MUTASA v MUTASA AND OTHERS (4 of 2026) [2026] ZWMTHC 4 (29 January 2026)

11 HCMTJ4-26 HCMTC230/25 CHARLES MUTASA versus JAMES KURAUONE MUTASA and DAIWA MUTASA and PROVINCIAL ASSEMBLY OF CHIEFS (MANICALAND) and NATIONAL COUNCIL OF CHIEFS and MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND NATIONAL HOUSING and THE PRESIDENT OF THE REPUBLIC OF ZIMBABWE HIGH COURT OF ZIMBABWE SIZIBA J MUTARE, 19 & 29 January 2026 **OPPOSED APPLICATION** Mr _T. Maanda_ with Ms _S. Mungofa_ , for the applicant Mr _H.B.R Tanaya_ , for the 1st respondent Mr _P. Garwe_ with Mr _N. Muchinguri,_ for the 3rd to 6th respondents SIZIBA J**:** 1. The application before this court is styled ‘ _Court application for relief in terms of section 4 of the Administrative Justice Act or alternatively a declaratur in terms of section 14 of the High Court Act (Chapter 7:06)’_. It was filed by the applicant on 10 October 2025. The relief sought is as follows: “ _1\. The instant application succeeds._ _2\. That the report of the Third Commission on the selection of the substantive Chief_ _Mutasa dated 13 September 2019 is hereby declared null and void and is hereby set aside._ _3\. The decision of the fifth respondent based on the third commission of inquiry’s_ _recommendation to him for the inclusion of the Ndorikanda and Chakambeni_ _families in the succession matrix of the Mutasa Chieftainship is hereby set aside._ _4\. “(i) The appointment of the first respondent as substantive Chief Mutasa_ _be and is hereby set aside._ _(ii) The matter is remitted to the fifth respondent who is hereby directed: (a) to_ _convene a meeting of the provincial assembly of Chiefs responsible for the Mutasa_ _community, at the earliest available opportunity, to consider and report back to him with its recommendations on the resolution of the dispute concerning the_ _appointment of a substantive Chief Mutasa; and_ _(b) to submit the aforesaid recommendations to the sixth respondent to enable him_ _to resolve the aforesaid dispute in accordance with the provisions of s 3 of the_ _Traditional Leaders Act [Chapter 29:17]._ _(iii) Pending the resolution by the sixth respondent of the aforesaid dispute, the first respondent shall perform the functions of acting Chief Mutasa pursuant to section 4 of the Traditional Leaders Act [Chapter 29:17]._ _Or Alternatively_ _IT BE AND IS HEREBY DECLARED THAT:_ _5\. The inclusion of the Ndorikanda and Chakambeni families in the family tree of the Mutasa Clan that ascends to the Mutasa chieftainship is hereby declared null and void._ _6\. “(1) The appointment of the first respondent as substantive Chief Mutasa_ _be and is hereby declared null and void._ _7\. The matter is remitted to the fifth respondent who is hereby directed: (a) to convene a meeting of the provincial assembly of Chiefs responsible for the Mutasa_ _community, at the earliest available opportunity, to consider and report back to him with its recommendations on the resolution of the dispute concerning the_ _appointment of a substantive Chief Mutasa; and_ _(b) to submit the aforesaid recommendations to the third respondent to enable him_ _to resolve the aforesaid dispute in accordance with the provisions of s 3 of the_ _Traditional Leaders Act [Chapter 29:17]._ _(iii) Pending the resolution by the sixth respondent of the aforesaid dispute, the first respondent shall perform the functions of acting Chief Mutasa pursuant to section 4 of the Traditional Leaders Act [Chapter 29:17]._ _8\. The respondents shall pay the costs of this application._ 2. The applicant thus seeks to nullify the report of the third commission on the selection of the substantive Chief in Mutasa which is dated 13 September 2019. What the applicant finds faulty about the third commission’s report is that it added the two houses of Ndorikanda and Chakambeni as being eligible for the Mutasa Chieftainship. The first respondent hails from the Ndorikanda house being one of the two houses which the applicant strongly disqualifies for the chieftainship. According to the applicant, the Mutasa chieftainship should only revolve around the seven houses being the Chimbadzwa, Chirimiriwo, Chakanyuka, Kadzima, Mukonda, Mukukudzi and Pafiwa. The applicant challenges the decision of the fifth respondent in recommending the appointment of the first respondent as substantive Chief Mutasa to the sixth respondent when such recommendation, according to him, runs contrary to the customary succession principles of the Mutasa clan. The applicant’s case is that the fifth respondent’s decision is procedurally wrong and it has no rational basis. He argues further that the third commission was not properly constituted and it did not consult the Mutasa clan before including the said two additional houses as being eligible for the chieftainship. He charges further that the two additional houses were placed ahead of the other houses instead of being placed last in the line to ascend the throne. 