Matyeka Whicho Makuvaza v The Minister of Local Government, Rural and Urban Development N.O. and Tate Whicho

### Preamble
1
HH 492-13
HC 5296/2010
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MATYEKA WHICHO MAKUVAZA

versus

THE MINISTER OF LOCAL GOVERNMENT, RURAL

AND URBAN DEVELOPMENT N.O.

and

TATE WHICHO

HIGH COURT OF ZIMBABWE

MAFUSIRE J

HARARE, 21 & 22 October 2013 & 18 December 2013

Civil trial

B. Chikowero, for the plaintiff

K. Murefu, for the defendant

No appearance for the second defendant

MAFUSIRE J: The dispute in this case was over the issue of succession to the position of village head.  The background information was that the plaintiff, Matyeka (correct name Mahleka) Whicho, was the last born male child in the family in question.  The second defendant, Tate Whicho, was plaintiff’s elder half-brother.  They were born of the same father but of different mothers.  Between them was another brother who had been born of the same mother as the plaintiff.  The plaintiff claimed he had been duly appointed the village head in 1999 and had on three occasions received the allowances for that position but that at a later date unknown to him the first defendant had surreptitiously revoked his appointment in favour of the second defendant and had stopped his allowances.  In the summons and declaration the plaintiff sought a declaratur that he, and not the second defendant, was the duly appointed village head and that the second defendant had to be stopped from executing any functions for that office.  The plaintiff also sought an order that he be issued with a clean letter of appointment.  Finally he sought arrear allowances for the office of village head together with interest, and also all future allowances for that office.

The defendants opposed the claim.  The first defendant’s case was that the plaintiff had never been appointed the substantive village head but that he had just been acting.  He had taken advantage of his acting capacity and had manipulated records to position himself for the village head allowances when they had subsequently been introduced.  Plaintiff could not have been eligible for appointment as village head ahead of his two elder brothers since in terms of the traditions and customs for that village succession to the office of village head followed seniority by birth.

The second defendant’s plea disputed that the plaintiff had ever been appointed village head and that he himself had been the next in line and had therefore been duly appointed.

The plaintiff gave evidence.  In summary his evidence was as follows: Village Whicho in the district of Gutu in the province of Masvingo was founded by his late father (hereafter referred to as “old man Whicho”).  Old man Whicho had two wives; the head wife who was plaintiff’s mother and a junior wife whom old man Whicho, in accordance with the custom of their clan, had “inherited” from his nephew, one Kadivirire, after the latter had died.  Kadivirire was the son of old man Whicho’s younger brother.

Old man Whicho had sons with both wives.  Their order of birth had been Tichayana, deceased, Gumiso, also deceased, and Mhondiwa, also deceased.  All these had been from plaintiff’s mother.  Next were Razaro (correct name Lazarus), deceased, and Tate, the second defendant, surviving, both from Kadivirire’s ex-wife.  Next were Julius, surviving, and lastly plaintiff, surviving, both from plaintiff’s mother again.

Plaintiff confirmed that succession to the Whicho village headship was by descending order of birth.  After his death old man Whicho had been succeeded as village head by Tichayana and then Gumiso.  The next in line would have been Mhondiwa.  However, Mhondiwa, said the plaintiff, had been mentally challenged and could therefore not become village head.  Next would have been Lazarus.  However, the plaintiff claimed, Lazarus was ineligible.  He had been a product of inheritance.  He said even the Bible prohibited that kind of practice.  Furthermore, the plaintiff went on, Lazarus had been away in Johannesburg, South Africa.  The practice was that for one to become village head one had to be physically and ordinarily resident in the village.

The plaintiff further explained that the next in line would have been the second defendant.  But, like Lazarus before him, second defendant had been ineligible.  Even though he was old man Whicho’s biological son, in terms of their custom the second defendant had been conceived to continue Kadivirire’s lineage.  Traditionally, plaintiff explained, second defendant was a “son” to him.  If Kadivirire had established a village of his own it is there that second defendant could have become a village head.

