Muzvare Tarwirei v Chief Murozva and Michael Machingura

The appellant sued the 2nd respondent in the Community Court of Chief Marozva over the ownership or right of occupation of a piece of land under Tarwirei Ward 11. The dispute had been ongoing for some years. On 6 February 2017, the presiding officer Joseph Philip Mughe, sitting with two assessors, dismissed the appellant's claim. The appellant appealed to the magistrate's court at Bikita. The magistrate did not rehear the matter but proceeded on the papers filed of record and dismissed the appeal without any evidence being led. The appellant then appealed to the High Court against the magistrate's decision.

• Whether the magistrate properly heard the appeal from the community court in terms of section 24(2) of the Customary Law and Local Courts Act
• What is the proper procedure for hearing appeals from community courts
• Whether proceedings conducted contrary to statutory requirements constitute a nullity

1. The proceedings in the magistrate court were set aside; 2. The matter was remitted to the magistrate court for a proper hearing of the appeal from the Community court in terms of section 24(2) of the Customary Law and Local Courts Act [Chapter 7:05]; 3. Each party to bear their own costs.

An appeal from a community court to a magistrate's court in terms of section 24(2) of the Customary Law and Local Courts Act [Chapter 7:05] must be heard as a rehearing, meaning the matter must be heard afresh with the calling of witnesses and proper assessment of testimony. A magistrate cannot simply review the papers from the community court and make a determination without leading evidence. Proceedings conducted in violation of this statutory requirement are a nullity and must be set aside.

The court observed that community court records of proceedings are typically scant and recorded in vernacular, with attached documents also mostly in vernacular. The court noted that such records are in fact not recognised as official records of court proceedings. The court also commented that the learned trial magistrate was oblivious to the provisions relating to appeals from the community court and did not know how to proceed, ending up merely considering the papers from the community court as they were.

This case clarifies the proper procedure for hearing appeals from community courts to magistrates' courts in Zimbabwe. It emphasizes that appeals from community courts must be heard as rehearings de novo, not merely paper reviews. The judgment reinforces procedural compliance with the Customary Law and Local Courts Act and establishes that failure to conduct a proper rehearing renders the proceedings a nullity. This is particularly important in the context of customary law disputes and land matters where community court records are often informal and recorded in vernacular.