Tendai Chitinhe v Cornelius Chivesani Chengera and Others

The applicant and first respondent are descendants of the founder of the Chivero clan, both claiming entitlement to the office of substantive Chief Chivero. On 21 May 2020, the fifth respondent (President of Zimbabwe) appointed the first respondent as substantive Chief Chivero. The applicant challenged this appointment in HC 3413/20 filed on 6 July 2020, seeking to set aside the appointment and be declared substantive Chief. In a previous urgent application (HC 4046/20), the court granted a final order on 9 September 2020 interdicting the first respondent from acting or assuming duties of Chivero chieftainship pending finalization of HC 3413/20. Despite this order, on 25 May 2021 the fourth respondent (Provincial Administrator) delivered an Isuzu twin cab motor vehicle to the first respondent as part of a distribution of vehicles to chiefs. The first respondent also possessed chieftainship regalia, badge and crown. The applicant wrote to the fourth respondent on 1 June 2021 demanding repossession of the vehicle, but received no response. On 14 June 2021, the applicant filed an urgent chamber application seeking to: (1) interdict the fourth respondent from installing the first respondent as Chief Chivero; and (2) retrieve the motor vehicle and regalia from the first respondent.

• Whether the application was urgent in respect of: (a) preventing installation of the first respondent as substantive Chief Chivero; (b) retrieval of regalia, badge and crown; (c) repossession of the Isuzu twin cab motor vehicle
• Whether the applicant had established a prima facie right to the relief sought
• Whether the applicant would suffer irreparable harm if the interim relief was not granted
• Whether the applicant had an alternative remedy
• Whether the balance of convenience favoured granting the interim relief

The court granted interim relief only in respect of the motor vehicle. The order required: (1) the first respondent to deliver the Isuzu twin cab to the fourth respondent within 12 hours; (2) failing that, the fourth respondent to repossess it within the next 12 hours; (3) failing that, the Sheriff to repossess and deliver it to the fourth respondent; (4) the fourth respondent to keep the vehicle until final determination of the application. The court implicitly dismissed the application for urgency in respect of the installation and the regalia, badge and crown.

The binding legal principles established are: (1) In urgent chamber applications, urgency must be assessed separately for each distinct head of relief sought - success on urgency for one aspect does not automatically render other aspects urgent. (2) An application is not urgent when based on speculation, gossip or unsubstantiated 'news' without evidence of the source, timing or concrete facts supporting an imminent threat. (3) A matter is not urgent when the applicant has known of the relevant facts for an extended period (approaching or exceeding one year) and has had previous opportunities to seek the same relief but failed to do so. (4) A delay of approximately 12-14 days between making a demand for remedial action and filing an urgent application, where that period is needed to allow the respondent reasonable time to respond, does not constitute self-created urgency. (5) For interim relief, a prima facie right 'though open to doubt' may be sufficient where the other requirements (irreparable harm, no alternative remedy, balance of convenience) are established. (6) Where a presidential appointment of a chief is challenged on grounds of procedural irregularities and non-observance of customs and traditions, this constitutes a sufficiently solid basis for potentially setting aside the appointment to establish a prima facie right for interim relief purposes. (7) In assessing balance of convenience for interim relief, courts should consider whether granting the relief places the applicant at an unfair advantage or merely preserves the status quo pending final determination.

The court made non-binding observations endorsing the approach in Telecel Zimbabwe (Pvt) Ltd v POTRAZ 2015(1) ZLR 651(H) and Prosecutor-General v Busangabanye HH 427/15 that the issue of self-created urgency 'has been blown out of proportion' and that courts should appreciate that 'litigants do not eat, move and have their being in filing court process' - where matters are brought within reasonable time they should be accorded audience and litigants should not be expected to 'drop everything and rush to court even when the subject matter is clearly not a holocaust.' The court also observed that it was 'just surprising' that in the context of chieftainship disputes spanning multiple applications, neither the applicant nor the legally represented respondents had taken steps to set down the main application (HC 3413/20) on the opposed roll for hearing despite it having progressed to the stage of filed heads of argument. The court noted that while it was not deciding the main application challenging the appointment, it 'must recognize the pendency of that suit and the applicant's right to challenge the appointment' in deciding entitlement to interim relief. The court further observed that 'Not to be overlooked is the fact that this court has on two previous occasions ruled in [the applicant's] favour on issues to do with first respondent's performance of the duties of Chief Chivero' and that 'Despite the fact that the first respondent's appointment as the substantive Chief Chivero has not been set aside, this court has interdicted him from functioning as the chief.'

This case is significant in Zimbabwean administrative and traditional leadership law for several reasons: (1) it demonstrates the courts' willingness to intervene in chieftainship disputes and to interdict even presidentially-appointed chiefs from functioning pending resolution of challenges to their appointments; (2) it clarifies the test for urgency in urgent chamber applications, confirming that a delay of 12-14 days after demanding remedial action does not constitute self-created urgency, and that courts should not expect litigants to 'drop everything and rush to court'; (3) it illustrates the principle that urgency must be assessed separately for each distinct head of relief sought in an application; (4) it affirms that a prima facie right 'though open to doubt' may still be sufficient for interim relief where other requirements are met; (5) it provides guidance on assessing irreparable harm in the context of preservation of assets (motor vehicles) pending determination of disputes; (6) it demonstrates the application of the Marange v Marange principle that procedural irregularities and non-observance of customs and traditions in selecting candidates for chieftainship can constitute grounds for setting aside presidential appointments of chiefs.