On how he could have been appointed village head ahead of his own brother by his own mother, Julius, who was still alive, the plaintiff explained that Julius did not stay in the village.  He had been employed in Gweru.  He said after Gumiso had died the then headman Makuvaza, real name Samuel Chipenzi, had called for a meeting of the Whicho people in 1999.  In terms of procedure, succession to village head was facilitated by the headman.  The meeting in question had been attended by the then district administrator (“DA”) for Gutu, one Mr Chikovo.  The second defendant had also attended.  But Mhondiwa had not.  The plaintiff said it was at that meeting that he had been nominated village head Whicho.  This had been ahead of the second defendant.  Second defendant had queried the appointment.  But headman Makuvaza had advised him to make out his case in the village court if he so wished.

The plaintiff further said that after his nomination his full particulars had been recorded and forwarded to the DA.  Headman Makuvaza had conferred on him a brass badge or crown as a symbol of the office.  He had however been surprised that when the other village heads in the Gutu district had received their letters of appointment in 2002 his had been left out.  He had made enquiries with the DA’s office as well as with the office of the first respondent.  However, he had got frustrated for being referred from one office to the other.  He had reported the matter to the police.  Eventually, through the assistance of the police, he had finally received the letter of appointment.  However, he had been shocked to discover that the letter had been altered unprocedurally in that, among other things, his name and identity particulars had been crossed out and had been replaced with those of Mhondiwa. He had not been informed of those changes.

The plaintiff produced both the badge and the letter of appointment.  The letter of appointment was marked exbt 1.  He said he had sporadically received the allowance for village head but that this had subsequently stopped.  He had eventually decided to take legal action.

After his evidence the plaintiff closed his case.

The first defendant called three witnesses.  The first to testify was one Pressley Tumirai Madondo (“Mr Madondo”).  He said that at all relevant times he had been a “mufambiri” for headman Gadzingo.  A “mufambiri”, according to the explanation, is the errand boy or the executioner of official functions for the headman.  Mr Madondo explained that he was standing in for headman Gadzingo, real name Jefureti Manganda Madondo.  The real headman Gadzingo was now too old and frail.  Mr Madondo said that it was him that had been in charge of appointments of village heads under headman Gadzingo.  He had been the one in charge of completing the nomination forms and of taking the finger prints for those nominated for official appointment.

Mr Madondo’s evidence can be summarised as follows: there had been a tussle between the Makuvaza and the Gadzingo families over the headmanship.  The Makuvaza family had wanted to confine the headmanship to their family to the exclusion of other eligible families.  In 1999 Samuel Chipenzi, then headman Makuvaza, had ceased executing any official functions.  Mr Madondo disputed that the plaintiff had been appointed village head.  The procedure for appointment as village head was that the family would approach the headman with their choice.  The headman would endorse and forward the name to Chief Gutu for approval.  From there the name would be forwarded to the DA’s office for recognition.

Regarding the Whicho village headship, Mr Madondo said that after Gumiso’s death Mhondiwa had been appointed as village head Whicho in 2000.  He disputed plaintiff’s claim that Mhondiwa had been mentally ill and said that he had just been physically infirm.  After Mhondiwa’s death in 2005 the Whicho family, amongst them Julius, the second defendant and one of their sisters, had again approached the headman and had put forward the second defendant’s name for appointment.  The headmanship was now under Gadzingo, after Samuel Chipenzi, as headman Makuvaza, had died.  At a subsequent meeting of the Whicho family the second defendant had been nominated and his name had been forwarded for official appointment.

Mr Madondo said that he knew nothing about exbt 1.  He also disputed that the plaintiff had received any allowances as village head and said that, instead, the plaintiff had on one occasion grabbed for himself the allowance due to Mhondiwa.  He had stalked Mhondiwa to the DA’s office on the date of payment.  He had been reported to the police and had been arrested.

Mr Madondo said that he knew nothing about the badge or crown that the plaintiff claimed to have been given by headman Makuvaza and insisted that headman Makuvaza had at that time ceased performing any official functions.  He said there were so many of those badges floating around.  The second defendant also had one for himself.

Mr Madondo said the Makuvaza / Gadzingo families and the Whicho family belonged to the same “Gumbo” totem.  He confirmed that the succession to the Whicho village headship followed seniority by order of birth.  He did not know the second defendant’s mother’s marital status prior to her getting married to old man Whicho.  However, he disputed the custom alleged by the plaintiff that the second defendant was ineligible to become the village head for Whicho just because he had been a product of inheritance.  He said all that mattered was that the second defendant had been the biological son of old man Whicho.

