TUTORIAL 4

1. What are customary law courts, and what is their primary function within the
judicial system? (10 marks)

Customary law courts are the lowest on the hierarchy of courts in Zimbabwe and consist
of primary and community courts, they apply unwritten, traditional rules to resolve civil
disputes within a community. These courts are presided over by traditional leaders in the
form of Headmen or Chiefs and are created by the Minister of Justice, Legal and
Parliamentary affairs by warrant published in a Statutory instrument. 1 These courts were
borne out of the provisions of section 192 of the Constitution of Zimbabwe, 2013 which
provides that the law to be administered by the courts of Zimbabwe is the law that was in
force on the effective date, as subsequently modified. Thus, Zimbabwe operates a dual
legal system consisting of general law (common law and statute) and African customary
law.2 The effective date referred to is the 10 th of July 1891 when the white settler regime
colonised Zimbabwe thereby imposing Roman Dutch law to displace the systems of life
that were in place then.

The Customary law Courts have jurisdiction in civil matters where the parties have
expressly agreed that it should apply considering their surrounding circumstances in
terms of section 3 of the Customary Law and Local Courts Act, Chapter 7:05. Customs
are a key source of law in Zimbabwe and are defined as, “rules that become binding in the
course of time through observance by the community in question and are not necessarily
written down.”3 These customs are just passed from generation to generation without
documentation and are sometimes inconsistent and prone to various interpretations and
application depending on a specific locality. Proceedings in these courts are also not
recorded, making it difficult to make future references. These courts are however a good
starting point for the application of justice as they ensure that laws can reach all corners
of society regardless of remoteness. Civil matters are also conveniently dealt with in a
cost-effective way and there are mechanisms to cascade and trigger a review or appeal
where one of the parties is not satisfied with the processes or proceedings.

It should be noted however, that even though the Customary law courts are the courts of
first instance on matters in which customary law is applicable, all other superior courts
1
Section 10 (1) (a) and (b) of the Customary Law and Local Courts Act, Chapter 7:05
2
Madhuku L, An introduction to Zimbabwean Law, Weaver Press, 2010.26
3
Note 2 above. 25

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such as the Magistrate Court, High Court, Supreme Court and Constitutional Court can
also entertain customary law issues through the review and appeal processes.

The functions of Customary law courts are.

 Dispute resolution - they provide a localized system of resolving disputes among

community members according to established customary laws that are acceptable
to all parties.
 Accessibility and Affordability – they increase access to justice particularly to
rural communities where formal court processes may be complex and out of the
reach of many. This helps in ensuring peace and harmony in communities as
issues can be addressed before escalating to violence.
 Application and Development of Customary Law – the application of
Customary law helps in preserving our rich cultural heritage as a people, this is
even enshrined in sections 16 and 33 of the Constitution of Zimbabwe, 2013.
 Community based justice – since customs are unwritten rules that all people
submit to and agree to be bound by their application in dealing with matters help
to foster a sense of community ownership of the justice process, allowing people
to participate in resolving their disputes according to principles known and
accepted within their traditions.

Even though Customary law is applicable in Zimbabwe, it should be in line with the
provisions of section 2 of the Constitution of Zimbabwe, 2013 which highlights the
supremacy of the Constitution. Case law supporting this is Chapeyama v Matende &
Anor (2000) in which the court applied general law instead of customary law to distribute
matrimonial property in a divorce, despite the parties being in an unregistered customary
union. The court found that applying customary law would have been unjust to the wife,
who was entitled to a much smaller share under customary rules, even with her
contributions to the marriage. By using general law, the court was able to achieve an
equitable distribution of property and protect the wife's rights.

2. Describe the process by which customary courts are established in your

jurisdiction. What legal provisions govern their creation? (10 marks)

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 In Zimbabwe Customary courts are the local courts, which refer to primary and
community courts as defined in section 2 of the Customary Law and Local Courts Act,
Chapter 7:05. These courts are created by the Minister of Justice, Legal and
Parliamentary affairs by warrant published in a Statutory instrument as per the provisions
of section 10 (1) (a) and (b) of the Customary Law and Local Courts Act, Chapter 7:05.

3. Explain the jurisdiction of customary law courts. What types of cases do they
typically handle? (10 marks)

“Jurisdiction of the court refers to its powers and the matters over which it has
competence and determines its position in the structure of the courts, particularly how it
relates to other courts.”4 The jurisdiction of Customary law courts in Zimbabwe is
provided for under section 15 of the Customary Law and Local Courts Act, Chapter 7:05
as follows.

Subject to this Act and any other enactment and in particular to section sixteen, a
local court shall have jurisdiction to hear, try and determine any civil case in which
customary law is applicable where -
(a) the defendant is normally resident within the area of jurisdiction of the
court; or
(b) the cause of action or any element thereof arose within such area; or
(c) the defendant consents to the jurisdiction of the court.

