This matter concerns the disputed Sitaudze
Chieftainship of Beitbridge. Basically, two families have emerged as claimants
to the same chieftainship, namely that of Matshaba the father of Tsetani who
sired the applicant in this matter and that of Siturumane, the father of
Darana, the father of Pariti, who sired the first respondent in this matter.
Pariti was the last Chief Sitaudze
and his death is the one that has given rise to the dispute that has been
placed before me.
The descendants of Matshaba, who
include the applicant in this matter, have argued that they are the rightful
heirs to the chieftainship by reason that it belonged to them from its
inception but was only disturbed when Chief Matshaba fled from the area after a
fall out with the then District Commissioner of Native Affairs, a Mr Elliot,
during the Colonial dispensation. Chief Matshaba had gone to settle in the then
Belingwe area. The Matshaba group argues that Siturumane was appointed Chief
Sitaudze just to fill a gap left by Matshaba and that those of his descendants
who succeeded him did so on that basis only and that the time has come for the
Matshaba clan to reclaim the chieftainship.
On the other hand, the Siturumane clan
maintains that Matshaba abdicated the throne and absconded to Belingwe as a
result of which a new order was put in place in which Siturumane took over. The
Sitaudze chieftainship has since then devolved according to the Siturumane
lineage from him to his son Darana who was also succeeded by his son Pariti.
For that reason, the first respondent, as the first born son of Pariti, should
succeed him as Chief Sitaudze according to Venda custom and tradition….,.
On 17 February 2010, KAMOCHA J
issued an order, following argument by counsel for both sides, namely, the
applicant and first respondent in that matter. The order was in the following:
“IT
IS ORDERED THAT:
1. The second respondent (namely,
the District Administrator for Beitbridge who is the second respondent in the
current application) be and is hereby restrained and interdicted from
forwarding to third respondent (the Minister of Local Government who is the
third respondent in the present application) the first respondent's (the first
respondent in the present application) name for appointment according to law by
the President to the position of Chief Sitaudzi.
2. It be and is hereby declared
that the customary principles of succession to the Sitaudzi Chieftainship were
not given due consideration.
3. It be and is hereby directed
that the second respondent cause a meeting of the elders of the Mbedzi clan to
be convened as soon as possible for purposes of electing a candidate for
appointment to Chief Sitaudzi and thereafter for the name of the person so
elected at such meeting to be forwarded to third respondent according to law
for purposes of being submitted to the President for appointment as Chief
Sitaudzi.
4. Each party shall bear its own
costs.”
Following that order, the second
respondent convened a meeting of the Sitaudzi Elders and members of the Chief's
Council at Sitaudze Court Room in Mpande area of Beitbridge on 16 June 2010.
The proceedings of that meeting are captured in a report done by the second
respondent, dated 22 June 2010, and the minutes taken by L. Mbedzi, the
Accounting Assistant.
In his report, the second
respondent concluded as follows:
“After
the agreement by the two groups that the Sitaudze Chieftainship came down
through Diasikwa. The chiefs wanted a
clear explanation about how the chieftainship switched from Diasikwa to the
Siturumani line. An old woman, who did not mention her name, explained that
after Matshaba filed to Chingoma in Mberengwa people remained with no chief and
the District Commissioner, Mr Elliot, appointed Siturumane as Chief Sitaudzi. It
was at this time that meeting went to break. After break, Chief Maduna, as
leader of the negotiating team, assigned the District Administrator with the
two families to clearly draw the Diasikwa family tree so that if Diasikwa's
children are there, they take over their grandfather's chieftainship.”
The
second respondent's report appears to be in agreement with the minutes of the
meeting as recorded by L. Mbedzi, the Accounting Assistant, which concluded:
“Resolution
It
was resolved that the District Administrator, with the help of the elders from
both families, draw the extension tree of the Diasikwa family to determine the
possible successor. It was said that if there are no successors from that
family then one may be elected from the Siturumani family. It was agreed that a
meeting will be held after trees from both families have been drawn. Chief
Maduna thanked all for attending and co-operating well without any quarrels
from both families. The meeting was declared closed at 1650 hours. Food was
served thereafter.”
What comes out clearly from the
foregoing is that this court ordered the second respondent to convene a meeting
of elders to deliberate and come up with a candidate for appointment as Chief
Sitaudze. The second respondent commenced compliance with the court order by
convening the meeting of 16 June 2010. That meeting came up with a resolution
for the families to compile “the extention tree” of the family and ended up on
a positive note that whoever was to succeed as Chief Sitaudze was to come out
of that exercise. Progress had been made when the meeting closed and food was
served, with Chief Maduna even taking time to thank the families for their
co-operation.
None of the parties has challenged
the minutes.
In
my view, the selection of a candidate was work in progress at the end of that
meeting. The second respondent, and, indeed, the elders of the family, were
only expected to follow up on the resolution that had been made at the
conclusion of the meeting of 16 June 2010.
