Janet Kamukwedze v Weston Munaki

Chief Nembire delivered a judgment on 28 November 2020 in default against Robert Kupfuwamhandu, awarding Appellant (Janet Kamukwedze) land which was being occupied by the Respondent (Weston Munaki). Respondent appealed to the Magistrate's Court at Mt Darwin. The lower court set aside Chief Nembire's judgment and ordered that Respondent continue residing at his communal homestead and use his fields as before. According to the village head's affidavit, the Appellant had used the land until the early 1980s when it was taken by the alleged late chief. She had consulted authorities demanding the land back but could not get assistance as the chief was not approachable. She survived by renting fields from the Nyamutiro family. Respondent had been occupying the land and built structures and invested financially on it over the years.

• Whether the Respondent had locus standi to appeal against the Community Court judgment when he was not a party to those proceedings
• Whether the lower court erred in concluding that Respondent was allocated the communal land by the late Chief Nembire when insufficient evidence was presented to prove same
• Whether the lower court properly exercised its discretion in considering all relevant evidence

The appeal partially succeeded. The first ground of appeal was dismissed. The second ground of appeal was upheld. The judgment handed down by the court a quo on 28 May 2021 was set aside. Respondent was ordered to pay costs of suit.

1. Under section 24(1) of the Customary Law and Local Courts Act [Chapter 7:05], the phrase 'any person who is dissatisfied' with a Community Court decision includes any person materially affected by the decision, not only parties to the proceedings before the Community Court. 2. An appellate court can interfere with the discretion of a lower court where it appears that some error has been made in exercising the discretion, such as where the lower court acts upon a wrong principle, mistakes the facts, or does not take into account some relevant consideration. 3. In customary land disputes, a court must properly consider all sworn evidence before it and cannot make findings of fact without evidentiary support on the record. Length of occupation alone, without examining the circumstances and legitimacy of such occupation, is insufficient basis for determining land rights.

The Court observed that the magistrate appeared to have been more persuaded by the length of time the Respondent had been in occupation of the land as opposed to the surrounding circumstances of that occupation or residence. This suggests that in customary land disputes, mere length of occupation should not be determinative without proper consideration of the legitimacy and circumstances of such occupation. The Court also noted the importance of affidavits from village heads who have knowledge of what is happening on the ground, suggesting that such evidence carries significant weight in customary land matters.

This case clarifies important principles regarding standing to appeal from Community Courts in Zimbabwe. It establishes that the right of appeal under section 24(1) of the Customary Law and Local Courts Act is not restricted to parties to the proceedings but extends to 'any person' materially affected by the decision. The case also demonstrates the appellate court's approach to reviewing the exercise of discretion by lower courts in customary land disputes, emphasizing the importance of properly considering sworn evidence and not being swayed solely by length of occupation without examining the circumstances of such occupation. It reinforces the principle that appellate courts will interfere where the lower court acts on wrong principles, mistakes facts, or fails to consider relevant evidence.