3. The second respondent did not oppose the application. The first respondent as well as the third to the sixth respondents are opposed to the application. In their papers, they argued that all due process was followed in the inclusion of the two additional houses of the Mutasa clan to the chieftainship throne. They allege that consultation was done and the clan agreed with the inclusion of the two houses to the chieftainship. Minutes of the meetings were attached. Their case is that the outcome of the two earlier commissions cannot remain fixed but it was always subject to further research. It was further argued by the first respondent that the application by the applicant was a fallback attempt for the Lovemore Kadzima Mutasa case under HCMTC 243/23 which was resurrected under R-R HCMTC 243/23. The said Lovemore Kadzima Mutasa has now written to the sixth respondent petitioning him to resolve the same dispute concerning the addition of these two houses to the Mutasa chieftainship. The said letter is dated 10 September 2025. The first respondent in his opposing affidavit argued that the same dispute is therefore pending for resolution by the sixth respondent and hence this court should not interfere. 4. Over and above the arguments taken by the respondents as highlighted above, the respondents took points in _limine_. The third to the sixth respondents argued that the applicant has not exhausted the domestic remedies stipulated in s 283(c) of the Constitution of Zimbabwe which allow the sixth respondent to resolve chieftainship disputes. It was also argued that this court lacks jurisdiction to resolve chieftainship disputes which in terms of the Constitution must be resolved by the sixth respondent. The first respondent took the point that the application at hand was a review application which was filed out of time without condonation. Secondly, the court should refuse to exercise its discretion under s 4 of the Administrative Justice Act as there was a remedy of review available under section 26 of the High Court Act. It was further argued that the application was a disguised _declaratur_ under the guise of section 4 of the Administrative Act. The other point was that there was no leave to sue the sixth respondent in terms of r 12(21) of the High Court Rules, 2021. In addition, it was argued that the applicant refers to the High Court in Harare in the form of his application and that he cited non-existent law being the Administration of Justice Act. Furthermore, in his heads of argument, the first respondent took additional points in _limine_ relating to prescription and applicant’s lack of _locus standi_. He argued that the applicant’s cause of action arose in 2019 when the third commission submitted its report. The applicant argued that all the points in limine lack merit and must be dismissed. The first respondent prayed for costs against the applicant at attorney and client scale while Mr _Maanda_ argued that there was no perverse conduct on the applicant’s part warranting such costs. I reserved judgment on the points _in_ _limine._ **DETERMINATION OF THE POINTS IN** _**LIMINE**_ THE REFERENCE TO THE HIGH COURT IN HARARE AND THE ADMINISTRATION OF JUSTICE ACT 5. The face of the applicant’s application makes reference to the High Court in Harare as the court where this application has been made. Applicant also made reference to the application being made in terms of s 4 of the ‘ _Administration_ _of Justice Act’_. There is no question that both these references are wrong and erroneous. The first respondent has argued that the application is fatally defective on the basis of these defects and that it should be struck off the roll. The courts in this jurisdiction have cautioned time and again that cases cannot be decided on the basis of technical objections of form where no prejudice has been occasioned to the opposite party. See _Olympia Farm (Private) Limited_ v _Release Power Investments (Pvt) Limited and Others_ SC 105/24. A similar caution has also been sounded about basing objections on issues of grammar and syntax. See _Delta Beverages (Pvt) Ltd and Others_ v _Blakey Investments (Pvt) Ltd_ SC 107/24. The objections taken in this case are grounded on typographical errors. Despite the reference to the application being made at the High Court in Harare, the matter was filed and registered with the High Court in Mutare and it was duly opposed and set down. No prejudice was suffered by the first respondent. Moreover, despite the reference to the so - called _Administration of Justice Act_ on the face of the application, the applicant in the founding affidavit clearly made reference to the Administrative Justice Act. This should have clearly registered in the first