KUDYA
J:
This
trial is concerned with the identification of the correct house
between two of the three houses that are eligible to ascend to the
Nyajina Chieftainship of the vaZumba clan in the Uzumba Maramba
Pfungwe district of Mashonaland East province of Zimbabwe.
THE
PLEADINGS
On
26 August 2005, the plaintiff issued summons out of this court
seeking an order setting aside the appointment of 1st defendant as
Chief Nyajina-designate; directing that the 2nd and 3rd defendants
take into account and abide by the values, traditions and customary
principles of succession of the VaZumba people in selecting a chief
and a declaratur that the next chief be selected from the Mukonde
house.
The
1st defendant filed his plea on 28 October after the 2nd and 3rd
defendants had filed their joint plea on 24 October 2005.
The
pre-trial conference was held on 17 January 2006 and the parties
filed a joint pre-trial conference minute which referred two issues
to trial.
I
set down the matter for trial on 19 April 2006 for 22 May 2006.
In
the meantime, on 2nd May 2006, the 1st defendant filed a court
application, case number HC2427/2006, to amend his plea. It was
opposed by the plaintiff on 17 May 2006. The result was that the
trial was postponed indefinitely pending the determination of the
application.
The
1st defendant proceeded to file his answering affidavit on 24 May
2006 and his heads of argument on 3 November 2006. The plaintiff
filed his heads on 23 November 2006.
I
consolidated the opposed application and the trial and set both for
22 May 2007.
At
the conclusion of the oral submissions on the interlocutory matter, I
granted the amendment and indicated that my reasons for doing so
would appear in this judgment.
CASE
NO. HC2427/06
The
1st defendant sought to amend his plea to reflect the averment that
Nyamukapa of the Mukonde house had acceded to the chieftainship. The
amendment would have the effect of demonstrating that the Mukonde
house had acceded to the chieftainship four times and not three times
as averred in the plaintiff's declaration.
He
averred that he only accessed the documents which showed that
Nyamukapa was a chief after the pre-trial conference had been held.
He
prayed for the grant of the amendment on the bases that it was not
driven by bad faith; would not cause injustice to the plaintiff;
would not prevent but would provide a full inquiry into the disputed
issue and was not excipiable as in Cross v Ferreira 1950 (3) SA 443
(C).
The
plaintiff opposed it on the basis that it was driven by bad faith.
The
bad faith arose from the admission by the 1st defendant at the
meeting held on 15 October 2003 that the Kawoko house had acceded to
the chieftainship four times while the other two houses had done so
three times apiece, respectively.
It
also arose from the fact that on 28 January 2005, the Kawoko house
produced a document from the National Archives which indicated that
Nyamukapa had been a chief. He therefore contended that the
amendments were prejudicial to him and prayed for their dismissal
with costs.
Order
20 Rule 132 and 135(3) of the Rules of Court gives this Court a wide
discretion to allow amendments at any stage of the proceedings for
the purpose of determining the real controversy between the parties.
See
also The Civil Practice of the Superior Courts in South Africa 3rd
edition by Herbstein and Van Winsen at page 354; Moolman v Estate
Moolman and Another 1927 CPD 27; Shill v Milner 1937 AD 101 at 105;
Angelique Enterprises (Pvt) Ltd v Albco (Pvt) Ltd 19990 (1) ZLR 6 (H)
at 8C-D and Copper Trading Co. (Pvt) Ltd v City of Bulawayo 1997 (1)
ZLR 134 (S) at 143 H- 144B.
I
was satisfied that the amendments were not driven by bad faith,
firstly, because in his plea the defendant had disputed the number of
turns that the plaintiff averred his house had acceded to the throne
and, secondly, the first issue referred to trial also sought a
determination of the number of turns that each house had had on the
throne.
While
the 1st defendant was at the meeting of 15 October 2003, he was
absent at the meeting of 28 January 2005.
In
my view, no injustice would be caused to the plaintiff by the
amendment, which would provide a platform for a full enquiry into the
disputed issue of the number of turns that the Mukonde house acceded
to the chieftainship. I saw no prejudice to the plaintiff's case
from the amendments sought, especially in the light of the fact that
the onus of proof lay on the defendant to show that Nyamukapa was a
chief.
THE
EVIDENCE
The
2nd and 3rd defendants did not attend trial. On the strength of Mr.
Chimombe, their counsel's assurances that they would appear, I
allowed him to participate in the proceedings up to the close of the
1st defendant's case. No evidence was adduced on their behalf. The
reality of the matter was that the two were in fact in default.
Their
fate is however intertwined with that of the 1st defendant.
The
plaintiff did not testify. He called the evidence of Tayengwa Dugmore
Muskwe, Farai Joseph Muskwe, Isaac Kavhu Nyamukapa, Tapera Musekiwa
and Dzikaunda Chimbwanda.
The
1st defendant gave evidence and further called Cry Murowa and Felix
Joseph Kandemiri to support his version.
The
parties agreed to the production of a 73 page document by the
plaintiff as exhibit 1. It incorporated various documents, which they
relied on in their respective versions.
The
plaintiff's version
Tayengwa
Dugmore Muskwe (“TD”), born 24 January 1958, is a legal
practitioner of this Court. He portrayed himself as the eye of the
VaZumba clan. He gave a brief historical account of his clan from its
migration from Southern Sudan to Uzumba via Mavuradonha, Mazowe and
Shamva. He stated that the movement from Mavuradonha to Uzumba was
necessitated by palace intrigue in the Munhumutapa Empire. Sororo
Ziome, the patriarch of the clan, first settled in the Mazowe area
but was forced to relocate by the superior spirit medium of the area,
Nehanda. He had one son Nyanhewe, who dislodged Tumbare from the
chieftainship of the area in the Chikwira Hills of Uzumba.
Nyanhewe,
the first chief of the clan, believed that he would reign forever and
thus killed all his male issue. One of them, Nyahuma, survived by the
craftiness of his mother who pretended that he was a girl before she
ran away with the infant to Kandeya in the Dotito area of Mount
Darwin. When he was older he returned as a wealth man. He held a
feast where he revealed his identity to his father, who in shame and
fear left his palace and disappeared in the Marowe Hills, where his
remains were later found by Nyahuma, who became the second chief of
the clan.
In
death, Nyanhewe assumed spiritual significance to the VaZumba clan.
He became the guardian spirit of the clan and assumed the name
Bvukufpuku or Bvukura. He arrogated to himself the right to select
his successors in title. Murderers, wizards and those who indulged in
black magic and other offences against the community were
disqualified from acceding to the throne. His successors traced their
lineage from the three eligible sons of Nyahuma. These were the
eldest Mukonde, the middle Kawoko and the youngest Chikuwe. There was
another son, who was younger than Mukonde but older than Kawoko, who
was called Kanodzirasa-the Bambo of the Madzimbahwe. He was
disinherited and relegated the menial function of chief caterer to
his brothers at court. The derogatory title of Nyambudzi became his
alias and that of all his male descendants in perpetuity.
He
stated that the above history of his clan emerged from the
deliberations and research that was conducted by a committee set for
the purpose during the legal battle that the clan fought with the
Hombiros in 1990, which culminated in the case of Amon Gadaga
Chipfuyamiti v Phineas Bere Nyajina and Another HH175/1992.
The
plaintiff's house, Mukonde, was represented by Noah Denhere Muskwe,
born 21 September 1894, who was the eldest at the time, Muyati Eliah
Muskwe, whom he claimed was the most educated of his peers having
done secondary education in the 1940s, Denford Muskwe and the
witness.
The
Kawoko house, from which the 1st defendant comes from, was
represented by the 1st defendant's father Wilton Nyajina, Marongo
Nyajina who was an uncle to Wilton, headman David Nyajina and 1st
defendant.
Lastly,
the Chikuwe House was represented by Lazarus Manyika, who at one time
acted as a chief for 4 years when his father was ill and Mutarimanja
Jemwa, who was the eldest person in that house at the time.
The
committee relied on Government papers on file at the Ministry of
Local Government, National Housing and Urban Development, papers from
the National Archives and oral history.
The
first white man to record the history of the clan was the first
Native Commissioner for the area, William Edwards. He testified that
Kanodzirasa was disinherited because he took the meat of the Guardian
Spirit and was together with his descendants forever banned from
partaking in chieftainship deliberations and discussions.
