Source: Ruling ends protracted Masvingo chieftainship dispute – herald
Fidelis Munyoro
Chief Court Reporter
THE High Court has dismissed an application challenging the appointment of Matubede Mudavanhu as Chief Mugabe of Masvingo Province, ending a protracted dispute over the chieftainship.
The judgment, delivered by Justice Sunsley Zisengwe, upheld the appointment made by the President, citing a stalemate among relevant traditional bodies and the invocation of statutory provisions to resolve the deadlock.
In dismissing the application, the court underscored the need for legislative reform to prevent similar disputes in the future.
Justice Zisengwe expressed hope that the pending alignment of the Traditional Leaders Act with the Constitution would include provisions to address deadlocks in the chieftainship appointment process.
“Such a provision is a necessary tie-breaker; a necessary tool to break any possible impasse,” the judge said.
The application was dismissed with costs awarded against the applicant Emmanuel Dumbu, who sought to set aside Mudavanhu’s appointment, claiming it was unconstitutional, irregular and violated the customs of the Mugabe clan.
Mudavanhu, represented by his lawyers Munyaradzi Katsande and Tinashe Robin Tanyanyiwa, was cited as a respondent alongside the Ministry of Local Government, Public Works, and National Housing, as well as the President, both represented by T Undenge from the Civil Division of the Attorney General’s Office.
Dumbu, through his lawyer Mr Charles Ndlovu, alleged that he, as a member of the Dumbu house, was the rightful heir based on a rotational succession system among the clan’s five royal houses.
He argued that the appointment process disregarded both the clan’s traditions and Section 283 of the Constitution, which governs the appointment of traditional leaders.
The dispute dates back to 2009, when the chieftainship became vacant following the death of Chief Mute Mudavanhu.
Matubede Mudavanhu, his son, was appointed acting chief and served in that capacity for 14 years.
However, Dumbu contended that the acting chief’s prolonged tenure and eventual appointment violated the rotational system, which he claimed designated the applicant house as the next in line for the throne.
Central to the case were two competing nomination processes. Dumbu argued that he was chosen as chief during a meeting held on October 31, 2022, at Chikarudzo Business Centre. He claimed this meeting was attended by representatives of all five royal houses and overseen by the Provincial Assembly of Chiefs.
Conversely, the Ministry of Local Government, Public Works and National Housing, and Matubede Mudavanhu, listed as respondents, asserted that a properly constituted meeting held on October 16, 2017, had already resolved the matter, nominating Mudavanhu as the successor.
Justice Zisengwe emphasised the lack of consensus among the clan’s royal houses, the Provincial Assembly of Chiefs, and the National Council of Chiefs.
The court noted that the impasse persisted for over a decade, rendering the customary nomination process ineffective.
“The Provincial Assembly of Chiefs and the National Council of Chiefs let everyone down by failing to come up with a nominated candidate for a period of eleven years,” the judge observed.
Given the stalemate, the court found that the invocation of Section 3(2)(b) of the Traditional Leaders Act was both lawful and necessary.
This provision allows the Minister of Local Government to nominate a candidate for appointment by the President if the relevant community fails to do so within two years of a chieftainship becoming vacant.
Dumbu also relied on a letter dated February 6, 2023, from the Attorney General’s Office, which suggested that Mudavanhu’s appointment was unconstitutional. However, the court rejected this argument, stating that the letter contradicted established legal precedent.
The judge further noted that the letter’s timing and authenticity were questionable. On the question of whether Mudavanhu’s appointment was consistent with the customs of the Mugabe clan, the court ruled in the affirmative.
Justice Zisengwe pointed to evidence that Mudavanhu had the support of a significant segment of the clan, had been nominated at the 2017 meeting, and hailed from one of the royal houses. Moreover, his long tenure as acting chief demonstrated his suitability for the role.
“His appointment cannot be said to be inimical to the customs, traditions, and culture of the community in question.”
The court also criticised Dumbu’s insistence on strict adherence to customary practices despite the evident failure of the traditional nomination process.
“To so insist would set everyone back to when the abortive selection processes commenced in 2016. It would be an exercise in futility to repeat the same process and expect a different result,” Justice Zisengwe remarked.
COMMENTS