Tendayi Chitinhe v Cornelius Chivesani Chengera and Others

The applicant sought to set aside the appointment of the first respondent as the substantive Chief Chivero and to be declared as the substantive Chief himself. He narrated a long history of the first respondent's appointment and cited various irregularities. The matter was initially set down for hearing on 8 February 2022 but was postponed to allow the applicant, who was initially self-acting, to engage legal representation. The respondents raised several points in limine challenging the application on multiple grounds including material disputes of fact, improper procedure, incompetence of the order sought, and lack of jurisdiction.

• Whether the High Court has jurisdiction to hear disputes concerning the appointment of traditional leaders in light of s283 of the Constitution
• Whether the application should have been brought by way of review rather than general court application
• Whether the order sought was competent, particularly the request to declare the applicant as substantive chief
• Whether the matter involved material disputes of fact that could not be resolved on the papers
• Whether domestic remedies under s283 of the Constitution needed to be exhausted before approaching the court
• Whether courts can adjudicate on matters involving substantive customary law relating to chieftainship succession

The application was referred to trial under the same case number, with the applicant to be cited as plaintiff and respondents as 1st to 5th defendants. The applicant was ordered to file and serve his declaration within 10 days, after which the matter would proceed in terms of the High Court Rules 2021. The applicant was ordered to pay costs of suit on the ordinary scale.

Section 283 of the Constitution, which provides for the appointment and removal of traditional leaders by the President on recommendation, does not oust the review jurisdiction of the High Court. The court has jurisdiction to review the acts and conduct of administrative authorities (including the Minister) on grounds of illegality, irrationality or procedural impropriety in chieftainship disputes. What is reviewable is not how the President exercises his discretion but whether those who formulate advice to him acted on sound principle. However, where an application involves material disputes of fact that cannot be resolved on the papers, the proper course is to refer the matter to trial rather than dismiss it.

The court observed that how the applicant convinced himself that the matter could be decided on paper despite being replete with material disputes of fact was beyond comprehension. The court also noted that while courts cannot appoint chiefs, they can make orders removing chiefs, after which the proper constitutional appointment procedure would need to be followed. The court indicated that it can resort to s9 of the Customary Law and Local Courts Act in ascertaining customary law when dealing with chieftainship matters. The fact that an application is not specifically headed 'Court application for review' is not determinative of whether it can be treated as such.

This case is significant in Zimbabwean law (note: this is a Zimbabwean case, not South African) as it clarifies the jurisdiction of the High Court to hear disputes concerning traditional leadership appointments notwithstanding s283 of the Constitution. It confirms that while the Constitution provides a specific procedure for appointment and removal of chiefs through the President, this does not oust the court's review jurisdiction over administrative decisions made in the process. The case demonstrates the balance between constitutional provisions regarding traditional leaders and the court's inherent review jurisdiction over administrative action. It also illustrates the proper procedure when an application involves material disputes of fact - referral to trial rather than outright dismissal.