He
relied on the genealogy chart that he alleged was produced by the
Committee to set out the chiefs who reined from Sororo Ziome to the
last incumbent, Bere. He alleged that Mukonde predeceased his father
and so could not become chief. Kanodzirasa had been disinherited, so
he was superseded by Kawoko, the third chief of the clan. Kawoko was
succeeded by his younger brother Chikuwe, the fourth chief. The
throne jumped the Mukonde house and went back to Kawoko's Nyajina,
the fifth chief, who was succeeded by Chikuwe's Manyika, the sixth
chief. Manyika was succeeded by Muskwewebga, the seventh chief, who
was succeeded by his brother Chikoso as the eighth chief. Muskwe and
Chikoso were both from the Mukonde house. Chikoso was succeeded by
Kanemadadu, the ninth chief, of the Kawoko house. When Kanemadadu
died, his son Dyora took over in terms of the VaZumba tradition as an
acting chief. The white man then colonized the area and Dyora clung
to the throne, which should have gone back to the Mukonde house, as
the tenth chief. When Dyora died he was succeeded by Kapita, the
eleventh chief, of the Chikuwe house. The chieftainship should have
devolved to the Mukonde house.
The
witness averred that Kapita was not eligible to ascend to the throne
because he belonged to a sub-house of the Shava nematombo totem of
the Chimbwandas, who were ritual friends of the Chikuwe house.
On
his death, the throne passed to Bere, the twelfth chief, of the
Mukonde house. He stated that it should remain in that house and
should not devolve to the Kawoko House.
It
is interesting to note that he firmly believes that after Kanemadadu,
the throne should have gone back to the Mukonde house. It is a chorus
he repeated after the death of each succeeding chief. He based this
chorus on two principles which he alleged found the core basis of the
traditions, customs and values of the VaZumba clan. He put them as
follows:
“Our
chieftainship is based on collateral succession in order of seniority
and equal number of turns”.
He
alleged that collateral succession forms the lynch pin of the clan's
tradition. When a chief dies, his successor, if he has surviving
younger brothers devolves to these on the basis of seniority. Only
after all have assumed the throne does it move to the eldest male
issue of the eldest brother. It then moves laterally across the
subsequent generations. Each eligible house must accede to the throne
in turn. All things being equal, the number of turns should be equal.
He
averred that until Muskwe became chief the Mukonde house had missed
the throne for 136 years. Even at that time, the Guardian Spirit
realized the iniquity of this and decided to provide the Mukonde
house with two chiefs in a row. After Chikoso, each house had had two
turns on the throne. An equal number had been achieved. Dyora came
onto the scene and spoiled the broth.
He
reasoned that an objective analysis of these facts from antiquity
demonstrate that succession is collateral and is based on seniority
and on an equal number of turns. He pointed out that the number of
turns is an important consideration as shown by the attempts by the
1st defendant's house to reduce the turns of their house by the
ridiculous suggestion that Nyajina and Kanemadadu were one person in
the meeting of 15 October 2003, which suggestion was only dropped
after Dyora's son David Nyajina pointed out that the two were
separate individuals.
He
also averred that the use of CJKL's document of 20 May 1965, on
page 10 of exhibit 1, which was touted as a recent discovery, to the
extent that it attempted to show that Nyamukapa was a chief also
confirms the traditional significance of the number of turns in the
quest for the throne by any of the three eligible houses.
He
tore the document apart.
It
provided contrary to known folklore and written history that Ziome
had two sons Nyahuma and Nyakushama and that Chikuwe was the son of
Nyakushama. It stated that Mukonde was part of the Magadu family and
that Chikuwe ascended to the throne before his elder brother Kawoko.
The Magadu family is given as originating from Kamutimbikwa who in
reality was an illegitimate son of Dyora's sister.
The
document desecrates the traditions of the VaZumba as it seeks to give
matrilineal eligibility to the throne. Further it portrays
Kanodzirasa and Nyambudzi as two separate persons. It further
suggests that Chikoso became chief before his predecessor Muskwe.
To
the extent that the document was in conflict with accepted wisdom, it
was clearly unreliable.
He
testified that Nyamukapa was never a chief. He suggested that he was
a contemporary of Dyora who was chief in Uzumba at the time that
Chinyerere was chief in Pfungwe and Chirinda in Maramba. He found
support in 2nd and 3rd defendant's plea that the Mukonde house had
3 turns, Kawoko 4 and Chikuwe 3. He alleged that all the VaZumba
chiefs were buried in Marowe Hills while the grave of Nyamukapa was
known to be in a different hill called Denje.
Nyamukapa
had a daughter who gave birth to Denga. This Denga would testify as
to whether his maternal grandfather was ever a chief.
He
further challenged Plowden's 1965 paper, on page 16 of exhibit 1
and stated that Nyamukapa should not be confused with his later day
grandson who bore the same name but also used the name Makwembere who
was a headman in 1965.
He
also relied on a meeting that was chaired by Munakira, an assistant
Provincial Administrator for Mashonaland East on 28 January 2005 at
which it was agreed that the Mukonde and Chikuwe houses had 3 turns
each while the Kawoko house had 4 turns. Munakira had requested the
Mukonde and Kawoko houses to deliberate and choose the eligible house
between them. This was in line with their tradition for the eligible
houses to choose the house from which the chief would emerge without
consulting the guardian spirit, which he averred had last manifested
in the 1890s.
There
was a general belief that the one that died during Kapita's rein in
1945 was an impostor.
The
houses agreed to dispense with the role of the guardian spirit, which
was merely to vet a candidate of good character.
He
was surprised that when the last meeting was convened on 18 June
2005, this official position was abandoned and the whole issue was
revisited.
At
this meeting the Mukonde house laid claim to the throne but the 2nd
defendant selected the Kawoko house.
He
stated that the manner in which that meeting was conducted desecrated
the VaZumba customs and traditions:
(i)
The first desecration was that the Kanodzirasa house represented by
Zungunde and Farisi was permitted to contribute to the discussion.
(ii)
The second was that the 2nd defendant abandoned the principle of the
equality of turns and stated that this was not a consideration in
Buhera where he came from. He even boasted that even if he did not
follow the VaZumba tradition, the Attorney-General would defend him
in any suit launched by the Mukonde house.
(iii)
Thirdly, after an hour of deliberations the 2nd defendant adjourned
the meeting in preparation of choosing the eligible house. He went
and conferred in private with acting chief Chirinda, a stranger,
acting chief Nyajina a biased member of the Mukonde house, acting
headman Nyajina and headman Magadu, of the Kawoko house and left out
headman Muskwe.
The
2nd defendant also took irrelevant issues into consideration falsely
labeling the Mukonde house as an MDC sympathizer.
It
appeared to him that the Mukonde house was jumped because it boasts
of the most educated persons in the clan.
He
was adamant that the genealogy on page 8 of exhibit 1 was a correct
reflection of the family tree of the clan. It was compiled by eminent
oral historians of the clan from the three eligible houses.
It
was handed by Joseph Kandemiri, DB Muskwe, Eliah Muskwe, Lazarus
Chikuwe Manyika and 1st defendant to the former District
Administrator of Uzumba, Gwizo in 2001 though it bears a 2003 date
stamp. This was before there was any contemplation that the houses
would come before this Court in the present dispute.
He
was cross examined at great length.
His
father was born in 1919 and died in 2005. His grandfather died in
1922 and was the second son of Maiyagoto whom he alleged was poisoned
by Dyora in 1893. He gave the source of the history that he related
as Noah Denhere Muskwe who was on born 1 September 1894 and died in
2002 and Lazarus Manyika who died in 1989 who were both born during
Dyora's reign.
He
maintained that the genealogy on page 8 of exhibit 1 was written by
the committee appointed to record the clan history. It was handed to
Gwizo and his deputy Mlambo. There was no need at the time for any
minutes or signatures to verify its adoption.
He
knew of two versions on the Kanodzirasa disinheritance.
The
first version was that he volunteered to be the meat sharer while the
second was that he tampered with meat meant for the guardian spirit.
He
was not the eldest of Nyahuma's sons. He did not make war with
Chikuwe for the throne after the death of Nyahuma as Kawoko ascended
to the throne as the older of the two.
