Raines Chadoka v Ignatious Chombo & 3 Ors

### Preamble
1
HH 287-12
HC 1620/09
---------


RAINES CHADOKA

versus

IGNATIOUS CHOMBO

and

MR SAKABUYA

and

CHIEF BERNARD SVOSVE

and

AENEAS CHIGWEDERE

HIGH COURT OF ZIMBABWE

MUTEMA J

HARARE, 12, 13, 14, 15, 16 & 19 March, 2012 & 11 July 2012

Civil Action

M. Mavhunga, for the plaintiff

S. Maphosa, for 1st and 2nd defendants

T.C. Masawi, for 3rd and 4th defendants

MUTEMA J: This matter has its dispute steeped in oral African Customary principles of succession concerned with the nomination and appointment of the fourth defendant as headman Mubaiwa which the plaintiff is challenging, arguing that he is the rightful candidate to be declared headman of the Mubaiwa people.

As to be expected when it comes to oral tradition, the witnesses’ evidence was lengthy. To regurgitate the evidence as it was narrated will confuse even the most avid reader. For the sake of clarity and brevity, it is sought to merely highlight the salient aspects of each witness’ evidence.

Three witnesses, including the plaintiff, gave evidence on his behalf. The first to do so was Alfonso Rwavi, who was born in 1939 and resides in Chigova village in Wedza rural. The fourth defendant is a relative of his. The fourth defendant was wrongly nominated by third defendant to be appointed headman Mubaiwa.

An ancestor of the Svosve dynasty called Ndoro begot four sons, viz Munzverengwi, Chakanetsa, Chidenge and Chipango. During Ndoro’s time some outsiders (VaNjanja) came to illegally mine copper in Mt. Wedza. Ndoro then asked who from among his four sons was brave enough to go and evict the illegal miners. Only Munzverengwi with the assistance of Chakanetsa volunteered to go.  Ndoro asked Munzverengwi whether he was sure he wanted to go and evict the miners because the possibility existed that he could be stabbed/speared to death- hence the name Mubaiwa. The two volunteers went and evicted the miners and were rewarded with the post of chief aide in the Svosve dynasty. Thenceforth, that post of headman Mubaiwa was held in turns by the houses of Munzverengwi and Chakanetsa to the exclusion of the Chipango and Chidenge who were cowards, the plaintiff is a descendant of the Chakanetsa house while the fourth defendant hails from the Chipango house which cannot assume the Mubaiwa headmanship. He said he got this oral history from his paternal grandfather.

According to that oral history, one Tazviwana from the Munzverengwi house assumed the Mubaiwa headmanship but he declined to rule on the ground that one Chadoka of the Chakanetsa house who was considered a father to Tazviwana was still alive. Chadoka was then nominated headman Mubaiwa and was given the headman’s watch, a symbol introduced by the white colonialists. Chadoka ruled as headman for 40 years and died in 1965. When Chadoka died, his first son Musekiwa was chosen as interim headman. After two months a misunderstanding arose between the Munzverengwi and Chadoka houses on one hand and the Chipango house on the other with the latter alleging that Musekiwa was a drunkard and a leeper and therefore not a fit and proper person for the post.

Chipango then went to the District Native Commissioner to complain and two policemen were sent by the District Commissioner to go and retrieve the watch from Musekiwa and the watch was given to Wenyika of the Chipango house.  The Munzverengwi and Chadoka houses kept on arguing for their headmanship to no avail because one could only have access to the District Commissioner via his sergeant who at the time was one Mashawani. Mashawani was related to the Chipango house – having married into the Chiwanza family, the same family Chigwedere married into.

After three years of feuding, Wenyika called Regis Chigwedere (“whom he called a father”) to come from Drienfontein Mission and assume the headmanship. Regis belonged to fourth defendant’s house and he ruled until 1972 when he died. Chitau as chief Svosve took up the issue and chose Munyanyi as headman Mubaiwa. Munyanyi hailed from the Munzverengwi house.  As Munyanyi was too old, he allowed his son Engelbert to be installed headman Mubaiwa and he ruled from 1972 to 2005 when he died in October. Thereafter the two houses held a meeting to choose an acting headman Isaac Chigodora of the Munzverengwi house who ruled for two years pending the “kurova guva” ceremony of Engelbert. But since he had died in October, 2005 they could not hold any such traditional rite in November. They were supposed to hold Engelbert’s “kurova guva” ceremony in 2009but before that could happen, the third defendant summoned them and told them to choose the next headman.  When they requested for extension of time the third defendant said issue was long overdue and they should attend the meeting. When they continued arguing for more time the third defendant told them that the candidate, in the name of the fourth defendant, was available. They protested saying the fourth defendant was not of the Mubaiwa house but the plaintiff but the third defendant warned them that he would fine them.