What
has prompted this application is that the third respondent, in clear disregard
of the order of this court clothing the second respondent with authority and
obligation to convene and manage the process, and in clear disregard of the outcome
of the meeting of 16 June 2010, started a fresh process of electing a
candidate. The third respondent's process was to be run by a team handpicked by
himself comprising of Ms. L. L. Dlamini, the Provincial Adminsitrator for
Matabeleland North as Chairperson, Chief Nyangazonke of Matobo, Chief Ndube of
Insiza, C. Tshuma, the District Administrator for Lupane and a Mr Khumalo, the
District Administrator for Umzingwane.
That
team then convened another meeting on 24 February 2011, ignoring the court order
and the resolution of the meeting of 16 June 2010 which had been called in
compliance with the court order. Hitting
the ground running, according to the minutes of that meeting, Ms Dlamini
declared that her team had been put together by the third respondent to mediate
and resolve the Sitaudze wrangle and she “emphasised that the team would make
sure that the Chief is appointed before they leave.”
I have already stated that this
court directed the second respondent to convene the meeting to elect a candidate.
The court did not direct the Provincial Administrator for Matabeleland North to
do so. I have also noted that the process had already commenced and only needed
to be completed.
What was done on 24 February 2011
was a violation of the court order.
Section 3(2) of the Traditional
Leaders Act [Chapter 29:17] provides:
“In appointing a chief in terms of
subsection (1) the President -
(a) Shall give due consideration to
-
(i)
The prevailing customary principles of succession, if any, applicable to the community
over which the chief is to preside; and
(ii)
The administrative needs of the communities in the area concerned in the
interests of good governance; and
(b)
Wherever practicable, shall appoint a person nominated by the appropriate
persons in the community concerned in accordance with the principles referred
to in subparagraph (i) of paragraph (a).”…,.
The
process of nominating a candidate is the province of the clan and the above
cited statutory provision does not envisage a situation where Government
officials take over the process and dictate to communities who their Chief
should be. The nomination process calls for soberness and a deep understanding
and appreciation of the norms and customs of the clan in question. It is a
process that cannot be left to the caprices of outsiders and civil servants in
a hurry to bring about an outcome at all costs.
The minutes of the meeting of 24
February 2011, which meeting I have already condemned as not having been in
accordance with the court order of 17 February 2010, leave no doubt in the mind
that the selection process was not driven by “the appropriate persons” but by
Provincial Administrator, Ms Dlamini, herself.
Excerpts from those minutes will help bring the point home;
“The Provincial Administrator said
Siturumani was elected by the then Government…,. She said chieftainships that
were lost long back could not be revived.”
“The Provincial Administrator
narrated a chieftainship wrangle similar to the Sitaudzes that erupted in
Matabeleland North in the Kone Chieftainship. She said the Ministry says it
will go back to all chieftainships with wrangles but will not bring back
chieftainships lost during the white people's era.”
“She said the Sitaudzes could agree
and choose a successor from the current chieftainship and then choose a headman
from the other family…,.”
“The Provincial Administrator said
it was unfortunate that Diasikwa fled and Siturumani was elected and accepted
by the then Government, she said the Siturumani chieftainship would be
followed to avoid further wrangles and hatred.”
“The Provincial Administrator read
out on the appointment of chiefs from the Act which stated that the prevailing
customary principles of succession (father to elder son) should be used…, she
concluded by saying the team would use the Act which also govern the ruling of
the chief.”
“The
Provincial Administrator suggested that the candidate be nominated from the
Pariti chieftainship.”…,.
One
then may rhetorically ask: Just who in this unfolding drama was conducting the
nomination?
In
my view, it was the Provincial Administrator. She rejected the views of the
family, foisted her own principles and finally concluded that the candidate
should come from the Pariti family.
There
can never be a clearer example of interference in the process of nominating a Chief
and a more defining example of what civil servants should not do when it comes
to the nomination of a Chief. The law expects them to facilitate the process
and to allow the appropriate family members to debate and come up with a
candidate of their choice in line with their prevailing customary principles of
succession.
In casu, the community was
cajoled into settling for a candidate, not of their choice but by an impatient
official who had been foisted on them in breach of a court order. It is the
kind of interference which cannot be allowed to perpetuate.
I do not agree with counsel for the
second and third respondents that what was done at the meeting of 24 February
2011 was in compliance with the court order or that it was done because the
meeting of 16 June 2010 had ended in a stalemate. Nothing can be furthest from
the truth as clearly that meeting had ended with a resolution that was
achievable.
Neither do I agree with counsel for
the first respondent that the meeting of 16 June 2010 was not properly
constituted and that it pursued a wrong agenda by trying to open a
chieftainship wrangle dating back a century. In my view, that is the whole
essence of nomination of a candidate in accordance with customary principles of
succession of the relevant community….,.
In the result, I make the following
order; that:
1.
It is hereby declared that the meeting presided over by the Provincial
Administrator for Matabeleland North, Ms. L. L. Dlamini, on 24 February 2011,
at Beitbridge, in order to nominate a person as Chief Sitaudze, and the
subsequent nomination, is null and void and of no effect.
2.
The second respondent shall continue convening meetings for the nomination of a
candidate for appointment as Chief Sitaudze in compliance with the High Court
Order of 17 February 2010 in case number HC2424/10.
3.
In arranging such meetings, the second respondent shall have regard to the
minutes of the meeting held by the appropriate persons in the community
concerned on 16 June 2010.
4.
Each party shall bear its own costs.