He
accepted that the Kanodzirasa house chaired the meeting of 16 August
and confirmed the minutes on 15 October 2003. He alleged that this
happened because he was not present. He objected to their presence on
16 November 2003 and Gwizo removed them. He suggested that their
presence was an exception which did not make the rule just as one
sparrow does not make a summer.
He
knew that collateral meant side by side, that is, from brother to
brother as opposed to from father to son. Seniority was based on
birth right.
He
suggested that this was at play in the choice of the 1st defendant.
Even
though he was younger than some members of his house who were in
their 80s he was chosen because he was from the Kamukanya sub-house
which was senior to the Mutanda sub-house. The older ones were
traditionally disqualified because of their mothers' status.
In
his own house Bere who descended from a younger sub house assumed the
throne ahead of the elder Maiyagoto sub house because there were no
older sons in the elder houses who were Bere's contemporaries.
He
denied that he appointed himself as the eye of the clan.
He
accepted that the genealogy on page 8 did not show any acting chiefs
before Dyora although it was their custom for a son to act for a year
after the death of his father, the chief.
He
denied that the letter of 10 April 2003 and the minutes of 28
February and 22 May 2003 that were written by the Maiyagoto sub-house
to the District Administrator depicted a power hungry house.
He
denied that his sub house was positioning itself for succession and
declaring its right as the elder house to chair the meetings as it
had done in the past.
It
was apparent from the minutes of 16 August and 15 October 2003 that
the eligible houses unanimously abandoned the involvement of the
guardian spirit in the selection of a chief. The collective modern
mind of the representatives of the houses could no longer trust the
impartiality of the human agents of the guardian spirit.
He
maintained by reference to the visit to the spirit medium Nyashawa on
1 June 1971 on page 57-60 as confirmed by RC Plowden on 11 November
1982, in paragraph 5 of page 15 that the role of the guardian spirit
was to vet the candidate identified by the eligible house.
Farai
Gilbert Muskwe was born on 15 May 1939. He testified that in the
event of the death of a chief, the most senior house calls a meeting
of the three eligible houses of Mukonde, Nyajina and Chikuwe. The
fourth house of Nyambudzi is involved to the extent that it
slaughters the goats and serves food consumed at the meetings.
A
series of meetings were held to select a chief after the death of
Bere. He alleged that the Nyambudzi house attended one meeting. It
was chaired by Zungunde and Kandemiri. An objection over their
presence was raised but it was not minuted in the meeting of 16
August 2003. These two attended the meeting of 15 October 2003 but
not of 28 January 2005 and were present on 18 June 2005.
He
said Nyamukapa was not a chief. He was buried in Denje Mountain and
not in Marowe Mountain where chiefs are buried.
He
averred that a spirit medium did not choose a chief. People in the
eligible house sat and selected a candidate who was then vetted by
the spirit medium.
He
averred that their tradition accepts collateral succession based on
seniority and equal number of turns. Under cross examination he
stated that tradition arrogated to the Mukonde house the duty to call
such meetings. To his knowledge TD Muskwe was just a son of the clan.
He did not regard him as the eye of the clan. He alleged that TD was
mandated by Eliah and Denhere Noah Muskwe of the Mukonde house to
record the clan history.
He
attended the meeting chaired by the Nyambudzi two. He objected but
was overruled by the eldest Mukonde at the time David Dombodzvuku
Muskwe. He averred by reference to the meeting of 15 October that
Nyambudzi could attend and contribute at the meetings but could not
chair.
He
remained adamant that succession was collateral and was based on
seniority and equality of turns.
Isaki
Kavhu Nyamukapa was born in 1930. His father was Nyamukapa's second
son.
He
stated that his grandfather never assumed the chieftainship. The only
Nyamukapa who was once a headman was Makwembere, a cousin to the
witness (their fathers are brothers). Their grandfather was buried in
Denje Mountain and not in Marowe where all chiefs of the clan are
buried.
On
the appointment of chiefs he stated that the house whose turn it was
to accede to the chieftainship would select a candidate and take him
to the spirit medium for vetting. He stated that the houses would
have an equal number of turns. He was not able to provide a solution
where one house had more turns than the others.
He
knew the Nyambudzi sub-house, which is called Madzibaba, was
responsible for slaughtering goats and serving food consumed during
the deliberations of the eligible houses. He did not know the effect
of their attendance on the discussions.
Under
cross examination he stated that he only saw two chiefs, Kapita and
Bere. His father told him there were three chiefs from the Mukonde
house. These were Muskwe, Chikoso and Bere. He maintained “madzoro”
turns were a sign of equality.
He
maintained that it was proper for a member of the Mukonde house to
accede to the chieftainship for the equality of turns to be achieved
as it was the senior house.
In
his view thereafter a member of the Chikuwe house would succeed to
the chieftainship for equality of turns to be achieved.
He
could not say why this was not done when Kanemadadu became chief.
He
spoke of “doo”(hide in which a chief is wrapped in for burial)
and “tsika” (fire-friction sticks). The latter was given during
the installation of a chief to the house of his successor.
Tapera
Musekiwa was born 1922. His paternal grandmother Gumbate was
Nyamukapa's daughter.
He
was adamant that Nyamukapa did not ascend to the throne. He is buried
in Denje as opposed to Marowe. He has been to the grave to check on
its upkeep.
Under
cross examination he maintained his version and logically asserted
that his grandmother would have known had her father been chief.
Dzikaunda
Chimbwanda is the man tasked with the burial of chiefs in the clan,
interchangeably called the Chikari or Nechombo.
He
took the job from his grandfather. He refused to bury Kapita because
he did not supply two beasts for the funeral of the witness'
grandfather. Kapita was buried by his own nephews (vazukuru),
children of Sori. He buried Bere. He confirmed that all the clan's
chiefs are buried in Marowe, without exception. He did not know about
Nyamukapa. He was not versed in the method used to rotate
chieftainship from one house to the other but he knew that they took
turns (majana/madzoro). The eligible house chose their candidate.
He
knew the Nyambudzi as the father figure who were food caterers and
who did not ascend to the throne. He did not know if they were
permitted to participate in the regal discussions.
On
the basis of the equality of turns he believed that the next chief
should be from the Mukonde house.
Under
cross examination his national identity card gave his date of birth
as 13 August 1920.
He
knew of the graves of the last three chiefs only. They are not
marked. The chieftain families did not go to Marowe hill.
He
believed that in line with “majana”, Dyora took over from a
member of the Mukonde house. He believed that after Bere it should go
to the Kawoko house.
The
first “doo” was done wrongly and Magadu who supplied the first
provided the second one, which the witness approved.
The
first defendant's version
The
1st defendant testified. He was born on 2 June 1954. He is the son of
Muchabaiwa Nyajina the son of Bopoto Nyajina the son of Kamukanya the
son of Kanemadadu. Kamukanya was the elder brother to Dyora.
At
first he stated that after Bere died, the VaZumba sat down to
determine which house was entitled to assume the throne and
unanimously agreed that it was the turn of the Kawoko house.
He
was wrong on this aspect as there was never unanimity amongst the
eligible houses.
The
Kawoko House deliberated over the issue. Kanemadadu had three sons;
that is, Kamukanya, Dyora and Mutanda. Dyora had assumed the
chieftainship ahead of his elder brother. It was decided by the
Kawoko house that the throne should go to the descendants of
Kamukanya ahead of Mutanda as Kamukanya was the older of the two. The
Kamukanya descendants chose the witness.
He
could not explain why Dyora superseded Kamukanya save to state that
at the time the mhondoro appointed whomsoever it pleased to be chief
without regard to age or seniority.
At
least in the Kawoko house, they agreed that seniority entitled
Kamukanya over Mutanda.
The
fact that Kawoko decided to follow seniority seems to my mind to
suggest that seniority is part of the VaZumba tradition in selecting
chiefs.
He
was asked to comment on page 9, an unsigned document produced by the
plaintiff in exhibit 1, which is written in Shona, which shows the
chiefs who reigned since the inception of the clan from Nyanhewe to
the last substantive incumbent Bere. It sought to portray that
Nyanhewe ruled from 1589.
TD
was at pains to explain how he estimated this year on the probability
matrix based on the average number of years of Dyora, Kapita and
Bere. He gave each chief a period of 34 years. The witness attacked
the formula and thus the document on 5 grounds.
