News / National
Chief Negomo challenges Tsvangirai's marriage suit
28 Apr 2012 at 08:42hrs | Views
CHIEF Negomo yesterday filed an appeal at the Supreme Court contesting a High Court decision that set aside his ruling that found Prime Minister Morgan Tsvangirai guilty of marrying in the scared month of November.
On Wednesday, High Court judge Justice Bharat Patel nullified Chief Negomo's judgment that ordered PM Tsvangirai to pay two cattle, two sheep, a piece of white cloth and a ball of snuff as penalty for marrying Locadia Karimatsenga Tembo in November last year.
Chief Negomo is from Mashonaland Central Province.
The chief approached the superior court, seeking to have the High Court decision nullified.
PM Tsvangirai has since engaged Ms Elizabeth Macheka, daughter to Zanu-PF Central Committee member and former Chitungwiza executive mayor Cde Joseph Macheka.
In papers filed at the Supreme Court yesterday morning, the appellant is Morris Nyikadzino, who is said to be the ancestor of the Negomo clan.
He said this is a name used to represent Chief Negomo.
In his grounds of appeal, he submitted that he was not notified of both the magistrate court and High Court proceedings, both of which set aside the operation of his judgment.
He said the court proceeded to hear the matter without affording him an opportunity to make representation as required by the rules of natural justice.
"Because of the violation of the audi alterum partem (right to be heard) principle committed by the magistrate and perpetuated by the High Court, wrong findings of fact were arrived at to the extent that the identity of Chief Negomo and Morris Nyikadzino was held as different when in fact the two names refer to one person who represents the Negomo clan," read the papers.
"The High Court erred at law when it failed to appreciate that the cause of action that gave rise to Chief Negomo summoning the respondent (Prime Minister) was a customary matter which required the Chief himself to institute proceedings just the same way a court of law can cite a defendant or an accused person for contempt of court and preside over the matter."
It was submitted that the nature of the cause of action did not require any other plaintiff besides the Chief himself as the nature of the customary offence or misdemeanor was done against the community and not a particular individual.
"There is therefore nothing unusual about a chief personally requiring a defendant to answer to such allegations," he said.
Chief Negomo submitted that the customary law did not provide for a legal practitioner to be heard before a community court, yet the High Court gave undue weight and reference to letters written by the Prime Minister's lawyers challenging the traditional leader's jurisdiction.
"The setting aside of a Community Court's ruling on the strength of submissions made by a legal practitioner who has no right of audience in court is a clandestine way of granting audience to lawyers contrary to the relevant Act," he said.
It was also submitted that the High Court erred by subjecting the customary law to some common law when Section 89 of the Constitution of Zimbabwe was clear that customary law was a source of law.
The High Court should not have made a finding that a separate distinct person should be the plaintiff when customary law demanded that the Chief was the custodian of all customs and tradition.
"What the High Court sadly did by that irregular precedent was akin to saying that a chief should stand idle when abominations are committed in his area until someone complains. The High Court did not say that what the PM did by marrying in a sacred month of November is not taboo but demands a plaintiff separate from the chief as he is the presiding officer," he said.
The case was brought before the High Court for review after two Bindura magistrates gave conflicting judgments, one confirming an order to attach property at PM Tsvangirai's Strathaven home in Harare while another rescinded it.
PM Tsvangirai denied that he paid bride price to the Karimatsenga family, arguing he only sent emissaries to pay damages after he impregnated Locadia.
On Wednesday, High Court judge Justice Bharat Patel nullified Chief Negomo's judgment that ordered PM Tsvangirai to pay two cattle, two sheep, a piece of white cloth and a ball of snuff as penalty for marrying Locadia Karimatsenga Tembo in November last year.
Chief Negomo is from Mashonaland Central Province.
The chief approached the superior court, seeking to have the High Court decision nullified.
PM Tsvangirai has since engaged Ms Elizabeth Macheka, daughter to Zanu-PF Central Committee member and former Chitungwiza executive mayor Cde Joseph Macheka.
In papers filed at the Supreme Court yesterday morning, the appellant is Morris Nyikadzino, who is said to be the ancestor of the Negomo clan.
He said this is a name used to represent Chief Negomo.
In his grounds of appeal, he submitted that he was not notified of both the magistrate court and High Court proceedings, both of which set aside the operation of his judgment.
He said the court proceeded to hear the matter without affording him an opportunity to make representation as required by the rules of natural justice.
"Because of the violation of the audi alterum partem (right to be heard) principle committed by the magistrate and perpetuated by the High Court, wrong findings of fact were arrived at to the extent that the identity of Chief Negomo and Morris Nyikadzino was held as different when in fact the two names refer to one person who represents the Negomo clan," read the papers.
"The High Court erred at law when it failed to appreciate that the cause of action that gave rise to Chief Negomo summoning the respondent (Prime Minister) was a customary matter which required the Chief himself to institute proceedings just the same way a court of law can cite a defendant or an accused person for contempt of court and preside over the matter."
It was submitted that the nature of the cause of action did not require any other plaintiff besides the Chief himself as the nature of the customary offence or misdemeanor was done against the community and not a particular individual.
"There is therefore nothing unusual about a chief personally requiring a defendant to answer to such allegations," he said.
Chief Negomo submitted that the customary law did not provide for a legal practitioner to be heard before a community court, yet the High Court gave undue weight and reference to letters written by the Prime Minister's lawyers challenging the traditional leader's jurisdiction.
"The setting aside of a Community Court's ruling on the strength of submissions made by a legal practitioner who has no right of audience in court is a clandestine way of granting audience to lawyers contrary to the relevant Act," he said.
It was also submitted that the High Court erred by subjecting the customary law to some common law when Section 89 of the Constitution of Zimbabwe was clear that customary law was a source of law.
The High Court should not have made a finding that a separate distinct person should be the plaintiff when customary law demanded that the Chief was the custodian of all customs and tradition.
"What the High Court sadly did by that irregular precedent was akin to saying that a chief should stand idle when abominations are committed in his area until someone complains. The High Court did not say that what the PM did by marrying in a sacred month of November is not taboo but demands a plaintiff separate from the chief as he is the presiding officer," he said.
The case was brought before the High Court for review after two Bindura magistrates gave conflicting judgments, one confirming an order to attach property at PM Tsvangirai's Strathaven home in Harare while another rescinded it.
PM Tsvangirai denied that he paid bride price to the Karimatsenga family, arguing he only sent emissaries to pay damages after he impregnated Locadia.
Source - herald
