In
August 2005, the appellant, as plaintiff, issued summons in the High Court in
which he sought an order setting aside the appointment of the first respondent
as Chief Nyajina–designate and a further order directing the second and third
respondents to take into account and abide by the values, traditions and
customary principles of the VaZumba people in selecting the next Chief Nyajina.
He also sought an order declaring the Mukonde House as the house eligible to
select a candidate to become the next Chief Nyajina from its ranks. After
hearing evidence, the High Court dismissed the claim with costs.
It
is against that order that the appellant now appeals to this court.
The
pater genitor i.e. founder of the VaZumba clan, was one Sororoziome. He passed
the reigns of power to his first son, Nyanhewe, who became the first chief of
the clan. Nyanhewe, in turn, bore a son, one Nyahuma, who succeeded him after
his death and burial at Marowe mountain. Nyahuma had four sons. These were;
(i)
Kanodzirasa (also known as Nyambudzi or Bambo of the Madzimbahwe);
(ii)
Mukonde;
(iii)
Kawoko; and
(iv)
Chikuwe.
There
was some dispute as to who between Mukonde and Kanodzirasa was the eldest son.
It was common cause during the trial that Kanodzirasa lost the right to accede
to the chieftainship. The reason for this remains unclear. The appellant, on
the one hand, says he had desecrated some of the traditions of the clan, and,
in particular, had taken the meat of the guardian spirit, the result of which
was that he and his family were permanently barred from acceding to the
chieftainship. The first respondent, on the other hand, says he murdered his
younger brother, Chikuwe, and, consequently, was barred by the guardian spirit
of the clan from acceding to the chieftainship. In addition, he and members of
his family were relegated to the position of 'Mugovi wemarongo' which,
literally meant “meat sharer”.
The
dispute remains whether in this capacity his role was to kill, skin and cook
food whilst the other houses discussed issues of the chieftainship or whether
members of the family were allowed to attend those meetings and participate,
although they could not accede to the chieftainship.
After
his death, Nyanhewe became the guardian spirit, or svikiro, of the clan and was
known interchangeably as Bvukura or Bvukupfuku. The guardian spirit, which
manifested itself through a living human being, was intricately involved in the
selection of a chief.
The
dispute, during the trial, was whether the guardian spirit merely vetted the
candidate who was to assume the role of chief, as the appellant claims, or the
spirit would, independently of the houses of the clan, announce the house and
the name of the person who should succeed the deceased chief, as claimed by the
first respondent.
The
chieftainship of the VaZumba clan, which is not in dispute, is as follows -
Name House
1.
Nyanhewe -
2.
Nyahuma -
3.
Kawoko Kawoko
4.
Chikuwe Chikuwe
5.
Nyajina Kawoko
6.
Manyika Chikuwe
7.
Muskwe Mukonde
8.
Chikoso Mukonde
9.
Kanemadadu Kawoko
10
Dyora Kawoko
11.Kapita Chikuwe
12.
Bere Mukonde
It
is common cause that the last substantive chief, Bere, was from the Mukonde
House, the same house under which the appellant falls. Bere died in 2000,
having acceded to the chieftainship in 1971.
Before him was Kapita from the Chikuwe House who had reigned from 1931
to 1968. Before Kapita, were Kanemadadu and Dyora both from the Kawoko house.
Kanemadadu and Dyora were father and son respectively.
Following
the death of Bere in 2000, a series of meetings took place between the houses
and officials from the Ministry of Local Government, National Housing and Urban
Development. Following those consultations, the second and third respondents
decided, in August 2005, to recommend for appointment, the first respondent as
Chief Nyajina-designate.
It
is that decision that the appellant sought to have set aside before the court a
quo.
The
basis for the order sought was that according to the tradition and customary
principles of succession of the VaZumba people, succession was collateral,
based on the seniority of the houses and that, since the Kawoko house had
acceded to the chieftainship four (4) times, whilst Mukonde, the most senior
house, and Chikuwe, the most junior house, had each acceded to the
chieftainship only three (3) times, there had to be equal turns to the throne.
Accordingly, the appellant sought an order declaring his house as the rightful
house to appoint a candidate to take the chieftainship.
