MOYO v MKOBA & ORS 2013 (2) ZLR 137 (S)

Flynote

Constitutional law — Constitution of Zimbabwe 1980 — s 31K — executive functions of President — President acting on own deliberate judgment — exclusion of power of court to investigate — appointment of chief by President — incorrect information as to customary succession given to President — procedural impropriety resulting in an irrational decision — power of court to review such decision

Customary law — chief — appointment of by President — customary principles of succession — President required to give "due consideration" to such principles — need for recommendation to President to be based on such principles — recommendation not based on those principles — President not able to give due consideration to those principles — appointment made without due consideration to customary principles of succession void

Words and phrases — "due consideration" — Traditional Leaders Act [Chapter 29:17] — s 3 (2) — must relate to something which has been established as a fact

Headnote

"Due consideration" means "proper consideration". For the President to give "due consideration" to the matters specified in s 3(2) of the Traditional Leaders Act [Chapter 29:17] before he can act on his deliberate judgment to appoint a chief, he must have relevant facts which have a bearing on the matters set out therein. There cannot be "due consideration" of something which has not been established as a fact.

In a dispute over who should be appointed as substantive chief, the evidence established that following the death of the previous chief, a dispute had arisen between the appellant and the first respondent, supported by their respective family members. Two meetings involving officials from the local district administration were held in an attempt to resolve the dispute. No agreement was reached, however, because the parties in dispute failed to agree on what were the customary principles of succession. At the end of the second meeting, the matter was put to the vote and the first respondent won on the basis that he was the oldest surviving grandson of the late chief. This did not resolve the dispute and in due course the matter was referred to the fourth respondent, the Minister of Local Government. He, in turn, recommended to the President, the fifth respondent, that the first respondent be appointed as chief as being in accordance with the customary principles of succession of the clan. It was clear, however, that this was not so, although it was convenient for the administration. The appellant sought an order from the High Court precluding the President from appointing the first respondent as chief. The High Court dismissed the application. On appeal to the Supreme Court, the appellant argued that the Presidential discretion in appointing a chief in terms of ss 3(1) and (2) of the Traditional Leaders Act could be impeached where it was based upon incorrect, irrelevant or improper considerations. The first respondent relied upon s 31K of the Constitution of Zimbabwe 1980 and argued, inter alia, that the President's discretion in the appointment of a chief is unfettered; the exercise of his powers is not impeachable in any circumstances; and the appointment of a chief is an exercise of Presidential power which cannot be reviewed by the courts.

Held, that in terms of s 3(2) of the Traditional Leaders Act, the President, in appointing a chief, is required to give due consideration to the prevailing customary principles of succession, if any, applicable to the community over which the chief is to preside. An inquiry is required to be carried out by officials of the Ministry of Local Government to establish those principles. If there is a dispute, the court ought to inquire into the question of whether those investigations produced the information on the matters to which the President is required to give due consideration. The President is required to act on his own deliberate judgment after he has information relating to the prevailing customary principles of succession applicable to the community, to which he must give due consideration. Whether the information placed before the President relates to the matters to which he is required to give due consideration is a justiciable question. An appointment of a chief not preceded by a demonstrable compliance by the President with the obligation to give due consideration to the prevailing customary principles of succession to the chieftainship would be null and void. The Minister's recommendation forms the basis of the President's decision, as it should be based on information relating to matters to which he is required to give due consideration before acting on his own deliberate judgment.

Held, that whether the information as to the customary principles of succession of the clan and placed before the President related to matters which he was required to consider in terms of s 3(2) of the Traditional Leaders Act was a justiciable question. It was not, therefore, one of the matters contemplated by s 31K of the Constitution which is not justiciable. Such matters are acts of States which a court has no power to investigate.

Held, further, that the effect of the recommendation of the Minister to the President, having been based on an incorrect principle of customary succession, meant that the President did not have the correct facts upon which he was required to give consideration before making his appointment as to the substantive chief. It was not what the Act required to be put before him. Where the law requires that a particular thing be done in a particular way and something else is done, there is not only a procedural impropriety but the resultant decision is irrational and can be the subject of judicial review.

Held, further, allowing the appeal with costs, that the Minister must make a recommendation to the President for the removal of the first respondent from the chieftainship and that there be a further investigation as to the prevailing customary principles of succession to the chieftainship for consideration by the President.

Editor's note: decision of Ndou J in Moyo v Mkoba & Ors 2012 (1) ZLR 143 (H) reversed.