The next witness was Isaac Chigodora Zisanhi, born in 1940 residing in Chihowa Village in Wedza. He is a son of Abraham Chigodora of Zisanhi family.  His elder brother Engelbert Chakanetsa was headman Mubaiwa when he died in 2005, having succeeded Regis Chiwedere in February, 1972. Regis’ appointment as headman was never formalised by relatives – they were only informed of his appointment by a government official called Mashawani.

Following Engelbert’s death he himself was appointed guardian by the people and Chief Svosve (the third defendant) later endorsed the appointment. He held the post of guardian headman for two years and before Engelbert’s “kurova guva” ceremony could be held, the third defendant called him and they met at Wedza where he was told that the third defendant was under pressure from the fourth defendant who was saying his time to assume the headman’s post was due. He told the third defendant that the decision lay with him but custom demanded that the “kurova guva” ceremony must first be conducted prior to anyone’s appointment. The third defendant gave him a date and venue and directed him to go and inform the people about the meeting to choose a new headman.

The gathering was at Chigwedere Secondary School but the fourth defendant did not come. The third defendant gave them another date and still the fourth defendant did not come. Another date was given and this time the fourth defendant attended. When the third defendant told the gathering that the purpose of the gathering was to appoint a suitable person for the post of headman they queried how this could be done before the “kurova guva” ceremony.

The fourth defendant said the ceremony was none of his concern as it was not his family affair. The third defendant said he wanted to fine the fourth defendant for a misunderstanding which the two had had before and the fourth defendant told him to pronounce the fine/penalty. The fourth defendant was asked to pay two goats and two head of cattle which he agreed to pay.

At the gathering he was asked to say out any grievances if he had any. He told the gathering he had none save that the “kurova guva” ceremony was supposed to be held first. When they disputed the fourth defendant’s eligibility to the selection to the headmanship on the basis of the Wedza Mountain incident and pointed out that the plaintiff was supposed to assume the post, the third defendant said his decision was final.

On the same day they drafted a letter disputing the third defendant’s decision and gave him a copy while two other copies were each given to the District Administrator and Provincial Administrator in Marondera. When these three officials ignored the letters they then sought legal advice following the fourth defendant’s installation at Wedza Country Club, some twenty five kilometres away from the usual venue and without informing them as well as other headmen.

He said upon Engelbert’s death they checked the records at government offices regarding the family tree of succession and the district administrator showed them. According to those records, it was the plaintiff who was next in line because he is the only father figure alive. But after this dispute had arisen the district administrator refused to show them the family tree saying the governor (the fourth defendant) was now involved.

The plaintiff, Raines Chadoka was the last witness. He was born in 1936 and resides in Wedza. He regards the fourth defendant as a “son” since the Chigwederes, Munzverengwis and Chadokas have the same family tree. His father was called Mushunje Chadoka whose father was Chakanetsa Chawasemwa. He has little knowledge of the family history of the Mubaiwa people.

He said in Chakanetsa Chawawenwa’s house there were four sons, viz Munzverengwi, Chawasemwa Chakanetsa, Chidenge and Chipango. Only two houses Munzverengwi and Chakanetsa lay legitimate claim to the Mubaiwa headmanship. The others are disqualified for cowardice having refused to go and evict illegal miners from the Wedza mountain. Engelbert Chakanetsa was from the Munzverengwi house while acting headman Isaac Chigodora was from Munzverengwi Zisanhi. Munzverengwi and Zisanhi were father and son. He himself hails from the Chakanetsa house.

His narration of the Mubaiwa headmanship was as follows:-

Ndoro was the first headman Mubaiwa followed by Munzverengwi, Tazviwana Zisanhi (from Munzverengwi house), Mushunje (his own father who ruled for 40 years and died in 1965), Jackson Musekiwa (his own elder brother who acted as headman for two months), Wenyika (from Chigwedere house, wrested the headman’s watch from Musekiwa in connivance with Mashawani – a sergeant in the district commissioner’s office who had married into the same house with Wenyika; Wenyika reigned for three years, Regis (of the Chigwedere house who ruled until he died – could not recall when he died), Munyanyi (of the Munzverengwi house who transferred the watch to his elder brother’s son Engelbert), Engelbert (ruled for 33 years till his death in 2005). He was supposed to get the headmanship as the one next in line but the fourth defendant dribbled him.

