“(a) An order declaring that the only families entitled to the Mapanzure chieftainship are the following families:

1. Chimbuya.

2. Magwirokona.

3. Mavhengere.

4. Bwangundoga.

5. Mupandasekwa.

6. Gwenhamo.

7. Shumbayaonda.

(b) An order declaring that according to customary principles of succession to the Mapanzure chieftainship, the 1st defendant, a descendent of the Rushangwe/Vusangwe family, has no title or claim to the Mapanzure chieftainship;

(c) An order removing the 1st defendant from his position as Chief Mapanzure;

(d) An order declaring the 8th to the 10th defendants (the District Administrator, the Provincial Administrator, and the Minister of Local Government, Public Works and National Housing respectively) acted contrary to custom when they recommended the appointment of 1st defendant as Chief Mapanzure; and

(e) An order of costs against any of the defendants who may oppose this application.”

On 12 October 2009, the plaintiff amended his prayer by the deletion of the first three claims.

Therefore, the only main issue for determination is whether or not the recommendation for the appointment of the current chief, the first defendant, was in compliance with the customs of the Mapanzure people.

The action was only defended by the first defendant.

The History of the Mapanzure Chieftainship

The plaintiff produced, as part of his exhibits, a copy of an extract of a report prepared on the chieftainship in 1965. It is not clear who the author of the report was.

The first defendant produced a copy of minutes of a meeting held in the District Commissioner's office on 5 December 1973. The then District Commissioner, who chaired the meeting, was one W.E.J. Henson. Present at the meeting from the Mapanzure people were Mangwande from the Chihava House, Mutubuki and Tafunda from the Chatikobo House, Mbombe from the Mutukwa House, Rawasindadi from the Zingoni House, Manyoka (Acting Chief) and Mazorodze from the Gwenhamo House.

Both documents contain the genealogy of the Mapanzure chieftainship.

The parties were in agreement that the genealogy reflected the chieftainship. They both relied extensively on the documents in support of their respective positions.

The following history of the Mapanzure chieftainship, which is explained in these two documents, appears to be common cause.

The great-great-grandfather of the chieftainship was Mutuna. After him came Muravu (2nd generation), then Mapanzure (third generation) and then Mazorodze and Mavhengere (4th generation). Upon the death of Mapanzure, Mazorodze became the chief. It is not in issue that Mavhengere did not succeed to the chieftainship because he pre-deceased Mapanzure.

Mazorodze had more than 30 sons falling under the 5th generation. These sons constitute what is referred to as “Houses” in this judgment. However, only thirty (30) sons appear in the genealogy. It is necessary to list these sons according to their seniority as they appear in the genealogy. These were:

1. Mupandasekwa 16. Rutoro

2. Chimbuya          17. Kuvengashe

3. Kufandada          18. Rima

4. Zingoni                19. Mutukwa

5. Chatikobo            20. Gowo

6. Musinazano         21. Chirudumwa

7. Chihava               22. Ruchanyu

8. Shumbayawonda 23. Ganda

9. Chizema              24. Wushe

10. Magwirokona    25. Bgwango

11. Tsungirai             27. Vushangwe/Rushangwe

12. Zishiri                 26. Tirivahera

13. Mutodzaniso        28. Gwenhamo

14. Hapanyengwi       29. Chivendera

15. Tavareva              30. Taiziziva

The names in bold are the names of Mazorodze's that the plaintiff allege were selected by Mazorodze for eligibility to succeed to the chieftainship. These are also some of Mazorodze's sons who succeeded to the chieftainship.

The eldest of Mazorodze's sons was Mupandasekwa followed by Chimbuya.

Upon Mazorodze's death, the next chief was Chimbuya because Mupandasekwa had pre-deceased Mazorodze. The last chief among Mazorodze's sons was Gwenhamo who died in 1973. The next chief was Masimba Shumbayawonda. He was Mazorodze's grandson and of the sixth generation. Masimba Shumbayawonda died on 8 June 1987. In 1995, the first defendant was appointed the chief. He, like Masimba Shumbayawonda, falls under the 6th generation. The plaintiff is Mazorodze's great grandson. He is the son of Chitana, Mazorodze's grandchild. Chitana was Chimbuya's son. Chitana was of the 6th generation. The plaintiff, being Chitana's son, therefore falls under the 7th generation.

Plaintiff's case

The plaintiff testified that he was 69 years old. He resided in Waterfalls, Harare. He was a member of the Chimbuya House. The customs of the Mapanzure people was that chieftainship revolved according to the order of House. There were only seven houses out of more than 30 houses that were eligible for chieftainship. Mazorodze, his great-grandfather, had several wives and he gave instructions that the chieftainship would revolve among the sons of his first wife. The seven royal Houses were those of Chimbuya, Chatikobo Magwirokona, Zishiri, Bwangundoga, Shumbayaonda and Gwenhamo.

Upon the demise of an entire generation of the royal Houses, the chieftainship would move to the next generation and rotate again within those royal houses. He disputed that chieftainship was on the basis of seniority within a given generation of the Mapanzure family as a whole.

His evidence was that even where the next household had a young son or a daughter, the son or daughter would be eligible to the chieftainship despite the fact that there may have been an elderly person within the Mapanzure family. The house would not be passed over on the basis that the next chief in that house was young.

He testified that the last chief, Masimba, was from the Shumbayaonda family. Had the 8th to 10th defendants (the District Administrator, the Provincial Administrator, and the Minister of Local Government, Public Works and National Housing respectively) observed the proper custom of the Mapanzure people, the chieftainship should have gone to the Chimbuya House and not to the Vushangwe house from which the first defendant hailed. The Vushangwe house was not a royal house.

It was his evidence that he was supposed to have been eligible for selection as the next chief instead of the first defendant because he was from a royal house.

He also stated that the proper procedure had not been adopted when Masimba Shumbayaonda was appointed chief following the death of Gwenhamo. The chieftainship should have gone to the Chimbuya House.

He further explained, that, according to their custom, upon the death of a chief, a meeting would be convened to select the next chief. Initially, the meeting was confined to the seven royal Houses. After the meeting had selected a chief, the other members of the clan would then be involved. The District Administrator (8th defendant) would only be advised of the selection after the meetings of the royal Houses and the clan.

This traditional meeting of the royal Houses was not convened and the first defendant was not selected by the royal Houses.

He frequently goes to the village (at least once or twice per month) and would have known if such a meeting had been held. He only became aware of the appointment of the first defendant sometime between 2003 and 2005 through rumours when he had gone to attend a funeral. It was his evidence that the appointment of the first defendant was with the collusion of a councillor called Manyoka, without any reference to the Mapanzure people. Manyoka had grown up together with the first defendant and he may have thought that if the first defendant were to die he would be the next chief.

The plaintiff called his brother, Luckson Jayadhara Chimbuya.

Luckson Jayadhara Chimbuya testified that he was 66 years old and also hails from the Chimbuya House. He had resided in the Mapanzure rural area for all his life. There were seven houses which were eligible for chieftainship. In terms of their custom, the Mapanzure chieftainship would rotate within the seven houses and among the “fathers” of those houses in their order of seniority.

Upon the death of Mazorodze, the chieftainship went to Chimbuya and not to Mupandasekwa's house because Mupandasekwa's children were still too young. When Chimbuya died, the chieftainship was supposed to go to Kufandada. The appointment of Masimba Shumbayaonda as chief, after Gwenhamo, was not in accordance with their custom. The chieftainship should have come to the Chimbuya house.

However, under cross-examination, he testified that the chieftainship had rotated the line of Mazorodze's sons and it was the turn of Mazorodze's grandchildren. When Masimba was appointed as chief, the elders had realised that he was the eldest grandchild.

He testified that the traditional meeting to select a chief, after the death of Masimba and before the appointment of the first defendant, was never convened. He would have known of this meeting as he resided in the rural areas. He only became aware that the first defendant was a chief well after his appointment.

First Defendant's case

The first witness for the first defendant was Pesanai Herbert Gosho Chatikobo. He testified that he was 71 years old and was from the Chatikobo house. He has resided in the Mapanzure rural area all his entire life. Mazorodze was his grandfather. Chimbuya and Chatikobo were brothers. Chimbuya was from Mazorodze's senior wife and Chatikobo from a junior wife.

In terms of their custom, chieftainship revolved according to seniority of the “fathers” within a generation. He narrated the history of the Mapanzure chieftainship up to the appointment of the first defendant. He disputed the plaintiff's evidence that only seven sons had been chosen by Mazorodze to succeed to the chieftainship. He further disputed that the chieftainship revolved according to those seven houses as suggested by the plaintiff. His evidence was that all the Mapanzure houses were eligible to succeed to the chieftainship. The houses are considered as one and the same house and chieftainship therefore follows the eldest surviving “father” in a given generation irrespective of the house from which he hails.

His evidence was that Gwenhamo was the last surviving “father”, being Mazorodze's son. Upon his death, the chieftainship went to the next generation of “fathers”. Masimba Shumbayawonda was appointed chief because he was the eldest surviving “father” within his generation.

When Masimba Shumbayawonda died, a meeting of the houses was convened by the then acting Chief Masimba to select the next chief. The meeting was held at the homestead of the late Chief Masimba. He could not remember if representatives of the Chimbuya family attended the meeting. The houses had initially selected Mavhengere, from the Chatikobo house, as the next chief. The houses also agreed, at that meeting, that the first defendant was the next eldest surviving “father” after Mavhengere. Mavhengere however died before his appointment hence the appointment of the first defendant as the next chief. The appointment of the first defendant was therefore in accordance with the custom of the Mapanzure people.

The first defendant took the stand.

However, it became apparent that he could not follow the proceedings and recall past events due to his advanced age. He therefore did not testify.

His son, Ignatius Vushangwe, testified on his behalf.

He testified as follows:

He acted as an advisor to the first defendant. He testified that the selection to chieftainship was based not according to houses but according to the seniority of the surviving “fathers”. When Mazorodze died, his first son, Mupandasekwa, had pre-deceased him. Chimbuya was the second son and therefore next in line. Chimbuya had not been living among the Mapanzure people. He had to be recalled to take up the chieftainship because, according to their custom, young brothers could not take chieftainship if there was a surviving elder brother. As a result, it was possible for people from the same house to succeed each other if they were the eldest surviving brothers in that generation. He explained that this was the reason why other houses had not ascended to the Mapanzure chieftainship over the years.

When Gwenhamo died, the sons of Mupandasekwa, Chimbuya, Kufandada and Zingoni would have been older than Masimba Shumbayawonda who succeeded him. However, Gwenhamo ruled for a very long time and these sons had predeceased Gwenhamo. Masimba Shumbayawonda was then found to have been the eldest among Mazorodze's grandchildren hence his selection and appointment as chief.

He disputed, under cross examination, the suggestions by the plaintiff's counsel that collateral succession means succession according to houses.

The witness conceded that he had not attended any meeting to choose the first defendant as the next chief. He however testified that the first defendant was residing in Rushinga, Mount Darwin when he was selected as chief. The Mapanzure people invited him, as they had invited Chimbuya, to come and take up the chieftainship. He disputed that the first defendant had connived with the councillor, Manyoka, that he be selected Chief Mapanzure.

Assessment of Evidence

The plaintiff appeared not to be sure of the custom of the Mapanzure people on the appointment of chief Mapanzure. This confusion is aptly captured by counsel for the plaintiff in paragraph 6 of the plaintiff's closing submissions. It is necessary to quote the entire paragraph of the submissions. Counsel for the plaintiff stated as follows:

“The witness indicated that the last chief was Shumbayaonda, and that after the death of Shumbayaonda, the next house in line was that of Chimbuya. However, the witness could not explain how this succession would dovetail with the custom abovementioned. The witness was keen to show that the house of Vushangwe was not eligible at all to ascend to the Mapanzure chieftainship.

The witness explained that Mapanzure often took two wives from the same family. However, only the first son from the first wife would become eligible for chieftainship.

Under cross-examination, the witness did not convincingly expound on how this mode of succession actually worked. This became clearer when cross examination was made with the assistance of pages 1-6 of Exhibit 2. The witness then altered his stance and maintained that, assuming the first defendant was eligible for chieftainship, he could not assume the Mapanzure chieftainship because his turn had not yet arrived.

In this vein, the witness contended that if the last chief had come from Shumbayawonda, the next house to provide a chief would be Chizema, followed by Magwirokona; first defendant's house would be number 18 in the line of precedence if houses of chieftainship, as shown on pages 3-6 of Exhibit 2, were followed. The witness dismissed as untrue the contention by the first defendant that chieftainship would go by seniority.”

The concession by counsel for the plaintiff, that the plaintiff was confused, was, in my view, proper. I commend him for making the concession.

The plaintiff could not identify Mazorodze's children from the first wife. He also did not know if the houses that he had identified as the royal houses were from the first wife.

This explains the difficulty that he experienced in explaining how succession by Mazorodze's sons from the first wife actually worked. This mode of succession was not supported by the fact that Chatikobo, who was Mazorodze's son from a younger wife, and not the first wife, ascended to the chieftainship.

In any event, the plaintiff's evidence was further confused and confusing in that the first wife would only have one first son.

The plaintiff's evidence, that Mazorodze selected his first wife's eldest son to form a royal house, begs the question as to how many first wives Mazorodze had who gave birth to all the chiefs in the 5th generation.

The plaintiff further testified that chieftainship revolved according to houses such that even a young child in that house, or a woman, would ascend to chieftainship if it was the turn of that house. The plaintiff testified that Mupandasekwa is one of the royal houses. He conceded that although Mupandasekwa pre-deceased Chimbuya, he had young children when Mazorodze died. He could not however explain why these children did not ascend to the chieftainship upon the death of Mazorodze if succession was according to houses regardless of the age of the children in that house.

The following is the plaintiff's evidence, under re-examination, on that issue:

“Q: On page 3 of exhibit 2, under cross-examination, it was stated that those are Mazorodze's sons starting with Mupandasekwa. Mupandasekwa died whilst his father was alive. When a father died the chieftainship went to whom?

A: Chimbuya.

Q: If Chimbuya died?

A: To Kufandada.

Q: Why would chieftainship devolve that way?

A: These are the fathers who were supposed to take up chieftainship.

Q: Read out the names of the first five fathers (Mazorodze's sons).

A: (plaintiff read out the names)

Q: You said Mupandasekwa had two children. If Mupandasekwa dies would chieftainship go to Makatu (Mupandasekwa's son)?

A: No. Makatu is a child.

Q: At what time would Makatu become chief?

A: After the line of fathers had died, the chieftainship would then go to the children.

Q: Defendant says if Shumbayawonda dies there would be a meeting to find the oldest of the surviving fathers and that person becomes chief.

A: That is not correct. In the event that Shumbayawonda died, the next house would be Chizema.

Q: I put it to you that the eldest surviving child becomes the chief. If the chieftainship is in the line of brothers, the eldest brother becomes chief. If all the brothers die, then the eldest son of those brothers becomes chief.

A: That is correct. The eldest surviving brother takes up the chieftainship; if no brothers, then the eldest son.

Q: You seem to be contradicting yourself. I thought you said that chieftainship follows houses, even the smallest; now you are saying it's the brothers first.

A: It might be that you misquoted me. I said if Chimbuya house was supposed to take up chieftainship, and there are no old children, then the youngest in the family succeeds.”

The plaintiff's answers are inconsistent with his claim, that the only the royal houses succeeded to the chieftainship and that it was not on the basis of seniority.

The mode of succession that appears in the answers is in fact supportive of the succession of the Mapanzure's chieftainship according to seniority.

Kufandada was not from one of the alleged royal houses. He was Mazorodze's third son. Chizema was not also one of the alleged royal sons. He was the next son after Shumbayawonda. The next royal son, after Shumbayawonda, would have been Magwirokona.

The explanation by the plaintiff, that, upon the death of Chimbuya, the chieftainship did not go to Mupandasekwa's house because Mapandasekwa's children were very young but therefore went to Chatikobo was supported by Luckson Jayadhara Chimbuya. Jayadhara testified that Mupandasekwa's children were so young that they had not yet started talking.

This explanation is also at variance with the plaintiff's case that chieftainship rotates among the royal houses irrespective of the age of the children from the next royal house.

The plaintiff therefore conceded and supported the first defendant's contention that chieftainship was according to seniority although he would retract the concession under the pretext that he had been misquoted.

The plaintiff could not further explain why, upon the death of Gwenhamo, the chieftainship went to Masimba Shumbayawonda of the Shumbayawonda house instead of either to the Mupandasekwa or the Chimbuya houses.

He accepted that Mupandasekwa was Mazorodze's first son and Chimbuya the second son. Gwenhamo was the 28th son and Shumbayawonda the 8th. If succession follows the royal houses, the plaintiff failed to explain why the chieftainship by-passed both the Mupandasekwa and Chimbuya houses to go to the 8th house of Shumbayawonda.

The plaintiff's evidence, that there were only seven royal houses, is also not supported in the 1965 report that he produced as an exhibit. At p17 of Exhibit I, it is stated that:

“The order of birth of Mazorodze's sons, as given here, is probably not 100 percent accurate; Sister Aquina, in her article 'The Tribes in Victoria Reserve' (NADA 1965) records: Eight out of the twenty sons of Mazorodze…, became chiefs. This implies that there were twenty sons of Mazorodze. As can be seen from the genealogy given here, I have now established there were no less than 30 sons and probably more…,.”

It therefore follows, that, in 1965, when Sister Aquina did her own research, eight and not seven of Mazorodze's sons had become chiefs.

Although the plaintiff's initial evidence was that the first defendant was not entitled to ascend to chieftainship, he finally conceded, under cross-examination, that he was in fact eligible.

He however made a qualification that the first defendant's turn had not yet arrived.

He conceded that the last chief, Masimba, was his uncle (or “father”) and of the 6th generation. He further conceded that the incumbent, the first defendant, is also his uncle, his father's brother and of the 6th generation. Masimba and the first defendant would therefore be his “fathers”.

If one were to go by his concessions, he cannot be entitled to chieftainship as he is of the 7th generation and therefore a “son” to the incumbent. The plaintiff could therefore not be in the line of fathers as he alleged in his evidence. The plaintiff's concessions in fact support the first defendant's evidence to the effect that he (the first defendant) was eligible for succession as he was the eldest surviving in the generation of the plaintiff's “fathers”.

Turning to the question whether or not a meeting of the houses was held to select the incumbent, Luckson Jayadhara Chimbuya confirmed, in his evidence, that a meeting was indeed held although did not attend the meeting. The fact that a meeting was held is also confirmed by Pesanai Gozho Chatikobo.

It appears to me that Pesanai Gozho Chatikobo was not confused as to which meeting selected the first defendant as chief as alleged by the plaintiff's counsel and confirmed in the first defendant's closing remarks.

He testified, under cross-examination, as follows:

“Q: Apart from members of the clan who else who is notable was present at the meeting?

A: Most of the people are now dead.

Q: (Question was repeated). Was the Minister present?

A: The Minister was not present. We might not understand each other. I am referring to the meeting where the name of the current chief emerged. That is what I have referred to as the meeting that was attended by the elders. Even the DA was not there. We were still holding meetings as the clan.”

Even assuming that the witness may have been confused, I do not find that the confusion was intended to mislead the court.

The witness gave the clearest explanation of the Mapanzure chieftainship which substantially tallied with the documents and genealogies that the plaintiff and the first defendant relied on. He also gave the clearest evidence on how the meeting was convened. He stated that the meeting was convened by the acting Chief Masimba and was held at the late Chief Masimba's homestead.

The plaintiff was not able to challenge this evidence.

The fact that meetings were held is further supported by the letters produced by the parties.

It is recorded, in a letter dated 1 December 1993, from the District Administrator to the Provincial Administrator, that, several meetings were held to choose the next chief. The last meeting where the first defendant's selection was confirmed was attended by members of all the houses of the Mapanzure chieftainship. There were 38 kraal heads, 120 elders of the Mapanzure chieftainship, councillor Mapanzure, Vidco, and Ward chairpersons of the Mapanzure chieftainship and the District Administrator.

The letter was common to both parties' bundle of documents.

In another letter, dated 21 June 2004, from the Provincial Administrator to the plaintiff, produced by the first defendant, the Provincial Administrator stated as follows:

“I wish to advise you that this issue should not just be Chimbuya House v Bvuramai. All houses must be involved like they were involved in the initial selection process. The initial meeting must be held without the involvement of this office. 'Tangai mataurirana vana vanyamunhu.'”…,.

I had difficulties in accepting the plaintiff's evidence that it took him over 10 years to discover that the first defendant had been appointed in 1995.

The plaintiff testified that he visited his communal home frequently. On the other hand, Luckson Jayadhara Chimbuya testified that when the plaintiff did not visit his communal home, he (Jayadhara) would visit the plaintiff at his urban home.

The appointment of a chief is a momentous occasion attended by a lot of people including senior Government officials. This was confirmed by Pesanai Gozho Chatikobo.

If the plaintiff did visit his communal home frequently, and I do not doubt him on that score, he does not appear to have been telling the truth when he said that he only became aware of the first defendant's appointment after ten years.

Luckson Jayadhara Chimbuya also sought to mislead the court when he initially testified that he had also not known of the appointment of the first defendant.

He resided in the rural area and such news could not have passed his ears. At least, he later, in his evidence, had the decency to confirm that he had heard of the meetings where the first defendant was selected and appointed chief but he did not attend any of the meetings.

He testified that although he knew of the appointment of the first defendant, he could not complain because Manyoka, the councillor, had told the villagers not to challenge the appointment as it was according to seniority.

It appears to me that he would not have missed telling the plaintiff of the appointment considering that the Chimbuya family had been vying for the chieftainship since the death of Gwenhamo.

“(a) An order declaring that the only families entitled to the Mapanzure chieftainship are the following families:

1. Chimbuya.

2. Magwirokona.

3. Mavhengere.

4. Bwangundoga.

5. Mupandasekwa.

6. Gwenhamo.

7. Shumbayaonda.

(b) An order declaring that according to customary principles of succession to the Mapanzure chieftainship, the 1st defendant, a descendent of the Rushangwe/Vusangwe family, has no title or claim to the Mapanzure chieftainship;

(c) An order removing the 1st defendant from his position as Chief Mapanzure;

(d) An order declaring the 8th to the 10th defendants (the District Administrator, the Provincial Administrator, and the Minister of Local Government, Public Works and National Housing respectively) acted contrary to custom when they recommended the appointment of 1st defendant as Chief Mapanzure; and

(e) An order of costs against any of the defendants who may oppose this application.”

On 12 October 2009, the plaintiff amended his prayer by the deletion of the first three claims.

Therefore, the only main issue for determination is whether or not the recommendation for the appointment of the current chief, the first defendant, was in compliance with the customs of the Mapanzure people.

The action was only defended by the first defendant.

The History of the Mapanzure Chieftainship

The plaintiff produced, as part of his exhibits, a copy of an extract of a report prepared on the chieftainship in 1965. It is not clear who the author of the report was.

The first defendant produced a copy of minutes of a meeting held in the District Commissioner's office on 5 December 1973. The then District Commissioner, who chaired the meeting, was one W.E.J. Henson. Present at the meeting from the Mapanzure people were Mangwande from the Chihava House, Mutubuki and Tafunda from the Chatikobo House, Mbombe from the Mutukwa House, Rawasindadi from the Zingoni House, Manyoka (Acting Chief) and Mazorodze from the Gwenhamo House.

Both documents contain the genealogy of the Mapanzure chieftainship.

The parties were in agreement that the genealogy reflected the chieftainship. They both relied extensively on the documents in support of their respective positions.

The following history of the Mapanzure chieftainship, which is explained in these two documents, appears to be common cause.

The great-great-grandfather of the chieftainship was Mutuna. After him came Muravu (2nd generation), then Mapanzure (third generation) and then Mazorodze and Mavhengere (4th generation). Upon the death of Mapanzure, Mazorodze became the chief. It is not in issue that Mavhengere did not succeed to the chieftainship because he pre-deceased Mapanzure.

