GWESHE v THE PRESIDENT & ORS 2016 (2) ZLR 291 (H)

Flynote

Customary law: " chieftainship " appointment of chief " dispute " duty reposed in President by Constitution to settle such disputes " need for parties to approach the President first before bringing President's decision on review

Headnote

The third defendant was appointed acting chief for the Negomo area. The plaintiff averred that the third defendant's family had no traditional or other right to the chieftainship and that the chieftainship should come from the plaintiff's family. He had sought the assistance of the second defendant (the responsible Minister) to resolve the dispute but the Minister had ruled against him. The plaintiff averred that that the Minister's finding was irrational and sought the intervention of the court to declare that the plaintiff's family were the rightful heirs to the chieftainship. The first and second defendants submitted that the court had no jurisdiction in terms of s 283 of the Constitution to resolve disputes regarding chiefs " that being the prerogative of the President, on the recommendation of the Provincial Assembly of Chiefs. It was accordingly submitted that the plaintiff had approached the court prematurely as he had not yet exhausted his domestic remedies.

Held, that in terms of s 283 of the Constitution, the President had the duty to resolve disputes between traditional leaders and the plaintiff had not exhausted the domestic remedies available and had come to the wrong forum. The court could only intervene on review after the President had resolved the dispute. Accordingly the matter was improperly before the court and the order the plaintiff sought incompetent.