He said at the third meeting convened by the third defendant, it was where the fourth defendant was nominated for headmanship following the latter’s payment of two goats and cattle as bribe to the third defendant. He then closed his case.

The defendants led evidence from three witnesses. Lawrence Taruona was the first. He has been Wedza assistant district administrator for 12 years. On 16 February, 2008 Chief Svosve (the third defendant) called him to a meeting where he explained the history of the Mubaiwa family and the procedure for the installation of the headman. The third defendant gave the name of the fourth defendant as the candidate to be nominated for headmanship. The third defendant explained that this was what had been agreed upon at the meeting of 9 February, 2008. His office did not express any view regarding the candidate’s nomination.

Zindoga Chibonore, the third defendant told the court that he was acting Chief Svosve when he presided over meetings in February, 2008 in connection with the fourth defendant’s nomination to the Mubaiwa headmanship post following consultation with the family. He denied being bribed by the fourth defendant explaining that prior to the nomination the fourth defendant had insulted him so the payment in the form of one bovine and one goat was a “fine” for that insult. It had nothing to do with his nomination to the post of headman. He nominated the fourth defendant on the basis that the headmanship rotates between the Chigwedere and Mubaiwa houses and when the last headman Engelbert – who hailed from the Mubaiwa house – died it was the turn of the Chigwedere house to assume the headmanship. He followed the proper traditional procedure because when Engelbert was installed as headman on 18 January, 1973, “kuturura” or “kugara parukukwe” was observed and the fourth defendant had sat on the reed mat and paid the “nhurura” beast signifying that he was the next in line to assume the post after Engelbert. He disputed that the plaintiff was the one who sat on the reed mat.

Aeneas Soko Chigwedere, the fourth defendant told the court that he was born on 25 November 1939 in Wedza District. He is the current Mashonaland East Province Governor and Resident Minister.

He holds an Honours degree in History obtained in 1964 from the then University College of Rhodesia and Nyasaland, specialising in history research. His thesis for his Master of Philosophy degree was on Chimurenga 1 of 1890 – 1897. He got fascinated by ethnic dynastic history. He embarked upon researching on his own dynasty, viz the Svosve Mbire dynasty of which Mubaiwa is a segment. He has also authored ten books of which the Moyo Chirandu history is the latest.

Contrary to the plaintiff and his witnesses’ assertion that the concept of headman started in 1925 with Mushunje Chadoka this country’s traditional system was feudal, the Mutapa empire was feudal, followed by the Rozvi empire which was also feudal. The Rozvi empire was destroyed by the Ngunis from South Africa in 1831followed by Mzilikazi in 1838.

The Mushunje alluded to above became headman, according to records at the National Archives, on 1 July, 1925. He ruled for forty years as stated by the plaintiff until he died on 7 August 1965. He disputed the plaintiff’s assertion that after Mushunje died Musekiwa Jackson (also called Hambira and senior son to Chadoka) was appointed “sarapavana”. The tradition was that each time a headman on the Munzverengwi side died the  “sarapavana” came from the Chigwedere house and vice versa. So following Mushunje’s death the one appointed “sarapavana” was Chigovanyika the son of Matsveru (Chigovanyika was the fourth defendant’s father). He produced exh 1 a report on Chadoka’s death dated 10 August, 1965.

While the clan was deciding that Matsveru be made “sarapavana” (guardian), local government decided that Wenyika Mumhiri Chigwedere be the guardian and acting headman. He produced exh 2, a document dated 5 October, 1965 recommending Wenyika to the provincial office to be headman. He produced exh 3, a document of 15 December, 1965 confirming the foregoing including Wenyika’s allowances. This document was from the then Ministry of Internal Affairs 57 Baker Avenue, Salisbury directed to the Native Commissioner for Wedza. He produced exh 4, an interview of Musekiwa by the Ministry’s secretary admitting that he was never appointed headman. This proves that Wenyika never wrested the headmanship from Musekiwa.

Chigwedere begot three sons – Chinhamo (the most senior and Regis’ father), Matsveru (headman Mubaiwa No. 6 who was the fourth defendant’s father’s father) and Mumhiri. Page 6 of exh 4 shows the plaintiff’s genealogy as put by him, showing that Munzverengwi and Chigwedere have a common ancestor but it does not reveal who that common ancestor is.