Mazorodze had more than 30 sons falling under the 5th generation. These sons constitute what is referred to as “Houses” in this judgment. However, only thirty (30) sons appear in the genealogy. It is necessary to list these sons according to their seniority as they appear in the genealogy. These were:

1. Mupandasekwa 16. Rutoro

2. Chimbuya          17. Kuvengashe

3. Kufandada          18. Rima

4. Zingoni                19. Mutukwa

5. Chatikobo            20. Gowo

6. Musinazano         21. Chirudumwa

7. Chihava               22. Ruchanyu

8. Shumbayawonda 23. Ganda

9. Chizema              24. Wushe

10. Magwirokona    25. Bgwango

11. Tsungirai             27. Vushangwe/Rushangwe

12. Zishiri                 26. Tirivahera

13. Mutodzaniso        28. Gwenhamo

14. Hapanyengwi       29. Chivendera

15. Tavareva              30. Taiziziva

The names in bold are the names of Mazorodze's that the plaintiff allege were selected by Mazorodze for eligibility to succeed to the chieftainship. These are also some of Mazorodze's sons who succeeded to the chieftainship.

The eldest of Mazorodze's sons was Mupandasekwa followed by Chimbuya.

Upon Mazorodze's death, the next chief was Chimbuya because Mupandasekwa had pre-deceased Mazorodze. The last chief among Mazorodze's sons was Gwenhamo who died in 1973. The next chief was Masimba Shumbayawonda. He was Mazorodze's grandson and of the sixth generation. Masimba Shumbayawonda died on 8 June 1987. In 1995, the first defendant was appointed the chief. He, like Masimba Shumbayawonda, falls under the 6th generation. The plaintiff is Mazorodze's great grandson. He is the son of Chitana, Mazorodze's grandchild. Chitana was Chimbuya's son. Chitana was of the 6th generation. The plaintiff, being Chitana's son, therefore falls under the 7th generation.

Plaintiff's case

The plaintiff testified that he was 69 years old. He resided in Waterfalls, Harare. He was a member of the Chimbuya House. The customs of the Mapanzure people was that chieftainship revolved according to the order of House. There were only seven houses out of more than 30 houses that were eligible for chieftainship. Mazorodze, his great-grandfather, had several wives and he gave instructions that the chieftainship would revolve among the sons of his first wife. The seven royal Houses were those of Chimbuya, Chatikobo Magwirokona, Zishiri, Bwangundoga, Shumbayaonda and Gwenhamo.

Upon the demise of an entire generation of the royal Houses, the chieftainship would move to the next generation and rotate again within those royal houses. He disputed that chieftainship was on the basis of seniority within a given generation of the Mapanzure family as a whole.

His evidence was that even where the next household had a young son or a daughter, the son or daughter would be eligible to the chieftainship despite the fact that there may have been an elderly person within the Mapanzure family. The house would not be passed over on the basis that the next chief in that house was young.

He testified that the last chief, Masimba, was from the Shumbayaonda family. Had the 8th to 10th defendants (the District Administrator, the Provincial Administrator, and the Minister of Local Government, Public Works and National Housing respectively) observed the proper custom of the Mapanzure people, the chieftainship should have gone to the Chimbuya House and not to the Vushangwe house from which the first defendant hailed. The Vushangwe house was not a royal house.

It was his evidence that he was supposed to have been eligible for selection as the next chief instead of the first defendant because he was from a royal house.

He also stated that the proper procedure had not been adopted when Masimba Shumbayaonda was appointed chief following the death of Gwenhamo. The chieftainship should have gone to the Chimbuya House.

He further explained, that, according to their custom, upon the death of a chief, a meeting would be convened to select the next chief. Initially, the meeting was confined to the seven royal Houses. After the meeting had selected a chief, the other members of the clan would then be involved. The District Administrator (8th defendant) would only be advised of the selection after the meetings of the royal Houses and the clan.

This traditional meeting of the royal Houses was not convened and the first defendant was not selected by the royal Houses.

He frequently goes to the village (at least once or twice per month) and would have known if such a meeting had been held. He only became aware of the appointment of the first defendant sometime between 2003 and 2005 through rumours when he had gone to attend a funeral. It was his evidence that the appointment of the first defendant was with the collusion of a councillor called Manyoka, without any reference to the Mapanzure people. Manyoka had grown up together with the first defendant and he may have thought that if the first defendant were to die he would be the next chief.

The plaintiff called his brother, Luckson Jayadhara Chimbuya.

Luckson Jayadhara Chimbuya testified that he was 66 years old and also hails from the Chimbuya House. He had resided in the Mapanzure rural area for all his life. There were seven houses which were eligible for chieftainship. In terms of their custom, the Mapanzure chieftainship would rotate within the seven houses and among the “fathers” of those houses in their order of seniority.

Upon the death of Mazorodze, the chieftainship went to Chimbuya and not to Mupandasekwa's house because Mupandasekwa's children were still too young. When Chimbuya died, the chieftainship was supposed to go to Kufandada. The appointment of Masimba Shumbayaonda as chief, after Gwenhamo, was not in accordance with their custom. The chieftainship should have come to the Chimbuya house.

However, under cross-examination, he testified that the chieftainship had rotated the line of Mazorodze's sons and it was the turn of Mazorodze's grandchildren. When Masimba was appointed as chief, the elders had realised that he was the eldest grandchild.

He testified that the traditional meeting to select a chief, after the death of Masimba and before the appointment of the first defendant, was never convened. He would have known of this meeting as he resided in the rural areas. He only became aware that the first defendant was a chief well after his appointment.

First Defendant's case

The first witness for the first defendant was Pesanai Herbert Gosho Chatikobo. He testified that he was 71 years old and was from the Chatikobo house. He has resided in the Mapanzure rural area all his entire life. Mazorodze was his grandfather. Chimbuya and Chatikobo were brothers. Chimbuya was from Mazorodze's senior wife and Chatikobo from a junior wife.

In terms of their custom, chieftainship revolved according to seniority of the “fathers” within a generation. He narrated the history of the Mapanzure chieftainship up to the appointment of the first defendant. He disputed the plaintiff's evidence that only seven sons had been chosen by Mazorodze to succeed to the chieftainship. He further disputed that the chieftainship revolved according to those seven houses as suggested by the plaintiff. His evidence was that all the Mapanzure houses were eligible to succeed to the chieftainship. The houses are considered as one and the same house and chieftainship therefore follows the eldest surviving “father” in a given generation irrespective of the house from which he hails.

His evidence was that Gwenhamo was the last surviving “father”, being Mazorodze's son. Upon his death, the chieftainship went to the next generation of “fathers”. Masimba Shumbayawonda was appointed chief because he was the eldest surviving “father” within his generation.

When Masimba Shumbayawonda died, a meeting of the houses was convened by the then acting Chief Masimba to select the next chief. The meeting was held at the homestead of the late Chief Masimba. He could not remember if representatives of the Chimbuya family attended the meeting. The houses had initially selected Mavhengere, from the Chatikobo house, as the next chief. The houses also agreed, at that meeting, that the first defendant was the next eldest surviving “father” after Mavhengere. Mavhengere however died before his appointment hence the appointment of the first defendant as the next chief. The appointment of the first defendant was therefore in accordance with the custom of the Mapanzure people.

The first defendant took the stand.

However, it became apparent that he could not follow the proceedings and recall past events due to his advanced age. He therefore did not testify.

His son, Ignatius Vushangwe, testified on his behalf.

He testified as follows:

He acted as an advisor to the first defendant. He testified that the selection to chieftainship was based not according to houses but according to the seniority of the surviving “fathers”. When Mazorodze died, his first son, Mupandasekwa, had pre-deceased him. Chimbuya was the second son and therefore next in line. Chimbuya had not been living among the Mapanzure people. He had to be recalled to take up the chieftainship because, according to their custom, young brothers could not take chieftainship if there was a surviving elder brother. As a result, it was possible for people from the same house to succeed each other if they were the eldest surviving brothers in that generation. He explained that this was the reason why other houses had not ascended to the Mapanzure chieftainship over the years.

When Gwenhamo died, the sons of Mupandasekwa, Chimbuya, Kufandada and Zingoni would have been older than Masimba Shumbayawonda who succeeded him. However, Gwenhamo ruled for a very long time and these sons had predeceased Gwenhamo. Masimba Shumbayawonda was then found to have been the eldest among Mazorodze's grandchildren hence his selection and appointment as chief.

He disputed, under cross examination, the suggestions by the plaintiff's counsel that collateral succession means succession according to houses.

The witness conceded that he had not attended any meeting to choose the first defendant as the next chief. He however testified that the first defendant was residing in Rushinga, Mount Darwin when he was selected as chief. The Mapanzure people invited him, as they had invited Chimbuya, to come and take up the chieftainship. He disputed that the first defendant had connived with the councillor, Manyoka, that he be selected Chief Mapanzure.

Assessment of Evidence

The plaintiff appeared not to be sure of the custom of the Mapanzure people on the appointment of chief Mapanzure. This confusion is aptly captured by counsel for the plaintiff in paragraph 6 of the plaintiff's closing submissions. It is necessary to quote the entire paragraph of the submissions. Counsel for the plaintiff stated as follows:

“The witness indicated that the last chief was Shumbayaonda, and that after the death of Shumbayaonda, the next house in line was that of Chimbuya. However, the witness could not explain how this succession would dovetail with the custom abovementioned. The witness was keen to show that the house of Vushangwe was not eligible at all to ascend to the Mapanzure chieftainship.

The witness explained that Mapanzure often took two wives from the same family. However, only the first son from the first wife would become eligible for chieftainship.

Under cross-examination, the witness did not convincingly expound on how this mode of succession actually worked. This became clearer when cross examination was made with the assistance of pages 1-6 of Exhibit 2. The witness then altered his stance and maintained that, assuming the first defendant was eligible for chieftainship, he could not assume the Mapanzure chieftainship because his turn had not yet arrived.

In this vein, the witness contended that if the last chief had come from Shumbayawonda, the next house to provide a chief would be Chizema, followed by Magwirokona; first defendant's house would be number 18 in the line of precedence if houses of chieftainship, as shown on pages 3-6 of Exhibit 2, were followed. The witness dismissed as untrue the contention by the first defendant that chieftainship would go by seniority.”

The concession by counsel for the plaintiff, that the plaintiff was confused, was, in my view, proper. I commend him for making the concession.

The plaintiff could not identify Mazorodze's children from the first wife. He also did not know if the houses that he had identified as the royal houses were from the first wife.

This explains the difficulty that he experienced in explaining how succession by Mazorodze's sons from the first wife actually worked. This mode of succession was not supported by the fact that Chatikobo, who was Mazorodze's son from a younger wife, and not the first wife, ascended to the chieftainship.

In any event, the plaintiff's evidence was further confused and confusing in that the first wife would only have one first son.

The plaintiff's evidence, that Mazorodze selected his first wife's eldest son to form a royal house, begs the question as to how many first wives Mazorodze had who gave birth to all the chiefs in the 5th generation.

The plaintiff further testified that chieftainship revolved according to houses such that even a young child in that house, or a woman, would ascend to chieftainship if it was the turn of that house. The plaintiff testified that Mupandasekwa is one of the royal houses. He conceded that although Mupandasekwa pre-deceased Chimbuya, he had young children when Mazorodze died. He could not however explain why these children did not ascend to the chieftainship upon the death of Mazorodze if succession was according to houses regardless of the age of the children in that house.

The following is the plaintiff's evidence, under re-examination, on that issue:

“Q: On page 3 of exhibit 2, under cross-examination, it was stated that those are Mazorodze's sons starting with Mupandasekwa. Mupandasekwa died whilst his father was alive. When a father died the chieftainship went to whom?

A: Chimbuya.

Q: If Chimbuya died?

A: To Kufandada.

Q: Why would chieftainship devolve that way?

A: These are the fathers who were supposed to take up chieftainship.

Q: Read out the names of the first five fathers (Mazorodze's sons).

A: (plaintiff read out the names)

Q: You said Mupandasekwa had two children. If Mupandasekwa dies would chieftainship go to Makatu (Mupandasekwa's son)?

A: No. Makatu is a child.

Q: At what time would Makatu become chief?

A: After the line of fathers had died, the chieftainship would then go to the children.

Q: Defendant says if Shumbayawonda dies there would be a meeting to find the oldest of the surviving fathers and that person becomes chief.

A: That is not correct. In the event that Shumbayawonda died, the next house would be Chizema.

Q: I put it to you that the eldest surviving child becomes the chief. If the chieftainship is in the line of brothers, the eldest brother becomes chief. If all the brothers die, then the eldest son of those brothers becomes chief.

A: That is correct. The eldest surviving brother takes up the chieftainship; if no brothers, then the eldest son.

Q: You seem to be contradicting yourself. I thought you said that chieftainship follows houses, even the smallest; now you are saying it's the brothers first.

A: It might be that you misquoted me. I said if Chimbuya house was supposed to take up chieftainship, and there are no old children, then the youngest in the family succeeds.”

The plaintiff's answers are inconsistent with his claim, that the only the royal houses succeeded to the chieftainship and that it was not on the basis of seniority.

The mode of succession that appears in the answers is in fact supportive of the succession of the Mapanzure's chieftainship according to seniority.

Kufandada was not from one of the alleged royal houses. He was Mazorodze's third son. Chizema was not also one of the alleged royal sons. He was the next son after Shumbayawonda. The next royal son, after Shumbayawonda, would have been Magwirokona.

The explanation by the plaintiff, that, upon the death of Chimbuya, the chieftainship did not go to Mupandasekwa's house because Mapandasekwa's children were very young but therefore went to Chatikobo was supported by Luckson Jayadhara Chimbuya. Jayadhara testified that Mupandasekwa's children were so young that they had not yet started talking.

This explanation is also at variance with the plaintiff's case that chieftainship rotates among the royal houses irrespective of the age of the children from the next royal house.

The plaintiff therefore conceded and supported the first defendant's contention that chieftainship was according to seniority although he would retract the concession under the pretext that he had been misquoted.

The plaintiff could not further explain why, upon the death of Gwenhamo, the chieftainship went to Masimba Shumbayawonda of the Shumbayawonda house instead of either to the Mupandasekwa or the Chimbuya houses.

He accepted that Mupandasekwa was Mazorodze's first son and Chimbuya the second son. Gwenhamo was the 28th son and Shumbayawonda the 8th. If succession follows the royal houses, the plaintiff failed to explain why the chieftainship by-passed both the Mupandasekwa and Chimbuya houses to go to the 8th house of Shumbayawonda.

The plaintiff's evidence, that there were only seven royal houses, is also not supported in the 1965 report that he produced as an exhibit. At p17 of Exhibit I, it is stated that:

“The order of birth of Mazorodze's sons, as given here, is probably not 100 percent accurate; Sister Aquina, in her article 'The Tribes in Victoria Reserve' (NADA 1965) records: Eight out of the twenty sons of Mazorodze…, became chiefs. This implies that there were twenty sons of Mazorodze. As can be seen from the genealogy given here, I have now established there were no less than 30 sons and probably more…,.”

It therefore follows, that, in 1965, when Sister Aquina did her own research, eight and not seven of Mazorodze's sons had become chiefs.

Although the plaintiff's initial evidence was that the first defendant was not entitled to ascend to chieftainship, he finally conceded, under cross-examination, that he was in fact eligible.

He however made a qualification that the first defendant's turn had not yet arrived.

He conceded that the last chief, Masimba, was his uncle (or “father”) and of the 6th generation. He further conceded that the incumbent, the first defendant, is also his uncle, his father's brother and of the 6th generation. Masimba and the first defendant would therefore be his “fathers”.

If one were to go by his concessions, he cannot be entitled to chieftainship as he is of the 7th generation and therefore a “son” to the incumbent. The plaintiff could therefore not be in the line of fathers as he alleged in his evidence. The plaintiff's concessions in fact support the first defendant's evidence to the effect that he (the first defendant) was eligible for succession as he was the eldest surviving in the generation of the plaintiff's “fathers”.

Turning to the question whether or not a meeting of the houses was held to select the incumbent, Luckson Jayadhara Chimbuya confirmed, in his evidence, that a meeting was indeed held although did not attend the meeting. The fact that a meeting was held is also confirmed by Pesanai Gozho Chatikobo.

It appears to me that Pesanai Gozho Chatikobo was not confused as to which meeting selected the first defendant as chief as alleged by the plaintiff's counsel and confirmed in the first defendant's closing remarks.

He testified, under cross-examination, as follows:

“Q: Apart from members of the clan who else who is notable was present at the meeting?

A: Most of the people are now dead.

Q: (Question was repeated). Was the Minister present?

A: The Minister was not present. We might not understand each other. I am referring to the meeting where the name of the current chief emerged. That is what I have referred to as the meeting that was attended by the elders. Even the DA was not there. We were still holding meetings as the clan.”

Even assuming that the witness may have been confused, I do not find that the confusion was intended to mislead the court.

The witness gave the clearest explanation of the Mapanzure chieftainship which substantially tallied with the documents and genealogies that the plaintiff and the first defendant relied on. He also gave the clearest evidence on how the meeting was convened. He stated that the meeting was convened by the acting Chief Masimba and was held at the late Chief Masimba's homestead.

The plaintiff was not able to challenge this evidence.

The fact that meetings were held is further supported by the letters produced by the parties.

It is recorded, in a letter dated 1 December 1993, from the District Administrator to the Provincial Administrator, that, several meetings were held to choose the next chief. The last meeting where the first defendant's selection was confirmed was attended by members of all the houses of the Mapanzure chieftainship. There were 38 kraal heads, 120 elders of the Mapanzure chieftainship, councillor Mapanzure, Vidco, and Ward chairpersons of the Mapanzure chieftainship and the District Administrator.

The letter was common to both parties' bundle of documents.

In another letter, dated 21 June 2004, from the Provincial Administrator to the plaintiff, produced by the first defendant, the Provincial Administrator stated as follows:

“I wish to advise you that this issue should not just be Chimbuya House v Bvuramai. All houses must be involved like they were involved in the initial selection process. The initial meeting must be held without the involvement of this office. 'Tangai mataurirana vana vanyamunhu.'”…,.

I had difficulties in accepting the plaintiff's evidence that it took him over 10 years to discover that the first defendant had been appointed in 1995.

The plaintiff testified that he visited his communal home frequently. On the other hand, Luckson Jayadhara Chimbuya testified that when the plaintiff did not visit his communal home, he (Jayadhara) would visit the plaintiff at his urban home.

The appointment of a chief is a momentous occasion attended by a lot of people including senior Government officials. This was confirmed by Pesanai Gozho Chatikobo.

If the plaintiff did visit his communal home frequently, and I do not doubt him on that score, he does not appear to have been telling the truth when he said that he only became aware of the first defendant's appointment after ten years.

Luckson Jayadhara Chimbuya also sought to mislead the court when he initially testified that he had also not known of the appointment of the first defendant.

He resided in the rural area and such news could not have passed his ears. At least, he later, in his evidence, had the decency to confirm that he had heard of the meetings where the first defendant was selected and appointed chief but he did not attend any of the meetings.

He testified that although he knew of the appointment of the first defendant, he could not complain because Manyoka, the councillor, had told the villagers not to challenge the appointment as it was according to seniority.

It appears to me that he would not have missed telling the plaintiff of the appointment considering that the Chimbuya family had been vying for the chieftainship since the death of Gwenhamo.

I found the first defendant's witnesses to have been truthful and their evidence reliable.

As already indicated, Pesanai Gozho Chatikobo gave a clear explanation of the succession process and the history of the Mapanzure chieftainship.

I am mindful of the fact that Ignatius Vhushangwe was present in court when both the plaintiff, Luckson Jayadhara Chimbuya and Pesanai Gozho Chatikobo testified. I am therefore alive to the fact that his evidence may therefore have been influenced by that of the other witnesses. However, I found his narration of the history of the Mapanzure people to have been very clear and original. It would not have been contrived in court. He substantially supported Pesanai's evidence. He introduced evidence that had not been brought up by the other witnesses, such as the fact that Chimbuya was invited to return to the Mapanzure community to take up the chieftainship and the reasons why he had left that community.

Both Pesanai Gozho Chatikobo's and Ignatius Vushangwe's evidence was consistent with the 1965 and 1973 genealogies and history of the Mapanzure chieftainship.

The Issue

A chief is appointed by the President in terms of section 3 of the Chiefs and Headmen Act [Chapter 29:01]. In so doing, the President must give due consideration to the customary principles of succession, if any, applicable to the community over which the chief is to preside.

As indicated earlier, following the amendment of summons and declaration by the plaintiff at the commencement of the trial, the only issue for determination is whether or not the appointment of the first defendant was in accordance with customary principles of succession of the Mapanzure people.

The plaintiff alleges that the custom of the Mapanzure people is that they follow the collateral principle of succession, in terms of which the chieftain revolves according to the royal houses identified by Mazorodze and not according to seniority. Therefore, in the event that a royal house is due for chieftainship, the house will select the person to be the next chief from that house irrespective of the age of that person.

The first defendant alleged that succession is based on seniority within each generation. All the houses constitute one entity. When all the people in one generation die, the chieftainship rotates within the next generation. The eldest person within that generation will be appointed the next chief irrespective of which house they come from.

The present dispute, relating to the Mapanzure chieftainship, was anticipated in 1965 when Gwenhamo was still the chief.

In order to avoid such a dispute, the Mapanzure chieftainship was documented in the 1965 report, in the copy of the extract that the plaintiff produced. When the report was prepared, Gwenhamo, who was the chief then, was very old and the report was intended to document the Mapanzure chieftainship so as to avoid any succession disputes. On page 2 of the report, the author of the report lays the basis for the preparation of the report and the genealogy therein as follows:

“They (the Mapanzure people) pride themselves on their confidence that they can settle the succession amicably. Unfortunately, the elder grandsons of Mazorodze (that is the first sons of Mupandasekwa, Chimbuya, Kufandada, Zingoni, etc) were themselves older that Mazorodze's own young sons (that is, Gwenamo, Taziziva, Chivendere etc). Therefore, Gwenamo's own sons (who are now middle-aged) are a generation senior to the grandsons of Mupandasekwa, Chimbuya, Kufandada, etc. Yet, these latter grandsons are older than Gwenamo's sons.

It will be extremely difficult to sort out the generations of the various prospective claimants unless some research is done now.”

The research then disclosed that succession of the Mapanzure chieftainship was “true collateral succession.” (page 1 of exhibit I).

The difficulty that has appeared from the evidence from both the plaintiff and the first defendant's case is that they both do not seem to understand what collateral succession is.

The collateral principle of succession has been described in a number of decided cases in our jurisdiction.

In Ruzane v Paradzai & Anor 1989 (1) ZLR 118 (HC), MUTAMBANENGWE J referred to a number of authorities on the principle. He observed as follows…,:

“Thus, HAROLD CHILD, The History and Extent of Recognition of Tribal Law in Rhodesia, at p6, says:

“Succession to chieftainship also shows a difference, being in most instances collateral.

Younger brothers succeed to elder brothers until the succession has been held by each in turn, when it reverts to the son of the first chief and then to the sons of the collateral lines. There are tribal variations, and the system is not always complete."

Similarly, JF HOLLEMAN, Shona Customary Law…, says:

"Succession to chieftainship is governed by the common principles of collateral succession prevailing in central Mashonaland. According to these principles, the eldest son, regardless of the position or rank of his mother, succeeds to the personal name and position of his father.

When he dies, his next youngest brother or half-brother succeeds to the father's name, until the generation of sons of the father is exhausted and the eldest grandson succeeds to the name and position of his grandfather, the determining factor again being the order of birth amongst collateral grandsons."