(i)
Firstly, the document to his mind did not state who had commissioned
and compiled it and the source of the contents therein;
(ii)
secondly it started in 1589, a period during which the clan was not
able to write;
(iii)
thirdly it does not provide for the acting chiefs who ruled between
chiefs as known in custom that after the death of a chief and before
the appointment of another, a caretaker acting chief is appointed;
(iv)
fourthly the recorded history provided by the whiteman showed that
Dyora ruled for 33 years, Kapita for 37 years and Bere for 29 years.
He supposed that the earlier chiefs must have ascended to the throne
at different ages, that is, some when young others in their middle
ages and yet others in old age. It therefore did not make sense to
attempt to give a uniform duration of chieftainships; and
(v)
fifthly he disputed that the Mukonde house had had 3 turns of the
chieftainship in the history of the clan. He denied that the
chieftainship was based on seniority on the basis that though Mukonde
was eldest, his descendants tasted the throne for the first time in
chief number 7. It had rotated between Kawoko and Chikuwe's
descendants. To his knowledge Mukonde and Kawoko had 4 turns each
while Chikuwe had 3 turns.
The
spirit mediums who were responsible for appointing chiefs in the past
could appoint young children who then were assisted by regents.
He
did not point out which of the chiefs had been assisted by regents.
He
was asked to relate the traditions, customs and norms of the VaZumba.
He
stated that Nyanhewe was the first chief. He was succeeded by
Nyahuma. Nyahuma had four sons, that is, Nyambudzi, also known as
Kanodzirasa, Mukonde, Kawoko and Chikuwe. When Nyahuma was about to
die or was dead Chikuwe, the last son was appointed chief. This
angered Nyambudzi who stabbed his younger brother to death. Members
of the Chikuwe house then fled from Uzumba. Nyambudzi did not assume
the throne but was disqualified in person and through him all his
descendants were barred from acceding to the throne in perpetuity.
The
first tradition was that the chieftainship rotated among the three
houses of Mukonde, Kawoko and Chikuwe. The mhondoro in charge was the
reincarnation of Nyanhewe called Bvukura. It provided two fire making
sticks “tsika” to the house that would be the next in line to
accede to the throne. The “tsika” was not given to the ruling
chief or his house but to the house of his successor. When the chief
died the house with the “tsika” was obliged to supply the beast
that was slaughtered and whose hide “doo” was used to inter the
chief in. The house was also responsible for choosing the site of the
grave of the dead chief.
The
last chief who was appointed by Bvukura was Kapita. Bere was
appointed by Bvukura's nephew (paternal sons born of Nyanhewe's
sister) Nyashawa of the Bushu clan. Thereafter the two spirit mediums
disappeared and the VaZumba agreed that in their absence they would
select their chief designate from amongst themselves on their own
following the rotational system.
He
was asked to comment on page 8 of exhibit 1. This is the genealogy of
the male issue of Nyanhewe to 3 November 2001. It indicates that it
was compiled by Batsirai Denford Muskwe from information supplied by
Denhere Noah Muskwe; Muyati Eliah Muskwe; Douglas M. Nyajina and the
Manyika family.
It
was revised at the Chief's hall- Muskwe in Uzumba on 3 November
2001.
In
his view it did not show that the issue of seniority was part of the
VaZumba tradition.
He
said in the Kawoko house Dyora took over the chieftainship over his
elder brother Kamukanya. In the Chikuwe house Manyika acceded to the
throne ahead of his elder brother Chiwara.
He
did not explain why he believed that the two elder brothers were
still alive.
When
the throne returned to the Chikuwe house Kapita of the Katsande sub
house superseded his contemporaries Manjera and Mutarimanja the sons
of Chidyamatiyo who was Katsande's elder brother. He superseded the
descendants of Chiwara the son of Chikuwe and the elder brother of
Manyika (the 6th chief).
In
the Mukonde house itself, the genealogy chart showed that Bere was
the son of Nyajambwa. Nyajambwa was the youngest of Muskwewebga's
sons Maiyagoto and Nyamukapa. Bere superseded his contemporaries who
were descendants of his two elder brothers.
He
disputed that the absence through death of his contemporaries from
his elder brothers' descendants meant that Bere had to be nominated
because he was the eldest survivor of his generation. He maintained
that age did not matter at all as long as the house had male issue.
He
stated that oral history passed down to him had it that Nyamukapa was
a chief.
He
went to the District Administrator's office at Mutawatawa and was
given page 16 of exhibit 1. It is the genealogy of the VaZumba chiefs
compiled from Head Office records by R.C. Plowden in Harare on 11
November 1982. Plowden further recorded that “it may not be
accurate”. Nyamukapa is shown as the 10th chief.
He
did not doubt its accuracy notwithstanding that it showed that Sororo
Ziome had two sons Nyanhewe and Nyakushama. Nyakushama was shown as
the father of Chikuwe while Nyanhewe was shown as the father of
Nyahuma. The sons of Nyahuma were depicted as Kanodzirasa, Kawoko,
Mukonde and Kamutimbikwa.
He
said while these were contrary to the oral history he knew, he could
not dispute it because the informants of Plowden must have known what
they were talking about.
This
was a disingenuous answer as he knew that no one had informed Plowden
who simply used head office records to compile a genealogy. It was
not clear why he did so. He did not even state which head office
records he used.
I
found the suggestion by Mr. Kamdefwere, for the 1st defendant, that
the information therein was supplied by Bere an inaccurate
interpretation of Plowden's documents.
The
1st defendant also relied on page 10 of exhibit 1. This is another
genealogy chart that he recovered from the National Archives.
The
Kawoko house produced it for the first time at the meeting of 28
January 2005. It is an official government document compiled by a
person with the initials CJKL on 20 May 1965.
It
seemed to me that Plowden copied some of the information on his chart
from this document.
It
depicts Sororo as the father of Nyanhewe and Nyakushama. Nyakushama
bore Chikuwe while Nyanhewe bore Nyahuma. Nyahuma was the father of
Nyambudzi, Kanodzirasa, Kawoko, Muskwewebga and Kamutimbikwa.
The
writer suggested that he received some of the information from the
reining chief Kapita.
The
genealogy was a distortion of the oral history the 1st defendant
relied on in the aspects also highlighted by TD Muskwe. He however
accepted its content notwithstanding that it did not show who the
11th chief was.
He
accepted these documents because they showed that Nyamukapa of the
Mukonde house was a chief.
He
said Dyora of the Kawoko house took over from him and Kapita of the
Chikuwe house took over and it retuned to the Mukonde house through
Bere and now it is the turn of the Kawoko house, which chose him to
be the next chief.
He
preferred these two documents to the genealogy on page 8 because the
two were produced by neutral persons at a time when there was no
chieftainship dispute while page 8 was produced by the Mukonde house
after the dispute had arisen and in contemplation of a suit.
He
attended some of the clan meetings to deliberate on which house was
entitled to assume the vacancy left by Bere. At the meetings that he
attended the Nyambudzi house was represented. He stated that as the
father figure and the guardian of the clan they were entitled to
participate in the deliberations.
The
two houses of Kawoko and Chikuwe agreed on the next house and were
supported by the Nyambudzi house. The Mukonde house, especially the
Muskwe sub-house did not agree with the other houses.
He
revealed that page 9 was the disputed handiwork of the Muskwe sub
house who compiled it without the consent of the other houses.
He
was present at the meeting of 18 June 2005 which was chaired by the
2nd defendant.
In
his view the 2nd defendant did not breach the traditions of the clan.
He saw nothing amiss in the consultations he had with the acting
chief Pedzisai from the Mukonde house, Headman Magadu from Kawoko
house and acting headman Nyajina from the Kawoko house.
His
uncle Marongo Nyajina supplied the “doo” used at the death of
Bere. The skin was prematurely cut at the knees and not at the hooves
so another beast was supplied by Magadu.
The
Mukonde house looked up to the Kawoko house to supply the “doo”.
His uncle and father designated the burial place of Bere in Marowe as
representatives of the succeeding house.
He
equated the present challenge to the previous ones of David Nyajina
on 12 November 1947 and Joseph Manyika on 27 November 1971. He
suggested that it also lacked merit.
He
was cross examined at length.
He
said the clan was spread in a wide area and so all members of the
three houses were unknown to each other. They were not close. He only
came to know the plaintiff after the death of Bere during the
meetings that were held to select his successor.
He
was asked what he disputed on page 8 of exhibit 1.
He
denied being an informant to the writer of the document in question.