When Chadoka died on 7 August, 1965, he said he was teaching at Fletcher High School in Gweru and had just purchased his first car on 27 July, 1965. His father instructed him to drive to Drienfontein Mission (in Mvuma) to pick up Taderera Regis (Chinhamo’s son) and bring him to Chadoka Village in Wedza because Regis was the one to succeed Chadoka as headman. He did so on 8 August, 1965 and meetings were held and the family decided that Taderera Regis be the next headman. The district office decided that Wenyika should be acting headman for two years until 30 June, 1968 and Taderera Regis was to take over with effect from 1 July, 1968. He produced exh 5 (p 8 of his bundle of documents) as proof of Taderera’s appointment as headman Mubaiwa. He refuted the plaintiff’s contention that he gallantly fought and wrested the headmanship from Taderera Regis by producing exh 6 (p 12 of his bundle of documents) – a letter from the Ministry of Internal Affairs dated 23 May, 1972 to the effect that Headman Mubaiwa Taderera died on 7 May, 1972.

He explained that when Taderera Regis was installed headman on 1 July, 1968 he was present while the plaintiff and his witnesses were not. Taderera was his father Chigovanyika’s elder brother in the Chigwedere house. The Chadoka house, via Davies, was made “sarapavana”, while Munyanyi, from the Munzverengwi house, assisted by VaChigogo, Rwavi’s (the plaintiff’s 1st witness) father and Chiputi sat on the mat during the “nhurura” rite on 1 July, 1968. This signified that Munyanyi was in line for appointment as the next headman Mubaiwa.

However, local government appointed Wenyika again as acting headman arguing that since he had earlier on ruled for a short span the Chigwedere house’s reign must be extended via Wenyika’s reappointment. Davies Chadoka and his team, on the other hand argued that the Munzverengwi house (whence Munyanyui hailed) was not in the running for the headmanship alternated between the Chigwedere and Chadoka houses only.

Because he was their educated “son”, Munyanyi and his team approached him for advice. He financed and referred them to his former student Mr Mkushi of Sawyer and Mkushi legal practitioners as the wrangle required a lawyer’s intervention. After Mr Mkushi’s intervention a messenger was sent to Wenyika and collected the headman’s regalia and the authorities decided to appoint Munyanyi as headman. But instead of installing Munyanyi as headman the authorities installed Engelbert Chakanetsa by crookery. He produced exh 7 (p 13 of his bundle of documents) showing Engelbert’s effective date of appointment of 1 January, 1973. On 18 January, 1973 Engelbert was to be installed as headman Mubaiwa. The formalities were supposed to commence at 8 a.m. but instead started at 2 p.m. with Munyanyi vowing that the ceremony would not go through for he could not be ruled by a son. He believed that Engelbert and the district commissioner had cheated him. The Munzverengwi delegation approached him (the fourth defendant) and pleaded with him to persuade Munyanyi to just accept Engelbert’s installation. He managed to persuade Munyanyi to accept the situation and fight his case later on but not before Munyanyi had told the district commissioner that he and Engelbert were crooks.

On that day he came to know that at the installation of a headman the house next in line for the post’s representative should sit on the reed mat. Chief Svosve called together all the Mubaiwa houses and said they had to find him the next house to succeed after the death of Engelbert. Davies, the plaintiff’s brother was present but the plaintiff initially lied that all his brothers were dead only to apologise afterwards. The houses decided that the house next in line was the Matsveru house. His cousin Chemhere was chosen as the Matsveru house candidate to sit on the mat. He sent his youngster home to go and bring a bullock “nhurura” – a noun derived from the verb “kuturura”, meaning if you produce the beast, when this one dies the headmanship would be brought down onto your head from the late one. When Chemhere was produced to sit on the mat, the elders objected on the basis that he had a criminal record – having been imprisoned on several occasions for theft. He was then chosen as number two to Chemhere in the Matsveru house to sit on the mat which he did on Engelbert’s right side with Engelbert’s elder wife on the left and their nephew behind Engelbert holding the headman’s regalia. He produced the required beast and the chief announced that the Matsveru house would succeed the Munzverengwi house.

He refuted the plaintiff’s averment that Munyanyi handed over headmanship to Engelbert due to old age. He produced exh 8 (p 17 of his bundle of documents) – a letter from Sawyer and Mkushi dated 31 May, 1976 (3 years after Engelbert’s installation) showing that Munyanyi was still fighting for his entitlement to the post. However, his fight yielded nothing.