And E B GOLDIN and M GELFAND, African Law and Custom in Rhodesia…, say:

"Whilst among the Ndebele, the chief (induna) is selected by a system of primogeniture, in which, upon his death, the office is passed on to his eldest son, a more complicated one is adopted by the more numerous Shona-speaking people.

Their chiefs are chosen by a collateral system in which the position is passed from the head of one of the 'special families' to that of another. Each of these families is known as an 'imbahuru' or 'royal family' and on the death of a chief (ishe, mambo) his successor is selected from the representatives of two, three or even four 'royal' families in the clan. Thus, when a chief dies, his office passes on to the representative of the next family until each has had its turn, when the cycle is repeated.”

C BULLOCK, The Mashona, says…,:

"With very few exceptions, primogeniture did not govern succession. The chieftaincy theoretically descended from the elder to the younger brothers of a family, until all had held it."

At pp124E-G MUTAMBANENGWE J held:

“At pp21-22 of Holleman's Shona Customary Law it is stated:

'A man cannot, for instance, succeed to his elder brother's own name and position, but he may, after his brother's death, succeed to the name of their common father or forefather.

Especially in the case of an old and established chieftainship its succession may involve the candidacies of numerous clansmen between whom agnatic relations may be very remote.

As it is the relative age on a certain generation level which is, in principle, the determining factor, it is often difficult to know who is the eldest and therefore most eligible amongst the candidates. It is the task of tribal elders, mostly belonging to the ruling clan, and of other important kinsmen, to determine which candidate has the best rights to become chief. In the event of serious rivalry, recourse may be had to a svikiro (spirit medium) of an important ancestor to ascertain the views and wishes of the ancestral spirits.'”…,.

In Chagaresango v Chagaresango 2000 (1) ZLR 99…, MUCHECHETERE J also quoted with approval GOLDIN and GELFAND's African Law and Custom in Rhodesia and referred to Ruzane v Paradzai & Anor 1989 (1) ZLR 118 (HC) and Ruzane v Paradzai & Anor 1991 (1) ZLR 273 (S): see also Pharoah B. Muskwe v Douglas Nyajina & ORS HH92-07…

As observed in the cases, the principle varies with each community. However, it appears that the authorities are agreed that chieftainship among most of the Shona-speaking people passes from elder brother to younger brother in one generation until all the brothers have succeeded to the throne. It is therefore based on the seniority of those brothers. It then moves to the next generation.

What appears from JF HOLLEMAN's Shona Customary Law is that sons of the chief constitute one house irrespective of the rank of their mothers. It is the father who is the determining factor. Therefore, a half-brother can succeed another half brother according to their seniority.

A variation of this principle of succession is given in GOLDIN and M GELFAND's African Law and Custom in Rhodesia…,. It is apparent from the above quote that succession can be according to houses where there is more than one royal house. But, even in such a case, succession is according to seniority, with the head of one house succeeding another until each royal house has had its turn.

As indicated earlier, the plaintiff failed to establish that there were seven royal houses. The 1965 report that he produced did not support him.

I was persuaded by the evidence of Pesanai Gozho Chatikobo and Ignatius Vhushangwe that Mazorodze's sons all constituted one house irrespective of their mothers and that succession was according to the seniority of these sons.

The same principle of succession would equally apply in respect of Mazorodze's grandchildren and their own children ad infinitum.

This explains why Chatikobo succeeded Chimbuya as chief despite the fact that the two were from different mothers.

The collateral succession practised by the Mapanzure chieftainship is captured in both the 1965 report and the 1973 minutes. In the 1965 report, it is stated that:

“The previous svikiro was Gwenamo's own half-sister, Mavengedzene (same father, Mazorodze, but different mothers). Gwenamo 'accepted the spirits' because he seemed to have no chance of succeeding to the chieftainship. Obviously, as svikiro, he did not have a say in his own appointment - nor did he officiate at his own installation. In fact, there was simply no selection necessary after Bwango's death.

Gwenamo was the last surviving son of a long line of brothers, and his selection was automatic. As the chief himself put it: 'I was son of my father'.

He meant that he is the last surviving son of Mazorodze for two younger brothers, Chivendera and Taiziziva, pre-deceased him.” (p2 of exhibit I).

“Later, Chimbuya died, and, according to custom, Chatikobo was selected to succeed his brother. Kufandada and Zingoni had pre-deceased Chatikobo.

Chatikobo had a small badge so he said: 'How can I take two badges?'

He therefore gave his own badge to his son, Tasarirawona, whose other name was Mukasi, and retained the big badge for himself. Chatikobo was then chief over the whole area, including that over which he himself had been placed in charge.

When Chatikobo died, his young brother, Shumbayaonda, took over the chieftainship, and so on until the youngest surviving son Gwenhamo. He is our Chief today. He is the rugohwe (last born).” (see p3-4 of exhibit I).

The 1973 minutes (p1 of Exhibit 2) state:

“The District Commissioner asked for enlightment on certain aspects of the family tree as recorded by Mr. Kaschula in May 1965.

It was agreed by all present that MUPANDASEKWA was the first born son of MAZORODZE, but he died before he could succeed to the Chieftainship, which then went to his young brother CHIMBUYA. His young brothers, KUFANDADA and ZINGONI, pre-deceased him and the chieftainship then went to CHATIKOBO. MUSINAZANO and CHIHAVA predeceased CHIHAVA (it appears there was a mistake as the name was repeated. It appears the second Chihava should have been Chatikobo as he was the last chief) and the Chieftainship therefore then went to the next brother SHUMBAYAWUNDA who was pre-deceased by his younger brother, CHIZEMA, and thence to MARGWIROKONA. He reigned a short time and then he was pre-deceased by his young brother TSUNGIRAI and the 'nyembi' went to the next young brother, ZISHIRI. ZISHIRI's young brothers, MUTODZANISO, HAPANYENGWI, TAVARERA, RUTORO, KUVENGASHE, RIMA, MUTUKWA, GOWO, CHIRUNDUMWA, RICHANYU, GANDA and WUSHE all pre-deceased him and the next Chief was BGWANGO. His young brothers, RUSHANGWE and TIRIVANERA, died before him, so the Chieftainship went to GWENHAMO, the Chief who has just died. His younger brother CHIVENDERA and TAIZIZIVA both died as bachelors.”

The above analysis of the chieftainship clearly reflects the fact that chieftainship was according to the line of brothers, and in accordance with their seniority. It was not, and it appears still is not according to the royal houses identified by the plaintiff.

The sons from the said royal houses did not succeeded to the chieftainship by design. It was by misfortune. The brothers before them had died before their turn and during the reign of their elder brothers.

It is also apparent that Vushangwe, the first defendant's father, and Tirivahera, did not succeeded because they pre-deceased Bgwango who was the chief during their lifetime.

The succession of Masimba Shumbayawonda was also not by design. It was because Gwenhamo's brothers, Chivendera and Taiziziva, had pre-deceased Gwenhamo. Upon Gwenhamo's death, the chieftainship was then to move to the next generation, the 6th generation, because Gwenhamo's younger brothers, Chivendera and Taiziziva had pre-deceased him. He was Mazorodze's last surviving son.

Masimba Shumbayawonda was found to be the eldest in that generation hence his appointment as chief. Upon his death, the next chief had to be the next eldest brother within the 6th generation.

The first defendant falls under the 6th generation.

The question as to whether there was any other person older that the first defendant within that generation was put to the plaintiff under cross-examination as follows:

“Q: The current chief is a brother to your father?

A: Yes. The current chief referred to my father as elder brother.

Q: Is there someone in the Chimbuya family now called 'father'?

A: Yes, there is one.

Q: Who is older between the one you refer to as your father and the current chief?

A: The current chief is older but they are almost the same age.

Q: I put it to you that your evidence that that chieftainship goes by fathers is correct and therefore the appointment of the current chief was proper?

A: I think you misquoted me. The father from the Chimbuya house is older.

Q: It is better for you to admit that you have made an error instead of saying that I misquoted you.

A: My apologies. It might have been a slip of the tongue. I wanted to say the father from the Chimbuya house is older.”

Apart from that belated correction, the plaintiff did not advance any evidence to prove that the “father” from the Chimbuya House was older than the first defendant.

Luckson Jayadhara Chimbuya did in fact concede that the first defendant was the oldest. This was also confirmed by Pesanai Gozho Chatikobo and in the letters from the District Administrator that the parties produced.

From the above, it is my view that the first defendant, being the eldest in the 6th generation, was entitled to be appointed as the Chief Mapanzure. This was in accordance with the customary principles of succession of the Mapanzure chieftainship.

In the result, the plaintiff's claim is dismissed costs.

“(a) An order declaring that the only families entitled to the Mapanzure chieftainship are the following families:

1. Chimbuya.

2. Magwirokona.

3. Mavhengere.

4. Bwangundoga.

5. Mupandasekwa.

6. Gwenhamo.

7. Shumbayaonda.

(b) An order declaring that according to customary principles of succession to the Mapanzure chieftainship, the 1st defendant, a descendent of the Rushangwe/Vusangwe family, has no title or claim to the Mapanzure chieftainship;

(c) An order removing the 1st defendant from his position as Chief Mapanzure;

(d) An order declaring the 8th to the 10th defendants (the District Administrator, the Provincial Administrator, and the Minister of Local Government, Public Works and National Housing respectively) acted contrary to custom when they recommended the appointment of 1st defendant as Chief Mapanzure; and

(e) An order of costs against any of the defendants who may oppose this application.”

On 12 October 2009, the plaintiff amended his prayer by the deletion of the first three claims.

Therefore, the only main issue for determination is whether or not the recommendation for the appointment of the current chief, the first defendant, was in compliance with the customs of the Mapanzure people.

The action was only defended by the first defendant.

The History of the Mapanzure Chieftainship

The plaintiff produced, as part of his exhibits, a copy of an extract of a report prepared on the chieftainship in 1965. It is not clear who the author of the report was.

The first defendant produced a copy of minutes of a meeting held in the District Commissioner's office on 5 December 1973. The then District Commissioner, who chaired the meeting, was one W.E.J. Henson. Present at the meeting from the Mapanzure people were Mangwande from the Chihava House, Mutubuki and Tafunda from the Chatikobo House, Mbombe from the Mutukwa House, Rawasindadi from the Zingoni House, Manyoka (Acting Chief) and Mazorodze from the Gwenhamo House.

Both documents contain the genealogy of the Mapanzure chieftainship.

The parties were in agreement that the genealogy reflected the chieftainship. They both relied extensively on the documents in support of their respective positions.

The following history of the Mapanzure chieftainship, which is explained in these two documents, appears to be common cause.

The great-great-grandfather of the chieftainship was Mutuna. After him came Muravu (2nd generation), then Mapanzure (third generation) and then Mazorodze and Mavhengere (4th generation). Upon the death of Mapanzure, Mazorodze became the chief. It is not in issue that Mavhengere did not succeed to the chieftainship because he pre-deceased Mapanzure.

Mazorodze had more than 30 sons falling under the 5th generation. These sons constitute what is referred to as “Houses” in this judgment. However, only thirty (30) sons appear in the genealogy. It is necessary to list these sons according to their seniority as they appear in the genealogy. These were:

1. Mupandasekwa 16. Rutoro

2. Chimbuya          17. Kuvengashe

3. Kufandada          18. Rima

4. Zingoni                19. Mutukwa

5. Chatikobo            20. Gowo

6. Musinazano         21. Chirudumwa

7. Chihava               22. Ruchanyu

8. Shumbayawonda 23. Ganda

9. Chizema              24. Wushe

10. Magwirokona    25. Bgwango

11. Tsungirai             27. Vushangwe/Rushangwe

12. Zishiri                 26. Tirivahera

13. Mutodzaniso        28. Gwenhamo

14. Hapanyengwi       29. Chivendera

15. Tavareva              30. Taiziziva

The names in bold are the names of Mazorodze's that the plaintiff allege were selected by Mazorodze for eligibility to succeed to the chieftainship. These are also some of Mazorodze's sons who succeeded to the chieftainship.

The eldest of Mazorodze's sons was Mupandasekwa followed by Chimbuya.

Upon Mazorodze's death, the next chief was Chimbuya because Mupandasekwa had pre-deceased Mazorodze. The last chief among Mazorodze's sons was Gwenhamo who died in 1973. The next chief was Masimba Shumbayawonda. He was Mazorodze's grandson and of the sixth generation. Masimba Shumbayawonda died on 8 June 1987. In 1995, the first defendant was appointed the chief. He, like Masimba Shumbayawonda, falls under the 6th generation. The plaintiff is Mazorodze's great grandson. He is the son of Chitana, Mazorodze's grandchild. Chitana was Chimbuya's son. Chitana was of the 6th generation. The plaintiff, being Chitana's son, therefore falls under the 7th generation.

Plaintiff's case

The plaintiff testified that he was 69 years old. He resided in Waterfalls, Harare. He was a member of the Chimbuya House. The customs of the Mapanzure people was that chieftainship revolved according to the order of House. There were only seven houses out of more than 30 houses that were eligible for chieftainship. Mazorodze, his great-grandfather, had several wives and he gave instructions that the chieftainship would revolve among the sons of his first wife. The seven royal Houses were those of Chimbuya, Chatikobo Magwirokona, Zishiri, Bwangundoga, Shumbayaonda and Gwenhamo.

Upon the demise of an entire generation of the royal Houses, the chieftainship would move to the next generation and rotate again within those royal houses. He disputed that chieftainship was on the basis of seniority within a given generation of the Mapanzure family as a whole.

His evidence was that even where the next household had a young son or a daughter, the son or daughter would be eligible to the chieftainship despite the fact that there may have been an elderly person within the Mapanzure family. The house would not be passed over on the basis that the next chief in that house was young.

He testified that the last chief, Masimba, was from the Shumbayaonda family. Had the 8th to 10th defendants (the District Administrator, the Provincial Administrator, and the Minister of Local Government, Public Works and National Housing respectively) observed the proper custom of the Mapanzure people, the chieftainship should have gone to the Chimbuya House and not to the Vushangwe house from which the first defendant hailed. The Vushangwe house was not a royal house.

It was his evidence that he was supposed to have been eligible for selection as the next chief instead of the first defendant because he was from a royal house.

He also stated that the proper procedure had not been adopted when Masimba Shumbayaonda was appointed chief following the death of Gwenhamo. The chieftainship should have gone to the Chimbuya House.

He further explained, that, according to their custom, upon the death of a chief, a meeting would be convened to select the next chief. Initially, the meeting was confined to the seven royal Houses. After the meeting had selected a chief, the other members of the clan would then be involved. The District Administrator (8th defendant) would only be advised of the selection after the meetings of the royal Houses and the clan.

This traditional meeting of the royal Houses was not convened and the first defendant was not selected by the royal Houses.

He frequently goes to the village (at least once or twice per month) and would have known if such a meeting had been held. He only became aware of the appointment of the first defendant sometime between 2003 and 2005 through rumours when he had gone to attend a funeral. It was his evidence that the appointment of the first defendant was with the collusion of a councillor called Manyoka, without any reference to the Mapanzure people. Manyoka had grown up together with the first defendant and he may have thought that if the first defendant were to die he would be the next chief.

The plaintiff called his brother, Luckson Jayadhara Chimbuya.

Luckson Jayadhara Chimbuya testified that he was 66 years old and also hails from the Chimbuya House. He had resided in the Mapanzure rural area for all his life. There were seven houses which were eligible for chieftainship. In terms of their custom, the Mapanzure chieftainship would rotate within the seven houses and among the “fathers” of those houses in their order of seniority.

Upon the death of Mazorodze, the chieftainship went to Chimbuya and not to Mupandasekwa's house because Mupandasekwa's children were still too young. When Chimbuya died, the chieftainship was supposed to go to Kufandada. The appointment of Masimba Shumbayaonda as chief, after Gwenhamo, was not in accordance with their custom. The chieftainship should have come to the Chimbuya house.

However, under cross-examination, he testified that the chieftainship had rotated the line of Mazorodze's sons and it was the turn of Mazorodze's grandchildren. When Masimba was appointed as chief, the elders had realised that he was the eldest grandchild.

He testified that the traditional meeting to select a chief, after the death of Masimba and before the appointment of the first defendant, was never convened. He would have known of this meeting as he resided in the rural areas. He only became aware that the first defendant was a chief well after his appointment.

First Defendant's case

The first witness for the first defendant was Pesanai Herbert Gosho Chatikobo. He testified that he was 71 years old and was from the Chatikobo house. He has resided in the Mapanzure rural area all his entire life. Mazorodze was his grandfather. Chimbuya and Chatikobo were brothers. Chimbuya was from Mazorodze's senior wife and Chatikobo from a junior wife.

In terms of their custom, chieftainship revolved according to seniority of the “fathers” within a generation. He narrated the history of the Mapanzure chieftainship up to the appointment of the first defendant. He disputed the plaintiff's evidence that only seven sons had been chosen by Mazorodze to succeed to the chieftainship. He further disputed that the chieftainship revolved according to those seven houses as suggested by the plaintiff. His evidence was that all the Mapanzure houses were eligible to succeed to the chieftainship. The houses are considered as one and the same house and chieftainship therefore follows the eldest surviving “father” in a given generation irrespective of the house from which he hails.

His evidence was that Gwenhamo was the last surviving “father”, being Mazorodze's son. Upon his death, the chieftainship went to the next generation of “fathers”. Masimba Shumbayawonda was appointed chief because he was the eldest surviving “father” within his generation.

When Masimba Shumbayawonda died, a meeting of the houses was convened by the then acting Chief Masimba to select the next chief. The meeting was held at the homestead of the late Chief Masimba. He could not remember if representatives of the Chimbuya family attended the meeting. The houses had initially selected Mavhengere, from the Chatikobo house, as the next chief. The houses also agreed, at that meeting, that the first defendant was the next eldest surviving “father” after Mavhengere. Mavhengere however died before his appointment hence the appointment of the first defendant as the next chief. The appointment of the first defendant was therefore in accordance with the custom of the Mapanzure people.

The first defendant took the stand.

However, it became apparent that he could not follow the proceedings and recall past events due to his advanced age. He therefore did not testify.

His son, Ignatius Vushangwe, testified on his behalf.

He testified as follows:

He acted as an advisor to the first defendant. He testified that the selection to chieftainship was based not according to houses but according to the seniority of the surviving “fathers”. When Mazorodze died, his first son, Mupandasekwa, had pre-deceased him. Chimbuya was the second son and therefore next in line. Chimbuya had not been living among the Mapanzure people. He had to be recalled to take up the chieftainship because, according to their custom, young brothers could not take chieftainship if there was a surviving elder brother. As a result, it was possible for people from the same house to succeed each other if they were the eldest surviving brothers in that generation. He explained that this was the reason why other houses had not ascended to the Mapanzure chieftainship over the years.

When Gwenhamo died, the sons of Mupandasekwa, Chimbuya, Kufandada and Zingoni would have been older than Masimba Shumbayawonda who succeeded him. However, Gwenhamo ruled for a very long time and these sons had predeceased Gwenhamo. Masimba Shumbayawonda was then found to have been the eldest among Mazorodze's grandchildren hence his selection and appointment as chief.

He disputed, under cross examination, the suggestions by the plaintiff's counsel that collateral succession means succession according to houses.

The witness conceded that he had not attended any meeting to choose the first defendant as the next chief. He however testified that the first defendant was residing in Rushinga, Mount Darwin when he was selected as chief. The Mapanzure people invited him, as they had invited Chimbuya, to come and take up the chieftainship. He disputed that the first defendant had connived with the councillor, Manyoka, that he be selected Chief Mapanzure.

Assessment of Evidence

The plaintiff appeared not to be sure of the custom of the Mapanzure people on the appointment of chief Mapanzure. This confusion is aptly captured by counsel for the plaintiff in paragraph 6 of the plaintiff's closing submissions. It is necessary to quote the entire paragraph of the submissions. Counsel for the plaintiff stated as follows:

“The witness indicated that the last chief was Shumbayaonda, and that after the death of Shumbayaonda, the next house in line was that of Chimbuya. However, the witness could not explain how this succession would dovetail with the custom abovementioned. The witness was keen to show that the house of Vushangwe was not eligible at all to ascend to the Mapanzure chieftainship.

The witness explained that Mapanzure often took two wives from the same family. However, only the first son from the first wife would become eligible for chieftainship.

Under cross-examination, the witness did not convincingly expound on how this mode of succession actually worked. This became clearer when cross examination was made with the assistance of pages 1-6 of Exhibit 2. The witness then altered his stance and maintained that, assuming the first defendant was eligible for chieftainship, he could not assume the Mapanzure chieftainship because his turn had not yet arrived.

In this vein, the witness contended that if the last chief had come from Shumbayawonda, the next house to provide a chief would be Chizema, followed by Magwirokona; first defendant's house would be number 18 in the line of precedence if houses of chieftainship, as shown on pages 3-6 of Exhibit 2, were followed. The witness dismissed as untrue the contention by the first defendant that chieftainship would go by seniority.”

The concession by counsel for the plaintiff, that the plaintiff was confused, was, in my view, proper. I commend him for making the concession.

The plaintiff could not identify Mazorodze's children from the first wife. He also did not know if the houses that he had identified as the royal houses were from the first wife.

This explains the difficulty that he experienced in explaining how succession by Mazorodze's sons from the first wife actually worked. This mode of succession was not supported by the fact that Chatikobo, who was Mazorodze's son from a younger wife, and not the first wife, ascended to the chieftainship.

In any event, the plaintiff's evidence was further confused and confusing in that the first wife would only have one first son.

The plaintiff's evidence, that Mazorodze selected his first wife's eldest son to form a royal house, begs the question as to how many first wives Mazorodze had who gave birth to all the chiefs in the 5th generation.

The plaintiff further testified that chieftainship revolved according to houses such that even a young child in that house, or a woman, would ascend to chieftainship if it was the turn of that house. The plaintiff testified that Mupandasekwa is one of the royal houses. He conceded that although Mupandasekwa pre-deceased Chimbuya, he had young children when Mazorodze died. He could not however explain why these children did not ascend to the chieftainship upon the death of Mazorodze if succession was according to houses regardless of the age of the children in that house.

The following is the plaintiff's evidence, under re-examination, on that issue:

“Q: On page 3 of exhibit 2, under cross-examination, it was stated that those are Mazorodze's sons starting with Mupandasekwa. Mupandasekwa died whilst his father was alive. When a father died the chieftainship went to whom?

A: Chimbuya.

Q: If Chimbuya died?

A: To Kufandada.

Q: Why would chieftainship devolve that way?

A: These are the fathers who were supposed to take up chieftainship.

Q: Read out the names of the first five fathers (Mazorodze's sons).

A: (plaintiff read out the names)

Q: You said Mupandasekwa had two children. If Mupandasekwa dies would chieftainship go to Makatu (Mupandasekwa's son)?

A: No. Makatu is a child.

Q: At what time would Makatu become chief?

A: After the line of fathers had died, the chieftainship would then go to the children.

Q: Defendant says if Shumbayawonda dies there would be a meeting to find the oldest of the surviving fathers and that person becomes chief.

A: That is not correct. In the event that Shumbayawonda died, the next house would be Chizema.

Q: I put it to you that the eldest surviving child becomes the chief. If the chieftainship is in the line of brothers, the eldest brother becomes chief. If all the brothers die, then the eldest son of those brothers becomes chief.

A: That is correct. The eldest surviving brother takes up the chieftainship; if no brothers, then the eldest son.

Q: You seem to be contradicting yourself. I thought you said that chieftainship follows houses, even the smallest; now you are saying it's the brothers first.

A: It might be that you misquoted me. I said if Chimbuya house was supposed to take up chieftainship, and there are no old children, then the youngest in the family succeeds.”

The plaintiff's answers are inconsistent with his claim, that the only the royal houses succeeded to the chieftainship and that it was not on the basis of seniority.