He confirmed that it accurately depicted the genealogy of the Kawoko
house and even of his own sub house. He had no knowledge about the
accuracy of the genealogy of the other two houses. He relied on the
oral history passed to him by his father. He was taught that
Kanodzirasa was the eldest son, followed by Mukonde, Kawoko and
Chikuwe.
As
regards the chart on pages 10 and 16, he agreed with both in their
entirety. He said that while page 10 showed Chikuwe as Nyakushama's
son, he had been told by his father that he was the fourth son of
Nyahuma. Oral history had taught him that Kanodzirasa was also known
as Nyambudzi. He did not accept that Nyambudzi, Kanodzirasa, Kawoko,
Muskwewebga and Kamutimbikwa were all children of Nyahuma.
He
regarded it as unfortunate that some of the information on the three
houses on page 10 was inaccurate.
I
found his testimony in this regard confused. He was evasive and
elusive. I had to warn him to answer the questions asked and not to
anticipate questions.
He
believed that the sources of information which gave rise to page 10
and 16 must have known what they were talking about.
He
accepted that he took this attitude because both documents showed
that the 10th chief was Nyamukapa. His father never told him that
Nyamukapa was a chief.
Page
10 does not show who took over from him while page 16 shows that it
was Dyora. Page 16 further indicated that Nyahuma's four sons were
Kanodzirasa, Kawoko, Chikuwe and Kamutimbikwa. It also showed that
the founding patriarch Sororo Ziome had two sons - Nyahuma and
Nyakushama. The latter son was the father of Chikuwe.
He
preferred the version written down by the white man to his own oral
tradition on the basis that it was written and sourced from his
forefathers.
When
it was brought to his attention that Bvukura would have no relevance
to Chikuwe if page 16 were correct, he could only stutter that the
providers of that information must have known what they were talking
about.
He
also attempted to duck the import of the question by averring that
the trial was not about the forefathers but about which house should
accede to the chieftainship.
He
further revealed that he produced it to show that Nyamukapa ruled.
He
accepted that a document had to be accepted in its entirety and not
in piece meal fashion.
He
could not say when Nyamukapa became chief. It was clear that when
Willie Edwards became the first native commissioner for Uzumba, the
reining chief was from the Kawoko house. Had it been from the other
two houses, they would not have given him the name Nyajina, a
derivative of the Kawoko house. It is likely that they may have used
their own house names or even their common ancestors' name.
He
was present at the meeting of 15 October 2003 minuted by the
assistant District Administrator Mlambo. In those minutes at page 32
the witness expressed the view that the rotational system as opposed
to the number of turns be followed in selecting the eligible house.
Joseph
Kandemiri (the last witness in this case) said the concept of
seniority would confuse the rotational system.
It
was noted that Mukonde and Kawoko assumed the chieftainship once in
succession; that is chiefs 7 and 8 and 9 and 10. The Kawoko house
then argued that 9 and 10 were one person.
These
minutes indicated that there was no room for Nyamukapa to rule.
He
ended up conceding under cross examination that Dyora took over from
Kanemadadu. It was clear that though he retrieved documents after the
pre-trial conference, his house in his absence produced them at the
meeting of 28 January 2005 chaired by Munakira an assistant
Provincial Administrator, which was minuted by Mandizvidza a member
of his staff.
The
Mukonde house had disputed the accuracy of these documents concerning
Nyamukapa.
He
accepted that it was his clan's traditional custom that chiefs
acceded to the throne in turns hence the Shona idiom “ushe
madzoro”.
To
him it was demonstrated by the movement from Dyora of Kawoko to
Kapita of Chikuwe and to Bere of Mukonde. He believed that it was now
the turn of Kawoko who had selected him.
He
refused to accept that the selection be compared to turns taken in
herding cattle. He said during the precolonial era chiefs were
appointed by the Guardian Spirit-mhondoro- whose decision was
unquestioned and final. He stated that once a house missed its turn
it missed it for ever. There was no room for catching up and for
equality of turns.
He
denied that the Guardian Spirit simply vetted but alleged that it
appointed.
In
his view David Nyajina and Joseph Manyika's evil spirit of seeking
the chieftainship to remain in one house in 1947 and 1971 was
manifesting itself in the plaintiff.
The
only written record of a visit to a spirit medium is found on page 57
to 60 of exhibit 1.
The
district commissioner was represented by Samuel Chirimuta. The three
eligible houses were represented as was the house of Nyamupfuchira,
which from the minutes of 16 August 2003 were part of the Kawoko
house maternal line. It is recorded on page 59 that the Mukonde house
led the entreaties. Kanyimo clapped his hands and stated that the
Muskwe house was acting on the spirit medium - Nyashawa's
instructions. The spirit medium then asked whether they sat together
as a family and reached a decision. At page 59 the spirit medium gave
glimpses of its involvement. Apparently one Gotora was a contender to
the throne. The Muskwe family held a meeting under the instruction of
the spirit medium. The spirit medium was concerned with whether the
family had made a decision to which the delegates answered in the
negative and in unison stated that they did not have to take the lead
as the decision lay with the spirit medium. It responded that it was
not requesting them to nominate a man, a function it would carry out,
but merely wanted to know whether they had decided on the sub house
within the Muskwe sub house of the Mukonde house. Kanyimo then
answered that Muskwe handled the “tsika” (fire friction sticks)
at the installation of the dead chief (reference to Kapita) and that
it was agreed by everybody that the man should be from the Muskwe
house.
The
spirit medium then instructed the Muskwe house to go back and sit
together and nominate a sincere man of good clean character and
integrity. They were to give his name to the district commissioner
who was put it to the vote of the Uzumba tribesman.
The
spirit would accept and approve whatever the white man did.
Kanyimo
voiced his concern about involving the white man but was told to
await the return of the spirit Nyanhewe [Bvukura] if he disliked the
idea. The spirit medium told the district commissioner's emissary
that the district commissioner was to help the spirit medium in
choosing and appointing a good man who had done good work in the
past, a man with a good past reputation.
The
visit demonstrated that the eligible houses selected in terms of
tradition the house from which the chief would come. The known
tradition was the use of “tsika”. It was handled by the house
that would succeed the sitting chief at his installation. The
eligible houses would visit the spirit medium and await its
instructions on the selection and appointment of the new substantive
chief. The spirit medium could in its discretion select and appoint
or it would ask the house to select a candidate and seek its
approval. The spirit medium therefore had the crucial role in the
selection process of a chief.
The
suggestion that it simply vetted is not borne out by the instruction
given to Samuel Chirimuta.
I
would agree with the 1st defendant that there was no difference in
selection and approval for in the final analysis he who approves is
in reality the ultimate selector.
On
seniority, the defendant stated that this was not followed by the
VaZumba. He maintained that on the death of Nyahuma, he was succeeded
by his youngest son Chikuwe, who was killed by Kanodzirasa in anger.
He
denied that his great grand father Kamukanya was killed by Dyora and
thrown into the Nyadire River at a pool referred to this day as
Nyajina.
He
also disputed that Dyora also poisoned Maiyagoto of the Mukonde
house.
He
was not aware that the Nyambudzi house is not allowed to participate
in the courtly discussions but is behooved to skinning goats and
serving food to the three houses.
He
averred that the Nyambudzi house was also invited by the 2nd
defendant to attend the meetings to select the house from which the
chief would come from notwithstanding that page 28 showed that only
members of the three houses were invited.
The
minutes that were produced when all the houses were in attendance
showed that the Nyambudzi house attended all the meetings except that
of 28 January 2005. The minutes do not show that any member of the
eligible houses objected to their presence and participation.
He
could not say which member of the Mukonde house demanded “doo”
from the Kawokos as a sign that the next chief was to come from their
house.
He
was not at the funeral but his late father who died in 2005 advised
him that the two beasts were supplied by Marongo and Magadu from the
Kawoko house.
This
was stated in the minutes of 15 October 2003, page 32 under: way
forward.
Kurauone
Mutanda of the Kawoko house indicated that the provision of “doo”,
the selection of the burial spot and the distribution of the property
of the deceased were done by the house that would be next in line for
the chieftainship. The acting chief and the deceased chief are quoted
by Zungunde Bongu as accepting that the Kawoko house would accede to
the throne.
He
denied that anything untoward took place at the last meeting where
the Kawoko house was chosen to select the chief.