The Customary law courts deal with cases such as the following.
 Boundaries.
 Chieftainship.
 Disputes in Customary marriages.
 Disputes over debts within a prescribed monetary value.
 Inheritance and succession.
 Witchcraft.

4
Note 2 above, 61.

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The kind of cases in which the Customary law courts lack jurisdiction to preside over are
provided for in section 16 of the Customary Law and Local Courts Act, Chapter 7:05 and
they include the following.
 Determination of matters with a monetary value above a prescribed limit.
 Determination of the validity, effect or interpretation of any will.
 Determination of the custody or guardianship of minors.
 Determination of the liability of any person to maintain another.
 Determination of rights in respect of land or other immovable property.
 Dissolution of any marriage.

4. Discuss the rules of procedure typically followed in customary courts. How do

these rules differ from those in formal courts? (10 marks)

The rules of procedure followed in Customary Courts are provided for in section 20 of
the Customary Law and Local Courts Act, Chapter 7:05 as follows.

Procedure in local courts

(1) Subject to this Act, the procedure and law of evidence in local courts shall be
regulated by customary law and not by the general law of Zimbabwe, and the
proceedings in such courts shall be conducted in as simple and informal a manner as
is reasonably possible and as, in the opinion of the person presiding over the court,
seems best fitted to do substantial justice.

(2) A legal practitioner shall not be entitled to appear in a local court on behalf of a
party in any case before such court.

(3) Subject to the Courts and Adjudicating Authorities (Publicity Restriction) Act
[Chapter 7:04], all cases in a local court shall be heard in open court.

Section 20(2) of the Customary Law and Local Courts Act, Chapter 7:05 is however
inconsistent with the provisions of section 69 (4) of the Constitution of Zimbabwe 2013
which provides that every person has a right, at their own expense, to choose and be
represented by a legal practitioner before any court, tribunal or forum. It is therefore
invalid as dictated by section 2(1) of the Constitution of Zimbabwe, 2013, which says that
the Constitution is the supreme law of Zimbabwe and any law, practice, custom or
conduct inconsistent with it is invalid to the extent of the inconsistency.

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These rules differ from the proceedings in the formal courts in that all other superior
courts are courts of record, and their proceedings are documented for future reference and
review unlike those of Customary law courts that are not recorded. Also, proceedings in
the formal courts are formal compared to those in Customary law courts that are informal.
In terms of the presiding officers the processes in local courts are overseen by a Headman
or Chief for Primary and Community courts respectively while those of a Magistrate
Court are presided over by a Magistrate and those of the High Court, Supreme Court and
Constitutional Courts are presided over by Judges as per the specific legislation providing
for the creation of the respective courts.

In the local courts the presiding officer is assisted by at least two assessors who serve as
advisors whereas in the Magistrate court the presiding officer is also assisted by at least
one assessor but whose role is limited only to matters of fact depending on whether they
are an Ordinary, Senior, Provincial or Regional Magistrate. In all other superior courts
assessors are also common and their roles is largely limited to matters of fact with matters
of law being a preserve for presiding officers whose vote should be unanimous, or the
majority vote takes the day where more than one presiding officer sits over a matter.

In the Customary law court, there is a clerk of court appointed for the purposes of issuing
court processes and exercising such other functions as may be prescribed or as may be
conferred or imposed upon him by the person presiding over the local court concerned. In
the Magistrate court there is also a clerk of court who serves the same functions. At the
superior courts there is a Registrar whose functions are the same as those of the Clerk of
the High Court.

5. How are trials conducted in customary courts, and what principles guide their
proceedings? (10 marks)

In terms of section 20(3) of the Customary Law and Local Courts Act, Chapter 7:05 the
cases in a local court are heard in open court. Also, the trials conducted in customary
courts should be in line with the supreme law of the land which is the Constitution of
Zimbabwe, 2013 specifically under section 69 which provides as follows.

Right to a fair hearing

(1) Every person accused of an offence has the right to a fair and public trial
within a reasonable time before an independent and impartial court.

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 (2) In the determination of civil rights and obligations, every person has a right
to a fair, speedy and public hearing within a reasonable time before an
independent and impartial court, tribunal or other forum established by law.

(3) Every person has the right of access to the courts, or to some other tribunal
or forum established by law for the resolution of any dispute.

(4) Every person has a right, at their own expense, to choose and be
represented by a legal practitioner before any court, tribunal or forum.

Thus, the proceedings in the Customary law court should follow the principles of natural
justice which are the right to a fair hearing (audi alteram partem) and the rule against
bias (nemo judex in causa sua), ensuring decisions affecting individuals are made fairly
and impartially. See case of Mawere and Others v Mupasiri and Others CCZ 2/22, in
which the Constitutional Court of Zimbabwe ruled that the law of recusal is primarily a
law against bias, emphasizing it as a fundamental aspect of the constitutional guarantee of
a fair trial before an independent and impartial court.

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