The mode of succession that appears in the answers is in fact supportive of the succession of the Mapanzure's chieftainship according to seniority.

Kufandada was not from one of the alleged royal houses. He was Mazorodze's third son. Chizema was not also one of the alleged royal sons. He was the next son after Shumbayawonda. The next royal son, after Shumbayawonda, would have been Magwirokona.

The explanation by the plaintiff, that, upon the death of Chimbuya, the chieftainship did not go to Mupandasekwa's house because Mapandasekwa's children were very young but therefore went to Chatikobo was supported by Luckson Jayadhara Chimbuya. Jayadhara testified that Mupandasekwa's children were so young that they had not yet started talking.

This explanation is also at variance with the plaintiff's case that chieftainship rotates among the royal houses irrespective of the age of the children from the next royal house.

The plaintiff therefore conceded and supported the first defendant's contention that chieftainship was according to seniority although he would retract the concession under the pretext that he had been misquoted.

The plaintiff could not further explain why, upon the death of Gwenhamo, the chieftainship went to Masimba Shumbayawonda of the Shumbayawonda house instead of either to the Mupandasekwa or the Chimbuya houses.

He accepted that Mupandasekwa was Mazorodze's first son and Chimbuya the second son. Gwenhamo was the 28th son and Shumbayawonda the 8th. If succession follows the royal houses, the plaintiff failed to explain why the chieftainship by-passed both the Mupandasekwa and Chimbuya houses to go to the 8th house of Shumbayawonda.

The plaintiff's evidence, that there were only seven royal houses, is also not supported in the 1965 report that he produced as an exhibit. At p17 of Exhibit I, it is stated that:

“The order of birth of Mazorodze's sons, as given here, is probably not 100 percent accurate; Sister Aquina, in her article 'The Tribes in Victoria Reserve' (NADA 1965) records: Eight out of the twenty sons of Mazorodze…, became chiefs. This implies that there were twenty sons of Mazorodze. As can be seen from the genealogy given here, I have now established there were no less than 30 sons and probably more…,.”

It therefore follows, that, in 1965, when Sister Aquina did her own research, eight and not seven of Mazorodze's sons had become chiefs.

Although the plaintiff's initial evidence was that the first defendant was not entitled to ascend to chieftainship, he finally conceded, under cross-examination, that he was in fact eligible.

He however made a qualification that the first defendant's turn had not yet arrived.

He conceded that the last chief, Masimba, was his uncle (or “father”) and of the 6th generation. He further conceded that the incumbent, the first defendant, is also his uncle, his father's brother and of the 6th generation. Masimba and the first defendant would therefore be his “fathers”.

If one were to go by his concessions, he cannot be entitled to chieftainship as he is of the 7th generation and therefore a “son” to the incumbent. The plaintiff could therefore not be in the line of fathers as he alleged in his evidence. The plaintiff's concessions in fact support the first defendant's evidence to the effect that he (the first defendant) was eligible for succession as he was the eldest surviving in the generation of the plaintiff's “fathers”.

Turning to the question whether or not a meeting of the houses was held to select the incumbent, Luckson Jayadhara Chimbuya confirmed, in his evidence, that a meeting was indeed held although did not attend the meeting. The fact that a meeting was held is also confirmed by Pesanai Gozho Chatikobo.

It appears to me that Pesanai Gozho Chatikobo was not confused as to which meeting selected the first defendant as chief as alleged by the plaintiff's counsel and confirmed in the first defendant's closing remarks.

He testified, under cross-examination, as follows:

“Q: Apart from members of the clan who else who is notable was present at the meeting?

A: Most of the people are now dead.

Q: (Question was repeated). Was the Minister present?

A: The Minister was not present. We might not understand each other. I am referring to the meeting where the name of the current chief emerged. That is what I have referred to as the meeting that was attended by the elders. Even the DA was not there. We were still holding meetings as the clan.”

Even assuming that the witness may have been confused, I do not find that the confusion was intended to mislead the court.

The witness gave the clearest explanation of the Mapanzure chieftainship which substantially tallied with the documents and genealogies that the plaintiff and the first defendant relied on. He also gave the clearest evidence on how the meeting was convened. He stated that the meeting was convened by the acting Chief Masimba and was held at the late Chief Masimba's homestead.

The plaintiff was not able to challenge this evidence.

The fact that meetings were held is further supported by the letters produced by the parties.

It is recorded, in a letter dated 1 December 1993, from the District Administrator to the Provincial Administrator, that, several meetings were held to choose the next chief. The last meeting where the first defendant's selection was confirmed was attended by members of all the houses of the Mapanzure chieftainship. There were 38 kraal heads, 120 elders of the Mapanzure chieftainship, councillor Mapanzure, Vidco, and Ward chairpersons of the Mapanzure chieftainship and the District Administrator.

The letter was common to both parties' bundle of documents.

In another letter, dated 21 June 2004, from the Provincial Administrator to the plaintiff, produced by the first defendant, the Provincial Administrator stated as follows:

“I wish to advise you that this issue should not just be Chimbuya House v Bvuramai. All houses must be involved like they were involved in the initial selection process. The initial meeting must be held without the involvement of this office. 'Tangai mataurirana vana vanyamunhu.'”…,.

I had difficulties in accepting the plaintiff's evidence that it took him over 10 years to discover that the first defendant had been appointed in 1995.

The plaintiff testified that he visited his communal home frequently. On the other hand, Luckson Jayadhara Chimbuya testified that when the plaintiff did not visit his communal home, he (Jayadhara) would visit the plaintiff at his urban home.

The appointment of a chief is a momentous occasion attended by a lot of people including senior Government officials. This was confirmed by Pesanai Gozho Chatikobo.

If the plaintiff did visit his communal home frequently, and I do not doubt him on that score, he does not appear to have been telling the truth when he said that he only became aware of the first defendant's appointment after ten years.

Luckson Jayadhara Chimbuya also sought to mislead the court when he initially testified that he had also not known of the appointment of the first defendant.

He resided in the rural area and such news could not have passed his ears. At least, he later, in his evidence, had the decency to confirm that he had heard of the meetings where the first defendant was selected and appointed chief but he did not attend any of the meetings.

He testified that although he knew of the appointment of the first defendant, he could not complain because Manyoka, the councillor, had told the villagers not to challenge the appointment as it was according to seniority.

It appears to me that he would not have missed telling the plaintiff of the appointment considering that the Chimbuya family had been vying for the chieftainship since the death of Gwenhamo.

I found the first defendant's witnesses to have been truthful and their evidence reliable.

As already indicated, Pesanai Gozho Chatikobo gave a clear explanation of the succession process and the history of the Mapanzure chieftainship.

I am mindful of the fact that Ignatius Vhushangwe was present in court when both the plaintiff, Luckson Jayadhara Chimbuya and Pesanai Gozho Chatikobo testified. I am therefore alive to the fact that his evidence may therefore have been influenced by that of the other witnesses. However, I found his narration of the history of the Mapanzure people to have been very clear and original. It would not have been contrived in court. He substantially supported Pesanai's evidence. He introduced evidence that had not been brought up by the other witnesses, such as the fact that Chimbuya was invited to return to the Mapanzure community to take up the chieftainship and the reasons why he had left that community.

Both Pesanai Gozho Chatikobo's and Ignatius Vushangwe's evidence was consistent with the 1965 and 1973 genealogies and history of the Mapanzure chieftainship.

The Issue

A chief is appointed by the President in terms of section 3 of the Chiefs and Headmen Act [Chapter 29:01]. In so doing, the President must give due consideration to the customary principles of succession, if any, applicable to the community over which the chief is to preside.

As indicated earlier, following the amendment of summons and declaration by the plaintiff at the commencement of the trial, the only issue for determination is whether or not the appointment of the first defendant was in accordance with customary principles of succession of the Mapanzure people.

The plaintiff alleges that the custom of the Mapanzure people is that they follow the collateral principle of succession, in terms of which the chieftain revolves according to the royal houses identified by Mazorodze and not according to seniority. Therefore, in the event that a royal house is due for chieftainship, the house will select the person to be the next chief from that house irrespective of the age of that person.

The first defendant alleged that succession is based on seniority within each generation. All the houses constitute one entity. When all the people in one generation die, the chieftainship rotates within the next generation. The eldest person within that generation will be appointed the next chief irrespective of which house they come from.

The present dispute, relating to the Mapanzure chieftainship, was anticipated in 1965 when Gwenhamo was still the chief.

In order to avoid such a dispute, the Mapanzure chieftainship was documented in the 1965 report, in the copy of the extract that the plaintiff produced. When the report was prepared, Gwenhamo, who was the chief then, was very old and the report was intended to document the Mapanzure chieftainship so as to avoid any succession disputes. On page 2 of the report, the author of the report lays the basis for the preparation of the report and the genealogy therein as follows:

“They (the Mapanzure people) pride themselves on their confidence that they can settle the succession amicably. Unfortunately, the elder grandsons of Mazorodze (that is the first sons of Mupandasekwa, Chimbuya, Kufandada, Zingoni, etc) were themselves older that Mazorodze's own young sons (that is, Gwenamo, Taziziva, Chivendere etc). Therefore, Gwenamo's own sons (who are now middle-aged) are a generation senior to the grandsons of Mupandasekwa, Chimbuya, Kufandada, etc. Yet, these latter grandsons are older than Gwenamo's sons.

It will be extremely difficult to sort out the generations of the various prospective claimants unless some research is done now.”

The research then disclosed that succession of the Mapanzure chieftainship was “true collateral succession.” (page 1 of exhibit I).

The difficulty that has appeared from the evidence from both the plaintiff and the first defendant's case is that they both do not seem to understand what collateral succession is.

The collateral principle of succession has been described in a number of decided cases in our jurisdiction.

In Ruzane v Paradzai & Anor 1989 (1) ZLR 118 (HC), MUTAMBANENGWE J referred to a number of authorities on the principle. He observed as follows…,:

“Thus, HAROLD CHILD, The History and Extent of Recognition of Tribal Law in Rhodesia, at p6, says:

“Succession to chieftainship also shows a difference, being in most instances collateral.

Younger brothers succeed to elder brothers until the succession has been held by each in turn, when it reverts to the son of the first chief and then to the sons of the collateral lines. There are tribal variations, and the system is not always complete."

Similarly, JF HOLLEMAN, Shona Customary Law…, says:

"Succession to chieftainship is governed by the common principles of collateral succession prevailing in central Mashonaland. According to these principles, the eldest son, regardless of the position or rank of his mother, succeeds to the personal name and position of his father.

When he dies, his next youngest brother or half-brother succeeds to the father's name, until the generation of sons of the father is exhausted and the eldest grandson succeeds to the name and position of his grandfather, the determining factor again being the order of birth amongst collateral grandsons."

And E B GOLDIN and M GELFAND, African Law and Custom in Rhodesia…, say:

"Whilst among the Ndebele, the chief (induna) is selected by a system of primogeniture, in which, upon his death, the office is passed on to his eldest son, a more complicated one is adopted by the more numerous Shona-speaking people.

Their chiefs are chosen by a collateral system in which the position is passed from the head of one of the 'special families' to that of another. Each of these families is known as an 'imbahuru' or 'royal family' and on the death of a chief (ishe, mambo) his successor is selected from the representatives of two, three or even four 'royal' families in the clan. Thus, when a chief dies, his office passes on to the representative of the next family until each has had its turn, when the cycle is repeated.”

C BULLOCK, The Mashona, says…,:

"With very few exceptions, primogeniture did not govern succession. The chieftaincy theoretically descended from the elder to the younger brothers of a family, until all had held it."

At pp124E-G MUTAMBANENGWE J held:

“At pp21-22 of Holleman's Shona Customary Law it is stated:

'A man cannot, for instance, succeed to his elder brother's own name and position, but he may, after his brother's death, succeed to the name of their common father or forefather.

Especially in the case of an old and established chieftainship its succession may involve the candidacies of numerous clansmen between whom agnatic relations may be very remote.

As it is the relative age on a certain generation level which is, in principle, the determining factor, it is often difficult to know who is the eldest and therefore most eligible amongst the candidates. It is the task of tribal elders, mostly belonging to the ruling clan, and of other important kinsmen, to determine which candidate has the best rights to become chief. In the event of serious rivalry, recourse may be had to a svikiro (spirit medium) of an important ancestor to ascertain the views and wishes of the ancestral spirits.'”…,.

In Chagaresango v Chagaresango 2000 (1) ZLR 99…, MUCHECHETERE J also quoted with approval GOLDIN and GELFAND's African Law and Custom in Rhodesia and referred to Ruzane v Paradzai & Anor 1989 (1) ZLR 118 (HC) and Ruzane v Paradzai & Anor 1991 (1) ZLR 273 (S): see also Pharoah B. Muskwe v Douglas Nyajina & ORS HH92-07…

As observed in the cases, the principle varies with each community. However, it appears that the authorities are agreed that chieftainship among most of the Shona-speaking people passes from elder brother to younger brother in one generation until all the brothers have succeeded to the throne. It is therefore based on the seniority of those brothers. It then moves to the next generation.

What appears from JF HOLLEMAN's Shona Customary Law is that sons of the chief constitute one house irrespective of the rank of their mothers. It is the father who is the determining factor. Therefore, a half-brother can succeed another half brother according to their seniority.

A variation of this principle of succession is given in GOLDIN and M GELFAND's African Law and Custom in Rhodesia…,. It is apparent from the above quote that succession can be according to houses where there is more than one royal house. But, even in such a case, succession is according to seniority, with the head of one house succeeding another until each royal house has had its turn.

As indicated earlier, the plaintiff failed to establish that there were seven royal houses. The 1965 report that he produced did not support him.

I was persuaded by the evidence of Pesanai Gozho Chatikobo and Ignatius Vhushangwe that Mazorodze's sons all constituted one house irrespective of their mothers and that succession was according to the seniority of these sons.

The same principle of succession would equally apply in respect of Mazorodze's grandchildren and their own children ad infinitum.

This explains why Chatikobo succeeded Chimbuya as chief despite the fact that the two were from different mothers.

The collateral succession practised by the Mapanzure chieftainship is captured in both the 1965 report and the 1973 minutes. In the 1965 report, it is stated that:

“The previous svikiro was Gwenamo's own half-sister, Mavengedzene (same father, Mazorodze, but different mothers). Gwenamo 'accepted the spirits' because he seemed to have no chance of succeeding to the chieftainship. Obviously, as svikiro, he did not have a say in his own appointment - nor did he officiate at his own installation. In fact, there was simply no selection necessary after Bwango's death.

Gwenamo was the last surviving son of a long line of brothers, and his selection was automatic. As the chief himself put it: 'I was son of my father'.

He meant that he is the last surviving son of Mazorodze for two younger brothers, Chivendera and Taiziziva, pre-deceased him.” (p2 of exhibit I).

“Later, Chimbuya died, and, according to custom, Chatikobo was selected to succeed his brother. Kufandada and Zingoni had pre-deceased Chatikobo.

Chatikobo had a small badge so he said: 'How can I take two badges?'

He therefore gave his own badge to his son, Tasarirawona, whose other name was Mukasi, and retained the big badge for himself. Chatikobo was then chief over the whole area, including that over which he himself had been placed in charge.

When Chatikobo died, his young brother, Shumbayaonda, took over the chieftainship, and so on until the youngest surviving son Gwenhamo. He is our Chief today. He is the rugohwe (last born).” (see p3-4 of exhibit I).

The 1973 minutes (p1 of Exhibit 2) state:

“The District Commissioner asked for enlightment on certain aspects of the family tree as recorded by Mr. Kaschula in May 1965.

It was agreed by all present that MUPANDASEKWA was the first born son of MAZORODZE, but he died before he could succeed to the Chieftainship, which then went to his young brother CHIMBUYA. His young brothers, KUFANDADA and ZINGONI, pre-deceased him and the chieftainship then went to CHATIKOBO. MUSINAZANO and CHIHAVA predeceased CHIHAVA (it appears there was a mistake as the name was repeated. It appears the second Chihava should have been Chatikobo as he was the last chief) and the Chieftainship therefore then went to the next brother SHUMBAYAWUNDA who was pre-deceased by his younger brother, CHIZEMA, and thence to MARGWIROKONA. He reigned a short time and then he was pre-deceased by his young brother TSUNGIRAI and the 'nyembi' went to the next young brother, ZISHIRI. ZISHIRI's young brothers, MUTODZANISO, HAPANYENGWI, TAVARERA, RUTORO, KUVENGASHE, RIMA, MUTUKWA, GOWO, CHIRUNDUMWA, RICHANYU, GANDA and WUSHE all pre-deceased him and the next Chief was BGWANGO. His young brothers, RUSHANGWE and TIRIVANERA, died before him, so the Chieftainship went to GWENHAMO, the Chief who has just died. His younger brother CHIVENDERA and TAIZIZIVA both died as bachelors.”

The above analysis of the chieftainship clearly reflects the fact that chieftainship was according to the line of brothers, and in accordance with their seniority. It was not, and it appears still is not according to the royal houses identified by the plaintiff.

The sons from the said royal houses did not succeeded to the chieftainship by design. It was by misfortune. The brothers before them had died before their turn and during the reign of their elder brothers.

It is also apparent that Vushangwe, the first defendant's father, and Tirivahera, did not succeeded because they pre-deceased Bgwango who was the chief during their lifetime.

The succession of Masimba Shumbayawonda was also not by design. It was because Gwenhamo's brothers, Chivendera and Taiziziva, had pre-deceased Gwenhamo. Upon Gwenhamo's death, the chieftainship was then to move to the next generation, the 6th generation, because Gwenhamo's younger brothers, Chivendera and Taiziziva had pre-deceased him. He was Mazorodze's last surviving son.

Masimba Shumbayawonda was found to be the eldest in that generation hence his appointment as chief. Upon his death, the next chief had to be the next eldest brother within the 6th generation.

The first defendant falls under the 6th generation.

The question as to whether there was any other person older that the first defendant within that generation was put to the plaintiff under cross-examination as follows:

“Q: The current chief is a brother to your father?

A: Yes. The current chief referred to my father as elder brother.

Q: Is there someone in the Chimbuya family now called 'father'?

A: Yes, there is one.

Q: Who is older between the one you refer to as your father and the current chief?

A: The current chief is older but they are almost the same age.

Q: I put it to you that your evidence that that chieftainship goes by fathers is correct and therefore the appointment of the current chief was proper?

A: I think you misquoted me. The father from the Chimbuya house is older.

Q: It is better for you to admit that you have made an error instead of saying that I misquoted you.

A: My apologies. It might have been a slip of the tongue. I wanted to say the father from the Chimbuya house is older.”

Apart from that belated correction, the plaintiff did not advance any evidence to prove that the “father” from the Chimbuya House was older than the first defendant.

Luckson Jayadhara Chimbuya did in fact concede that the first defendant was the oldest. This was also confirmed by Pesanai Gozho Chatikobo and in the letters from the District Administrator that the parties produced.

From the above, it is my view that the first defendant, being the eldest in the 6th generation, was entitled to be appointed as the Chief Mapanzure. This was in accordance with the customary principles of succession of the Mapanzure chieftainship.

In the result, the plaintiff's claim is dismissed costs.

“(a) An order declaring that the only families entitled to the Mapanzure chieftainship are the following families:

1. Chimbuya.

2. Magwirokona.

3. Mavhengere.

4. Bwangundoga.

5. Mupandasekwa.

6. Gwenhamo.

7. Shumbayaonda.

(b) An order declaring that according to customary principles of succession to the Mapanzure chieftainship, the 1st defendant, a descendent of the Rushangwe/Vusangwe family, has no title or claim to the Mapanzure chieftainship;

(c) An order removing the 1st defendant from his position as Chief Mapanzure;

(d) An order declaring the 8th to the 10th defendants (the District Administrator, the Provincial Administrator, and the Minister of Local Government, Public Works and National Housing respectively) acted contrary to custom when they recommended the appointment of 1st defendant as Chief Mapanzure; and

(e) An order of costs against any of the defendants who may oppose this application.”

On 12 October 2009, the plaintiff amended his prayer by the deletion of the first three claims.

Therefore, the only main issue for determination is whether or not the recommendation for the appointment of the current chief, the first defendant, was in compliance with the customs of the Mapanzure people.

The action was only defended by the first defendant.

The History of the Mapanzure Chieftainship

The plaintiff produced, as part of his exhibits, a copy of an extract of a report prepared on the chieftainship in 1965. It is not clear who the author of the report was.

The first defendant produced a copy of minutes of a meeting held in the District Commissioner's office on 5 December 1973. The then District Commissioner, who chaired the meeting, was one W.E.J. Henson. Present at the meeting from the Mapanzure people were Mangwande from the Chihava House, Mutubuki and Tafunda from the Chatikobo House, Mbombe from the Mutukwa House, Rawasindadi from the Zingoni House, Manyoka (Acting Chief) and Mazorodze from the Gwenhamo House.

Both documents contain the genealogy of the Mapanzure chieftainship.

The parties were in agreement that the genealogy reflected the chieftainship. They both relied extensively on the documents in support of their respective positions.

The following history of the Mapanzure chieftainship, which is explained in these two documents, appears to be common cause.

The great-great-grandfather of the chieftainship was Mutuna. After him came Muravu (2nd generation), then Mapanzure (third generation) and then Mazorodze and Mavhengere (4th generation). Upon the death of Mapanzure, Mazorodze became the chief. It is not in issue that Mavhengere did not succeed to the chieftainship because he pre-deceased Mapanzure.

Mazorodze had more than 30 sons falling under the 5th generation. These sons constitute what is referred to as “Houses” in this judgment. However, only thirty (30) sons appear in the genealogy. It is necessary to list these sons according to their seniority as they appear in the genealogy. These were:

1. Mupandasekwa 16. Rutoro

2. Chimbuya          17. Kuvengashe

3. Kufandada          18. Rima

4. Zingoni                19. Mutukwa

5. Chatikobo            20. Gowo

6. Musinazano         21. Chirudumwa

7. Chihava               22. Ruchanyu

8. Shumbayawonda 23. Ganda

9. Chizema              24. Wushe

10. Magwirokona    25. Bgwango

11. Tsungirai             27. Vushangwe/Rushangwe

12. Zishiri                 26. Tirivahera

13. Mutodzaniso        28. Gwenhamo

14. Hapanyengwi       29. Chivendera

15. Tavareva              30. Taiziziva

The names in bold are the names of Mazorodze's that the plaintiff allege were selected by Mazorodze for eligibility to succeed to the chieftainship. These are also some of Mazorodze's sons who succeeded to the chieftainship.

The eldest of Mazorodze's sons was Mupandasekwa followed by Chimbuya.

Upon Mazorodze's death, the next chief was Chimbuya because Mupandasekwa had pre-deceased Mazorodze. The last chief among Mazorodze's sons was Gwenhamo who died in 1973. The next chief was Masimba Shumbayawonda. He was Mazorodze's grandson and of the sixth generation. Masimba Shumbayawonda died on 8 June 1987. In 1995, the first defendant was appointed the chief. He, like Masimba Shumbayawonda, falls under the 6th generation. The plaintiff is Mazorodze's great grandson. He is the son of Chitana, Mazorodze's grandchild. Chitana was Chimbuya's son. Chitana was of the 6th generation. The plaintiff, being Chitana's son, therefore falls under the 7th generation.

Plaintiff's case

The plaintiff testified that he was 69 years old. He resided in Waterfalls, Harare. He was a member of the Chimbuya House. The customs of the Mapanzure people was that chieftainship revolved according to the order of House. There were only seven houses out of more than 30 houses that were eligible for chieftainship. Mazorodze, his great-grandfather, had several wives and he gave instructions that the chieftainship would revolve among the sons of his first wife. The seven royal Houses were those of Chimbuya, Chatikobo Magwirokona, Zishiri, Bwangundoga, Shumbayaonda and Gwenhamo.

