By Victor Fanuel
MASVINGO — The High Court has delivered a bruising judgment against Chief Murinye (Ephias Munodawafa), accusing him of abusing the powers of his traditional court by hauling a private school owner before him while a related dispute was already pending before the High Court.
In a ruling heavy with criticism, Justice Christopher Dube-Banda threw out the chief’s summons against Riverton Academy founder Philimon Mutangiri, declaring the proceedings a nullity after finding they were intended to derail ongoing litigation.
Justice Dube-Banda described the case as a “text-book case” in which the High Court had to invoke its inherent powers to stop “a grave injustice.”
The dispute centres on Riverton Academy Extension in Murinye area, where tensions erupted after Chief Murinye blocked parents from taking children to the school, arguing that it had been built without his approval.
Mutangiri successfully obtained a High Court order stopping the blockade.
Days later, however, the chief issued fresh summons ordering Mutangiri to appear before his community court to answer allegations that the school had been built on sacred land and that he had insulted the chief.
Mutangiri challenged the summons, arguing that Chief Murinye was trying to decide issues already before the High Court while also acting as complainant in the alleged insult case.
Justice Dube-Banda agreed.
“The Chief seeks, by the summons he issued, to undercut and undermine the process” already before the High Court, the judge ruled.
He found that if the traditional court had proceeded to order the removal of the school, it would have effectively decided the very dispute awaiting determination by the High Court.
The judge also rejected Chief Murinye’s argument that customary law entitled him to hear allegations that Mutangiri had undermined his authority.
“The Chief is the complainant and judicial officer in the same matter.
“The distinction between him as a person and him as chief is a distinction without a difference,” Justice Dube-Banda said.
Quoting the constitutional right to a fair hearing before an independent and impartial tribunal, the judge ruled that no person could preside over a case in which they had a personal interest.
“The nemo judex in sua causa principle applies with force in this case,” he said, referring to the long-established legal rule that no one should be a judge in their own cause.
Justice Dube-Banda also criticised Chief Murinye for proceeding to hear the matter and granting a default judgment against Mutangiri even after he had been served with papers challenging the summons in the High Court.
The court said once a superior court is seized with a matter, parties should preserve the status quo instead of taking steps that could render court proceedings meaningless.
Justice Dube-Banda set aside both the summons and all proceedings conducted before the chief.
Although Mutangiri had asked for punitive legal costs, the court declined, ordering Chief Murinye to pay ordinary party-and-party costs.
In a pointed parting shot, Justice Dube-Banda reminded traditional leaders that they occupy positions of public trust and should exercise restraint.
“Traditional leaders are generally regarded and accepted as the custodians of customs and traditions.
“The Chief must choose his fights with care and extreme circumspection… He must lead his community by the power of example,” he said.
Justice Dube-Banda’s ruling is expected to become an important authority on the limits of the powers of traditional courts, reinforcing that while customary law is recognised by the Constitution, it cannot override the constitutional right to an impartial hearing.
