CHADOKA v CHOMBO NO & ORS 2012 (2) ZLR 15 (H)

Flynote

Costs — legal practitioner and client scale — when should be awarded — lay client — legally represented — proceedings reckless, frivolous and vexatious — costs on higher scale awarded

Customary law — traditional leaders — appointment of — customary succession — unfettered discretion residing in President with regard to appointment of chiefs — President not obliged to follow customary principles of succession — headmen and village heads — nomination by chief — chief only required to nominate "suitable" person — no requirement to follow customary principles of succession — appointment by Minister or E Secretary — Minister or Secretary obliged to appoint person nominated by chief unless there are good reasons to the contrary

Headnote

Historically, the African history of customary tree of succession, whether it be of a chief or headman, has always been oral tradition. Due to incessant feuding, coupled with the concomitant difficulty — often an insurmountable hurdle — of proving it, most dynasties/families have of late seen the light and decided to keep updated written customary trees of succession. Given that the Mashona people have a complicated system of collateral customary succession and that their family trees are mostly by way of oral tradition, hence difficult to prove, they would be well advised to always compile written family trees of succession to avoid the pitfalls associated with oral history that is passed from one generation to the next. With the dynamism of present day society, the oral traditions of yore with respect to customary principles of succession have since been obscured and blurred by current trends of doing things. Also, those who aspire to become traditional leaders are well advised

to acquaint themselves with the relevant provisions of the Traditional Leaders Act [Chapter 29:17].

In the appointment of a chief, the President has an unfettered discretion and is required to only give due consideration to the prevailing customary principles of succession, if any, applicable to the community concerned. In the appointment of a headman and village head, the chief has an unfettered discretion as to whom he should nominate for appointment as a headman or village head, so long as that, person is suitable. "Suitable" means "suited to or for, well fitted for the purpose." The chief is not required to follow any principles of succession in selecting a headman. He is merely required to select a suitable person. The fact that there might be a more suitable person eligible for the position does not mean that the candidate he has selected is not suitable. The chief is not even required to hold meetings in the area to ascertain the views or wishes of the community. Once a person is nominated by the chief, the Minister is required to appoint that person as headman unless, in his opinion, there are good reasons to the contrary. The same principles apply mutatis mutandis to the nomination of a village head and that person's appointment by the Secretary.

Costs on the higher scale may be awarded when, by reason of special considerations arising either from the circumstances which gave rise to the action or from the conduct of the losing party, the court considers it just to ensure that the successful party will not be out of pocket. Where the plaintiff is a lay person but is represented by counsel who not only is presumed to know the law but who ought to have engaged on the necessary research, thereby preventing reckless, frivolous and vexatious proceedings, an award of costs on the higher scale would be justified.