Upon the demise of an entire generation of the royal Houses, the chieftainship would move to the next generation and rotate again within those royal houses. He disputed that chieftainship was on the basis of seniority within a given generation of the Mapanzure family as a whole.

His evidence was that even where the next household had a young son or a daughter, the son or daughter would be eligible to the chieftainship despite the fact that there may have been an elderly person within the Mapanzure family. The house would not be passed over on the basis that the next chief in that house was young.

He testified that the last chief, Masimba, was from the Shumbayaonda family. Had the 8th to 10th defendants (the District Administrator, the Provincial Administrator, and the Minister of Local Government, Public Works and National Housing respectively) observed the proper custom of the Mapanzure people, the chieftainship should have gone to the Chimbuya House and not to the Vushangwe house from which the first defendant hailed. The Vushangwe house was not a royal house.

It was his evidence that he was supposed to have been eligible for selection as the next chief instead of the first defendant because he was from a royal house.

He also stated that the proper procedure had not been adopted when Masimba Shumbayaonda was appointed chief following the death of Gwenhamo. The chieftainship should have gone to the Chimbuya House.

He further explained, that, according to their custom, upon the death of a chief, a meeting would be convened to select the next chief. Initially, the meeting was confined to the seven royal Houses. After the meeting had selected a chief, the other members of the clan would then be involved. The District Administrator (8th defendant) would only be advised of the selection after the meetings of the royal Houses and the clan.

This traditional meeting of the royal Houses was not convened and the first defendant was not selected by the royal Houses.

He frequently goes to the village (at least once or twice per month) and would have known if such a meeting had been held. He only became aware of the appointment of the first defendant sometime between 2003 and 2005 through rumours when he had gone to attend a funeral. It was his evidence that the appointment of the first defendant was with the collusion of a councillor called Manyoka, without any reference to the Mapanzure people. Manyoka had grown up together with the first defendant and he may have thought that if the first defendant were to die he would be the next chief.

The plaintiff called his brother, Luckson Jayadhara Chimbuya.

Luckson Jayadhara Chimbuya testified that he was 66 years old and also hails from the Chimbuya House. He had resided in the Mapanzure rural area for all his life. There were seven houses which were eligible for chieftainship. In terms of their custom, the Mapanzure chieftainship would rotate within the seven houses and among the “fathers” of those houses in their order of seniority.

Upon the death of Mazorodze, the chieftainship went to Chimbuya and not to Mupandasekwa's house because Mupandasekwa's children were still too young. When Chimbuya died, the chieftainship was supposed to go to Kufandada. The appointment of Masimba Shumbayaonda as chief, after Gwenhamo, was not in accordance with their custom. The chieftainship should have come to the Chimbuya house.

However, under cross-examination, he testified that the chieftainship had rotated the line of Mazorodze's sons and it was the turn of Mazorodze's grandchildren. When Masimba was appointed as chief, the elders had realised that he was the eldest grandchild.

He testified that the traditional meeting to select a chief, after the death of Masimba and before the appointment of the first defendant, was never convened. He would have known of this meeting as he resided in the rural areas. He only became aware that the first defendant was a chief well after his appointment.

First Defendant's case

The first witness for the first defendant was Pesanai Herbert Gosho Chatikobo. He testified that he was 71 years old and was from the Chatikobo house. He has resided in the Mapanzure rural area all his entire life. Mazorodze was his grandfather. Chimbuya and Chatikobo were brothers. Chimbuya was from Mazorodze's senior wife and Chatikobo from a junior wife.

In terms of their custom, chieftainship revolved according to seniority of the “fathers” within a generation. He narrated the history of the Mapanzure chieftainship up to the appointment of the first defendant. He disputed the plaintiff's evidence that only seven sons had been chosen by Mazorodze to succeed to the chieftainship. He further disputed that the chieftainship revolved according to those seven houses as suggested by the plaintiff. His evidence was that all the Mapanzure houses were eligible to succeed to the chieftainship. The houses are considered as one and the same house and chieftainship therefore follows the eldest surviving “father” in a given generation irrespective of the house from which he hails.

His evidence was that Gwenhamo was the last surviving “father”, being Mazorodze's son. Upon his death, the chieftainship went to the next generation of “fathers”. Masimba Shumbayawonda was appointed chief because he was the eldest surviving “father” within his generation.

When Masimba Shumbayawonda died, a meeting of the houses was convened by the then acting Chief Masimba to select the next chief. The meeting was held at the homestead of the late Chief Masimba. He could not remember if representatives of the Chimbuya family attended the meeting. The houses had initially selected Mavhengere, from the Chatikobo house, as the next chief. The houses also agreed, at that meeting, that the first defendant was the next eldest surviving “father” after Mavhengere. Mavhengere however died before his appointment hence the appointment of the first defendant as the next chief. The appointment of the first defendant was therefore in accordance with the custom of the Mapanzure people.

The first defendant took the stand.

However, it became apparent that he could not follow the proceedings and recall past events due to his advanced age. He therefore did not testify.

His son, Ignatius Vushangwe, testified on his behalf.

He testified as follows:

He acted as an advisor to the first defendant. He testified that the selection to chieftainship was based not according to houses but according to the seniority of the surviving “fathers”. When Mazorodze died, his first son, Mupandasekwa, had pre-deceased him. Chimbuya was the second son and therefore next in line. Chimbuya had not been living among the Mapanzure people. He had to be recalled to take up the chieftainship because, according to their custom, young brothers could not take chieftainship if there was a surviving elder brother. As a result, it was possible for people from the same house to succeed each other if they were the eldest surviving brothers in that generation. He explained that this was the reason why other houses had not ascended to the Mapanzure chieftainship over the years.

When Gwenhamo died, the sons of Mupandasekwa, Chimbuya, Kufandada and Zingoni would have been older than Masimba Shumbayawonda who succeeded him. However, Gwenhamo ruled for a very long time and these sons had predeceased Gwenhamo. Masimba Shumbayawonda was then found to have been the eldest among Mazorodze's grandchildren hence his selection and appointment as chief.

He disputed, under cross examination, the suggestions by the plaintiff's counsel that collateral succession means succession according to houses.

The witness conceded that he had not attended any meeting to choose the first defendant as the next chief. He however testified that the first defendant was residing in Rushinga, Mount Darwin when he was selected as chief. The Mapanzure people invited him, as they had invited Chimbuya, to come and take up the chieftainship. He disputed that the first defendant had connived with the councillor, Manyoka, that he be selected Chief Mapanzure.

Assessment of Evidence

The plaintiff appeared not to be sure of the custom of the Mapanzure people on the appointment of chief Mapanzure. This confusion is aptly captured by counsel for the plaintiff in paragraph 6 of the plaintiff's closing submissions. It is necessary to quote the entire paragraph of the submissions. Counsel for the plaintiff stated as follows:

“The witness indicated that the last chief was Shumbayaonda, and that after the death of Shumbayaonda, the next house in line was that of Chimbuya. However, the witness could not explain how this succession would dovetail with the custom abovementioned. The witness was keen to show that the house of Vushangwe was not eligible at all to ascend to the Mapanzure chieftainship.

The witness explained that Mapanzure often took two wives from the same family. However, only the first son from the first wife would become eligible for chieftainship.

Under cross-examination, the witness did not convincingly expound on how this mode of succession actually worked. This became clearer when cross examination was made with the assistance of pages 1-6 of Exhibit 2. The witness then altered his stance and maintained that, assuming the first defendant was eligible for chieftainship, he could not assume the Mapanzure chieftainship because his turn had not yet arrived.

In this vein, the witness contended that if the last chief had come from Shumbayawonda, the next house to provide a chief would be Chizema, followed by Magwirokona; first defendant's house would be number 18 in the line of precedence if houses of chieftainship, as shown on pages 3-6 of Exhibit 2, were followed. The witness dismissed as untrue the contention by the first defendant that chieftainship would go by seniority.”

The concession by counsel for the plaintiff, that the plaintiff was confused, was, in my view, proper. I commend him for making the concession.

The plaintiff could not identify Mazorodze's children from the first wife. He also did not know if the houses that he had identified as the royal houses were from the first wife.

This explains the difficulty that he experienced in explaining how succession by Mazorodze's sons from the first wife actually worked. This mode of succession was not supported by the fact that Chatikobo, who was Mazorodze's son from a younger wife, and not the first wife, ascended to the chieftainship.

In any event, the plaintiff's evidence was further confused and confusing in that the first wife would only have one first son.

The plaintiff's evidence, that Mazorodze selected his first wife's eldest son to form a royal house, begs the question as to how many first wives Mazorodze had who gave birth to all the chiefs in the 5th generation.

The plaintiff further testified that chieftainship revolved according to houses such that even a young child in that house, or a woman, would ascend to chieftainship if it was the turn of that house. The plaintiff testified that Mupandasekwa is one of the royal houses. He conceded that although Mupandasekwa pre-deceased Chimbuya, he had young children when Mazorodze died. He could not however explain why these children did not ascend to the chieftainship upon the death of Mazorodze if succession was according to houses regardless of the age of the children in that house.

The following is the plaintiff's evidence, under re-examination, on that issue:

“Q: On page 3 of exhibit 2, under cross-examination, it was stated that those are Mazorodze's sons starting with Mupandasekwa. Mupandasekwa died whilst his father was alive. When a father died the chieftainship went to whom?

A: Chimbuya.

Q: If Chimbuya died?

A: To Kufandada.

Q: Why would chieftainship devolve that way?

A: These are the fathers who were supposed to take up chieftainship.

Q: Read out the names of the first five fathers (Mazorodze's sons).

A: (plaintiff read out the names)

Q: You said Mupandasekwa had two children. If Mupandasekwa dies would chieftainship go to Makatu (Mupandasekwa's son)?

A: No. Makatu is a child.

Q: At what time would Makatu become chief?

A: After the line of fathers had died, the chieftainship would then go to the children.

Q: Defendant says if Shumbayawonda dies there would be a meeting to find the oldest of the surviving fathers and that person becomes chief.

A: That is not correct. In the event that Shumbayawonda died, the next house would be Chizema.

Q: I put it to you that the eldest surviving child becomes the chief. If the chieftainship is in the line of brothers, the eldest brother becomes chief. If all the brothers die, then the eldest son of those brothers becomes chief.

A: That is correct. The eldest surviving brother takes up the chieftainship; if no brothers, then the eldest son.

Q: You seem to be contradicting yourself. I thought you said that chieftainship follows houses, even the smallest; now you are saying it's the brothers first.

A: It might be that you misquoted me. I said if Chimbuya house was supposed to take up chieftainship, and there are no old children, then the youngest in the family succeeds.”

The plaintiff's answers are inconsistent with his claim, that the only the royal houses succeeded to the chieftainship and that it was not on the basis of seniority.

The mode of succession that appears in the answers is in fact supportive of the succession of the Mapanzure's chieftainship according to seniority.

Kufandada was not from one of the alleged royal houses. He was Mazorodze's third son. Chizema was not also one of the alleged royal sons. He was the next son after Shumbayawonda. The next royal son, after Shumbayawonda, would have been Magwirokona.

The explanation by the plaintiff, that, upon the death of Chimbuya, the chieftainship did not go to Mupandasekwa's house because Mapandasekwa's children were very young but therefore went to Chatikobo was supported by Luckson Jayadhara Chimbuya. Jayadhara testified that Mupandasekwa's children were so young that they had not yet started talking.

This explanation is also at variance with the plaintiff's case that chieftainship rotates among the royal houses irrespective of the age of the children from the next royal house.

The plaintiff therefore conceded and supported the first defendant's contention that chieftainship was according to seniority although he would retract the concession under the pretext that he had been misquoted.

The plaintiff could not further explain why, upon the death of Gwenhamo, the chieftainship went to Masimba Shumbayawonda of the Shumbayawonda house instead of either to the Mupandasekwa or the Chimbuya houses.

He accepted that Mupandasekwa was Mazorodze's first son and Chimbuya the second son. Gwenhamo was the 28th son and Shumbayawonda the 8th. If succession follows the royal houses, the plaintiff failed to explain why the chieftainship by-passed both the Mupandasekwa and Chimbuya houses to go to the 8th house of Shumbayawonda.

The plaintiff's evidence, that there were only seven royal houses, is also not supported in the 1965 report that he produced as an exhibit. At p17 of Exhibit I, it is stated that:

“The order of birth of Mazorodze's sons, as given here, is probably not 100 percent accurate; Sister Aquina, in her article 'The Tribes in Victoria Reserve' (NADA 1965) records: Eight out of the twenty sons of Mazorodze…, became chiefs. This implies that there were twenty sons of Mazorodze. As can be seen from the genealogy given here, I have now established there were no less than 30 sons and probably more…,.”

It therefore follows, that, in 1965, when Sister Aquina did her own research, eight and not seven of Mazorodze's sons had become chiefs.

Although the plaintiff's initial evidence was that the first defendant was not entitled to ascend to chieftainship, he finally conceded, under cross-examination, that he was in fact eligible.

He however made a qualification that the first defendant's turn had not yet arrived.

He conceded that the last chief, Masimba, was his uncle (or “father”) and of the 6th generation. He further conceded that the incumbent, the first defendant, is also his uncle, his father's brother and of the 6th generation. Masimba and the first defendant would therefore be his “fathers”.

If one were to go by his concessions, he cannot be entitled to chieftainship as he is of the 7th generation and therefore a “son” to the incumbent. The plaintiff could therefore not be in the line of fathers as he alleged in his evidence. The plaintiff's concessions in fact support the first defendant's evidence to the effect that he (the first defendant) was eligible for succession as he was the eldest surviving in the generation of the plaintiff's “fathers”.

Turning to the question whether or not a meeting of the houses was held to select the incumbent, Luckson Jayadhara Chimbuya confirmed, in his evidence, that a meeting was indeed held although did not attend the meeting. The fact that a meeting was held is also confirmed by Pesanai Gozho Chatikobo.

It appears to me that Pesanai Gozho Chatikobo was not confused as to which meeting selected the first defendant as chief as alleged by the plaintiff's counsel and confirmed in the first defendant's closing remarks.

He testified, under cross-examination, as follows:

“Q: Apart from members of the clan who else who is notable was present at the meeting?

A: Most of the people are now dead.

Q: (Question was repeated). Was the Minister present?

A: The Minister was not present. We might not understand each other. I am referring to the meeting where the name of the current chief emerged. That is what I have referred to as the meeting that was attended by the elders. Even the DA was not there. We were still holding meetings as the clan.”

Even assuming that the witness may have been confused, I do not find that the confusion was intended to mislead the court.

The witness gave the clearest explanation of the Mapanzure chieftainship which substantially tallied with the documents and genealogies that the plaintiff and the first defendant relied on. He also gave the clearest evidence on how the meeting was convened. He stated that the meeting was convened by the acting Chief Masimba and was held at the late Chief Masimba's homestead.

The plaintiff was not able to challenge this evidence.

The fact that meetings were held is further supported by the letters produced by the parties.

It is recorded, in a letter dated 1 December 1993, from the District Administrator to the Provincial Administrator, that, several meetings were held to choose the next chief. The last meeting where the first defendant's selection was confirmed was attended by members of all the houses of the Mapanzure chieftainship. There were 38 kraal heads, 120 elders of the Mapanzure chieftainship, councillor Mapanzure, Vidco, and Ward chairpersons of the Mapanzure chieftainship and the District Administrator.

The letter was common to both parties' bundle of documents.

In another letter, dated 21 June 2004, from the Provincial Administrator to the plaintiff, produced by the first defendant, the Provincial Administrator stated as follows:

“I wish to advise you that this issue should not just be Chimbuya House v Bvuramai. All houses must be involved like they were involved in the initial selection process. The initial meeting must be held without the involvement of this office. 'Tangai mataurirana vana vanyamunhu.'”…,.

I had difficulties in accepting the plaintiff's evidence that it took him over 10 years to discover that the first defendant had been appointed in 1995.

The plaintiff testified that he visited his communal home frequently. On the other hand, Luckson Jayadhara Chimbuya testified that when the plaintiff did not visit his communal home, he (Jayadhara) would visit the plaintiff at his urban home.

The appointment of a chief is a momentous occasion attended by a lot of people including senior Government officials. This was confirmed by Pesanai Gozho Chatikobo.

If the plaintiff did visit his communal home frequently, and I do not doubt him on that score, he does not appear to have been telling the truth when he said that he only became aware of the first defendant's appointment after ten years.

Luckson Jayadhara Chimbuya also sought to mislead the court when he initially testified that he had also not known of the appointment of the first defendant.

He resided in the rural area and such news could not have passed his ears. At least, he later, in his evidence, had the decency to confirm that he had heard of the meetings where the first defendant was selected and appointed chief but he did not attend any of the meetings.

He testified that although he knew of the appointment of the first defendant, he could not complain because Manyoka, the councillor, had told the villagers not to challenge the appointment as it was according to seniority.

It appears to me that he would not have missed telling the plaintiff of the appointment considering that the Chimbuya family had been vying for the chieftainship since the death of Gwenhamo.

I found the first defendant's witnesses to have been truthful and their evidence reliable.

As already indicated, Pesanai Gozho Chatikobo gave a clear explanation of the succession process and the history of the Mapanzure chieftainship.

I am mindful of the fact that Ignatius Vhushangwe was present in court when both the plaintiff, Luckson Jayadhara Chimbuya and Pesanai Gozho Chatikobo testified. I am therefore alive to the fact that his evidence may therefore have been influenced by that of the other witnesses. However, I found his narration of the history of the Mapanzure people to have been very clear and original. It would not have been contrived in court. He substantially supported Pesanai's evidence. He introduced evidence that had not been brought up by the other witnesses, such as the fact that Chimbuya was invited to return to the Mapanzure community to take up the chieftainship and the reasons why he had left that community.

Both Pesanai Gozho Chatikobo's and Ignatius Vushangwe's evidence was consistent with the 1965 and 1973 genealogies and history of the Mapanzure chieftainship.

The Issue

A chief is appointed by the President in terms of section 3 of the Chiefs and Headmen Act [Chapter 29:01]. In so doing, the President must give due consideration to the customary principles of succession, if any, applicable to the community over which the chief is to preside.

As indicated earlier, following the amendment of summons and declaration by the plaintiff at the commencement of the trial, the only issue for determination is whether or not the appointment of the first defendant was in accordance with customary principles of succession of the Mapanzure people.

The plaintiff alleges that the custom of the Mapanzure people is that they follow the collateral principle of succession, in terms of which the chieftain revolves according to the royal houses identified by Mazorodze and not according to seniority. Therefore, in the event that a royal house is due for chieftainship, the house will select the person to be the next chief from that house irrespective of the age of that person.

The first defendant alleged that succession is based on seniority within each generation. All the houses constitute one entity. When all the people in one generation die, the chieftainship rotates within the next generation. The eldest person within that generation will be appointed the next chief irrespective of which house they come from.

The present dispute, relating to the Mapanzure chieftainship, was anticipated in 1965 when Gwenhamo was still the chief.

In order to avoid such a dispute, the Mapanzure chieftainship was documented in the 1965 report, in the copy of the extract that the plaintiff produced. When the report was prepared, Gwenhamo, who was the chief then, was very old and the report was intended to document the Mapanzure chieftainship so as to avoid any succession disputes. On page 2 of the report, the author of the report lays the basis for the preparation of the report and the genealogy therein as follows:

“They (the Mapanzure people) pride themselves on their confidence that they can settle the succession amicably. Unfortunately, the elder grandsons of Mazorodze (that is the first sons of Mupandasekwa, Chimbuya, Kufandada, Zingoni, etc) were themselves older that Mazorodze's own young sons (that is, Gwenamo, Taziziva, Chivendere etc). Therefore, Gwenamo's own sons (who are now middle-aged) are a generation senior to the grandsons of Mupandasekwa, Chimbuya, Kufandada, etc. Yet, these latter grandsons are older than Gwenamo's sons.

It will be extremely difficult to sort out the generations of the various prospective claimants unless some research is done now.”

The research then disclosed that succession of the Mapanzure chieftainship was “true collateral succession.” (page 1 of exhibit I).

The difficulty that has appeared from the evidence from both the plaintiff and the first defendant's case is that they both do not seem to understand what collateral succession is.

The collateral principle of succession has been described in a number of decided cases in our jurisdiction.

In Ruzane v Paradzai & Anor 1989 (1) ZLR 118 (HC), MUTAMBANENGWE J referred to a number of authorities on the principle. He observed as follows…,:

“Thus, HAROLD CHILD, The History and Extent of Recognition of Tribal Law in Rhodesia, at p6, says:

“Succession to chieftainship also shows a difference, being in most instances collateral.

Younger brothers succeed to elder brothers until the succession has been held by each in turn, when it reverts to the son of the first chief and then to the sons of the collateral lines. There are tribal variations, and the system is not always complete."

Similarly, JF HOLLEMAN, Shona Customary Law…, says:

"Succession to chieftainship is governed by the common principles of collateral succession prevailing in central Mashonaland. According to these principles, the eldest son, regardless of the position or rank of his mother, succeeds to the personal name and position of his father.

When he dies, his next youngest brother or half-brother succeeds to the father's name, until the generation of sons of the father is exhausted and the eldest grandson succeeds to the name and position of his grandfather, the determining factor again being the order of birth amongst collateral grandsons."

And E B GOLDIN and M GELFAND, African Law and Custom in Rhodesia…, say:

"Whilst among the Ndebele, the chief (induna) is selected by a system of primogeniture, in which, upon his death, the office is passed on to his eldest son, a more complicated one is adopted by the more numerous Shona-speaking people.

Their chiefs are chosen by a collateral system in which the position is passed from the head of one of the 'special families' to that of another. Each of these families is known as an 'imbahuru' or 'royal family' and on the death of a chief (ishe, mambo) his successor is selected from the representatives of two, three or even four 'royal' families in the clan. Thus, when a chief dies, his office passes on to the representative of the next family until each has had its turn, when the cycle is repeated.”

C BULLOCK, The Mashona, says…,:

"With very few exceptions, primogeniture did not govern succession. The chieftaincy theoretically descended from the elder to the younger brothers of a family, until all had held it."

At pp124E-G MUTAMBANENGWE J held:

“At pp21-22 of Holleman's Shona Customary Law it is stated:

'A man cannot, for instance, succeed to his elder brother's own name and position, but he may, after his brother's death, succeed to the name of their common father or forefather.

Especially in the case of an old and established chieftainship its succession may involve the candidacies of numerous clansmen between whom agnatic relations may be very remote.

As it is the relative age on a certain generation level which is, in principle, the determining factor, it is often difficult to know who is the eldest and therefore most eligible amongst the candidates. It is the task of tribal elders, mostly belonging to the ruling clan, and of other important kinsmen, to determine which candidate has the best rights to become chief. In the event of serious rivalry, recourse may be had to a svikiro (spirit medium) of an important ancestor to ascertain the views and wishes of the ancestral spirits.'”…,.

In Chagaresango v Chagaresango 2000 (1) ZLR 99…, MUCHECHETERE J also quoted with approval GOLDIN and GELFAND's African Law and Custom in Rhodesia and referred to Ruzane v Paradzai & Anor 1989 (1) ZLR 118 (HC) and Ruzane v Paradzai & Anor 1991 (1) ZLR 273 (S): see also Pharoah B. Muskwe v Douglas Nyajina & ORS HH92-07…

As observed in the cases, the principle varies with each community. However, it appears that the authorities are agreed that chieftainship among most of the Shona-speaking people passes from elder brother to younger brother in one generation until all the brothers have succeeded to the throne. It is therefore based on the seniority of those brothers. It then moves to the next generation.

What appears from JF HOLLEMAN's Shona Customary Law is that sons of the chief constitute one house irrespective of the rank of their mothers. It is the father who is the determining factor. Therefore, a half-brother can succeed another half brother according to their seniority.

