… Appeals against Chief Zvimba ruling
…Wants court to review judgment
The family of the late former President Robert Mugabe has filed an appeal with the Magistrate Court challenging the ruling by Chief Zvimba which ordered the exhumation of the remains of the late nationalist and reburial at the National Heroes Acre.
Mugabe died in 2019, two years after he was deposed from power in a military-assisted transition. He was buried in Zvimba as per his wish.
Chief Zvimba recently ordered that Mugabe’s remains have to be exhumed and buried at the National Heroes Acre by July 1.
But in a notice of appeal filed at Chinhoyi Magistrate Court, Mugabe’s children—Bona Mutsahuni-Mugabe, Bellarmine Chatunga Mugabe and Tinotenda Robert Mugabe—noted that Chief Zvimba erred at law by making an order that overturns the burial of the late Mugabe when he had no “judicial authority to interpret legal acts from superior legislation to his jurisdiction”.
They argue that Chief Zvimba erred at law in making an order that affects property rights of a party that is not part of the proceedings.
The Chief, the family argued, made a false finding of fact which amounts to an error at law when he found that the late Mugabe was buried inside his house. This misdirection nullifies the ratio decidendi of his judgment, the trio argued.
The children noted that Chief Zvimba erred at law in granting an incompetent order for the exhumation of the body of the late Mugabe thereby usurping the lawful bounds of his judicial authority.
The trio said Chief Zvimba erred at law by imposing himself with territorial jurisdiction to the affairs of an area that he does not have any territorial jurisdiction over.
The notice of appeal comes as Grace Mugabe’s lawyers, Chimwamurombe Legal Practice, have written to the Provincial Magistrate Court in Chinhoyi to exercise judicial due to critical procedural and substantive law defects that have to be corrected.
The lawyers said there was bias against Grace since the summons issued on April 29 2021 by the Chief already carried a sentence of five cattle and one goat.
“This was made before the attendance and later on conviction of Grace Mugabe. The ultimate hearing was therefore manifestly biased since the sentence was already predetermined,” the lawyers wrote.
“Therefore, there was no impartiality in the proceedings done in the absence of our client, who is outside the country. The Chief called parties to hearing just as a formality, when he had already made his mind on how the matter should have proceeded. This is unjust and biased.”
The lawyers said Chief Zvimba had no jurisdiction to order the exhumation of the remains of Mugabe for reburial at the National Heroes Acre. By ordering that, the Chief “lawlessly annotated his judicial authority”.
“The burial of the late Robert Mugabe having been sanctioned by a legally obtained burial order can never be altered by the intervention of judicial offices such as those occupied by Chiefs. We urge you to correct this usurping of authority and sensationalisation of the Local Court’s province of competence,” the lawyers said.
Grace lawyers argue that the cause of action that was tried and assessed by the local court under Chief Zvimba does not fall within the expected parameters granting the Chief jurisdiction as stipulated in section 3 as read with section 15 and 16 of the Customary Law and Local Courts Act.
“We observe the Chief did not pay due regard to the choice of law process and found himself in grave error by ascribing a customary law mode of life to our client, something that is very far from the truth of her mode of life.
“Having no jurisdiction for the adoption of customary law applying against our client, the Chief ought to have declined jurisdiction and advised the plaintiff to escalate his claim to a more appropriate forum,” the lawyers said.
They argued the plaintiff, Tinos Manongovere, had not sufficiently identified himself to appropriately be placed as a suitable plaintiff in the local court. There is no information that has been provided to show the substantial legal interest that vest with the plaintiff thereby prompting him to approach the court vis-a-vis the aforementioned choice of law, the lawyers said.
The lawyers want the courts to intervene.
“In the spirit of achieving substantially and procedurally fair judicial processes, we intimate that you exercise your review powers against Chief Zvimba as they are laid out in section 25 of the Customary Law and Local Court Act,” the lawyers wrote in a letter dated June 2.
“It is our submission that the local court should be advised that it does not have the weight of the law to determine matters that are governed by superior legislation to the affairs of the local courts may determine.
“Having preceded by the lawful process of under the Burial and Cremation Act [Chapter 5:03], the Chief, with respect, fell out of his depth.”