HARARE – The High Court has ruled that a traditional chief cannot act as both complainant and judicial officer in the same dispute, setting aside proceedings conducted by Chief Murinye in a clash with a school head after finding they violated constitutional guarantees of a fair hearing.
Justice Christopher Dube-Banda quashed a summons issued by Chief Murinye, whose real name is Ephias Munodawafa, against Philimon Mutangiri, head of Riverton Academy Extension in Masvingo Province, ruling that the chief was disqualified from hearing allegations in which he was personally aggrieved.
The dispute arose after Chief Murinye summoned Mutangiri to appear before his community court over allegations that he had built a school on sacred land and uttered words undermining the chief’s authority.
Dube-Banda ruled that while Zimbabwe’s Constitution recognises customary law, it does not permit traditional courts to disregard constitutional protections guaranteeing impartial justice. “In terms of section 69(2) of the Constitution, the applicant has a right to a fair hearing before an impartial court. In casu, the Chief is the complainant and judicial officer in the same matter,” the judge said, adding that no one is permitted to be adjudicator in his own case.
The court rejected the chief’s argument that customary law allowed him to hear the matter himself because he was acting in his official capacity rather than as an individual.
“The argument that there is a difference between him as a person and him as a chief is a distinction without a difference. He is the same person,” Dube-Banda ruled. “He has an interest in the matter in which he has issued a summons and intends to preside over, and its outcome.”
The judge stressed that customary law is an important part of Zimbabwe’s legal system but remains subordinate to the Constitution.
The case stems from a long-running dispute over Riverton Academy Extension in Murinye/Machingura villages. Earlier this year, Mutangiri obtained a provisional High Court order stopping Chief Murinye from blocking access to the school after parents were allegedly prevented from taking their children there.
Despite the pending High Court proceedings, the chief later issued fresh summonses requiring Mutangiri to appear before his community court. The judge found that the summons was intended to interfere with litigation already before the High Court.
“This is a text-book case where this court must invoke its inherent power to stop a grave injustice,” Dube-Banda said.
The court also criticised Chief Murinye for proceeding with the hearing and granting a default judgment after being served with the High Court application challenging his actions. “Once this court is seized with a matter, all matters having a bearing on the application before it pending before lower courts and tribunals must stall,” the judge said.
The High Court set aside the summons issued against Mutangiri, declared all proceedings conducted by Chief Murinye under that summons invalid, and ordered the traditional leader to pay the costs of the application.
The minister of local government and public works, cited as the third respondent, did not oppose the application. The ministry administers the Traditional Leaders Act.