A variation of this principle of succession is given in GOLDIN and M GELFAND's African Law and Custom in Rhodesia…,. It is apparent from the above quote that succession can be according to houses where there is more than one royal house. But, even in such a case, succession is according to seniority, with the head of one house succeeding another until each royal house has had its turn.

As indicated earlier, the plaintiff failed to establish that there were seven royal houses. The 1965 report that he produced did not support him.

I was persuaded by the evidence of Pesanai Gozho Chatikobo and Ignatius Vhushangwe that Mazorodze's sons all constituted one house irrespective of their mothers and that succession was according to the seniority of these sons.

The same principle of succession would equally apply in respect of Mazorodze's grandchildren and their own children ad infinitum.

This explains why Chatikobo succeeded Chimbuya as chief despite the fact that the two were from different mothers.

The collateral succession practised by the Mapanzure chieftainship is captured in both the 1965 report and the 1973 minutes. In the 1965 report, it is stated that:

“The previous svikiro was Gwenamo's own half-sister, Mavengedzene (same father, Mazorodze, but different mothers). Gwenamo 'accepted the spirits' because he seemed to have no chance of succeeding to the chieftainship. Obviously, as svikiro, he did not have a say in his own appointment - nor did he officiate at his own installation. In fact, there was simply no selection necessary after Bwango's death.

Gwenamo was the last surviving son of a long line of brothers, and his selection was automatic. As the chief himself put it: 'I was son of my father'.

He meant that he is the last surviving son of Mazorodze for two younger brothers, Chivendera and Taiziziva, pre-deceased him.” (p2 of exhibit I).

“Later, Chimbuya died, and, according to custom, Chatikobo was selected to succeed his brother. Kufandada and Zingoni had pre-deceased Chatikobo.

Chatikobo had a small badge so he said: 'How can I take two badges?'

He therefore gave his own badge to his son, Tasarirawona, whose other name was Mukasi, and retained the big badge for himself. Chatikobo was then chief over the whole area, including that over which he himself had been placed in charge.

When Chatikobo died, his young brother, Shumbayaonda, took over the chieftainship, and so on until the youngest surviving son Gwenhamo. He is our Chief today. He is the rugohwe (last born).” (see p3-4 of exhibit I).

The 1973 minutes (p1 of Exhibit 2) state:

“The District Commissioner asked for enlightment on certain aspects of the family tree as recorded by Mr. Kaschula in May 1965.

It was agreed by all present that MUPANDASEKWA was the first born son of MAZORODZE, but he died before he could succeed to the Chieftainship, which then went to his young brother CHIMBUYA. His young brothers, KUFANDADA and ZINGONI, pre-deceased him and the chieftainship then went to CHATIKOBO. MUSINAZANO and CHIHAVA predeceased CHIHAVA (it appears there was a mistake as the name was repeated. It appears the second Chihava should have been Chatikobo as he was the last chief) and the Chieftainship therefore then went to the next brother SHUMBAYAWUNDA who was pre-deceased by his younger brother, CHIZEMA, and thence to MARGWIROKONA. He reigned a short time and then he was pre-deceased by his young brother TSUNGIRAI and the 'nyembi' went to the next young brother, ZISHIRI. ZISHIRI's young brothers, MUTODZANISO, HAPANYENGWI, TAVARERA, RUTORO, KUVENGASHE, RIMA, MUTUKWA, GOWO, CHIRUNDUMWA, RICHANYU, GANDA and WUSHE all pre-deceased him and the next Chief was BGWANGO. His young brothers, RUSHANGWE and TIRIVANERA, died before him, so the Chieftainship went to GWENHAMO, the Chief who has just died. His younger brother CHIVENDERA and TAIZIZIVA both died as bachelors.”

The above analysis of the chieftainship clearly reflects the fact that chieftainship was according to the line of brothers, and in accordance with their seniority. It was not, and it appears still is not according to the royal houses identified by the plaintiff.

The sons from the said royal houses did not succeeded to the chieftainship by design. It was by misfortune. The brothers before them had died before their turn and during the reign of their elder brothers.

It is also apparent that Vushangwe, the first defendant's father, and Tirivahera, did not succeeded because they pre-deceased Bgwango who was the chief during their lifetime.

The succession of Masimba Shumbayawonda was also not by design. It was because Gwenhamo's brothers, Chivendera and Taiziziva, had pre-deceased Gwenhamo. Upon Gwenhamo's death, the chieftainship was then to move to the next generation, the 6th generation, because Gwenhamo's younger brothers, Chivendera and Taiziziva had pre-deceased him. He was Mazorodze's last surviving son.

Masimba Shumbayawonda was found to be the eldest in that generation hence his appointment as chief. Upon his death, the next chief had to be the next eldest brother within the 6th generation.

The first defendant falls under the 6th generation.

The question as to whether there was any other person older that the first defendant within that generation was put to the plaintiff under cross-examination as follows:

“Q: The current chief is a brother to your father?

A: Yes. The current chief referred to my father as elder brother.

Q: Is there someone in the Chimbuya family now called 'father'?

A: Yes, there is one.

Q: Who is older between the one you refer to as your father and the current chief?

A: The current chief is older but they are almost the same age.

Q: I put it to you that your evidence that that chieftainship goes by fathers is correct and therefore the appointment of the current chief was proper?

A: I think you misquoted me. The father from the Chimbuya house is older.

Q: It is better for you to admit that you have made an error instead of saying that I misquoted you.

A: My apologies. It might have been a slip of the tongue. I wanted to say the father from the Chimbuya house is older.”

Apart from that belated correction, the plaintiff did not advance any evidence to prove that the “father” from the Chimbuya House was older than the first defendant.

Luckson Jayadhara Chimbuya did in fact concede that the first defendant was the oldest. This was also confirmed by Pesanai Gozho Chatikobo and in the letters from the District Administrator that the parties produced.

From the above, it is my view that the first defendant, being the eldest in the 6th generation, was entitled to be appointed as the Chief Mapanzure. This was in accordance with the customary principles of succession of the Mapanzure chieftainship.

In the result, the plaintiff's claim is dismissed costs.

“(a) An order declaring that the only families entitled to the Mapanzure chieftainship are the following families:

1. Chimbuya.

2. Magwirokona.

3. Mavhengere.

4. Bwangundoga.

5. Mupandasekwa.

6. Gwenhamo.

7. Shumbayaonda.

(b) An order declaring that according to customary principles of succession to the Mapanzure chieftainship, the 1st defendant, a descendent of the Rushangwe/Vusangwe family, has no title or claim to the Mapanzure chieftainship;

(c) An order removing the 1st defendant from his position as Chief Mapanzure;

(d) An order declaring the 8th to the 10th defendants (the District Administrator, the Provincial Administrator, and the Minister of Local Government, Public Works and National Housing respectively) acted contrary to custom when they recommended the appointment of 1st defendant as Chief Mapanzure; and

(e) An order of costs against any of the defendants who may oppose this application.”

On 12 October 2009, the plaintiff amended his prayer by the deletion of the first three claims.

Therefore, the only main issue for determination is whether or not the recommendation for the appointment of the current chief, the first defendant, was in compliance with the customs of the Mapanzure people.

The action was only defended by the first defendant.

The History of the Mapanzure Chieftainship

The plaintiff produced, as part of his exhibits, a copy of an extract of a report prepared on the chieftainship in 1965. It is not clear who the author of the report was.

The first defendant produced a copy of minutes of a meeting held in the District Commissioner's office on 5 December 1973. The then District Commissioner, who chaired the meeting, was one W.E.J. Henson. Present at the meeting from the Mapanzure people were Mangwande from the Chihava House, Mutubuki and Tafunda from the Chatikobo House, Mbombe from the Mutukwa House, Rawasindadi from the Zingoni House, Manyoka (Acting Chief) and Mazorodze from the Gwenhamo House.

Both documents contain the genealogy of the Mapanzure chieftainship.

The parties were in agreement that the genealogy reflected the chieftainship. They both relied extensively on the documents in support of their respective positions.

The following history of the Mapanzure chieftainship, which is explained in these two documents, appears to be common cause.

The great-great-grandfather of the chieftainship was Mutuna. After him came Muravu (2nd generation), then Mapanzure (third generation) and then Mazorodze and Mavhengere (4th generation). Upon the death of Mapanzure, Mazorodze became the chief. It is not in issue that Mavhengere did not succeed to the chieftainship because he pre-deceased Mapanzure.

Mazorodze had more than 30 sons falling under the 5th generation. These sons constitute what is referred to as “Houses” in this judgment. However, only thirty (30) sons appear in the genealogy. It is necessary to list these sons according to their seniority as they appear in the genealogy. These were:

1. Mupandasekwa 16. Rutoro

2. Chimbuya          17. Kuvengashe

3. Kufandada          18. Rima

4. Zingoni                19. Mutukwa

5. Chatikobo            20. Gowo

6. Musinazano         21. Chirudumwa

7. Chihava               22. Ruchanyu

8. Shumbayawonda 23. Ganda

9. Chizema              24. Wushe

10. Magwirokona    25. Bgwango

11. Tsungirai             27. Vushangwe/Rushangwe

12. Zishiri                 26. Tirivahera

13. Mutodzaniso        28. Gwenhamo

14. Hapanyengwi       29. Chivendera

15. Tavareva              30. Taiziziva

The names in bold are the names of Mazorodze's that the plaintiff allege were selected by Mazorodze for eligibility to succeed to the chieftainship. These are also some of Mazorodze's sons who succeeded to the chieftainship.

The eldest of Mazorodze's sons was Mupandasekwa followed by Chimbuya.

Upon Mazorodze's death, the next chief was Chimbuya because Mupandasekwa had pre-deceased Mazorodze. The last chief among Mazorodze's sons was Gwenhamo who died in 1973. The next chief was Masimba Shumbayawonda. He was Mazorodze's grandson and of the sixth generation. Masimba Shumbayawonda died on 8 June 1987. In 1995, the first defendant was appointed the chief. He, like Masimba Shumbayawonda, falls under the 6th generation. The plaintiff is Mazorodze's great grandson. He is the son of Chitana, Mazorodze's grandchild. Chitana was Chimbuya's son. Chitana was of the 6th generation. The plaintiff, being Chitana's son, therefore falls under the 7th generation.

Plaintiff's case

The plaintiff testified that he was 69 years old. He resided in Waterfalls, Harare. He was a member of the Chimbuya House. The customs of the Mapanzure people was that chieftainship revolved according to the order of House. There were only seven houses out of more than 30 houses that were eligible for chieftainship. Mazorodze, his great-grandfather, had several wives and he gave instructions that the chieftainship would revolve among the sons of his first wife. The seven royal Houses were those of Chimbuya, Chatikobo Magwirokona, Zishiri, Bwangundoga, Shumbayaonda and Gwenhamo.

Upon the demise of an entire generation of the royal Houses, the chieftainship would move to the next generation and rotate again within those royal houses. He disputed that chieftainship was on the basis of seniority within a given generation of the Mapanzure family as a whole.

His evidence was that even where the next household had a young son or a daughter, the son or daughter would be eligible to the chieftainship despite the fact that there may have been an elderly person within the Mapanzure family. The house would not be passed over on the basis that the next chief in that house was young.

He testified that the last chief, Masimba, was from the Shumbayaonda family. Had the 8th to 10th defendants (the District Administrator, the Provincial Administrator, and the Minister of Local Government, Public Works and National Housing respectively) observed the proper custom of the Mapanzure people, the chieftainship should have gone to the Chimbuya House and not to the Vushangwe house from which the first defendant hailed. The Vushangwe house was not a royal house.

It was his evidence that he was supposed to have been eligible for selection as the next chief instead of the first defendant because he was from a royal house.

He also stated that the proper procedure had not been adopted when Masimba Shumbayaonda was appointed chief following the death of Gwenhamo. The chieftainship should have gone to the Chimbuya House.

He further explained, that, according to their custom, upon the death of a chief, a meeting would be convened to select the next chief. Initially, the meeting was confined to the seven royal Houses. After the meeting had selected a chief, the other members of the clan would then be involved. The District Administrator (8th defendant) would only be advised of the selection after the meetings of the royal Houses and the clan.

This traditional meeting of the royal Houses was not convened and the first defendant was not selected by the royal Houses.

He frequently goes to the village (at least once or twice per month) and would have known if such a meeting had been held. He only became aware of the appointment of the first defendant sometime between 2003 and 2005 through rumours when he had gone to attend a funeral. It was his evidence that the appointment of the first defendant was with the collusion of a councillor called Manyoka, without any reference to the Mapanzure people. Manyoka had grown up together with the first defendant and he may have thought that if the first defendant were to die he would be the next chief.

The plaintiff called his brother, Luckson Jayadhara Chimbuya.

Luckson Jayadhara Chimbuya testified that he was 66 years old and also hails from the Chimbuya House. He had resided in the Mapanzure rural area for all his life. There were seven houses which were eligible for chieftainship. In terms of their custom, the Mapanzure chieftainship would rotate within the seven houses and among the “fathers” of those houses in their order of seniority.

Upon the death of Mazorodze, the chieftainship went to Chimbuya and not to Mupandasekwa's house because Mupandasekwa's children were still too young. When Chimbuya died, the chieftainship was supposed to go to Kufandada. The appointment of Masimba Shumbayaonda as chief, after Gwenhamo, was not in accordance with their custom. The chieftainship should have come to the Chimbuya house.

However, under cross-examination, he testified that the chieftainship had rotated the line of Mazorodze's sons and it was the turn of Mazorodze's grandchildren. When Masimba was appointed as chief, the elders had realised that he was the eldest grandchild.

He testified that the traditional meeting to select a chief, after the death of Masimba and before the appointment of the first defendant, was never convened. He would have known of this meeting as he resided in the rural areas. He only became aware that the first defendant was a chief well after his appointment.

First Defendant's case

The first witness for the first defendant was Pesanai Herbert Gosho Chatikobo. He testified that he was 71 years old and was from the Chatikobo house. He has resided in the Mapanzure rural area all his entire life. Mazorodze was his grandfather. Chimbuya and Chatikobo were brothers. Chimbuya was from Mazorodze's senior wife and Chatikobo from a junior wife.

In terms of their custom, chieftainship revolved according to seniority of the “fathers” within a generation. He narrated the history of the Mapanzure chieftainship up to the appointment of the first defendant. He disputed the plaintiff's evidence that only seven sons had been chosen by Mazorodze to succeed to the chieftainship. He further disputed that the chieftainship revolved according to those seven houses as suggested by the plaintiff. His evidence was that all the Mapanzure houses were eligible to succeed to the chieftainship. The houses are considered as one and the same house and chieftainship therefore follows the eldest surviving “father” in a given generation irrespective of the house from which he hails.

His evidence was that Gwenhamo was the last surviving “father”, being Mazorodze's son. Upon his death, the chieftainship went to the next generation of “fathers”. Masimba Shumbayawonda was appointed chief because he was the eldest surviving “father” within his generation.

When Masimba Shumbayawonda died, a meeting of the houses was convened by the then acting Chief Masimba to select the next chief. The meeting was held at the homestead of the late Chief Masimba. He could not remember if representatives of the Chimbuya family attended the meeting. The houses had initially selected Mavhengere, from the Chatikobo house, as the next chief. The houses also agreed, at that meeting, that the first defendant was the next eldest surviving “father” after Mavhengere. Mavhengere however died before his appointment hence the appointment of the first defendant as the next chief. The appointment of the first defendant was therefore in accordance with the custom of the Mapanzure people.

The first defendant took the stand.

However, it became apparent that he could not follow the proceedings and recall past events due to his advanced age. He therefore did not testify.

His son, Ignatius Vushangwe, testified on his behalf.

He testified as follows:

He acted as an advisor to the first defendant. He testified that the selection to chieftainship was based not according to houses but according to the seniority of the surviving “fathers”. When Mazorodze died, his first son, Mupandasekwa, had pre-deceased him. Chimbuya was the second son and therefore next in line. Chimbuya had not been living among the Mapanzure people. He had to be recalled to take up the chieftainship because, according to their custom, young brothers could not take chieftainship if there was a surviving elder brother. As a result, it was possible for people from the same house to succeed each other if they were the eldest surviving brothers in that generation. He explained that this was the reason why other houses had not ascended to the Mapanzure chieftainship over the years.

When Gwenhamo died, the sons of Mupandasekwa, Chimbuya, Kufandada and Zingoni would have been older than Masimba Shumbayawonda who succeeded him. However, Gwenhamo ruled for a very long time and these sons had predeceased Gwenhamo. Masimba Shumbayawonda was then found to have been the eldest among Mazorodze's grandchildren hence his selection and appointment as chief.

He disputed, under cross examination, the suggestions by the plaintiff's counsel that collateral succession means succession according to houses.

The witness conceded that he had not attended any meeting to choose the first defendant as the next chief. He however testified that the first defendant was residing in Rushinga, Mount Darwin when he was selected as chief. The Mapanzure people invited him, as they had invited Chimbuya, to come and take up the chieftainship. He disputed that the first defendant had connived with the councillor, Manyoka, that he be selected Chief Mapanzure.

Assessment of Evidence

The plaintiff appeared not to be sure of the custom of the Mapanzure people on the appointment of chief Mapanzure. This confusion is aptly captured by counsel for the plaintiff in paragraph 6 of the plaintiff's closing submissions. It is necessary to quote the entire paragraph of the submissions. Counsel for the plaintiff stated as follows:

“The witness indicated that the last chief was Shumbayaonda, and that after the death of Shumbayaonda, the next house in line was that of Chimbuya. However, the witness could not explain how this succession would dovetail with the custom abovementioned. The witness was keen to show that the house of Vushangwe was not eligible at all to ascend to the Mapanzure chieftainship.

The witness explained that Mapanzure often took two wives from the same family. However, only the first son from the first wife would become eligible for chieftainship.

Under cross-examination, the witness did not convincingly expound on how this mode of succession actually worked. This became clearer when cross examination was made with the assistance of pages 1-6 of Exhibit 2. The witness then altered his stance and maintained that, assuming the first defendant was eligible for chieftainship, he could not assume the Mapanzure chieftainship because his turn had not yet arrived.

In this vein, the witness contended that if the last chief had come from Shumbayawonda, the next house to provide a chief would be Chizema, followed by Magwirokona; first defendant's house would be number 18 in the line of precedence if houses of chieftainship, as shown on pages 3-6 of Exhibit 2, were followed. The witness dismissed as untrue the contention by the first defendant that chieftainship would go by seniority.”

The concession by counsel for the plaintiff, that the plaintiff was confused, was, in my view, proper. I commend him for making the concession.

The plaintiff could not identify Mazorodze's children from the first wife. He also did not know if the houses that he had identified as the royal houses were from the first wife.

This explains the difficulty that he experienced in explaining how succession by Mazorodze's sons from the first wife actually worked. This mode of succession was not supported by the fact that Chatikobo, who was Mazorodze's son from a younger wife, and not the first wife, ascended to the chieftainship.

In any event, the plaintiff's evidence was further confused and confusing in that the first wife would only have one first son.

The plaintiff's evidence, that Mazorodze selected his first wife's eldest son to form a royal house, begs the question as to how many first wives Mazorodze had who gave birth to all the chiefs in the 5th generation.

The plaintiff further testified that chieftainship revolved according to houses such that even a young child in that house, or a woman, would ascend to chieftainship if it was the turn of that house. The plaintiff testified that Mupandasekwa is one of the royal houses. He conceded that although Mupandasekwa pre-deceased Chimbuya, he had young children when Mazorodze died. He could not however explain why these children did not ascend to the chieftainship upon the death of Mazorodze if succession was according to houses regardless of the age of the children in that house.

The following is the plaintiff's evidence, under re-examination, on that issue:

“Q: On page 3 of exhibit 2, under cross-examination, it was stated that those are Mazorodze's sons starting with Mupandasekwa. Mupandasekwa died whilst his father was alive. When a father died the chieftainship went to whom?

A: Chimbuya.

Q: If Chimbuya died?

A: To Kufandada.

Q: Why would chieftainship devolve that way?

A: These are the fathers who were supposed to take up chieftainship.

Q: Read out the names of the first five fathers (Mazorodze's sons).

A: (plaintiff read out the names)

Q: You said Mupandasekwa had two children. If Mupandasekwa dies would chieftainship go to Makatu (Mupandasekwa's son)?

A: No. Makatu is a child.

Q: At what time would Makatu become chief?

A: After the line of fathers had died, the chieftainship would then go to the children.

Q: Defendant says if Shumbayawonda dies there would be a meeting to find the oldest of the surviving fathers and that person becomes chief.

A: That is not correct. In the event that Shumbayawonda died, the next house would be Chizema.

Q: I put it to you that the eldest surviving child becomes the chief. If the chieftainship is in the line of brothers, the eldest brother becomes chief. If all the brothers die, then the eldest son of those brothers becomes chief.

A: That is correct. The eldest surviving brother takes up the chieftainship; if no brothers, then the eldest son.

Q: You seem to be contradicting yourself. I thought you said that chieftainship follows houses, even the smallest; now you are saying it's the brothers first.

A: It might be that you misquoted me. I said if Chimbuya house was supposed to take up chieftainship, and there are no old children, then the youngest in the family succeeds.”

The plaintiff's answers are inconsistent with his claim, that the only the royal houses succeeded to the chieftainship and that it was not on the basis of seniority.

The mode of succession that appears in the answers is in fact supportive of the succession of the Mapanzure's chieftainship according to seniority.

Kufandada was not from one of the alleged royal houses. He was Mazorodze's third son. Chizema was not also one of the alleged royal sons. He was the next son after Shumbayawonda. The next royal son, after Shumbayawonda, would have been Magwirokona.

The explanation by the plaintiff, that, upon the death of Chimbuya, the chieftainship did not go to Mupandasekwa's house because Mapandasekwa's children were very young but therefore went to Chatikobo was supported by Luckson Jayadhara Chimbuya. Jayadhara testified that Mupandasekwa's children were so young that they had not yet started talking.

This explanation is also at variance with the plaintiff's case that chieftainship rotates among the royal houses irrespective of the age of the children from the next royal house.

The plaintiff therefore conceded and supported the first defendant's contention that chieftainship was according to seniority although he would retract the concession under the pretext that he had been misquoted.

The plaintiff could not further explain why, upon the death of Gwenhamo, the chieftainship went to Masimba Shumbayawonda of the Shumbayawonda house instead of either to the Mupandasekwa or the Chimbuya houses.

He accepted that Mupandasekwa was Mazorodze's first son and Chimbuya the second son. Gwenhamo was the 28th son and Shumbayawonda the 8th. If succession follows the royal houses, the plaintiff failed to explain why the chieftainship by-passed both the Mupandasekwa and Chimbuya houses to go to the 8th house of Shumbayawonda.

The plaintiff's evidence, that there were only seven royal houses, is also not supported in the 1965 report that he produced as an exhibit. At p17 of Exhibit I, it is stated that:

“The order of birth of Mazorodze's sons, as given here, is probably not 100 percent accurate; Sister Aquina, in her article 'The Tribes in Victoria Reserve' (NADA 1965) records: Eight out of the twenty sons of Mazorodze…, became chiefs. This implies that there were twenty sons of Mazorodze. As can be seen from the genealogy given here, I have now established there were no less than 30 sons and probably more…,.”

It therefore follows, that, in 1965, when Sister Aquina did her own research, eight and not seven of Mazorodze's sons had become chiefs.

Although the plaintiff's initial evidence was that the first defendant was not entitled to ascend to chieftainship, he finally conceded, under cross-examination, that he was in fact eligible.

He however made a qualification that the first defendant's turn had not yet arrived.

He conceded that the last chief, Masimba, was his uncle (or “father”) and of the 6th generation. He further conceded that the incumbent, the first defendant, is also his uncle, his father's brother and of the 6th generation. Masimba and the first defendant would therefore be his “fathers”.