The second witness for the first defendant was one Felix Alexander Chikovo (“Mr Chikovo”).  He had been the substantive DA for the district of Gutu at the relevant time.  His evidence was to the effect that the appointment of village head followed the customs and traditions of the village concerned.  His office would record the customs and traditions of the people.  In the Shona tradition succession was through the male lineage and excluded any maternal lines.  For the Whicho village the eldest surviving son succeeded to the throne.  He said he knew nothing about the second defendant having been conceived to continue Kadivirire’s lineage.

Mr Chikovo explained that in 2000 all DAs had been instructed by government to produce a register for substantive heads and to make recommendations for appointments to fill any vacant posts. According to the records plaintiff had never been appointed a substantive village head but had merely been acting on behalf of his brother Mhondiwa.

In 1999 the government had decided to pay allowances to village heads.  In respect of Whicho when the first payment had been about to be made in 2002 headman Gadzingo had realised that the allowance was about to be paid to a wrong person, the plaintiff, instead of Mhondiwa. Headman Gadzingo had instructed the DA’s staff to make the necessary corrections after his office had submitted its own records.  Unfortunately, the DA’s office had been slow to effect the corrections and the first allowance had been paid to the plaintiff.  The plaintiff had pretended to be the substantive head when in fact he had merely been acting. The anomaly had subsequently been corrected.

Mr Chikovo further said that the Makuvaza / Gadzingo headmanship had been known by the name Gadzingo prior to Zimbabwe’s independence in 1980.  However, when the Makuvaza family had assumed the throne they had changed the name to Makuvaza.  After Samuel Chipenzi’s reign in 1999 the name had reverted to Gadzingo.

The third and last witness for the first defendant was one Mandipaushe Makore (“Mr Makore”).  At all relevant times he had been the receptionist at the DA’s office at Gutu district.  In his line of duty he received all the visitors for the DA.  He explained that in 1999 Mr Chikovo had been the DA.  There had been a programme to take stock of all the village heads.  According to an instruction from government all headmen had to bring a list of all village heads under them with all the relevant particulars. This had been for the purposes of issuing certificates of appointment. Among the names of the headmen had been one Makuvaza, Samuel Chipenzi, who had succeeded his father for the “terera” period. “Kuterera” was a term to denote a temporary period between the death of a substantive head and the appointment of a successor.

Mr Makore said Makuvaza had been issued with a certificate of appointment for the plaintiff as village head Whicho.  In 2000 Makuwaza’s “kuterera” had come to an end.  That was when the Gadzingo family, which was also eligible, had seized their chance.  In 2001 they had succeeded in claiming the headmanship and had gone on to change the name to Gadzingo.  Later, Mhondiwa, the second defendant and Julius, all from Whicho, had come to the DA’s office in the company of headman Gadzingo.  They had explained to the DA, Mr Chikovo that they had come to correct an anomaly.  They said the village head in office, the plaintiff, was not the correct one as he was the youngest son in the family.  There were other older brothers ahead of him still surviving.  Headman Gadzingo had gone into the DA’s office and had corrected the anomaly by cancelling out the names and particulars of the plaintiff on the relevant records and replacing them with those of the right person, Mhondiwa. Mr Makore had been the one with the date-stamp.  He had date-stamped the correction.  The plaintiff had not been present.

The situation had remained like that until February 2002 when all the village heads would start receiving allowances.  For Whicho, it had been Mhondiwa who had received the first allowance. It had remained like that for some time until the day when they were surprised to see the plaintiff snatching his brother’s allowance there at the DA’s offices.

In 2005 Mhondiwa had died.  Headman Gadzingo had approached the DA’s office with the second defendant.  The second defendant was then appointed as village head Whicho.  He had started receiving his allowances.  But again there was a time when the plaintiff had snatched the second defendant’s allowance.  He had been arrested by the police and had spent the night at the cells until the new DA, one Mashamba, had pleaded for the plaintiff’s release to enable the matter to be resolved at the village level.

Mr Makore said he knew nothing about the plaintiff receiving any allowances as village head.  When cross-examined on exbt 1, Mr Makore could not shed light on it but said the certificate that he had date-stamped had had no cancellations.  He admitted that the plaintiff had once been issued with some certificate of appointment but said that he could not remember the period.  About the badge or crown, Mr Makore said he knew nothing about it as such badges were issued by headmen.

