Daniel Nemukuyu Senior Court Reporter
THE High Court has set aside a decision by Chief Negomo, Mr Luscious Chitsinde’s, court to convict and fine Prime Minister Morgan Tsvangirai over his alleged marriage to Ms Locadia Karimatsenga in the sacred month of November on a technicality.
The judgment leaves room for whoever complains against the PM’s behaviour to institute fresh proceedings against him.
Justice Bharat Patel cited several irregularities in the whole process in dismissing the judgment and the order of Chief Negomo’s community court.
“In the result, it is ordered that the proceedings, judgment and order of the Negomo Community Court in case Number GCD 424/2011 be and is hereby annulled and set aside,” ruled Justice Patel.
“The proper plaintiff in this matter is given leave to institute proceedings in a court of competent jurisdiction for the case to be heard de novo in that court.
“The learned provincial magistrate is directed to notify Chief Negomo and the parties to Case Number 424/2011 accordingly.”
Justice Samuel Kudya concurred with the findings.
Justice Patel said the summons served by Chief Negomo’s court were invalid because the chief was both the complainant and the presiding officer.
The summons cited Chief Negomo as the plaintiff, but in court papers a man called Morris Nyikadzino was now the plaintiff, changes that were never explained.
“It should be blindly obvious to any judicial officer that he cannot institute a claim or complaint and also adjudicate it himself,” said Justice Patel.
“It follows that the summons issued by Chief Negomo is fundamentally flawed.
“For this reason alone, the proceedings pursuant to that summons constitute a nullity and must be treated as being ‘void ab initio’.”
Service of the summons, according to the court, was irregular.
“There is no indication as to the person upon whom the summons was served,” said Justice Patel.
“Equally significantly, the summons was served in Harare, well outside the remit of the court’s jurisdiction. In the premises, it must be concluded that service of the summons in this case was irregular and fatally defective.
“Consequently, the defendant cannot be held to have been in wilful default as was determined and recorded by the court.”
Justice Patel noted that Chief Negomo is empowered to hold his court sessions in the Kanhukamwe area, but in PM Tsvangirai’s case it sat at Gweshe Business Centre outside the area.
Last month, a magistrate at Bindura Magistrates’ Court confirmed the traditional court’s decision, but his boss, Mr Fellex Mawadze, who is in charge of Mashonaland Central Province, set aside the same decision.
To rectify the conflicting findings, Mr Mawadze referred the case to the High Court.
The law provides that a provincial magistrate may use his or her discretion to refer a matter to the High Court for review whenever necessary.
The provincial magistrate in Bindura last Thursday sent the record of proceedings to the High Court.
At law, a magistrate, no matter how senior, cannot review a fellow magistrate’s decision.
The High Court alone has such jurisdiction.
Chief Negomo found PM Tsvangirai guilty of paying lobola for Ms Locadia Karimatsenga on November 22 last year.
The month of November is deemed sacred in many local cultures and it is taboo to marry or conduct rituals during the month.
PM Tsvangirai was fined two cattle, two sheep, a 10-metre-long piece of cloth and a ball of snuff by Chief Negomo’s court.
He did not turn up for Chief Negomo’s court session, resulting in a default judgment being entered.
The MDC-T leader did not pay the fine, a development that resulted in the chief attempting to attach property from the PM’s Strathaven home in Harare.
PM Tsvangirai was jointly charged with members of the Karimatsenga family, who attended the court session and were also fined the same number of cattle, sheep, cloth and snuff.