If one were to go by his concessions, he cannot be entitled to chieftainship as he is of the 7th generation and therefore a “son” to the incumbent. The plaintiff could therefore not be in the line of fathers as he alleged in his evidence. The plaintiff's concessions in fact support the first defendant's evidence to the effect that he (the first defendant) was eligible for succession as he was the eldest surviving in the generation of the plaintiff's “fathers”.

Turning to the question whether or not a meeting of the houses was held to select the incumbent, Luckson Jayadhara Chimbuya confirmed, in his evidence, that a meeting was indeed held although did not attend the meeting. The fact that a meeting was held is also confirmed by Pesanai Gozho Chatikobo.

It appears to me that Pesanai Gozho Chatikobo was not confused as to which meeting selected the first defendant as chief as alleged by the plaintiff's counsel and confirmed in the first defendant's closing remarks.

He testified, under cross-examination, as follows:

“Q: Apart from members of the clan who else who is notable was present at the meeting?

A: Most of the people are now dead.

Q: (Question was repeated). Was the Minister present?

A: The Minister was not present. We might not understand each other. I am referring to the meeting where the name of the current chief emerged. That is what I have referred to as the meeting that was attended by the elders. Even the DA was not there. We were still holding meetings as the clan.”

Even assuming that the witness may have been confused, I do not find that the confusion was intended to mislead the court.

The witness gave the clearest explanation of the Mapanzure chieftainship which substantially tallied with the documents and genealogies that the plaintiff and the first defendant relied on. He also gave the clearest evidence on how the meeting was convened. He stated that the meeting was convened by the acting Chief Masimba and was held at the late Chief Masimba's homestead.

The plaintiff was not able to challenge this evidence.

The fact that meetings were held is further supported by the letters produced by the parties.

It is recorded, in a letter dated 1 December 1993, from the District Administrator to the Provincial Administrator, that, several meetings were held to choose the next chief. The last meeting where the first defendant's selection was confirmed was attended by members of all the houses of the Mapanzure chieftainship. There were 38 kraal heads, 120 elders of the Mapanzure chieftainship, councillor Mapanzure, Vidco, and Ward chairpersons of the Mapanzure chieftainship and the District Administrator.

The letter was common to both parties' bundle of documents.

In another letter, dated 21 June 2004, from the Provincial Administrator to the plaintiff, produced by the first defendant, the Provincial Administrator stated as follows:

“I wish to advise you that this issue should not just be Chimbuya House v Bvuramai. All houses must be involved like they were involved in the initial selection process. The initial meeting must be held without the involvement of this office. 'Tangai mataurirana vana vanyamunhu.'”…,.

I had difficulties in accepting the plaintiff's evidence that it took him over 10 years to discover that the first defendant had been appointed in 1995.

The plaintiff testified that he visited his communal home frequently. On the other hand, Luckson Jayadhara Chimbuya testified that when the plaintiff did not visit his communal home, he (Jayadhara) would visit the plaintiff at his urban home.

The appointment of a chief is a momentous occasion attended by a lot of people including senior Government officials. This was confirmed by Pesanai Gozho Chatikobo.

If the plaintiff did visit his communal home frequently, and I do not doubt him on that score, he does not appear to have been telling the truth when he said that he only became aware of the first defendant's appointment after ten years.

Luckson Jayadhara Chimbuya also sought to mislead the court when he initially testified that he had also not known of the appointment of the first defendant.

He resided in the rural area and such news could not have passed his ears. At least, he later, in his evidence, had the decency to confirm that he had heard of the meetings where the first defendant was selected and appointed chief but he did not attend any of the meetings.

He testified that although he knew of the appointment of the first defendant, he could not complain because Manyoka, the councillor, had told the villagers not to challenge the appointment as it was according to seniority.

It appears to me that he would not have missed telling the plaintiff of the appointment considering that the Chimbuya family had been vying for the chieftainship since the death of Gwenhamo.

I found the first defendant's witnesses to have been truthful and their evidence reliable.

As already indicated, Pesanai Gozho Chatikobo gave a clear explanation of the succession process and the history of the Mapanzure chieftainship.

I am mindful of the fact that Ignatius Vhushangwe was present in court when both the plaintiff, Luckson Jayadhara Chimbuya and Pesanai Gozho Chatikobo testified. I am therefore alive to the fact that his evidence may therefore have been influenced by that of the other witnesses. However, I found his narration of the history of the Mapanzure people to have been very clear and original. It would not have been contrived in court. He substantially supported Pesanai's evidence. He introduced evidence that had not been brought up by the other witnesses, such as the fact that Chimbuya was invited to return to the Mapanzure community to take up the chieftainship and the reasons why he had left that community.

Both Pesanai Gozho Chatikobo's and Ignatius Vushangwe's evidence was consistent with the 1965 and 1973 genealogies and history of the Mapanzure chieftainship.

The Issue

A chief is appointed by the President in terms of section 3 of the Chiefs and Headmen Act [Chapter 29:01]. In so doing, the President must give due consideration to the customary principles of succession, if any, applicable to the community over which the chief is to preside.

As indicated earlier, following the amendment of summons and declaration by the plaintiff at the commencement of the trial, the only issue for determination is whether or not the appointment of the first defendant was in accordance with customary principles of succession of the Mapanzure people.

The plaintiff alleges that the custom of the Mapanzure people is that they follow the collateral principle of succession, in terms of which the chieftain revolves according to the royal houses identified by Mazorodze and not according to seniority. Therefore, in the event that a royal house is due for chieftainship, the house will select the person to be the next chief from that house irrespective of the age of that person.

The first defendant alleged that succession is based on seniority within each generation. All the houses constitute one entity. When all the people in one generation die, the chieftainship rotates within the next generation. The eldest person within that generation will be appointed the next chief irrespective of which house they come from.

The present dispute, relating to the Mapanzure chieftainship, was anticipated in 1965 when Gwenhamo was still the chief.

In order to avoid such a dispute, the Mapanzure chieftainship was documented in the 1965 report, in the copy of the extract that the plaintiff produced. When the report was prepared, Gwenhamo, who was the chief then, was very old and the report was intended to document the Mapanzure chieftainship so as to avoid any succession disputes. On page 2 of the report, the author of the report lays the basis for the preparation of the report and the genealogy therein as follows:

“They (the Mapanzure people) pride themselves on their confidence that they can settle the succession amicably. Unfortunately, the elder grandsons of Mazorodze (that is the first sons of Mupandasekwa, Chimbuya, Kufandada, Zingoni, etc) were themselves older that Mazorodze's own young sons (that is, Gwenamo, Taziziva, Chivendere etc). Therefore, Gwenamo's own sons (who are now middle-aged) are a generation senior to the grandsons of Mupandasekwa, Chimbuya, Kufandada, etc. Yet, these latter grandsons are older than Gwenamo's sons.

It will be extremely difficult to sort out the generations of the various prospective claimants unless some research is done now.”

The research then disclosed that succession of the Mapanzure chieftainship was “true collateral succession.” (page 1 of exhibit I).

The difficulty that has appeared from the evidence from both the plaintiff and the first defendant's case is that they both do not seem to understand what collateral succession is.

The collateral principle of succession has been described in a number of decided cases in our jurisdiction.

In Ruzane v Paradzai & Anor 1989 (1) ZLR 118 (HC), MUTAMBANENGWE J referred to a number of authorities on the principle. He observed as follows…,:

“Thus, HAROLD CHILD, The History and Extent of Recognition of Tribal Law in Rhodesia, at p6, says:

“Succession to chieftainship also shows a difference, being in most instances collateral.

Younger brothers succeed to elder brothers until the succession has been held by each in turn, when it reverts to the son of the first chief and then to the sons of the collateral lines. There are tribal variations, and the system is not always complete."

Similarly, JF HOLLEMAN, Shona Customary Law…, says:

"Succession to chieftainship is governed by the common principles of collateral succession prevailing in central Mashonaland. According to these principles, the eldest son, regardless of the position or rank of his mother, succeeds to the personal name and position of his father.

When he dies, his next youngest brother or half-brother succeeds to the father's name, until the generation of sons of the father is exhausted and the eldest grandson succeeds to the name and position of his grandfather, the determining factor again being the order of birth amongst collateral grandsons."

And E B GOLDIN and M GELFAND, African Law and Custom in Rhodesia…, say:

"Whilst among the Ndebele, the chief (induna) is selected by a system of primogeniture, in which, upon his death, the office is passed on to his eldest son, a more complicated one is adopted by the more numerous Shona-speaking people.

Their chiefs are chosen by a collateral system in which the position is passed from the head of one of the 'special families' to that of another. Each of these families is known as an 'imbahuru' or 'royal family' and on the death of a chief (ishe, mambo) his successor is selected from the representatives of two, three or even four 'royal' families in the clan. Thus, when a chief dies, his office passes on to the representative of the next family until each has had its turn, when the cycle is repeated.”

C BULLOCK, The Mashona, says…,:

"With very few exceptions, primogeniture did not govern succession. The chieftaincy theoretically descended from the elder to the younger brothers of a family, until all had held it."

At pp124E-G MUTAMBANENGWE J held:

“At pp21-22 of Holleman's Shona Customary Law it is stated:

'A man cannot, for instance, succeed to his elder brother's own name and position, but he may, after his brother's death, succeed to the name of their common father or forefather.

Especially in the case of an old and established chieftainship its succession may involve the candidacies of numerous clansmen between whom agnatic relations may be very remote.

As it is the relative age on a certain generation level which is, in principle, the determining factor, it is often difficult to know who is the eldest and therefore most eligible amongst the candidates. It is the task of tribal elders, mostly belonging to the ruling clan, and of other important kinsmen, to determine which candidate has the best rights to become chief. In the event of serious rivalry, recourse may be had to a svikiro (spirit medium) of an important ancestor to ascertain the views and wishes of the ancestral spirits.'”…,.

In Chagaresango v Chagaresango 2000 (1) ZLR 99…, MUCHECHETERE J also quoted with approval GOLDIN and GELFAND's African Law and Custom in Rhodesia and referred to Ruzane v Paradzai & Anor 1989 (1) ZLR 118 (HC) and Ruzane v Paradzai & Anor 1991 (1) ZLR 273 (S): see also Pharoah B. Muskwe v Douglas Nyajina & ORS HH92-07…

As observed in the cases, the principle varies with each community. However, it appears that the authorities are agreed that chieftainship among most of the Shona-speaking people passes from elder brother to younger brother in one generation until all the brothers have succeeded to the throne. It is therefore based on the seniority of those brothers. It then moves to the next generation.

What appears from JF HOLLEMAN's Shona Customary Law is that sons of the chief constitute one house irrespective of the rank of their mothers. It is the father who is the determining factor. Therefore, a half-brother can succeed another half brother according to their seniority.

A variation of this principle of succession is given in GOLDIN and M GELFAND's African Law and Custom in Rhodesia…,. It is apparent from the above quote that succession can be according to houses where there is more than one royal house. But, even in such a case, succession is according to seniority, with the head of one house succeeding another until each royal house has had its turn.

As indicated earlier, the plaintiff failed to establish that there were seven royal houses. The 1965 report that he produced did not support him.

I was persuaded by the evidence of Pesanai Gozho Chatikobo and Ignatius Vhushangwe that Mazorodze's sons all constituted one house irrespective of their mothers and that succession was according to the seniority of these sons.

The same principle of succession would equally apply in respect of Mazorodze's grandchildren and their own children ad infinitum.

This explains why Chatikobo succeeded Chimbuya as chief despite the fact that the two were from different mothers.

The collateral succession practised by the Mapanzure chieftainship is captured in both the 1965 report and the 1973 minutes. In the 1965 report, it is stated that:

“The previous svikiro was Gwenamo's own half-sister, Mavengedzene (same father, Mazorodze, but different mothers). Gwenamo 'accepted the spirits' because he seemed to have no chance of succeeding to the chieftainship. Obviously, as svikiro, he did not have a say in his own appointment - nor did he officiate at his own installation. In fact, there was simply no selection necessary after Bwango's death.

Gwenamo was the last surviving son of a long line of brothers, and his selection was automatic. As the chief himself put it: 'I was son of my father'.

He meant that he is the last surviving son of Mazorodze for two younger brothers, Chivendera and Taiziziva, pre-deceased him.” (p2 of exhibit I).

“Later, Chimbuya died, and, according to custom, Chatikobo was selected to succeed his brother. Kufandada and Zingoni had pre-deceased Chatikobo.

Chatikobo had a small badge so he said: 'How can I take two badges?'

He therefore gave his own badge to his son, Tasarirawona, whose other name was Mukasi, and retained the big badge for himself. Chatikobo was then chief over the whole area, including that over which he himself had been placed in charge.

When Chatikobo died, his young brother, Shumbayaonda, took over the chieftainship, and so on until the youngest surviving son Gwenhamo. He is our Chief today. He is the rugohwe (last born).” (see p3-4 of exhibit I).

The 1973 minutes (p1 of Exhibit 2) state:

“The District Commissioner asked for enlightment on certain aspects of the family tree as recorded by Mr. Kaschula in May 1965.

It was agreed by all present that MUPANDASEKWA was the first born son of MAZORODZE, but he died before he could succeed to the Chieftainship, which then went to his young brother CHIMBUYA. His young brothers, KUFANDADA and ZINGONI, pre-deceased him and the chieftainship then went to CHATIKOBO. MUSINAZANO and CHIHAVA predeceased CHIHAVA (it appears there was a mistake as the name was repeated. It appears the second Chihava should have been Chatikobo as he was the last chief) and the Chieftainship therefore then went to the next brother SHUMBAYAWUNDA who was pre-deceased by his younger brother, CHIZEMA, and thence to MARGWIROKONA. He reigned a short time and then he was pre-deceased by his young brother TSUNGIRAI and the 'nyembi' went to the next young brother, ZISHIRI. ZISHIRI's young brothers, MUTODZANISO, HAPANYENGWI, TAVARERA, RUTORO, KUVENGASHE, RIMA, MUTUKWA, GOWO, CHIRUNDUMWA, RICHANYU, GANDA and WUSHE all pre-deceased him and the next Chief was BGWANGO. His young brothers, RUSHANGWE and TIRIVANERA, died before him, so the Chieftainship went to GWENHAMO, the Chief who has just died. His younger brother CHIVENDERA and TAIZIZIVA both died as bachelors.”

The above analysis of the chieftainship clearly reflects the fact that chieftainship was according to the line of brothers, and in accordance with their seniority. It was not, and it appears still is not according to the royal houses identified by the plaintiff.

The sons from the said royal houses did not succeeded to the chieftainship by design. It was by misfortune. The brothers before them had died before their turn and during the reign of their elder brothers.

It is also apparent that Vushangwe, the first defendant's father, and Tirivahera, did not succeeded because they pre-deceased Bgwango who was the chief during their lifetime.

The succession of Masimba Shumbayawonda was also not by design. It was because Gwenhamo's brothers, Chivendera and Taiziziva, had pre-deceased Gwenhamo. Upon Gwenhamo's death, the chieftainship was then to move to the next generation, the 6th generation, because Gwenhamo's younger brothers, Chivendera and Taiziziva had pre-deceased him. He was Mazorodze's last surviving son.

Masimba Shumbayawonda was found to be the eldest in that generation hence his appointment as chief. Upon his death, the next chief had to be the next eldest brother within the 6th generation.

The first defendant falls under the 6th generation.

The question as to whether there was any other person older that the first defendant within that generation was put to the plaintiff under cross-examination as follows:

“Q: The current chief is a brother to your father?

A: Yes. The current chief referred to my father as elder brother.

Q: Is there someone in the Chimbuya family now called 'father'?

A: Yes, there is one.

Q: Who is older between the one you refer to as your father and the current chief?

A: The current chief is older but they are almost the same age.

Q: I put it to you that your evidence that that chieftainship goes by fathers is correct and therefore the appointment of the current chief was proper?

A: I think you misquoted me. The father from the Chimbuya house is older.

Q: It is better for you to admit that you have made an error instead of saying that I misquoted you.

A: My apologies. It might have been a slip of the tongue. I wanted to say the father from the Chimbuya house is older.”

Apart from that belated correction, the plaintiff did not advance any evidence to prove that the “father” from the Chimbuya House was older than the first defendant.

Luckson Jayadhara Chimbuya did in fact concede that the first defendant was the oldest. This was also confirmed by Pesanai Gozho Chatikobo and in the letters from the District Administrator that the parties produced.

From the above, it is my view that the first defendant, being the eldest in the 6th generation, was entitled to be appointed as the Chief Mapanzure. This was in accordance with the customary principles of succession of the Mapanzure chieftainship.

In the result, the plaintiff's claim is dismissed costs.

“(a) An order declaring that the only families entitled to the Mapanzure chieftainship are the following families:

1. Chimbuya.

2. Magwirokona.

3. Mavhengere.

4. Bwangundoga.

5. Mupandasekwa.

6. Gwenhamo.

7. Shumbayaonda.

(b) An order declaring that according to customary principles of succession to the Mapanzure chieftainship, the 1st defendant, a descendent of the Rushangwe/Vusangwe family, has no title or claim to the Mapanzure chieftainship;

(c) An order removing the 1st defendant from his position as Chief Mapanzure;

(d) An order declaring the 8th to the 10th defendants (the District Administrator, the Provincial Administrator, and the Minister of Local Government, Public Works and National Housing respectively) acted contrary to custom when they recommended the appointment of 1st defendant as Chief Mapanzure; and

(e) An order of costs against any of the defendants who may oppose this application.”

On 12 October 2009, the plaintiff amended his prayer by the deletion of the first three claims.

Therefore, the only main issue for determination is whether or not the recommendation for the appointment of the current chief, the first defendant, was in compliance with the customs of the Mapanzure people.

The action was only defended by the first defendant.

The History of the Mapanzure Chieftainship

The plaintiff produced, as part of his exhibits, a copy of an extract of a report prepared on the chieftainship in 1965. It is not clear who the author of the report was.

The first defendant produced a copy of minutes of a meeting held in the District Commissioner's office on 5 December 1973. The then District Commissioner, who chaired the meeting, was one W.E.J. Henson. Present at the meeting from the Mapanzure people were Mangwande from the Chihava House, Mutubuki and Tafunda from the Chatikobo House, Mbombe from the Mutukwa House, Rawasindadi from the Zingoni House, Manyoka (Acting Chief) and Mazorodze from the Gwenhamo House.

Both documents contain the genealogy of the Mapanzure chieftainship.

The parties were in agreement that the genealogy reflected the chieftainship. They both relied extensively on the documents in support of their respective positions.

The following history of the Mapanzure chieftainship, which is explained in these two documents, appears to be common cause.

The great-great-grandfather of the chieftainship was Mutuna. After him came Muravu (2nd generation), then Mapanzure (third generation) and then Mazorodze and Mavhengere (4th generation). Upon the death of Mapanzure, Mazorodze became the chief. It is not in issue that Mavhengere did not succeed to the chieftainship because he pre-deceased Mapanzure.

Mazorodze had more than 30 sons falling under the 5th generation. These sons constitute what is referred to as “Houses” in this judgment. However, only thirty (30) sons appear in the genealogy. It is necessary to list these sons according to their seniority as they appear in the genealogy. These were:

1. Mupandasekwa 16. Rutoro

2. Chimbuya          17. Kuvengashe

3. Kufandada          18. Rima

4. Zingoni                19. Mutukwa

5. Chatikobo            20. Gowo

6. Musinazano         21. Chirudumwa

7. Chihava               22. Ruchanyu

8. Shumbayawonda 23. Ganda

9. Chizema              24. Wushe

10. Magwirokona    25. Bgwango

11. Tsungirai             27. Vushangwe/Rushangwe

12. Zishiri                 26. Tirivahera

13. Mutodzaniso        28. Gwenhamo

14. Hapanyengwi       29. Chivendera

15. Tavareva              30. Taiziziva

The names in bold are the names of Mazorodze's that the plaintiff allege were selected by Mazorodze for eligibility to succeed to the chieftainship. These are also some of Mazorodze's sons who succeeded to the chieftainship.

The eldest of Mazorodze's sons was Mupandasekwa followed by Chimbuya.

Upon Mazorodze's death, the next chief was Chimbuya because Mupandasekwa had pre-deceased Mazorodze. The last chief among Mazorodze's sons was Gwenhamo who died in 1973. The next chief was Masimba Shumbayawonda. He was Mazorodze's grandson and of the sixth generation. Masimba Shumbayawonda died on 8 June 1987. In 1995, the first defendant was appointed the chief. He, like Masimba Shumbayawonda, falls under the 6th generation. The plaintiff is Mazorodze's great grandson. He is the son of Chitana, Mazorodze's grandchild. Chitana was Chimbuya's son. Chitana was of the 6th generation. The plaintiff, being Chitana's son, therefore falls under the 7th generation.

Plaintiff's case

The plaintiff testified that he was 69 years old. He resided in Waterfalls, Harare. He was a member of the Chimbuya House. The customs of the Mapanzure people was that chieftainship revolved according to the order of House. There were only seven houses out of more than 30 houses that were eligible for chieftainship. Mazorodze, his great-grandfather, had several wives and he gave instructions that the chieftainship would revolve among the sons of his first wife. The seven royal Houses were those of Chimbuya, Chatikobo Magwirokona, Zishiri, Bwangundoga, Shumbayaonda and Gwenhamo.

Upon the demise of an entire generation of the royal Houses, the chieftainship would move to the next generation and rotate again within those royal houses. He disputed that chieftainship was on the basis of seniority within a given generation of the Mapanzure family as a whole.

His evidence was that even where the next household had a young son or a daughter, the son or daughter would be eligible to the chieftainship despite the fact that there may have been an elderly person within the Mapanzure family. The house would not be passed over on the basis that the next chief in that house was young.

He testified that the last chief, Masimba, was from the Shumbayaonda family. Had the 8th to 10th defendants (the District Administrator, the Provincial Administrator, and the Minister of Local Government, Public Works and National Housing respectively) observed the proper custom of the Mapanzure people, the chieftainship should have gone to the Chimbuya House and not to the Vushangwe house from which the first defendant hailed. The Vushangwe house was not a royal house.

It was his evidence that he was supposed to have been eligible for selection as the next chief instead of the first defendant because he was from a royal house.

He also stated that the proper procedure had not been adopted when Masimba Shumbayaonda was appointed chief following the death of Gwenhamo. The chieftainship should have gone to the Chimbuya House.

He further explained, that, according to their custom, upon the death of a chief, a meeting would be convened to select the next chief. Initially, the meeting was confined to the seven royal Houses. After the meeting had selected a chief, the other members of the clan would then be involved. The District Administrator (8th defendant) would only be advised of the selection after the meetings of the royal Houses and the clan.

This traditional meeting of the royal Houses was not convened and the first defendant was not selected by the royal Houses.

He frequently goes to the village (at least once or twice per month) and would have known if such a meeting had been held. He only became aware of the appointment of the first defendant sometime between 2003 and 2005 through rumours when he had gone to attend a funeral. It was his evidence that the appointment of the first defendant was with the collusion of a councillor called Manyoka, without any reference to the Mapanzure people. Manyoka had grown up together with the first defendant and he may have thought that if the first defendant were to die he would be the next chief.

The plaintiff called his brother, Luckson Jayadhara Chimbuya.

Luckson Jayadhara Chimbuya testified that he was 66 years old and also hails from the Chimbuya House. He had resided in the Mapanzure rural area for all his life. There were seven houses which were eligible for chieftainship. In terms of their custom, the Mapanzure chieftainship would rotate within the seven houses and among the “fathers” of those houses in their order of seniority.

Upon the death of Mazorodze, the chieftainship went to Chimbuya and not to Mupandasekwa's house because Mupandasekwa's children were still too young. When Chimbuya died, the chieftainship was supposed to go to Kufandada. The appointment of Masimba Shumbayaonda as chief, after Gwenhamo, was not in accordance with their custom. The chieftainship should have come to the Chimbuya house.