After Mr Makore, the second defendant closed his case.

Even though he had attended the pre-trial conference, the second defendant did not attend trial.  There was no information about his whereabouts.  The matter was adjourned for closing addresses.  The parties had opted to make written submissions.

The matter had been referred to trial on five issues.  These had been:

(1) 	whether or not the plaintiff had been appointed village head for Whicho village; (2) whether or not that appointment had subsequently been cancelled;

(3) 	whether or not the plaintiff was entitled to a declaratur to the effect that he was still the village head for Whicho under chief Gutu in Masvingo Province;

(4) 	whether or not the plaintiff was entitled to payment of village head allowances, and

(5)	 if so, the effective date and the quantum thereof. It had been agreed that the onus of proof had been on the plaintiff on all the issues.

In my view the matter for determination boiled down to whether or not the plaintiff had been duly appointed village head in respect to which he had legitimately received the allowances for that office when they had subsequently been introduced.  If the plaintiff had been duly appointed village head but had subsequently been removed the next enquiry would be whether such removal had been procedural or, in other words, lawful.

According to the facts that were common cause, succession to the Whicho village headship followed seniority of the male children by order of birth.  The plaintiff’s case was that you not only look at the father’s side but also the mother’s side as well.  His case was that the second defendant was ineligible to succeed to the Whicho throne because although he was old man Whicho’s biological son, he was by custom a Kadivirire, and therefore a foreigner in the line of succession for the Whicho village headship.  On the other hand the first defendant’s case was that the mother’s side had no relevance.  For as long as the second defendant was a Whicho from the father’s side he was eligible.

It was also common cause that whether from the father’s side or the mothers’ sides, the plaintiff was the last male born son in the household.  From the father’s side there were two “brothers” ahead of him still surviving: the second defendant and Julius.  I have put brothers in quotations because among the Shonas, and possibly several other ethnic groups as well, there is a lack of precision on relationships like half-brother or cousin, nephew, niece, uncle or aunt.  For example, children born of the same father or from the father’s brothers or even the father’s cousins, whether paternal or maternal, are all referred to as brothers and sisters.  Thus while the plaintiff and the second defendant were, according to the evidence, half-brothers, the community would regard them simply as brothers.

From the plaintiff’s mother’s side there was Julius ahead of him.  Plaintiff’s case was that as a progeny of inheritance the second defendant was disqualified from assuming the throne of village head Whicho.  Julius was also disqualified because he had not been ordinarily resident in the village when the post of village head had become vacant.

In my view the plaintiff has not succeeded in proving that according to the customs and traditions of his clan the matriarchal lineage had any relevance in determining the succession to the throne of village head.  Mr Chikovo, the DA for the area at the relevant time, said that no such custom or tradition had been entered in their records.  It was the procedure that the customs and traditions of the relevant community would be researched and recorded for the purposes of determining lines of succession.

Furthermore, Mr Madondo who came in as the first defendant’s second witness and who belonged to the same clan or totem as the plaintiff had no knowledge of such custom. Plaintiff produced no records or called any witness to prove such a custom.  He strongly relied on the Book of Genesis in the Bible to disqualify the second defendant from the throne of Whicho village head.  He argued that as a progeny of inheritance which the Bible prohibited, the second defendant was ineligible.  However, the issue was not about what the Bible said.  It was about the customs and traditions of the Whicho people on matters of succession to the throne of village head.

Even if the second defendant had been ineligible, the plaintiff still had Julius to contend with.  He failed to satisfy the court on why he could ever be preferred to the throne ahead of Julius who was also a son by his own mother.  It was the first defendant’s case through all his witness that the son next in line would be offered the chance to assume office whether or not he was ordinarily resident in the village.  If the eligible son was away at work or for whatever reason he would still be called to, or notified of, the succession meeting.  It would be up to him to decline or be excused or to immediately pass on the button to the one next in line. The onus had been on the plaintiff to prove that the practice had been what he said it was.

In the premises I am satisfied that the plaintiff’s chance for appointment to the office of village head for Whicho village had at all material times not arrived. There was no conceivable reason why he would have been preferred ahead of his older brothers.