He
did not see the 2nd defendant take acting chief Nyajina, acting
headman Kawoko, headman Magadu, a stranger chief Chirinda aside after
adjourning the meeting and on resumption anoint the Kawoko house.
Magadu
did not qualify to the chieftainship as a Kawoko candidate as he was
not able to trace his male lineage in that house.
His
attempt to impugn the report of the visit to Nyashawa was
contradicted by paragraph 5 of page 15 of exhibit 1.
He
called Cry Murowa, from the Chikuwe house, born 15 May 1951, who grew
up with the defendant as they lived in contiguous villages.
His
father Jasi told him of the clan history.
Kapita
who died on 4 July 1974 was the last chief installed by Nyanhewe, the
Guardian Spirit that disappeared in 1945. Bere was selected by
Nyashawa, a grandson of Nyanhewe. The seniority of the eligible
houses was not an issue in succession. The house given “tsika” on
installation of a chief would select whomsoever it wanted and could
bypass the old or young. The age of the incumbent was not a
consideration.
He
said the name of Nyamukapa and his rein came up after the death of
Bere in meetings that were convened to select the eligible house. He
did not know if he had been a chief.
He
knew that Chikuwe took over from Nyahuma and was killed by Nyambudzi.
The Guardian Spirit then disqualified Nyambudzi and his descendants
from the chieftainship.
He
was present at the meeting of 18 June 2005 where the Kawoko house was
chosen to select the next chief. The Kawoko and Chikuwe houses agreed
that it was the turn of the Kawoko house to accede to the
chieftainship. It was supported by the Nyambudzi house, the Bambo
house, which is allowed to participate though it can not assume to
the throne.
Under
cross examination he agreed that he was not the eldest living member
of the Chikuwe house. He was not testifying as a representative of
his house. He did not know the genealogy of the other two houses. He
did not know Mutarimanja of the Chikuwe house.
He
accepted the general accuracy of the genealogy of the Chikuwe house
on page 8. A few names of members of his generation had been omitted.
He
did not see the aside meeting that was convened by 2nd defendant on
18 June 2005.
He
said he ascribed to the rotational and not to the equality of turns
system of succession. The past selections and appointments were
governed and controlled by the Guardian Spirit. He preferred the
clear trend that has prevailed since the coming of the white man.
It
seems to me that he confirmed the accuracy of page 8 of exhibit 1.
The
last witness was Felix Joseph Kandemiri of the Nyambudzi house who
was born on 6 June 1949.
He
supplied his genealogy. He alleged that Nyambudzi was Nyahuma's
first son. His house was allowed to attend the meetings on the
selection of chiefs though it could not accede to the throne.
Nyambudzi was disqualified after he killed Chikuwe but was appointed
the Tsiye, that is, the guardian of his younger brothers on the death
of Nyahuma. He understood that “mugovi wemarongo” was a
figurative expression, which should not be subjected to literal
translation.
They
were not sharers of meat from pots but were mediators in disputes,
like the present one, that arose amongst the eligible houses.
He
disputed the principle of seniority averring that the plaintiff was a
village head yet his uncles (cousins and age mates of his father were
still alive).
The
turns in his view could not be equated to herding cattle for in the
era of the Guardian Spirit it chose whomsoever it deemed fit. There
was no evenness of turns. Once a house missed its turn it could not
be redeemed.
He
alleged that the designation of the burial spot of a chief was the
prerogative of the Nyambudzi house and not of the Chikari. This
averment was contrary to the minutes of 23 August 2003 in which
members of the Nyambudzi house were directed to Chikari if they
wanted to know where Bere was buried.
His
further averment that his house was involved in courtly discussions
since time immemorial was not borne out by the record of the visit to
the spirit medium Nyashawa as it was not represented.
He
stated that the 2nd defendant did not abrogate any traditions of the
clan at the meeting of 18 June 2005.
Under
cross examination he exhibited ignorance of the fact that his house
was also called the Kanodzirasa house and that Nyambudzi was a
nickname.
He
exhibited confusion by averring that Chikuwe was appointed chief
during his father's lifetime. He only knew his house's genealogy.
He did not know the names of the chiefs who reigned over his clan
throughout the ages save for Bere.
He
agreed that the Guardian Spirit vetted chiefs chosen by the eligible
house and that all the chiefs of the clan were interred in Marowe.
He
stated that he could not produce his invitation letter as he had lost
it and went on to confirm that there had been no objections to the
presence and participation of his house at the meetings convened to
select the eligible house.
He
averred that seniority did not affect chieftainship in a house yet
Nyashawa said no son could assume the throne over his fathers
(uncles).
To
his knowledge “doo” would be supplied by a different house from
that of the deceased chief.
He
alleged that the customs and traditions of the VaZumba reposed in the
Nyambudzi house and said that “tsika” was given to the incumbent
at his installation.
ASSESSMENT
OF THE CREDIBILITY OF THE WITNESSES
I
found the historical analysis rendered by TD Muskwe for the plaintiff
plausible. It captured the oral history given by the elders of all
the three eligible houses.
While
Farai Muskwe for the plaintiff did not know that he was the eye of
the clan, I believed TD Muskwe on this score. He was intimately
involved by virtue of his professional training in the dispute
between the clan and the Hombiros. He was the youngest member of the
committee that was set out to record the history of the clan.
I
am satisfied that even though by the time it was presented Bere had
died and there was a jockeying for the vacancy that he left, the
committee created a credible and reliable family tree of the three
royal houses.
The
1st defendant and his two witnesses relied on the documents produced
by CJKL and Plowden which he knew contained serious distortions of
his clan's history.
In
the end he grudgingly accepted that Nyamukapa was not a chief of the
VaZumba people. This admission proved the reliability of Farai
Muskwe, Isaki Nyamukapa and Tapera Musekiwa's evidence on the
point.
I
found myself accepting the plaintiff's version on the history of
the clan in those instances where it differed with that of the 1st
defendant.
The
1st defendant and his witnesses, notwithstanding the attempt by
Joseph Kandemiri to falsify the role of his house as the custodian of
the royal traditions, were more knowledgeable about the values,
customs and traditions associated with the principles of succession
of the VaZumba clan than the plaintiff.
The
plaintiff sought to rely on deductive reasoning rather than hard
facts of the lived traditions as practiced by his clan.
The
1st defendant was able to link these lived and practiced traditions
to the disputes at hand than did the plaintiff and his witnesses who
seemed to rely on platitudes.
While
Chikari is indeed the chief undertaker, it seemed to me that the
testimony relayed to the 1st defendant by his father as to what
transpired at Bere's death was more lucid. Two beasts were provided
by the Kawoko house for the “doo”. Chikari confirmed the two came
from the Kawoko house when he named Magadu as the supplier. The
question of members of the Kawoko house having designated Bere's
burial spot was agreed to in the minutes of 15 October 2003.
I
found myself accepting the 1st defendant's version on that score.
THE
ISSUES
The
two issues that were referred to trial were:
1.
Whether it is the plaintiff's house or the 1st defendant's house
that is entitled to accede to the throne of the VaZumba
chieftainship, given the number of turns each of the three houses has
enjoyed?
2.
What are the values, traditions and customary principles of
succession of the VaZumba people that have to be considered before
the appointment of a substantive chief?
RESOLUTION
OF THE ISSUES
It
seems to me that after the amendment by the 1st defendant of his
plea, I am obliged to determine the number of turns that each house
has acceded to the throne.
It
was common cause that the Chikuwe house has had three turns on the
throne while the Kawoko house, to which the first defendant belongs,
has had four turns. The dispute on turns centers on the number that
has been enjoyed by the Mukonde house to which the plaintiff belongs.
The
plaintiff stated that his house has provided three chiefs to the
clan. These were chief number 7, Muskwewebga; chief number 8, Chikoso
and Chief number 12, Bere. The 1st defendant averred that it in
addition provided chief number 10, Nyamukapa.
The
onus lies on the 1st defendant to show that Nyamukapa was a chief.
He
relied on the documents on page 10 and 16 of exhibit 1, which he
retrieved from the National Archives and the Mutawatawa District
Administrator's office. It is in these documents that Nyamukapa is
depicted as having acceded to the throne as chief number 10 after
Kanemadadu but before Dyora.
The
first defendant was prepared to relegate his house's oral history
to the primacy of the two documents.