The
first respondent, in his plea, disputed the suggestion that evenness of turns
has always been part of the principles of succession of the VaZumba people. He
claimed that there were two distinct periods in the history of the VaZumba;
(i)
The first was the period when persons acceding to the chieftainship from the
three eligible houses were chosen by Bvukura the guardian spirit of the VaZumba
clan, without regard to seniority of the houses or evenness of turns;
(ii)
The second was the period after the guardian spirit ceased to manifest itself
and the VaZumba acted on their own and chose chiefs based on collateral
succession and seniority of the houses.
Having
heard evidence and submissions from the appellant and the first respondent, the
court a quo reached a number of findings of fact. These may be summarized as
follows:-
(a)
The appellant's version on the history of the VaZumba clan was more plausible
than that of the first respondent.
(b)
Seniority of the houses is part of the VaZumba tradition.
(c)
Bvukura, the clan spirit medium, had a central role to play, which was not
merely limited to vetting a candidate chosen by a particular house. It could,
in its discretion, choose the house and candidate who was to succeed in the
chieftainship or leave the selection of the candidate to the house it would
have identified, subject to its approval of such candidate.
(d)
Nyamukapa of the Mukonde house never became a chief and the attempt by the
first respondent to show that he ascended to the chieftainship was against the
evidence and intended to mislead.
(e)
Collateral succession governs the appointment of chiefs in the VaZumba clan.
Accession to the chieftainship was supposed to start with the most senior
house, Mukonde, and thereafter laterally move to the houses of his brothers
Kawoko and Chikuwe, before reverting to Mukonde.
(f)
Collateral succession of the VaZumba, after the advent of colonial rule, followed
this pattern. Dyora was succeeded by
Kapita and Kapita by Bere, although there were attempts by Dyora's son, David
Nyajina, and Kapita's son, Joseph Manyika, to seek progenitorial linear
accession.
(g)
Succession moved from Nyahuma to Kawoko, by-passing the Mukonde house because,
in all probability, Mukonde, the eldest son, had died.
(h)
It remains unclear why after Chikuwe it did not immediately devolve to
Munzwere, son of Mukonde. It was probable that Munzwere pre-deceased his uncle
Chikuwe, as suggested by oral tradition, which resulted in the sub-house being
given the name Muskwewebga, which means “lonely survivor”.
(i)
As between the Kawoko and Chikuwe houses, the guardian spirit followed the
seniority of the houses.
(j)
The suggestion by the appellant that Chikoso succeeded his elder brother Muskwe
to even the turns was not contradicted. This was the first time that succession
had moved from one brother to another in the same house. Although there was a
more or less similar occurrence when Dyora took over from his father
Kanemadadu, this appears to have happened at the advent of colonial rule when
the white local Government officials were tricked into appointing him as
substantive chief.
(k)
If evenness of turns was part of the VaZumba, it remains unclear why, after
Chikoso died, Mundomera did not take over so that Mukonde, being the most
senior house, would have had the first third turn to the chieftainship. Whilst
Chikoso may have been appointed to even the turns, so that each house would
have two turns, thereafter, the succession was to revert to the house which
first succeeded Nyahuma, that is, Kawoko.
(l)
The colonial Government accepted that succession amongst the VaZumba was
collateral, and was to devolve around the three houses, without regard to the
number of evenness of turns.
(m)
The involvement of the guardian spirit was consensually dispensed with by all
three houses.
(n)
Provision of a 'doo' and designation of the burial spot are clearly part of the
tradition and custom of the VaZumba.
(o)
The 'doo', in which the late Chief Bere died, was supplied by the Kawoko house
and it is the same house that designated the spot where the late chief was
buried.
(p)
The Nyambudzi house, though forbidden from acceding to the chieftainship, could
also take part in the deliberations of the clan.
The
court a quo was satisfied that the Kawoko house, of which the first respondent
is part, was properly nominated by the second respondent, taking into account
the customary principles of the VaZumba clan, as the house from which the next
chief should come. Consequently, the court dismissed the appellant's claim with
costs.
The
appellant, dissatisfied with this ruling, now appeals to this Court.