respondent’s mind that the earlier reference to the wrong statute was a typographical error. Surprisingly, the first respondent in his opposing affidavit and heads of argument has answered the applicant’s case with reference to the Administrative Justice Act. No prejudice has been occasioned by this error as all the parties have presented their arguments with reference to the correct statute. Perhaps this is why Mr _Tanaya_ did not make emphasis of this point in limine during his oral submissions in court. Accordingly, this point in _limine_ has no merit and it is dismissed. _LOCUS STANDI_ OF THE APPLICANT 6. _Locus standi_ refers to the ability of a party to bring a case before a court of law. The settled position at law is that a party with a real and substantial interest in the matter is qualified to bring legal proceedings before a court of law. See _Sibanda and Others_ v _The Apostolic Faith Mission of Portland Oregon (South African Headquarters)_ SC 49/18. The applicant has pleaded that he is a member of the Mutasa family and that he is of the house that is responsible for the ordination of Chief Mutasa. The first respondent has argued that the applicant has failed to establish his _locus standi_ by failing to produce evidence that he is part of the Mutasa clan. The first respondent denies that the applicant is part of the Mutasa family. He does not elaborate the basis for such denial. He says that the applicant should have demonstrated that he belongs to one of the houses that are entitled to the chieftainship. I do not agree. The courts do not take such a narrow approach to issues of _locus standi_. The fact that the applicant professes to be a member of the Mutasa family over which the chieftainship in question before the court is concerned suffices to ground his standing and interest in the case before this court. It was incumbent upon the first respondent to demonstrate that the applicant is not part of the Mutasa clan or community and no such fact has been demonstrated. This point in _limine_ has no merit and it is dismissed. FAILURE TO SEEK LEAVE TO SUE THE PRESIDENT OF ZIMBABWE 7. The first respondent has argued that the present application is fatally defective due to the failure by the applicant to seek leave to sue the sixth respondent who is the President of this Republic. This requirement is premised upon r 12 (21) of the High Court Rules, 2021 which provides as follows: “ _(21) No summons or other civil process of the court may be sued out against the President or any of the judges of the High Court without the leave of the court granted on court application being made for that_ _purpose._ ” 8. In the case of _The President of Zimbabwe Robert Gabriel Mugabe (in his official capacity) and Others_ v _Tsvangirai (in his official capacity as Prime Minister of the Republic of Zimbabwe and in his personal capacity)_ SC 21/17 at p 3 of the cyclostyled judgment, the court made the following remarks about the import of r 18 under the repealed High Court Rules, 1971: “ _The purpose of r18 is to protect not only the President but also the Judges of the High Court from frivolous and vexatious litigation_ ” 9. The position in this jurisdiction is that whenever the President is sued before the High Court in particular, he should be cited in his official capacity and not by name in compliance with s 4 of the State Liabilities Act [_Chapter 8:14_] and after leave to sue him has been obtained in compliance with the rules of this court. See _The President of Zimbabwe Robert Gabriel Mugabe (in his official capacity) and Others_ v _Tsvangirai (in his official capacity as Prime Minister of the Republic of Zimbabwe and in his personal capacity)_(_supra_). 10. The requirement of r 12 has been held to be a sieve by this court to protect the President from frivolous and vexatious litigation. See _Dumbu_ v _The Minister of Local Government, Public Works and National Housing and Others_ HMA 39/23. As head of the state and in his demanding executive functions, the President should not be distracted by groundless litigation. This court can only safeguard the President from such frivolous and vexatious litigation in the context of an application for leave to sue the President. It is only then that the court can decide whether the envisaged litigation or suit is warranted or not. Failure to obtain such leave therefore renders nugatory such provision and such protection or safeguard. This court cannot therefore entertain any litigation against the President where he has not been procedurally dragged to court notwithstanding that he has not himself raised such point as the duty to protect him from frivolous and vexatious litigation vests with this court in terms of the rules of this court and it is only this court which may condone any non - compliance with its rules in a proper application for