The
earlier document was written by CJKL on 20 May 1965. The writer gave
a disclaimer on the accuracy of the genealogy chart that the 1st
defendant relied on.
He
wrote that he relied on data available in the field as there were no
existing records in the District Commissioner's office. He did not
name his sources in the field.
He
referred to the incumbent chief Kapita in passing by averring that
the chief claimed that the tribe was spewed out of a crater in the
Chavazumba hill. He did not state that he was provided with the
history and genealogy that he wrote by the chief.
The
second document was prepared by Plowden on 11 November 1982 from head
office records. He also placed a disclaimer on its accuracy. He did
not disclose the source documents he reviewed at head office.
I
am not able to draw the inference that the two authors obtained their
information from the incumbent chiefs because of the agreement
between the 1st defendant, given halfheartedly, and the plaintiff
that the genealogy charts were a gross distortion of the accepted
oral history of the clan.
The
distortions that the 1st defendant conceded to were highlighted by
the plaintiff's witness TD Muskwe.
Sororo
Ziome had one son Nyanhewe and not two sons Nyanhewe and Nyakushama.
Nyanhewe was the father of four sons. These were Mukonde,
Kanodzirasa, Kawoko and Chikuwe. He did not have five sons as shown
in the first document nor was he the father of Kamutimbikwa as shown
in both documents. Kanodzirasa and Nyambudzi was one person. Chikuwe
was the son of Nyanhewe and not of Nyakushama. Muskwewebga was a
great grandson of Nyahuma and not his son. Mukonde was not
Nyamupfuchira's son nor was Magadu Mukonde's son.
The
1st defendant accepted that these documents were at variance with the
oral history that had been passed on to him by his father and other
elders in his family. His witness Cry Murowa also accepted that the
two documents that were produced by the white men were inaccurate.
It
seems to me that both Kapita and Bere, being repositories of their
clan's history, would not have distorted it in the manner suggested
in the two documents.
Indeed
the 1st defendant stated that even his own father who passed away in
2005 never told him that Nyamukapa was a chief.
The
1st defendant's demeanor as he dealt with the obvious conflict
between the documents and his oral history painted him as a devious
and unreliable witness who sought to capitalize on information he
knew was false.
Even
though the 1st defendant was absent at the meting of 16 August 2003,
he was present at the meeting of 15 October 2003 where the minutes of
the earlier meeting were confirmed by a member of each eligible house
and Joseph Kandemiri.
In
the earlier minutes it was agreed that Dyora seized power after the
death of his father Kanemadadu and was subsequently appointed by the
native commissioner as the chief.
Thus
Nyamukapa could not have succeeded Kanemadadu.
The
plaintiff called the evidence of two of the grandsons of Nyamukapa,
Isaki Kavhu Nyamukapa from the paternal line and Tapera Musekiwa from
the maternal line, who testified that their forbearer never acceded
to the throne. They confirmed TD and Farai Muskwe's evidence that
their grandfather was buried in Denje Mountain and not in Marowe were
all chiefs of the clan are buried. Tapera has been to the grave at
Denje on several occasions.
It
appeared that Makwembere, who was also named Nyamukapa and who was a
headman in 1965 was the one the defendant sought to elevate to the
pedestal of chief.
In
addition the repositories of the documents used by 1st defendant that
is 2nd and 3rd defendant agreed in their plea that Nyamukapa was not
a chief.
The
plaintiff produced page 8 of exhibit 1. He averred that it was drawn
from the collaborative effort of the three houses that are eligible
to accede to the throne. It was compiled after the death of Bere. The
parties who collaborated in its production did not impugn it.
The
1st defendant admitted that the three houses were spread all over
Uzumba and beyond. They were not a close knit clan. He only came to
know the plaintiff after the death of Bere when meetings were held to
choose the house that would assume the chieftainship. He accepted as
did Cry Murowa that the family tree of his house that is contained in
the document on page 8 was accurate.
It
is clear to me that Denford Muskwe would not have produced such an
accurate document if he was not working in unison with historians
from the Kawoko and Chikuwe houses.
I
was satisfied that the document accurately depicts the family tree of
the three royal houses.
In
the end Mr. Kamdefwere conceded that the defendant had failed to
demonstrate that Nyamukapa was once a chief.
I
accordingly find that Nyamukapa was not a chief. It follows that the
plaintiff's house has had three turns on the VaZumba throne.
The
answer to the question of the house which should accede to the
chieftainship between the two is dependent on the resolution of the
second issue. It enjoins me to spell out the values, traditions and
customary principles of succession of the clan which have to be
considered before the appointment of a substantive chief.
The
duty to prove these values, traditions and customary principles of
succession of the VaZumba lies on the plaintiff. This is because he
avers that these standards were not followed in the recommendation of
the 2nd and 3rd defendants to the President in the appointment of the
1st defendant as chief Nyajina designate.
In
Chagaresango v Chagaresango & Others 2000 (1) ZLR 99 (S) at page
106C Muchechetere JA held that this Court has the power to
investigate whether the Minister and his officials in formulating
their advice to the President acted on sound principle.
The
law on the principles of succession of chiefs among the Shona people
of Zimbabwe has been stated in various works by reputable authors. It
is conveniently set out by Mtambanegwe J in Ruzane v Paradzai &
Another 1989 (1) ZLR 118 (H) at 121B122C.
Mr.
Mugadza, for the plaintiff, referred to these works. They are;
The
History and Extent of Recognition of Tribal Law in Rhodesia by Harold
Child at page 6; Shona Customary Law by JF Holleman at page 21;
African Law and Custom in Rhodesia by Goldin and Gelfand at page 46;
The Mashona by C Bullock at page 280 and The Constitutional History
and Law of Southern Rhodesia 1865-1965 by Dr. Claire Palley at page
476.
These
seminal works make the point that succession to chieftainship in most
instances is collateral among the Shona speaking people. It passes
from elder brother to younger brother and where there is more than
one royal house, from the head of one house to that of another until
each has had its turn, before the cycle is repeated.
The
evidence before a court however determines the principles of
succession of each clan.
The
plaintiff averred that there are two major principles which govern
succession to the chieftainship of the VaZumba;
(i)
The first is that collateral succession is based on seniority in each
house and as between the houses; and
(ii)
The second is that collateral succession is based on the equality of
turns between the eligible houses.
The
parties were agreed that collateral succession governs the nomination
of chiefs in the clan.
All
the witnesses for the plaintiff and the defendant agreed that
chieftainship succession moves from the elder house of Mukonde to
that of the middle house of Kawoko and to that of the younger house
of Chikuwe and then goes back to the Mukonde house thus repeating the
cycle ad infinitum.
This
is what happened from Dyora to Kapita to Bere notwithstanding the
attempts by Dyora's son David Nyajina and Kapita's son Joseph
Manyika to seek progeniture/linear succession.
The
plaintiff through the production of official government documents of
the visit to Nyashawa demonstrated that in each house the custom was
that sons did not accede to the throne ahead of their fathers, their
fathers' brothers and half brothers.
It
was apparent from the plaintiff's evidence that that was the reason
why Bere acceded to the throne ahead of Gotora's son.
In
the Chagaresango case, supra, Muchechetere JA made it clear that an
eligible contender could abrogate his birth right in favour of the
next collateral claimant but not his son.
The
1st defendant sought to rely on the discredited documents compiled by
CJKL and Plowden to show that collateral succession was not based on
seniority as Chikuwe became chief ahead of Mukonde and Kawoko after
the death of their father Nyahuma.
The
1st defendant and his counsel were under the mistaken belief that the
discredited documents showed that the chieftainship moved from
Chikuwe to Kawoko then back to Chikuwe and Kawoko before going to
Mukonde. Those two documents however indicate that Chikuwe was the
third chief and after him came Kawoko who was then succeeded by his
son Nyajina and not by Manyika the son of Chikuwe. The documents thus
conflict with the known oral history that was passed down from
generation to generation.
I
am satisfied that they tell a lie about the correct position that was
accepted by the parties that succession was collateral and not
linear.
It
is this acceptance which satisfied me that succession being
collateral moved from Nyahuma to Kawoko because Mukonde had died and
to Chikuwe.