He said the plaintiff and his witnesses are at sea as regards the corret history of the Mubaiwa people including that of the Svosve dynasty. Zongoro, son of Ndoro was the one sent to Wedza Mountain and he became Mubaiwa 1. Zongoro had three wives Murambi (Chipango’s mother), Runeni (Munzverengwi’s mother) and Damba (who had only daughters). When Zongoro died Chipango became Mubaiwa 2 and when he died his young cousin brother Munzverengwi became Mubaiwa 3. Damba was inherited by Munzverengwi and gave birth to Chakanetsa who begot two sons, viz Chadoka and Chawasemwa. Chadoka begot Mushunje who in turn begot the plaintiff, so the plaintiff and his witnesses do not know the history and that they are an off shoot of inheritance.

Chawasemwa’s widow was inherited by Chigwedere and bore Mumhiri (Wenyika’s father). Chigwedere’s most senior son was Chinhamo followed by Matsveru who begot Chigowanyika (the fourth defendant’s father). Matsveru was Mubaiwa 6 and he died on 26 April, 1924 and was succeeded by Mushunje on 1 July, 1925. Mushunje ruled for forty years and died on 7 August, 1965. He explained the significance of how Mushunje inherited the headmanship thus: when Matsveru died his (fourth defendant’s) uncle Chizivano (fourth defendant’s father’s elder brother) handed over the regalia to Tazviwana (son of Zisanhi of the Munzverengwi house). However, Tazviwana being “son” to Mushunje could not take over headmanship so Tazviwana handed over to Mushunje. It is wrong therefore for the plaintiff and his witnesses to say that Tazviwana took over headmanship via the Wedza Mountain route and handed over to Mushunje. Tazviwana was an inherited son. Because their father ruled for forty years the Chadokas forget how they got the post. They even forget that they are a “nhaka” son. The “nhaka” sons only inherit when there is no category of fathers alive and that is what happened in 1925. He produced exh 9 – headman Mubaiwa genealogy – showing that the Chipango and Munzverengwi houses are the only ones entitled to the headmanship and that Chadoka only claims the post on the Munzverengwi side and Mumhiri on the Chigwedere side if he is the only living father because their houses are a progeny of “nhaka” (inheritance).

Since Engelbert (Mubaiwa 9) was a Munzverengwi and he died in 2005, the turn to inherit the headmanship now falls in the Chigwedere house and Chadoka can only claim the headmanship once the turn reverts to Munzverengwi house. In the Chigwedere house, he is the rightful candidate to assume the post of headman Mubaiwa.

He denied using his influence on the district administrator or chief to nominate him for headmanship. He also dismissed the bribery allegation saying that prior to the headmanship issue, at Wedza Inn, he had reprimanded Chief Svosve (the third defendant). Then he was a member of parliament and the community had complained to him about the chief’s conduct of smoking dagga and gambling at business centres. So at the third succession meeting where he was nominated for the post, the third defendant said the meeting would not proceed until he had paid for insulting him. He then paid Z$20 million, a bovine and a goat.

He rubbished the contention that he was installed headman without Engelbert’s “kurova guva” ceremony having been held as a baby’s cry. Engelbert was made headman when his predecessor’s “kurova guva” had not been conducted and no one raised a complaint, only to do so now because it was him installed. The ritual used to be conducted up to 2000 but acting headmen abused it by postponing its holding for up to ten years to their advantage. As a result the government decided to give each bereaved family up to eighteen months to conduct the “kurova guva” ritual, failure of which the next headman would be chosen.

Regarding his installation venue – Wedza Country Club – it, falls within his area of jurisdiction and is central and has the requisite facilities such as toilets and water. There was nothing untraditional about the venue, contrary to the plaintiff and his witnesses’ assertion. He then closed his case.

I intend to resolve the dispute by analysing it under two heads, viz the customary tree of succession and the Traditional Leaders Act, [Cap 29:17] (“the Act”).

The Customary Tree of Succession

Historically, the African history of customary tree of succession, whether it be of a chief or headman, has always been oral tradition. Due to incessant feuding, coupled with the concommitant difficulty - often an insurmountable hurdle – of proving it, most dynasties/families have of late seen the light and decided to keep updated written customary trees of succession.

In the instant matter, the plaintiff and his witnesses were content to simply rely on oral tradition passed on from one generation to the next regarding the Mubaiwa headmanship. In the process none of them could present a coherent genealogical history of the Mubaiwa headmanship succession tree.

