of a review application
• Whether the relief sought by the plaintiff was competent
• Whether the court has jurisdiction to resolve disputes concerning customary succession principles and appointment of traditional leaders outside of its review powers
• Whether the Minister of Local Government and Public Works (third defendant) has power to convene the Provincial Assembly of Chiefs to resolve disputes concerning traditional leader appointments

The matter was struck off the roll with costs. The court declined to award punitive costs as the defendants had not succeeded on all points in limine.

The binding legal principles established are: (1) A court cannot grant relief empowering the Minister of Local Government and Public Works to convene the Provincial Assembly of Chiefs to resolve disputes concerning traditional leader appointments, as neither the Traditional Leaders Act nor the Constitution confers such powers on the Minister; (2) The Provincial Assembly of Chiefs only has jurisdiction to resolve disputes among or between traditional leaders, not disputes involving persons who are not yet traditional leaders; (3) Courts cannot delve into resolving customary succession principles of traditional leadership and disputes concerning appointments of traditional leaders outside of their review powers; (4) Relief sought in proceedings must be competent and within the court's jurisdiction, otherwise the matter will be struck off the roll even if other preliminary objections fail.

The court made non-binding observations on procedural matters: (1) In assessing whether a plaintiff has a cause of action, the court does not concern itself with the defenses being relied upon by defendants - if what is alleged would give rise to a remedy at law if proven, a cause of action exists; (2) A plaintiff may bring an action seeking a declarator rather than a review application, particularly where there are material disputes of fact requiring oral evidence that cannot be resolved on affidavits; (3) An amendment sought to answer objections raised by defendants is not merely procedural and may be refused, especially when opposed; (4) When the core allegations supporting relief are removed through amendment, and nothing of substance remains, the court may refuse the amendment; (5) Punitive costs are not warranted where defendants succeed on only some of multiple points in limine raised.

This case is significant in Zimbabwean jurisprudence as it clarifies the limits of the High Court's jurisdiction in disputes concerning traditional leadership appointments and customary succession principles. It establishes that courts cannot resolve such disputes outside of their review powers, and that neither the Minister of Local Government and Public Works nor the courts have general supervisory powers to convene Provincial Assemblies of Chiefs to resolve traditional leadership disputes. The case reinforces the principle that disputes concerning traditional leadership must be resolved through the mechanisms provided in the Traditional Leaders Act, and that only the Provincial Assembly of Chiefs has jurisdiction to resolve disputes among or between traditional leaders. The judgment also demonstrates the importance of proper pleading and seeking competent relief when challenging administrative decisions in the traditional leadership context.