Richard Chihoro v Rusere Murombo and Dorothy Rusere

This was a long-standing dispute over ownership of a piece of communal land in Mayambara, Seke Communal lands. The parties inherited the dispute from their deceased parents. Appellant claimed his father was allocated the stand in around 1960, while respondent claimed his family enjoyed undisturbed possession since 1936. Appellant alleged respondent's brother was granted temporary use of the property as appellant's father resided in the city. Upon the deaths of both original disputants, the respondent continued to occupy the property. On 4 April 2009, Chief Seke's Communal Court found appellant to be the rightful owner based on Rural District office records showing the land was in appellant's family name and they were paying levies to Council. The Chief ordered respondent's eviction. Following wrong advice from the clerk of court, appellant issued summons for eviction instead of properly registering the Chief's judgment. At a pre-trial conference on 3 July 2009, the Magistrate ruled the Chief had already decided the matter and respondent should appeal that order. More procedural errors followed, including a summary judgment application. On 8 October 2009, the Magistrate granted respondent's review application and annulled the Chief's order, finding the Chief lacked jurisdiction because he had effectively allocated communal land in contravention of the Traditional Leaders Act and Communal Lands Act. Appellant appealed this decision.

• Whether the Chief's Communal Court had jurisdiction to entertain and resolve a dispute over already allocated communal land
• Whether the Chief's order resolving the land dispute amounted to unlawful allocation of communal land in contravention of section 26 of the Traditional Leaders Act
• Whether the proper procedure was followed in registering and executing the Chief's judgment
• The distinction between allocating communal land and adjudicating disputes relating to already allocated communal land

The appeal succeeded. The review judgment of the Magistrate in the court a quo was set aside. The respondents were ordered to pay costs of suit.

A chief has jurisdiction under section 5(1)(n) of the Traditional Leaders Act to adjudicate and resolve disputes relating to land in his area, even though section 16(g) of the Customary Law and Local Courts Act prohibits local courts from determining rights in land. There is a clear distinction between allocation of communal land (which involves granting rights, interest and title to land to an individual and falls under Rural District Council authority pursuant to section 26 of the Traditional Leaders Act and the Communal Lands Act) and resolving disputes over already allocated land (which is the proper function of chiefs). When a chief resolves a dispute over land that has already been allocated, he is not allocating land but is exercising his statutory duty to adjudicate disputes relating to land.

The Court made strong observations about the bungling of the case due to ignorance of applicable law and wrong advice from court officials. The Court noted that the clerk of court "usurped the proper functions of a legal practitioner" by giving wrong legal advice, leading to serious procedural errors and unnecessary expense and delay. The Court observed that the proper procedure after the Chief's judgment would have been for the successful party to register the judgment at the Magistrates Court in terms of Rule 10(2) of SI 115/1991 and section 17 of the Magistrates Court Act, then obtain a writ of execution. The Court also observed that the respondent should have appealed against the Chief's order rather than pursuing other remedies. The Court noted that various applications for summary judgment and rescission were "totally unnecessary steps" taken as a result of wrong advice, and that decisions taken in pursuance of those applications were "of no force or effect."

This case is significant in Zimbabwean customary law and communal land jurisprudence as it clarifies the important distinction between allocation of communal land (which falls under Rural District Councils' authority) and adjudication of disputes relating to already allocated communal land (which falls within chiefs' jurisdiction under section 5(1)(n) of the Traditional Leaders Act). The judgment confirms that chiefs have jurisdiction to resolve disputes over communal land that has already been allocated, and such adjudication does not constitute unlawful allocation of land. The case also highlights the importance of proper procedure in registering and executing communal court judgments, and the problems that arise from incorrect legal advice by court officials.