To begin with the plaintiff himself confessed both in his evidence in chief and under cross-examination that he knows little about the family history of the Mubaiwa people. His narration of the Mubaiwa headmanship postulated above differs materially from that of his witness Rwavi. For instance the plaintiff stated that his grandfather Chakanetsa Chawasemwa begot four sons, viz Munzverenguni, Chawasemwa Chakanetsa, Chidenge and Chipango. Rwavi’s evidence was that it was Ndoro who begot four sons, viz Munzverenguni, Chakanetsa, Chidenge and Chipango. Isaac Chigodora Zisamhi, the plaintiff’s other witness, eschewed from delving into the Mubaiwa tree of succession. The plaintiff was content to simply aver that although he may not know the Mubaiwa succession tree, the fact remains that the headmanship is his. Without any basis whatsoever, he dismissed documentary evidence tendered by the fourth defendant extracted from the National Archives alleging that these documents were doctored by the fourth defendant. What the plaintiff seemed not to appreciate is that courts of law base their findings on evidence and not on mere allegations let alone those that are unsubstantiated.

I found the plaintiff and Rwavi to be people who are brazen and economic with the truth even in the face of tangible documentary evidence. They both denied that Munyanyi engaged Sawyer & Mkushi legal practitioners protesting Engelbert’s installation as headman ahead of himself a “father” to Engelbert yet exh 8, a letter dated 31 May, 1976 addressed to the Wedza District Commissioner who received it on 13 June, 1976 is unassailable. The plaintiff lied that when Engelbert was installed headman in 1973 he is the one who sat on the reed mat and paid the “nhurura” beast signifying that he was the next in line for the headmanship after Engelbert’s tenure. He was asked how he could have done so ahead of his elder brothers and he said all his elder brothers were dead. This was revealed to be false and he apologised. He also alleged that Munyanyi was not present at this ceremony because he was dead yet exh 8 does not support his lie. He faired badly, giving conflicting versions sometimes saying Munyanyi never protested against Engelbert’s installation because it was Munyanyi himself who, due to old age, handed over the entitlement to Engelbert or that he infact attended Munyanyi’s funeral before Engelbert’s installation.

Both the plaintiff and Rwavi exhibited ignorance of the Mubaiwa genealogy saying Ndoro was the founding father, that Ndoro and Zongoro were one person and that Tazviwana was founding father of the Mubaiwa headmanship and that Mushunje was the first headman Mubaiwa or that Munzverngwi and Chakanetsa Chawasemwa never became headman Mubaiwa yet they initially alleged that these two were the ones who earned the headmanship through their bravery in the Wedza Mountain. The fourth defendant’s version of the Mubaiwa genealogy rings better than the plaintiff’s and it is corroborated by documents kept at the National Archives.

It is not enough for the plaintiff to simply profer a bare allegation that the fourth defendant doctored the documentary evidence that he tendered in court. The allegation that the fourth defendant bribed the third defendant with a beast and goat to induce his nomination is not supported by any evidence or probability. I do not believe that a bribe of that nature would be paid at such a public gathering. The fourth defendant’s explanation pertaining to why those beasts were paid is credible – never mind that the third defendant had said the “insult” had been made before he was acting chief. This must have ben a memory relapse due to old age. Even assuming that the third defendant had been insulted before he became acting Chief Svosve, if he insisted that the fourth defendant should first pay him for that insult, one could not fault the fourth defendant and alleged that he paid a bribe. Chiefs are sometimes wont to do that and subjects will not question the decisions.

Exhibits 3 and 4 show that Wenyika (of Chipango house) was appointed acting headman Mubaiwa. This goes to show that the Chipango house has always alternated the headmanship with the Munzverengwi house if account is taken of the fact that Regis Taderera (also of the Chipango house) was succeeded by Engelbert (of the Munzverengwi house). The bare allegation by the plaintiff that Wenyika wrested the headmanship with the connivance of Mashawani is difficult to swallow. A mere district commissioner’s messenger during the colonial era could not surely manage to perform that alleged feat. Exhibit 9 shows the Mubaiwa headmanship succession tree showing how the two houses had always been alternating in assuming that post.

There was also an allegation by the plaintiff that the third defendant never held any succession meeting before nominating the fourth defendant. The third defendant said he did convene the meetings and this was corroborated by the plaintiff’s first witness Rwavi who said such meetings were convened and the fourth defendant only attended the third meeting. Linked to this allegation was the contention by the plaintiff that the fourth defendant’s nomination and appointment were uncustomary because Englbert’s “kurova guva” ceremony had not yet been held. This averment is of no moment if account is had of s 8 (3) of the Act which limits an acting headman’s tenure to a maximum of two years after which a substantive headman must be appointed. In casu Isaac Chigodora Zisanhi (the plaintiff’s second witness) acted as headman Mubaiwa for more than the statutory two year period so there was nothing unprocedural in the third defendant’s nomination and the first defendant’s appointment of the fourth defendant as the next headman Mubaiwa even before the “kurova guva” ceremony had been conducted. This statutory cap was put in place to plug abuse of a headman remaining in an acting capacity in perpetuity by eschewing to conduct the “kurova guva” ceremony timeously within two years.