In
his notice of appeal, the appellant seeks an order reversing the judgment of
the court a quo. He attacks the decision of the court a quo on the broad basis
that the decision of the court was “so outrageous in its defiance of logic that
anyone who had properly applied his mind to it would have (sic) come to such a
decision.” More particularly, it is the
appellant's contention that the court a quo erred and misdirected itself:
“1. In failing to find
for the appellant when the respondent's witnesses were found to be unreliable
on substantive issues of the matter.
2. In making a finding
that the evenness of turns is not part of the VaZumba custom and tradition
contrary to the evidence adduced before the court a quo.
3. In accepting the
evidence of the respondents on the 'doo' contrary to the evidence that was
adduced before the court a quo when Magadu, who is alleged to have provided the
'mombe ye doo', was to all intents and purposes a complete stranger in VaZumba
chieftainship issues.
4. In failing to make a
finding that the 'tsika' is still in the possession of the plaintiff's 'house'
and therefore the eligible house.
5. In failing to make a
finding that, the mere presence and subsequent participation of strangers, such
as, Acting Chief Chirinda, and Headman Magadu, violated the VaZumba customs and
tradition, moreso when this material fact remained uncontroverted by the
conspicuous absence of the 2nd and 3rd defendants (now 2nd
and 3rd respondents) throughout the trial.
6. In failing to make a
finding that the mere fact that the Kanodzirasa/Nyambudzi house was not being
formally invited to the chieftainship meetings means that they were not
supposed to deliberate on the VaZumba chieftainship matters.
7.
In failing to make a finding that in light of the default of the 2nd
and 3rd respondents, all that was alleged against them by applicant
should have been accepted as proved by appellant (plaintiff in the court a quo).”
Although
various issues are raised in the above grounds of appeal, the real issue is
whether the finding by the court a quo that the appointment of the first respondent
is in accordance with the values, traditions and customs of the VaZumba
clan.
Section
3 of the Traditional Leaders Act [Chapter 29:17] gives the President powers to
appoint chiefs to preside over communities living in communal and resettlement
areas. In terms of section 2 of the Traditional Leaders Act [Chapter 29:17], in
appointing a chief, 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):
Provided
that…,.”
In
the court a quo, the onus was on the
appellant to show, on balance, that the recommendation that the first
respondent be appointed Chief Nyajina did not take into account the prevailing
customary principles of succession of the VaZumba clan. In particular, the
question that required determination was whether evenness of turns is part of
the VaZumba people.
Although
there was an unsuccessful attempt by the first respondent to show that
Nyamukapa of the Mukonde house had acceded to the throne, the parties are
agreed that Nyamukapa never became chief. This means that from the house of
Nyahuma, the Mukonde and Chikuwe houses have each acceded to the chieftainship
three (3) times whilst the Kawoko house has acceded four (4) times. The last
chief to reign was Bere, from the Mukonde house, which is the appellant's
house. It is the appellant's contention that the concept of 'ushe madzoro',
namely, equality of turns, is part of the VaZumba people and that since
Mukonde, being the most senior house, has had only three (3) turns, it must be
given a fourth turn, notwithstanding the fact that the last Chief (Bere) was
from that house.
A
consideration of the genealogy of the VaZumba shows that although Mukonde was
the most senior house, it only acceded to the chieftainship as seventh chief.
Thereafter, the same house nominated Chikoso who also acceded to the throne as
the eighth chief. Thereafter, the Kawoko house had two successive turns to the
throne. The genealogy, in my view, raises more questions than it provides
answers.
It
is apparent that both Kawoko and Chikuwe each had two (2) turns to the throne
before Mukonde, the most senior house. The explanation for this is, for want of
a better word, unknown. The appellant's explanation was that for a period of
approximately one hundred and thirty-six (136) years, there was no male issue
from the Mukonde house to take the throne. Whilst possible, it is highly
improbable, and begs the question: where did Muskwe, the seventh chief come
from? As the court a quo noted, it remains unclear why, after Kawoko and
Chikuwe had each taken a turn on the throne, the chieftainship did not revert
to Munzwere, the son of Mukonde. Although the court a quo considered that
Munzwere may have pre-deceased his uncle Chikuwe, as suggested by oral
tradition, this was not backed by any evidence. Moreover, it is not known for a
fact why the Mukonde house acceded to the throne as the seventh and eighth chiefs.