such condonation. The argument by Mr _Maanda_ that no relief has been sought against the sixth respondent does not cure the defect. The result is that the sixth respondent has not been properly sued in this application since no leave to sue him has been obtained from this court. He is the appointing authority who has a substantial interest in this matter. The submission by Mr _Maanda_ that this court should find such non – joinder to be that which can be cured by an order of a joinder by this court in terms of the rules of this court ignores the fact that no such joinder can be competent at law without this court having first granted the applicant the necessary leave to sue the President. As a result, the application as a whole is not properly before the court. The point in _limine_ succeeds and it warrants that the matter be struck off the roll. PRESCRIPTION 11. The applicant seeks to challenge and nullify the report of the third commission which was acted upon by the fifth respondent and such report was produced on the 13th of September 2019. This application was filed by the applicant on 10 October 2025 when six years had elapsed since the said report was compiled by the commission. Mr _Maanda_ submitted that the applicant’s cause of action is not a debt in terms of s 2 of the Prescription Act because no money is owed to the applicant. This approach was refuted by Mr _Tanaya_ and correctly so in my view. Section 2 of the Prescription Act [_Chapter 8_ :_11_] provides as follows: “ _**2 Interpretation**_ _In this Act—_ “ _debt”, without limiting the meaning of the term, includes anything which may be sued for or claimed by reason of_ _**an obligation arising from statute, contract, delict or otherwise**_ _.”_(Emphasis added) 12. In _John Conradie Trust_ v _The Federation of Kushanda Pre – Schools Trust and Others_ SC 12/17, the court relied upon the above definition of debt and held that a claim for vindication of property was a debt which prescribes within three years in terms of section 15 of the Prescription Act. At p 6, the court proceeded in that case to hold as follows: “ _Once prescription has run its course it deprives the aggrieved party of the remedy or relief sought regardless of whether or not one has a valid claim on the merits. Thus an owner forfeits his right to vindicate his property once prescription has run its full course as happened in this case. The nature of the defence is that it even allows a litigant at fault to keep his ill-gotten gains._ _Prescription does not deal with the merits. It simply seeks to extinguish old stale debts not claimed within the prescribed time limits.”_ 13. I am therefore persuaded that the applicant’s cause of action which is based on two statutes being s 4 of the Administrative Justice Act (the main relief) and s 14 of the High Cout Act (the alternative relief) is a debt which is now prescribed in terms of s 15 (d) of the Prescription Act. This point in _limine_ is upheld and it warrants a dismissal of the application. WHETHER THE APPLICATION IS A DISGUISED REVIEW WHICH IS OUT OF TIME AND DECLARATUR IN DISGUISE 14. The first respondent argued that the present application is a disguised review application which has been filed out of time without condonation. The application was filed after the eight weeks stipulated by r 62 (4) of the High Court Rules, 2021. This argument ignores the clear sentiments of the Supreme Court of Zimbabwe in _Gwaradzimba N.O_ v _Gurta A.G_ SC 12/15 where the court remarked as follows at page 5 of the cyclostyled judgment: “ _I find little to fault in the reasoning of the court a quo on this point. As correctly stated, s 4 (1) of the Administrative Court Act (“the Act”) provides that the statutory relief referred to by the judge a quo may be sought by way of an application to the High Court. However no specific format for such application is prescribed. While a review in terms of the High Court Rules is a special form of application, there is nothing in s 4(1) to suggest that any other form of application for judicial review would in any way offend against that sub-section as long as it meets the requirements of an ordinary court application.”