The Traditional Leaders Act

This is the Act which governs the appointment of headmen in this country. Section 8 (2) of the Act provides as follows:

“8	Appointment of Headman

…

Before appointing any person as headman in terms of subs (1), the Minister shall invite the chief concerned to nominate a suitable person for such appointment and, unless in the opinion of the Minister there are good reasons to the contrary, the Minister shall appoint as headman any person so nominated by the chief.” (emphasis supplied)

Section 3 provides:

“3	Appointment of Chiefs

…

In appointing a chief in terms of subs (1), the President-

shall give due consideration to –

the prevailing customary principles of succession, if any, applicable to the community over which the chief is to preside; and

the administrative needs of the communities in the area concerned in the interests of good governance.” (emphasis supplied)

And in respect of village heads, s 11 (2) of the Act provides:

“(2)	Before appointing any person as village head in terms of subs (1), the Secretary shall invite the headman concerned to nominate a person for appointment and, unless in the opinion of the Secretary there are good reasons to the contrary, the Secretary shall appoint as village head any person so nominated by the headman.” (emphasis supplied).

From the foregoing statutory provisions the intention of the Legislature can only be gleaned via the literal rule of statutory interpretation, for the words used are so clear and unambiguous that they admit of no other meaning on what needs to be considered in the appointment of aforementioned traditional leaders. In the appointment of a chief, the president has an unfettered discretion and is required to only give due consideration to the prevailing customary principles of succession if any applicable to the community concerned. In the appointment of a headman and village head, the Minister and Secretary respectively have the same unfettered discretion and both are not required to give due consideration to the prevailing customary principles of succession.

This foregoing interpretation is supported by the following case law:

In Ruzane v Paradzai & Anor 1991 (1) ZLR 273 (SC) the appellant’s counsel had submitted that the chief’s appointment was in direct conflict with the views of the people on whose recommendation the appointment was based. At p 280 F-H MANYARARA JA said:

“I am quite unable to follow the logic of the submission. Section 3(2) of the Chiefs and Headmen Act 1982 provides that the President, in appointing a chief, ‘should give due consideration to the customary principles of succession, if any, applicable to the community over which chief is to preside.’ The clear meaning of this, provision is that the President is required to ‘give due consideration to the customary principles of succession,’ not to follow them in making his choice.”

The learned judge of appeal went on to quote Palley’s The Constitutional History and Law of Southern Rhodesia at p 476 dealing with the principle under the African Affairs Act, Chapter 228 which the Chiefs and Headman Act repealed and substituted:

“The Chiefs are Government officials, appointed in terms of s 4 and 17 of the African Affairs Act by the Governor. They hold office during pleasure, and contingent upon good behaviour and general fitness. Although chiefs are envisaged as hereditary holders of the office, it is only official recognition that carried with it the title of Chief. In practice the Governor frequently appoints the person holding traditional title to the chieftainship, but this is not always done. …”

See also Muwuungani v Minister of Native Affairs 1957 R & N 298 (FC) at 300 E which reads thus:

“On a straightforward reading of this, the operative section of the Act, the Governor is entitled to exercise an unfettered judgment in the creation, amalgamation or subdivision of tribes. Section 10 of the African Affairs Act obviously implies that he shall have regard to native opinion and native customary succession, as investigated by the Chief Native Commissioner. But, once the investigation has been made he is free to act as he thinks best in the interests of good government of the natives.”

Also, in Muchemwa Takawira Nechavava v Minister of Local Government, Rural and Urban Development & Anor HH 125-93 the court interpreted the provisions of ss 3 and 8 of the repealed Chiefs and Headmen Act 1982 which were the same as the current ss 3 and 8 of the Traditional Leaders Act, at pp 6 – 7 as follows:

“I agree with Mr Mapfungautsi that s 8 of the Act gives the Chief an unfettered discretion as to whom he should nominate for appointment as a headman, so long as that, person is suitable. Suitable, according to the Oxford English Dictionary, means ‘suited to or for, well fitted for the purpose.’ Once a person is nominated by the chief the Minister is required to appoint that person as headman unless in his opinion there are good reasons to the contrary. Whereas s 3 (2) of the Act provides that in appointing a chief due consideration must be given to the customary principles of succession, there is no similar requirement in s 8. It follows, therefore, that the chief is not required to follow any principles of succession in selecting a headman. He is merely required to select a suitable person. The fact that there might be a more suitable person eligible for the position does not mean that the candidate he has selected is not suitable. The chief is not even required to hold meetings in the area to ascertain the views or wishes of the community. If he fails to do so, however, the Minister may consider that there are good reasons for not appointing the person so nominated. In the case of headman Nechavava, however, the evidence establishes that chief Nyashanu did hold four meetings in the area to ascertain the wishes of the community. The fact that members of the Chigweremba family boycotted the meetings cannot affect the issue. There is no evidence that the second respondent was not a suitable person.