It
is not known why it did not devolve thereafter to Munzwere, the son
of Mukonde. It could very well be that by the time his uncle Chikuwe
died, Munzwere may have died as suggested by oral history passed down
in the Mukonde house. No one knows the age differences between
Mukonde and Chikuwe and between Chikuwe and Munzwere. The possibility
that Munzwere predeceased Chikuwe appears to be borne out by the
meaning rendered to the name Muskwewebga, being a lonely survivor, by
the plaintiff's witness TD Muskwe.
The
contention by Mr. Kamdefwere that the Guardian Spirit did not follow
seniority of houses is not borne out by page 8 of exhibit 1.
As
between the Kawoko house and the Chikuwe house, seniority was
followed. It was also followed from Manyika to Muskwewebga, who
became the first chief from the Mukonde house.
The
explanation given by the 1st defendant on his choice as chief over
the Mutanda sub house was based on the fact that his Kamukanya sub
house is the most senior.
I
therefore find that collateral succession of the VaZumba devolves in
the first instance on seniority of the houses.
The
sentiments of Nyashawa on the qualities expected of a suitable
candidate dovetail with the averments made by the plaintiff. He must
be a man of integrity and good character with no record of previous
infractions against his community such as murder and black magic.
Thus age was a first consideration which was benchmarked against
reputation.
The
plaintiff's submission on this score succeeds.
The
second contention was that equality of turns is a tradition of the
VaZumba chieftainship.
The
plaintiff's witnesses subscribed to this view while those called by
the 1st defendant disputed it. The plaintiff relies on the minutes of
15 October 2003 to show that the evenness of turns is part and parcel
of the clan's customs and traditions.
The
Mukonde house demonstrated that it had three turns. The response from
the Chikuwe house made by Thomas Manyika was that the chieftainship
should come to his house while the Kawoko house through Kurauone
Nyajina and the 1st defendant stated that to even out the turns would
disturb the rotational system. The Kawoko house's sentiments were
echoed by Joseph Kandemiri of the Nyambudzi house. The Kawoko house
went further and attempted to collapse Kanemadadu and Dyora into a
single person.
TD
Muskwe's uncontroverted testimony was that David Nyajina, the son
of Dyora, corrected his house and the issue of the effect of turns
was left for the consideration of the District Administrator.
The
1st defendant had no explanation to give to counter the plaintiff's
submission that Chikoso succeeded his elder brother Muskwe to even
out the number of turns that each house had on the throne. This was
the first time that succession had moved collaterally in one royal
house.
From
Chikoso it moved to Kanemadadu. Dyora then succeed his father.
The
explanation of the plaintiff was that he seized the throne through
murder and deceit.
The
murder part was not proved. The deceit element was most probable.
This is because he would have acted as chief in terms of tradition
for a year after the death of his father in the absence of Kamukanya.
His acting period coincided with the coming of the white man whom he
tricked into appointing him as the substantive chief.
There
was no evidence from the plaintiff to explain why, if evenness was
the primary objective, Mundomera did not take over from Chikoso so
that the Mukonde house, as the most senior of the trilogy, would have
the first third turn.
It
seems to me that the appointment of Chikoso was meant to even the
turns to two apiece for each house and thereafter succession would
and did revert to the house which first succeeded Nyahuma, that is
Kawoko, hence the accession of Kanemadadu.
Dyora
was clearly an aberration.
The
effect of that aberration was that the appointment of all subsequent
chiefs followed a hybrid procedure determined by the pre independence
legal provisions. That regime altered the tradition of the VaZumba.
The pre-independence government functionaries accepted that the
tradition was for collateral succession to devolve around the houses
without regard to the evenness of turns. This is apparent from the
fact that neither after Dyora nor after Kapita did the Mukonde house
ever suggest that the chieftainship should devolve to it.
TD
Muskwe and Farai Muskwe stated that during that time meetings to
select the eligible house were called by the Mukonde house. One would
have expected them to have raised these issues. That they only did so
after Bere suggests to me that they wished to ride on the Chikoso
incident.
Plaintiff
through TD Muskwe opined that one swallow does not make a summer.
Indeed Mr. Mugadza conceded that one incident neither makes a
tradition nor a custom.
Repetition
of the incident is what turns it into a custom and a tradition.
I
am thus satisfied that the evenness of turns is not a custom or
tradition of the VaZumba.
The
Chagaresango case, supra, demonstrates that an eligible person from
one house can be passed for chieftainship by death or other suitable
ground for disqualification. Once that happens his turn disappears
for good to await the next turn after all other eligible houses and
sub houses have had their turns.
I
hold that the equitable distribution of turns between the houses is
not part of the VaZumba principles of succession to chieftainship.
The
plaintiff's case therefore fails on this point.
The
plaintiff raised the involvement of the Nyambudzi house in the
discussions of 18 June 2005 as a desecration of the VaZumba values,
customs and traditions.
It
seems to me that the Mukonde house consented to the involvement of
the Nyambudzi house.
The
confirmed minutes do not show that members of the Mukonde house
objected to the presence of the Nyambudzi house. Farai Muskwe stated
that when he objected to their chairing the meeting of 16 August
2003, he was overruled by the senior Mukonde representative present
David Dombodzvuku Muskwe.
Farai
stated that they were permitted to attend and discuss but not to
chair or accede to the chieftainship.
The
other witnesses, that is Nyamukapa's two grandchildren and Chikari
had no knowledge of who was supposed to take part in these
discussions.
The
conduct of the plaintiff's house confirms that the Nyambudzi house
could take part in the deliberations.
That
was the effect of the 1st defendant's testimony as confirmed by Cry
Murowa and Joseph Kandemiri.
The
plaintiff failed to show that it was against the VaZumba principles
of succession to chieftainship for the Nyambudzi house to participate
in the deliberations. It also failed to show that the consultations
by the 2nd defendant of acting chief Nyajina, the son of the last
Mukonde chief and acting headman Kawoko and Magadu, who were all part
of the royal houses who were also government appointed traditional
leaders was improper.
The
plaintiff did not aver how the stranger chief Chirinda influenced the
2nd defendant. His house did not object to his presence.
In
my view, in the absence of detail as to the part played by chief
Chirinda I am not able to find that the VaZumba traditions were
violated.
It
appeared from the evidence and documents that the involvement of the
Guardian Spirit and spirit mediums was consensually dispensed with by
all the eligible houses.
It
came out in the minutes of 15 October 2003 that the Kawoko house
supplied the “doo”. This was confirmed by Chikari. In those
minutes the averments by the Kawoko house that it designated Bere's
burial spot and distributed his property were not challenged.
These
are also traditions and customs used by the VaZumba to indicate the
house due to succeed the deceased chief.
The
attempt by Joseph Kandemiri to ascribe these to the Nyambudzi house
was demonstrably false. The minutes of 16 August showed that they
were referred to Chikari for the visit to Bere's burial spot.
These
three customs of the VaZumba are further indicators of the identity
of the house that is eligible to accede to the chieftainship.
The
last custom and tradition revolves around the “tsika”.
No
evidence was led by the plaintiff as to which house was given the
“tsika” at the installation of Bere. The plaintiff did not show
that “tsika” was given to the Maiyagoto sub house of the Mukonde
house.
At
the appointment of Kapita, according to Kanyimo's response to
Nyashawa, the “tsika” was given to the Muskwe house.
It
seems to me that the abovementioned values, traditions and customs
govern the principles of succession to chieftainship of the VaZumba
people.
I
am satisfied that the Kawoko house was properly nominated by the 2nd
defendant in accordance with the customary principles of the VaZumba
clan as the house from which a chief should emanate from. The 2nd
defendant properly acted on the advice and correctly recommended the
appointment of the 1st defendant as chief of the VaZumba. The
plaintiff case must therefore fail.
COSTS
The
defendant prayed for costs on a legal practitioner and client scale.
Costs
are always in the discretion of the court.
Costs
on the higher scale are reserved for serious breaches of professional
etiquette and for the abuse of procedure.
The
plaintiff was motivated by the desire to achieve equity in the number
of turns. I do not find his efforts an abuse of procedure. He was
entitled to put his case across to the best of his ability. I believe
however that costs on the ordinary scale must follow the event.
DISPOSITION
The
plaintiff's claim is accordingly dismissed with costs.
Messrs
Madanhi Mugadza & Co Attorneys at Law, plaintiff's legal
practitioners
Messrs
Musunga and Associates, 1st defendant's legal practitioners
Civil
Division of the Attorney General's Office, 2nd and 3rd defendants'
legal practitioners