_ 15. Accordingly, there is no merit in the argument that a litigant who approaches this court in terms of 4 of the Administrative Justice Act must comply with the requirements of r 62 of the High Court Rules, 2021. This is so notwithstanding that such application is still a review by this court. It is not clear what the first respondent exactly means in arguing that the present application is a disguised _declaratur_ under s 4 of the Administrative Justice Act because a _declaratur_ has been sought by the applicant under s 14 of the High Court Act. I do not therefore see any merit in this point in _limine_ and it is dismissed. FAILURE TO EXHAUST DOMESTIC REMEDIES AND JURISDICTION 16. This argument was taken by all the respondents who opposed this application. It was submitted that this court should decline to exercise its jurisdiction because the applicant has other remedies available in terms of the law. This court is slow to exercise its review jurisdiction where domestic remedies have not been exhausted. See _Musunga_ v _Law Society of Zimbabwe_ SC 61/65. In this instance, the court is alive to the fact that it is only this court and no other forum which can review the impugned conduct of the fifth respondent. In that regard, it will be wrong to then say that the court has no jurisdiction to adjudicate this matter simply because the dispute can be resolved by the sixth respondent in terms of s 283 of the Constitution of Zimbabwe. This court accepts that it has jurisdiction to review the conduct of the respondents. See _Kamuchenje and Others_ v _Minister of Local Government and Public Works and Others_ HH 443/24. To the extent that the application is one of review, the point in _limine_ relating to lack of jurisdiction has no merit and it should be dismissed. 17. The argument relating to the non - exhaustion of domestic remedies has been stretched to make reference to s 7 of the Administrative Justice Act [_Chapter 10_ :_28_] which provides as follows: “ _**7 Discretion to entertain applications**_ _Without limitation to its discretion, the High Court may decline to entertain an application made under section four, if the applicant is entitled to seek relief under any other law, whether by way of appeal or review or otherwise, and the High Court considers that any such remedy should first be exhausted.”_ 18. It is inescapable that the applicant in this case could have brought a review application in terms of s 26 of the High Court Act [_Chapter 7:06_] which provides as follows: “ _**26 Power to review proceedings and decisions**_ _Subject to this Act and any other law, the High Court shall have power, jurisdiction and authority to review all proceedings and decisions of all inferior courts of justice, tribunals and administrative authorities within Zimbabwe.”_ 19. The grounds of review which this court can entertain are spelt out in s 27 of the same Act and those grounds are not exhaustive. Such application can even be premised upon any other common law ground of review. There is no reason why the applicant has not pursued such a route. There is simply no reason why he has sought to base his application for review under the provisions of s 4 of the Administrative Justice Act. The argument that he has taken such route only to evade from the eight - week time bar which is imposed by r 62 (4) is persuasive to this court. During the six years spanning from 2019, he has not made any attempt to engage the third to the sixth respondents over his complaint so that his observations could be considered and that appropriate action could have been taken to resolve or address his misgivings about the result, work or report of the third commission that he wants this court to nullify. It is persuasive therefore that this is a typical case where this court should frown upon the applicant’s failure to exhaust domestic remedies. This point in _limine_ has merit and it is upheld. **CONCLUSION** 20. The finding that the applicant’s cause of action is prescribed goes to the root of the application to warrant its dismissal. I am not persuaded to award punitive costs against the applicant for two reasons. Firstly, I agree with Mr _Maanda_ that there is no perverse conduct by the applicant warranting such a scale of costs. Secondly, the respondents have also failed to succeed in some of their points _in_ _limine_ which the applicant was entitled to oppose before this court. As a result, I will order as follows: 1. The point _in_ _limine_ regarding the wrong reference to the High Court in Harare and the reference to the non – existent Administration of Justice Act is dismissed. 2. The point _in_ _limine_ regarding the applicant’s alleged lack of _locus standi_ is dismissed. 3. The point _in_ _limine_ that the application is a disguised review which is out of time without condonation is dismissed. 4. The point _in_ _limine_ regarding this court’s lack of jurisdiction is dismissed. 5. The point _in_ _limine_ regarding applicant’s failure to seek and obtain leave to sue the sixth respondent is hereby upheld. 6. The point _in_ _limine_ regarding the applicant’s failure to exhaust other remedies is hereby upheld. 7. The point _in_ _limine_ that the applicant’s cause of action is prescribed is hereby upheld and the application is accordingly dismissed with costs. _Maunga Maanda &Associates, _applicant’s legal practitioners _Tanaya Law Firm_ , 1st respondent’s legal practitioners _Civil Division of the Attorney General,_ 3rd to 6th respondents’ legal practitioners