In terms of s 8 (2) of the Act, the first respondent was required to appoint the second respondent as headman unless he considered that there were good reasons why the second respondent should not be appointed. The first respondent could have refused if he felt that the applicant should have been appointed as he had acted in the position for 15 years without any complaints or that the second respondent was not eligible because he came from the Mupudzi family and not the Chigwerembe family. He did not consider that there was any good reason for refusing to accept the nomination by Chief Nyashanu. That discretion lies with the first respondent and not with the High Court. Even if the court were satisfied that the applicant was the most suitable candidate, it could not tell the Minister that there were good reasons for not appointing the second respondent.” (emphasis supplied).

It goes without quarrel therefore that both statute and case law on the subject are in congruence that the Minister has an unfettered discretion to appoint a suitable person who has been nominated by the chief, as headman. The chief also has an unfettered discretion in nominating the suitable person for such appointment. In casu there was no shred of evidence adduced showing that the fourth defendant was not a suitable person to hold the post of headman Mubaiwa. Out of an abundance of caution, perhaps, the chief went out of his way by convening three meetings prior to his nominating the fourth defendant as suitable. Although not a requirement, this means that the fourth defendant’s nomination and subsequent appointment as headman Mubaiwa was done pursuant to the traditional customs and principles of succession as he was the one next in line to succeed as per the succession tree compiled by the Mubaiwa elders in 1972 which was produced as exh 9. In view of what the Act prescribes, following the customary principles of succession was just an over-kill.

In closing, it behoves me to utter the following strictures: given that the Mashona people have a complicated system of collateral customary succession and that their family trees are mostly by way of oral tradition, hence difficult to prove, they would be well admonished, to always compile written family trees of succession to avoid the pitfalls associated with oral history that is passed from one generation to the next. With the dynamism of present day society, the oral tradition of yore with respect to customary principles of succession has since been obscured and blurred by current trends of doing things. Also, those who bear the thought of aspiring to become traditional leaders are well advised to acquaint themselves with the relevant provisions of the Traditional Leaders Act, [Cap 29:17].

In praying for dismissal of plaintiff’s case, all the defendants urged the court to award them costs on a legal practitioner-client scale. The justification for the prayer of costs on that high scale was that the plaintiff ought to have done the simple thing of checking and verifying records with the National Archives on payment of $1-00 per day and would have spared all concerned valuable time and money.

The leading judicial authority on costs is Neil v Waterberg Landbouwers Ko-operative Vereeniging 1946 AD 597 at 607 where TINDALL JA (as he then was) said:

“The true explanation of awards of Attorney and Client costs not  authorized by statute seems to be that, by reason of special considerations arising either from the circumstances which gave rise to the action or conduct of the losing party, the court in a particular case considers it just, by means of such an Order to ensure more effectively than it can do by means of a judgment for party and party costs that the successful party will not be out of pocket in respect of the expense caused to him by the litigation.”

See also Mahembe v Matambo 2003 (1) ZLR 148 (H); and Rubin L: Law of Costs in SA: Juta & Co (1949) 190.

The plaintiff is a lay person who can respectfully be described as not being sophisticated. But sight must not be lost of the fact that he engaged counsel who is not only presumed to know the law but ought to have embarked upon the necessary research at the relevant institutions. Had that been done these reckless, vexations and frivolous proceedings would not have put the defendants out of pocket in respect of the expense occasioned to them by the litigation. Under cross-examination the plaintiff conceded that he had no case against the first and second defendants and apologised for joining them in this suit. He said he sued them only because he wanted them to know what the fourth defendant had done to him. But you do not tell a person what you want the person to know by suing that person. At least regarding the first two defendants, the proceedings were also malicious.

In the result, I make the following order:

that the plaintiff’s claim be and is hereby dismissed; and

that the plaintiff shall pay the defendants’ costs on the scale of legal practitioner and client.

Mavhunga & Sigauke, plaintiff’s legal practitioners

Attorney General’s Office, 1st and 2nd defendants’ legal practitioners

Masawi & Partners, 3rd and 4th defendants’ legal practitioners