The trial court was of the view that this may have been an attempt to even the
number of turns that each house had had to the throne. Whilst that is possible,
it is by no means backed by any real evidence. At best, it remains mere
speculation. As submitted by the first respondent, if the intention was to even
the turns, and, considering that Mukonde was the most senior house, the Mukonde
house would have retained the throne after Chikozo so that, as the most senior
house, it would have had the first third turn on the throne. This did not
happen. Instead, Kanemadadu and his son Dyora of the Kawoko house took the
reign one after the other. It may be that Dyora had been acting at the time
colonial settlers come to this country and was made substantive chief in error.
Whilst this is possible, no-one can say so with certainty.
I
now turn to the role of the guardian spirit.
The
position must be accepted as correct that, within the Shona culture, the
guardian spirit can, in its discretion, select both the house and the candidate
to accede to the chieftainship. Indeed, the court a quo accepted this position.
The court stated, at page 20 of its judgment:
“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
Chirimuuta.”
In
African Law and Custom in Rhodesia, by B. GOLDIN and M. GELFAND, the authors
state…,:
“….,.The
medium (svikiro) becomes possessed
and then announces which house is to have the privilege, and the name of the
man who should succeed the dead chief. But it has happened that a person, not
selected by the svikiro, becomes chief. Generally speaking, the svikiro, when
possessed, has the prerogative of selecting the person who should succeed to
this position.”
Notwithstanding
its finding in this respect, the court a quo did not relate this to the
circumstances of this case, and, in particular, the role that Bvukura played in
the selection of a chief in the VaZumba clan. It is common cause Bvukura was
the clan's guardian spirit until it disappeared in or about 1945 after the
installation of Kapita as chief.
Once
it is accepted that Bvukura had a role to play in the selection of chiefs of
the clan, it must follow that for the period estimated by the appellant to be
one hundred and thirty-six (136) years, there must have been a reason why no
chief was appointed from the eldest house, the Mukonde house. The suggestion
that for that length of time Mukonde and the other male issue that followed him
pre-deceased their counterparts in the other two houses of Kawoko and Chikuwe,
though possible, appears improbable. There must have been a reason why no
candidate was selected from Mukonde. The
difficulty is that no-one can say with certainty why this happened or whether
the two turns taken in succession when Mukonde and Chikoso acceded to the
throne as seventh and eighth chief respectively were intended to even the
number of turns that each house had had to the throne. It is clear, as pointed
by the first respondent in his heads, that the guardian spirit did not give any
due regard to seniority or equality of turns before it ultimately disappeared
with the appointment of Kapita.
It
was on a consideration of the known facts and the probabilities, rather than
the credibility of the witnesses, that the court a quo came to the view that
evenness of turns was not part of the VaZumba clan.
In
coming to this conclusion, the court a quo remarked:
“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 shared 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.”
The
court a quo further remarked;
“I
am thus satisfied that 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 over 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.”
On
the facts of this case, I am unable to find that the above conclusion is wrong.
The
other issues raised by the appellant have no effect on the finding by the court
on the evenness of turns. Whilst the court made certain adverse observations on
the credibility of the first respondent, it found that, generally speaking, the
appellant's version on the genealogy of the VaZumba was preferable whilst the
first respondent's version on the customs and usages of the VaZumba was the
more plausible.
I
do not find anything contradictory in these findings.
It
is also clear that the court a quo, on the common cause facts, found that
evenness was not a custom of the VaZumba clan. The court went further and found
that, consistent with the traditions of the VaZumba, the Kawoko house had not
only provided the 'doo' in which Chief Bere had been buried, but had also designated
the burial site. The court considered that these were further indications that
the Kawoko house was next in line to the throne. The provision of the 'doo' and
designation of the burial spot by the Kawoko house was not, on the evidence,
seriously contested by the other two houses.
Further,
although much was made of the presence of “strangers” such as Acting Chief
Chirinda, and Headman Magadu, there is nothing to suggest that their presence
changed anything. In any event, it is quite possible, as the appellant seems to
accept, that a person in the position of the second respondent may want to seek
the opinion of persons considered to be experts on what constitutes the values,
customs and traditions of a particular clan. The court a quo, in any event,
found that the Mukonde house did not object to the presence of these strangers.