The next enquiry is that notwithstanding that the plaintiff might not have been eligible for appointment as village head for Whicho village at the relevant, nevertheless, had he been appointed anyway, such that his removal would have had to follow due process?  If he had been duly appointed at some stage, then, among other things, under no circumstances would he have been removed without being afforded a chance to be heard in accordance with the rules of natural justice.

The plaintiff’s evidence of appointment as Whicho village head was exbt 1, the badge or crown and his claim that on three occasions he had received allowances for that office.

Exbt 1, with the cancellations on it, was as follows:

“MINISTRY OF LOCAL GOVERNMENT , PUBLIC WORKS AND NATIONAL HOUSING

VILLAGE HEAD: LETTER OF APPOINTMENT

In terms of Section 11(i) of the Traditional Leaders Act Chapter 29:17, the Secretary has appointed … Matyeka …Mhondiwa……Whicho…I.D. 27-05548827-033378F -27 27 as Village Head ……. Whicho …. to preside over …. Whicho …………… under Headman ….. Makuvaza ….. Gadzingo … under Chief ……….. Gutu ………. in …….. Gutu …….. District in the province of …………. Masvingo …… with immediate effect.

You shall execute your duties as prescribed in Section 12 of the said Act.”

The letter was dated 14 February 2002 and co-signed by the DA, Mr Chikova, and the Secretary for the ministry.  At the top left-hand corner was a date-stamp marked “HEADMAN GADZINGO” but the date was indecipherable. Above the date-stamp was an ID number and the name “WHICHO MHONDIWA” but both had been crossed out.

It is possible that at some point the plaintiff had in some capacity stood as village head for Whicho village and that such capacity had received some form of official recognition.  However, there was no evidence that such appointment had been in a substantive capacity.  There could be no conceivable basis for appointing the plaintiff as village head Whicho ahead of his brother Mhondiwa.  Plaintiff’s claim that Mhondiwa was disqualified by reason of insanity was backed by nothing other than his word of mouth.  The plaintiff produced no official certificate or any other record whatsoever of Mhondiwa’s alleged insanity.  He called no witnesses. On the other hand, the first defendant’s witnesses, particularly Mr Madondo, expressly disputed that Mhondiwa had been insane.  They testified that it was Mhondiwa, not the plaintiff, who had succeeded to the throne after Gumisa. Although the evidence of the defendant’s witnesses on this aspect seemed to differ in some matters of detail I was satisfied that in substance the evidence was all to the same effect.

There was also no evidence that the plaintiff had officially received in his personal capacity the allowance for the office of village head. The only plausible evidence on this point was that the plaintiff had either manoeuvred himself in such a way as to be at the right place at the right time when the allowances for village heads had been introduced, or that he had forcibly grabbed some of those allowances from the rightful beneficiaries as a result of which he had been arrested.

Regarding the badge or crown, it was simply inscribed with the words “KRAAL HEAD”.  No name was inscribed.  The first defendant’s witnesses said that there were a number of such badges floating around. The plaintiff said it had been conferred on him by the then headman Makuvaza.  However, I accept the evidence of the first defendant’s witnesses that at the critical time that the plaintiff claimed to have been appointed Makuvaza’s reign had officially come to an end and that his power or authority to execute official functions had terminated.

The correction of the official records to reflect the correct heir to the throne of village head for Whicho such as exbt 1 may have been done crudely.  However, in the circumstances of this case I am satisfied that no rights had accrued to the plaintiff as village head or as one entitled to any allowances for that office. The Traditional Leaders Act, Cap 29:17, which came into operation on I January 2000 had no relevance. Although in s 11 it provides for the appointment of village heads by the secretary for local government on the nomination of the local headman, the Act does not prohibit the practice by the DA’s office to follow the customs and traditions of the village concerned.  From the evidence, village heads were appointed on the nomination of headmen.  These in turn followed the nominations of the families concerned. The Act provided for the removal of a village head for reasons of discipline. That was not the case in this matter.

In the final analysis the plaintiff has failed to prove that he was ever officially appointed as village head for Whicho.  Therefore the question of whether or not he had properly been removed does not arise. It follows that all the issues listed on the joint pre-trial conference minute are decided against the plaintiff.  Thus the plaintiff’s case in its entirety is hereby dismissed with costs.

Gutu & Chikowero, legal practitioners for the plaintiff

Civil Division of the Attorney General’s Office, legal practitioners for the first defendant