CoA slams High Court judge for acting without jurisdiction
Spira Tlhankane | Wednesday August 20, 2025 06:00
CoA’s Justice Leatile Dambe recently told the court that Justice Makhwe acted without jurisdiction when she ordered the remittal of the matter to the specialised court that handles appeals related to land matters.
Makhwe’s judgment remitted the matter to the Land Tribunal for final determination and enforcement of Justice Godfrey Nthomiwa’s 2020 judgment, in a case in which siblings were fighting for land.
Nthomiwa’s judgment had ordered that the customary court was correct to disinherit the male heirs of the estate field because the land in question was left for the female children, and both deceased parents had agreed on that.
As the curtain finally closed on the matter, CoA’s Justice Dambe emphasised that Nthomiwa's decision was a final judgment on the dispute between the parties, it was not appealed, and it remained in effect.
“The appeal had to be confined to a narrow scope on this question of law specified above, as to do otherwise would have resulted in this court entertaining issues that were resolved through that judgment when no appeal had been noted against it.
“This appeal is bound to succeed on the narrow point raised,” Dambe said.
Dambe said Justice Makhwe’s order invariably had the effect of subjecting the decision of Justice Nthomiwa to some form of review by herself and the court to which the order was directed.
“To conclude, Justice Makhwe did not have jurisdiction to issue an order directing a court of subordinate jurisdiction to finally determine a matter over which another judge of coordinate jurisdiction had adjudicated upon,” she emphasised.
Dambe added that none of the legislative provisions that confer jurisdiction on a High Court judge such as Section 95 (1) of the Constitution and Section 10 (1) of the High Court act (Cap 04:02) clothes one Judge of the High Court with authority to interfere in any manner whatsoever with a final decision of another judge of coordinate jurisdiction.
Dambe cited a case where it was decided by the full bench of the CoA that a judge of the High Court cannot review the decisions or orders of another High Court judge.
In the end, the CoA set aside Justice Makhwe’s 2023 decision to remit the matter to the Land Tribunal.
Before final determination by the CoA the matter, it was noted that the matter had a long history and that it had gone through several courts, including the Customary Court of Appeal.