As
regards the Nyambudzi sub-house, whilst the appellant says it is not involved
in the deliberations of the three houses, the first respondent told the court a
quo it was entitled to attend and participate in discussions although members
of that house could not accede to the throne.
The
court a quo accepted the first respondent's claim and found that the conduct of
Mukonde, the appellant's own house, appeared to confirm that the Nyambudzi
house could attend, as the presence of the Nyambudzi family never attracted any
objections from the appellant's house.
Finally,
it must be mentioned that what the appellant sought to impugn are the findings
of fact and credibility made by the court a quo.
The
approach of the court in matters such as these is now well settled.
I
cite three cases in this respect. The first is Susan Rich v Jack Rich SC16-01
in which EBRAHIM JA cited with approval the remarks in HOFFMAN and ZEFFERT: The
South African Law of Evidence, 4th ed…, that:
“There
are no rules of law which define circumstances in which a finding of fact may
be reversed, but as a matter of common sense the appellate court must recognize
that the trial court was in some respects better situated to make such
findings. In particular, the trial court was able to observe the demeanor of
the witnesses, and courts of appeal are therefore very reluctant to disturb
findings which depend upon credibility. The appeal court has rather more
latitude in criticizing the reasons which the court a quo has given for its decision. The reasons given for accepting
certain evidence may be unsatisfactory, e.g. they may involve a clear non
sequitur. Alternatively, it may be plain from the record that the reasons are
based upon a false premise, e.g. a mistake of fact, or that the trial judge has
ignored some fact which is clearly relevant. Errors of this kind are generally
referred to as misdirections of fact. Where there has been no misdirection of
fact by the trial court, the appeal court will only reverse it when it is
convinced that it is wrong.”
The
second is Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S). At page 670, KORSAH JA remarked:
“The
general rule of the law as regards irrationality, is that an appellate court
will not interfere with a decision of a trial court based purely on a finding
of fact unless it is satisfied that, having regard to the evidence placed
before the trial court, the finding complained of is so outrageous in its
defiance of logic that no sensible person who had applied his mind to the
question to be decided could have arrived at such a conclusion….,.”
The
third is Charuma Blasting and Earth Moving Services (Private) Limited v (1)
Isaac Njainjai (2) Timothy John Walter Pres (3) The Registrar of Deeds 2000 (2)
ZLR 85. At p 91 D–F, SANDURA JA stated as follows:
“The
circumstances in which this Court can interfere with the exercise of a judicial
discretion were clearly set out by GUBBAY CJ in Barros & Anor v Chimphonda
1999 (1) ZLR 58) (S).
At
p 62F-63A, the learned CHIEF JUSTICE said:
'The
attack upon the determination of the learned judge that there were no special
circumstances for preferring the second purchaser above the first - one which
clearly involved the exercise of a judicial discretion, see Farmers'
Co-operative Society (Reg.) v Berry 1912
AD 343 at 350 - may only be interfered with on limited grounds. These grounds
are firmly entrenched. It is not enough that the appellate court considers that
if it had been in the position of the primary court, it would have taken a
different course. It must appear that some error has been made in exercising
the discretion. If the primary court acts upon a wrong principle, if it allows
extraneous or irrelevant matters to guide or affect it, if it mistakes the
facts, if it does not take into account some relevant consideration, then its
determination should be reviewed and the appellate court may exercise its own
discretion in substitution, provided always it has the materials for so
doing.'”
Whilst…,
I do not agree entirely with all the findings made by the court a quo, I am not
persuaded that the court a quo was
wrong in arriving at the decision that although there may have been an attempt,
only once, to ensure that the Mukonde house was given the opportunity to have
an equal number of turns, equality of turns is not part of the VaZumba clan. It
must be appreciated that the evidence adduced before the court a quo was not
based on written testimony but rather oral history and tradition. Neither oral
history nor tradition lend themselves to a proper and accurate record of a
clan's history. There are instances in the history of the clan where it is not
clear exactly what transpired. The court
a quo was dealing with a case where not all the facts were readily available or
ascertainable.
In
my view, the court a quo did the best it could in these circumstances and there
can be no basis upon which its ultimate conclusion can be impugned.
In
the result, the appeal must fail.
The
appeal is accordingly dismissed with costs.
