Refayi Chikandiwa and Pameti Nyemba v Anderson Chikandiwa and Others

The appellants are husband and wife. The first appellant was the only child of his parents and was gifted approximately one hectare of land by his late father, Hensen Kapuya. He assumed occupation immediately and from 2002 onwards exercised farming rights over the land, cultivating maize, cotton, and sunflower. In 2020, disputes arose when respondents alleged that the first appellant was not the biological son of Hensen Kapuya and demanded he surrender the land. The respondents began interfering with the appellants' farming activities. The dispute was referred to the village head (fifth respondent) and then to Chief Negomo (sixth respondent), who ruled on 14 August 2021 that the land belonged to the appellants by virtue of it having belonged to the first appellant's late parents. Despite this ruling, the first to fourth respondents continued to interfere with the appellants' use of the land. A second contradictory judgment was issued by the same Chief's court on 27 November 2021, this time in favour of the respondents. The appellants then filed an application for an interim interdict in the Magistrates Court at Concession to prevent the respondents from interfering with their farming activities.

• Whether the appellants had established a prima facie right to justify the granting of an interim interdict
• Whether the court a quo erred in treating two contradictory judgments from the Chief's court as having equal weight
• Whether the second judgment from the Chief's court was a nullity by reason of the court being functus officio
• Whether the appellants satisfied all the essential elements for the granting of an interim interdict

The appeal was allowed. The decision of the court a quo was set aside and substituted with an order granting the application for interim interdict with costs.

Where an applicant for an interim interdict has established a prima facie right based on inheritance of land confirmed by a traditional leader's judgment, a subsequent contradictory judgment by the same traditional court does not negate that prima facie right if the second judgment was issued without the traditional court having properly set aside its first judgment through a valid rescission process. A traditional leader's court, like other judicial bodies, is functus officio once it has made a final determination and cannot revisit the same matter without proper procedural justification. The mere existence of a second contradictory judgment, without evidence of a valid application for rescission, a grant of rescission, and an order for rehearing, renders the second judgment a nullity. In such circumstances, the first judgment stands and provides the basis for establishing the prima facie right required for an interim interdict.

The court made pertinent observations about the unsatisfactory state of the record before it, noting that the circumstances surrounding the issuance of two contrary judgments by the same Chief's court were not properly explained or documented. The court also noted that even the court a quo had observed this deficiency when it stated: 'Which judgment should the court believe? The circumstances surrounding 2 contrary judgments being issued by the same court are not before the court.' This suggests that in similar cases, proper documentation of traditional court proceedings and any applications for rescission or review is essential for the proper administration of justice when such matters come before the civil courts.

This case is significant in Zimbabwean civil procedure and customary law for several reasons: (1) It clarifies the application of the functus officio doctrine to customary courts - once a traditional leader's court has made a final determination on a matter, it cannot revisit the same dispute without proper procedural justification such as a valid rescission application; (2) It reinforces the requirements for establishing a prima facie right in interdict applications, particularly in the context of land disputes governed by customary law; (3) It demonstrates that when faced with contradictory judgments from the same court, the later judgment cannot simply be treated as equal to the first without proper procedural foundation - there must be evidence of a valid rescission and rehearing; (4) It emphasizes that inheritance rights under customary law, once established and confirmed by traditional authorities, constitute a sufficient prima facie right for purposes of interdict relief; and (5) It illustrates the interaction between customary court processes and the civil court system in Zimbabwe.