However, under cross-examination, he testified that the chieftainship had rotated the line of Mazorodze's sons and it was the turn of Mazorodze's grandchildren. When Masimba was appointed as chief, the elders had realised that he was the eldest grandchild.

He testified that the traditional meeting to select a chief, after the death of Masimba and before the appointment of the first defendant, was never convened. He would have known of this meeting as he resided in the rural areas. He only became aware that the first defendant was a chief well after his appointment.

First Defendant's case

The first witness for the first defendant was Pesanai Herbert Gosho Chatikobo. He testified that he was 71 years old and was from the Chatikobo house. He has resided in the Mapanzure rural area all his entire life. Mazorodze was his grandfather. Chimbuya and Chatikobo were brothers. Chimbuya was from Mazorodze's senior wife and Chatikobo from a junior wife.

In terms of their custom, chieftainship revolved according to seniority of the “fathers” within a generation. He narrated the history of the Mapanzure chieftainship up to the appointment of the first defendant. He disputed the plaintiff's evidence that only seven sons had been chosen by Mazorodze to succeed to the chieftainship. He further disputed that the chieftainship revolved according to those seven houses as suggested by the plaintiff. His evidence was that all the Mapanzure houses were eligible to succeed to the chieftainship. The houses are considered as one and the same house and chieftainship therefore follows the eldest surviving “father” in a given generation irrespective of the house from which he hails.

His evidence was that Gwenhamo was the last surviving “father”, being Mazorodze's son. Upon his death, the chieftainship went to the next generation of “fathers”. Masimba Shumbayawonda was appointed chief because he was the eldest surviving “father” within his generation.

When Masimba Shumbayawonda died, a meeting of the houses was convened by the then acting Chief Masimba to select the next chief. The meeting was held at the homestead of the late Chief Masimba. He could not remember if representatives of the Chimbuya family attended the meeting. The houses had initially selected Mavhengere, from the Chatikobo house, as the next chief. The houses also agreed, at that meeting, that the first defendant was the next eldest surviving “father” after Mavhengere. Mavhengere however died before his appointment hence the appointment of the first defendant as the next chief. The appointment of the first defendant was therefore in accordance with the custom of the Mapanzure people.

The first defendant took the stand.

However, it became apparent that he could not follow the proceedings and recall past events due to his advanced age. He therefore did not testify.

His son, Ignatius Vushangwe, testified on his behalf.

He testified as follows:

He acted as an advisor to the first defendant. He testified that the selection to chieftainship was based not according to houses but according to the seniority of the surviving “fathers”. When Mazorodze died, his first son, Mupandasekwa, had pre-deceased him. Chimbuya was the second son and therefore next in line. Chimbuya had not been living among the Mapanzure people. He had to be recalled to take up the chieftainship because, according to their custom, young brothers could not take chieftainship if there was a surviving elder brother. As a result, it was possible for people from the same house to succeed each other if they were the eldest surviving brothers in that generation. He explained that this was the reason why other houses had not ascended to the Mapanzure chieftainship over the years.

When Gwenhamo died, the sons of Mupandasekwa, Chimbuya, Kufandada and Zingoni would have been older than Masimba Shumbayawonda who succeeded him. However, Gwenhamo ruled for a very long time and these sons had predeceased Gwenhamo. Masimba Shumbayawonda was then found to have been the eldest among Mazorodze's grandchildren hence his selection and appointment as chief.

He disputed, under cross examination, the suggestions by the plaintiff's counsel that collateral succession means succession according to houses.

The witness conceded that he had not attended any meeting to choose the first defendant as the next chief. He however testified that the first defendant was residing in Rushinga, Mount Darwin when he was selected as chief. The Mapanzure people invited him, as they had invited Chimbuya, to come and take up the chieftainship. He disputed that the first defendant had connived with the councillor, Manyoka, that he be selected Chief Mapanzure.

Assessment of Evidence

The plaintiff appeared not to be sure of the custom of the Mapanzure people on the appointment of chief Mapanzure. This confusion is aptly captured by counsel for the plaintiff in paragraph 6 of the plaintiff's closing submissions. It is necessary to quote the entire paragraph of the submissions. Counsel for the plaintiff stated as follows:

“The witness indicated that the last chief was Shumbayaonda, and that after the death of Shumbayaonda, the next house in line was that of Chimbuya. However, the witness could not explain how this succession would dovetail with the custom abovementioned. The witness was keen to show that the house of Vushangwe was not eligible at all to ascend to the Mapanzure chieftainship.

The witness explained that Mapanzure often took two wives from the same family. However, only the first son from the first wife would become eligible for chieftainship.

Under cross-examination, the witness did not convincingly expound on how this mode of succession actually worked. This became clearer when cross examination was made with the assistance of pages 1-6 of Exhibit 2. The witness then altered his stance and maintained that, assuming the first defendant was eligible for chieftainship, he could not assume the Mapanzure chieftainship because his turn had not yet arrived.

In this vein, the witness contended that if the last chief had come from Shumbayawonda, the next house to provide a chief would be Chizema, followed by Magwirokona; first defendant's house would be number 18 in the line of precedence if houses of chieftainship, as shown on pages 3-6 of Exhibit 2, were followed. The witness dismissed as untrue the contention by the first defendant that chieftainship would go by seniority.”

The concession by counsel for the plaintiff, that the plaintiff was confused, was, in my view, proper. I commend him for making the concession.

The plaintiff could not identify Mazorodze's children from the first wife. He also did not know if the houses that he had identified as the royal houses were from the first wife.

This explains the difficulty that he experienced in explaining how succession by Mazorodze's sons from the first wife actually worked. This mode of succession was not supported by the fact that Chatikobo, who was Mazorodze's son from a younger wife, and not the first wife, ascended to the chieftainship.

In any event, the plaintiff's evidence was further confused and confusing in that the first wife would only have one first son.

The plaintiff's evidence, that Mazorodze selected his first wife's eldest son to form a royal house, begs the question as to how many first wives Mazorodze had who gave birth to all the chiefs in the 5th generation.

The plaintiff further testified that chieftainship revolved according to houses such that even a young child in that house, or a woman, would ascend to chieftainship if it was the turn of that house. The plaintiff testified that Mupandasekwa is one of the royal houses. He conceded that although Mupandasekwa pre-deceased Chimbuya, he had young children when Mazorodze died. He could not however explain why these children did not ascend to the chieftainship upon the death of Mazorodze if succession was according to houses regardless of the age of the children in that house.

The following is the plaintiff's evidence, under re-examination, on that issue:

“Q: On page 3 of exhibit 2, under cross-examination, it was stated that those are Mazorodze's sons starting with Mupandasekwa. Mupandasekwa died whilst his father was alive. When a father died the chieftainship went to whom?

A: Chimbuya.

Q: If Chimbuya died?

A: To Kufandada.

Q: Why would chieftainship devolve that way?

A: These are the fathers who were supposed to take up chieftainship.

Q: Read out the names of the first five fathers (Mazorodze's sons).

A: (plaintiff read out the names)

Q: You said Mupandasekwa had two children. If Mupandasekwa dies would chieftainship go to Makatu (Mupandasekwa's son)?

A: No. Makatu is a child.

Q: At what time would Makatu become chief?

A: After the line of fathers had died, the chieftainship would then go to the children.

Q: Defendant says if Shumbayawonda dies there would be a meeting to find the oldest of the surviving fathers and that person becomes chief.

A: That is not correct. In the event that Shumbayawonda died, the next house would be Chizema.

Q: I put it to you that the eldest surviving child becomes the chief. If the chieftainship is in the line of brothers, the eldest brother becomes chief. If all the brothers die, then the eldest son of those brothers becomes chief.

A: That is correct. The eldest surviving brother takes up the chieftainship; if no brothers, then the eldest son.

Q: You seem to be contradicting yourself. I thought you said that chieftainship follows houses, even the smallest; now you are saying it's the brothers first.

A: It might be that you misquoted me. I said if Chimbuya house was supposed to take up chieftainship, and there are no old children, then the youngest in the family succeeds.”

The plaintiff's answers are inconsistent with his claim, that the only the royal houses succeeded to the chieftainship and that it was not on the basis of seniority.

The mode of succession that appears in the answers is in fact supportive of the succession of the Mapanzure's chieftainship according to seniority.

Kufandada was not from one of the alleged royal houses. He was Mazorodze's third son. Chizema was not also one of the alleged royal sons. He was the next son after Shumbayawonda. The next royal son, after Shumbayawonda, would have been Magwirokona.

The explanation by the plaintiff, that, upon the death of Chimbuya, the chieftainship did not go to Mupandasekwa's house because Mapandasekwa's children were very young but therefore went to Chatikobo was supported by Luckson Jayadhara Chimbuya. Jayadhara testified that Mupandasekwa's children were so young that they had not yet started talking.

This explanation is also at variance with the plaintiff's case that chieftainship rotates among the royal houses irrespective of the age of the children from the next royal house.

The plaintiff therefore conceded and supported the first defendant's contention that chieftainship was according to seniority although he would retract the concession under the pretext that he had been misquoted.

The plaintiff could not further explain why, upon the death of Gwenhamo, the chieftainship went to Masimba Shumbayawonda of the Shumbayawonda house instead of either to the Mupandasekwa or the Chimbuya houses.

He accepted that Mupandasekwa was Mazorodze's first son and Chimbuya the second son. Gwenhamo was the 28th son and Shumbayawonda the 8th. If succession follows the royal houses, the plaintiff failed to explain why the chieftainship by-passed both the Mupandasekwa and Chimbuya houses to go to the 8th house of Shumbayawonda.

The plaintiff's evidence, that there were only seven royal houses, is also not supported in the 1965 report that he produced as an exhibit. At p17 of Exhibit I, it is stated that:

“The order of birth of Mazorodze's sons, as given here, is probably not 100 percent accurate; Sister Aquina, in her article 'The Tribes in Victoria Reserve' (NADA 1965) records: Eight out of the twenty sons of Mazorodze…, became chiefs. This implies that there were twenty sons of Mazorodze. As can be seen from the genealogy given here, I have now established there were no less than 30 sons and probably more…,.”

It therefore follows, that, in 1965, when Sister Aquina did her own research, eight and not seven of Mazorodze's sons had become chiefs.

Although the plaintiff's initial evidence was that the first defendant was not entitled to ascend to chieftainship, he finally conceded, under cross-examination, that he was in fact eligible.

He however made a qualification that the first defendant's turn had not yet arrived.

He conceded that the last chief, Masimba, was his uncle (or “father”) and of the 6th generation. He further conceded that the incumbent, the first defendant, is also his uncle, his father's brother and of the 6th generation. Masimba and the first defendant would therefore be his “fathers”.

If one were to go by his concessions, he cannot be entitled to chieftainship as he is of the 7th generation and therefore a “son” to the incumbent. The plaintiff could therefore not be in the line of fathers as he alleged in his evidence. The plaintiff's concessions in fact support the first defendant's evidence to the effect that he (the first defendant) was eligible for succession as he was the eldest surviving in the generation of the plaintiff's “fathers”.

Turning to the question whether or not a meeting of the houses was held to select the incumbent, Luckson Jayadhara Chimbuya confirmed, in his evidence, that a meeting was indeed held although did not attend the meeting. The fact that a meeting was held is also confirmed by Pesanai Gozho Chatikobo.

It appears to me that Pesanai Gozho Chatikobo was not confused as to which meeting selected the first defendant as chief as alleged by the plaintiff's counsel and confirmed in the first defendant's closing remarks.

He testified, under cross-examination, as follows:

“Q: Apart from members of the clan who else who is notable was present at the meeting?

A: Most of the people are now dead.

Q: (Question was repeated). Was the Minister present?

A: The Minister was not present. We might not understand each other. I am referring to the meeting where the name of the current chief emerged. That is what I have referred to as the meeting that was attended by the elders. Even the DA was not there. We were still holding meetings as the clan.”

Even assuming that the witness may have been confused, I do not find that the confusion was intended to mislead the court.

The witness gave the clearest explanation of the Mapanzure chieftainship which substantially tallied with the documents and genealogies that the plaintiff and the first defendant relied on. He also gave the clearest evidence on how the meeting was convened. He stated that the meeting was convened by the acting Chief Masimba and was held at the late Chief Masimba's homestead.

The plaintiff was not able to challenge this evidence.

The fact that meetings were held is further supported by the letters produced by the parties.

It is recorded, in a letter dated 1 December 1993, from the District Administrator to the Provincial Administrator, that, several meetings were held to choose the next chief. The last meeting where the first defendant's selection was confirmed was attended by members of all the houses of the Mapanzure chieftainship. There were 38 kraal heads, 120 elders of the Mapanzure chieftainship, councillor Mapanzure, Vidco, and Ward chairpersons of the Mapanzure chieftainship and the District Administrator.

The letter was common to both parties' bundle of documents.

In another letter, dated 21 June 2004, from the Provincial Administrator to the plaintiff, produced by the first defendant, the Provincial Administrator stated as follows:

“I wish to advise you that this issue should not just be Chimbuya House v Bvuramai. All houses must be involved like they were involved in the initial selection process. The initial meeting must be held without the involvement of this office. 'Tangai mataurirana vana vanyamunhu.'”…,.

I had difficulties in accepting the plaintiff's evidence that it took him over 10 years to discover that the first defendant had been appointed in 1995.

The plaintiff testified that he visited his communal home frequently. On the other hand, Luckson Jayadhara Chimbuya testified that when the plaintiff did not visit his communal home, he (Jayadhara) would visit the plaintiff at his urban home.

The appointment of a chief is a momentous occasion attended by a lot of people including senior Government officials. This was confirmed by Pesanai Gozho Chatikobo.

If the plaintiff did visit his communal home frequently, and I do not doubt him on that score, he does not appear to have been telling the truth when he said that he only became aware of the first defendant's appointment after ten years.

Luckson Jayadhara Chimbuya also sought to mislead the court when he initially testified that he had also not known of the appointment of the first defendant.

He resided in the rural area and such news could not have passed his ears. At least, he later, in his evidence, had the decency to confirm that he had heard of the meetings where the first defendant was selected and appointed chief but he did not attend any of the meetings.

He testified that although he knew of the appointment of the first defendant, he could not complain because Manyoka, the councillor, had told the villagers not to challenge the appointment as it was according to seniority.

It appears to me that he would not have missed telling the plaintiff of the appointment considering that the Chimbuya family had been vying for the chieftainship since the death of Gwenhamo.

I found the first defendant's witnesses to have been truthful and their evidence reliable.

As already indicated, Pesanai Gozho Chatikobo gave a clear explanation of the succession process and the history of the Mapanzure chieftainship.

I am mindful of the fact that Ignatius Vhushangwe was present in court when both the plaintiff, Luckson Jayadhara Chimbuya and Pesanai Gozho Chatikobo testified. I am therefore alive to the fact that his evidence may therefore have been influenced by that of the other witnesses. However, I found his narration of the history of the Mapanzure people to have been very clear and original. It would not have been contrived in court. He substantially supported Pesanai's evidence. He introduced evidence that had not been brought up by the other witnesses, such as the fact that Chimbuya was invited to return to the Mapanzure community to take up the chieftainship and the reasons why he had left that community.

Both Pesanai Gozho Chatikobo's and Ignatius Vushangwe's evidence was consistent with the 1965 and 1973 genealogies and history of the Mapanzure chieftainship.

The Issue

A chief is appointed by the President in terms of section 3 of the Chiefs and Headmen Act [Chapter 29:01]. In so doing, the President must give due consideration to the customary principles of succession, if any, applicable to the community over which the chief is to preside.

As indicated earlier, following the amendment of summons and declaration by the plaintiff at the commencement of the trial, the only issue for determination is whether or not the appointment of the first defendant was in accordance with customary principles of succession of the Mapanzure people.

The plaintiff alleges that the custom of the Mapanzure people is that they follow the collateral principle of succession, in terms of which the chieftain revolves according to the royal houses identified by Mazorodze and not according to seniority. Therefore, in the event that a royal house is due for chieftainship, the house will select the person to be the next chief from that house irrespective of the age of that person.

The first defendant alleged that succession is based on seniority within each generation. All the houses constitute one entity. When all the people in one generation die, the chieftainship rotates within the next generation. The eldest person within that generation will be appointed the next chief irrespective of which house they come from.

The present dispute, relating to the Mapanzure chieftainship, was anticipated in 1965 when Gwenhamo was still the chief.

In order to avoid such a dispute, the Mapanzure chieftainship was documented in the 1965 report, in the copy of the extract that the plaintiff produced. When the report was prepared, Gwenhamo, who was the chief then, was very old and the report was intended to document the Mapanzure chieftainship so as to avoid any succession disputes. On page 2 of the report, the author of the report lays the basis for the preparation of the report and the genealogy therein as follows:

“They (the Mapanzure people) pride themselves on their confidence that they can settle the succession amicably. Unfortunately, the elder grandsons of Mazorodze (that is the first sons of Mupandasekwa, Chimbuya, Kufandada, Zingoni, etc) were themselves older that Mazorodze's own young sons (that is, Gwenamo, Taziziva, Chivendere etc). Therefore, Gwenamo's own sons (who are now middle-aged) are a generation senior to the grandsons of Mupandasekwa, Chimbuya, Kufandada, etc. Yet, these latter grandsons are older than Gwenamo's sons.

It will be extremely difficult to sort out the generations of the various prospective claimants unless some research is done now.”

The research then disclosed that succession of the Mapanzure chieftainship was “true collateral succession.” (page 1 of exhibit I).

The difficulty that has appeared from the evidence from both the plaintiff and the first defendant's case is that they both do not seem to understand what collateral succession is.

The collateral principle of succession has been described in a number of decided cases in our jurisdiction.

In Ruzane v Paradzai & Anor 1989 (1) ZLR 118 (HC), MUTAMBANENGWE J referred to a number of authorities on the principle. He observed as follows…,:

“Thus, HAROLD CHILD, The History and Extent of Recognition of Tribal Law in Rhodesia, at p6, says:

“Succession to chieftainship also shows a difference, being in most instances collateral.

Younger brothers succeed to elder brothers until the succession has been held by each in turn, when it reverts to the son of the first chief and then to the sons of the collateral lines. There are tribal variations, and the system is not always complete."

Similarly, JF HOLLEMAN, Shona Customary Law…, says:

"Succession to chieftainship is governed by the common principles of collateral succession prevailing in central Mashonaland. According to these principles, the eldest son, regardless of the position or rank of his mother, succeeds to the personal name and position of his father.

When he dies, his next youngest brother or half-brother succeeds to the father's name, until the generation of sons of the father is exhausted and the eldest grandson succeeds to the name and position of his grandfather, the determining factor again being the order of birth amongst collateral grandsons."

And E B GOLDIN and M GELFAND, African Law and Custom in Rhodesia…, say:

"Whilst among the Ndebele, the chief (induna) is selected by a system of primogeniture, in which, upon his death, the office is passed on to his eldest son, a more complicated one is adopted by the more numerous Shona-speaking people.

Their chiefs are chosen by a collateral system in which the position is passed from the head of one of the 'special families' to that of another. Each of these families is known as an 'imbahuru' or 'royal family' and on the death of a chief (ishe, mambo) his successor is selected from the representatives of two, three or even four 'royal' families in the clan. Thus, when a chief dies, his office passes on to the representative of the next family until each has had its turn, when the cycle is repeated.”

C BULLOCK, The Mashona, says…,:

"With very few exceptions, primogeniture did not govern succession. The chieftaincy theoretically descended from the elder to the younger brothers of a family, until all had held it."

At pp124E-G MUTAMBANENGWE J held:

“At pp21-22 of Holleman's Shona Customary Law it is stated:

'A man cannot, for instance, succeed to his elder brother's own name and position, but he may, after his brother's death, succeed to the name of their common father or forefather.

Especially in the case of an old and established chieftainship its succession may involve the candidacies of numerous clansmen between whom agnatic relations may be very remote.

As it is the relative age on a certain generation level which is, in principle, the determining factor, it is often difficult to know who is the eldest and therefore most eligible amongst the candidates. It is the task of tribal elders, mostly belonging to the ruling clan, and of other important kinsmen, to determine which candidate has the best rights to become chief. In the event of serious rivalry, recourse may be had to a svikiro (spirit medium) of an important ancestor to ascertain the views and wishes of the ancestral spirits.'”…,.

In Chagaresango v Chagaresango 2000 (1) ZLR 99…, MUCHECHETERE J also quoted with approval GOLDIN and GELFAND's African Law and Custom in Rhodesia and referred to Ruzane v Paradzai & Anor 1989 (1) ZLR 118 (HC) and Ruzane v Paradzai & Anor 1991 (1) ZLR 273 (S): see also Pharoah B. Muskwe v Douglas Nyajina & ORS HH92-07…

As observed in the cases, the principle varies with each community. However, it appears that the authorities are agreed that chieftainship among most of the Shona-speaking people passes from elder brother to younger brother in one generation until all the brothers have succeeded to the throne. It is therefore based on the seniority of those brothers. It then moves to the next generation.

What appears from JF HOLLEMAN's Shona Customary Law is that sons of the chief constitute one house irrespective of the rank of their mothers. It is the father who is the determining factor. Therefore, a half-brother can succeed another half brother according to their seniority.

A variation of this principle of succession is given in GOLDIN and M GELFAND's African Law and Custom in Rhodesia…,. It is apparent from the above quote that succession can be according to houses where there is more than one royal house. But, even in such a case, succession is according to seniority, with the head of one house succeeding another until each royal house has had its turn.

As indicated earlier, the plaintiff failed to establish that there were seven royal houses. The 1965 report that he produced did not support him.

I was persuaded by the evidence of Pesanai Gozho Chatikobo and Ignatius Vhushangwe that Mazorodze's sons all constituted one house irrespective of their mothers and that succession was according to the seniority of these sons.

The same principle of succession would equally apply in respect of Mazorodze's grandchildren and their own children ad infinitum.

This explains why Chatikobo succeeded Chimbuya as chief despite the fact that the two were from different mothers.

The collateral succession practised by the Mapanzure chieftainship is captured in both the 1965 report and the 1973 minutes. In the 1965 report, it is stated that:

“The previous svikiro was Gwenamo's own half-sister, Mavengedzene (same father, Mazorodze, but different mothers). Gwenamo 'accepted the spirits' because he seemed to have no chance of succeeding to the chieftainship. Obviously, as svikiro, he did not have a say in his own appointment - nor did he officiate at his own installation. In fact, there was simply no selection necessary after Bwango's death.

Gwenamo was the last surviving son of a long line of brothers, and his selection was automatic. As the chief himself put it: 'I was son of my father'.

He meant that he is the last surviving son of Mazorodze for two younger brothers, Chivendera and Taiziziva, pre-deceased him.” (p2 of exhibit I).

“Later, Chimbuya died, and, according to custom, Chatikobo was selected to succeed his brother. Kufandada and Zingoni had pre-deceased Chatikobo.

Chatikobo had a small badge so he said: 'How can I take two badges?'

He therefore gave his own badge to his son, Tasarirawona, whose other name was Mukasi, and retained the big badge for himself. Chatikobo was then chief over the whole area, including that over which he himself had been placed in charge.

When Chatikobo died, his young brother, Shumbayaonda, took over the chieftainship, and so on until the youngest surviving son Gwenhamo. He is our Chief today. He is the rugohwe (last born).” (see p3-4 of exhibit I).

The 1973 minutes (p1 of Exhibit 2) state:

“The District Commissioner asked for enlightment on certain aspects of the family tree as recorded by Mr. Kaschula in May 1965.

It was agreed by all present that MUPANDASEKWA was the first born son of MAZORODZE, but he died before he could succeed to the Chieftainship, which then went to his young brother CHIMBUYA. His young brothers, KUFANDADA and ZINGONI, pre-deceased him and the chieftainship then went to CHATIKOBO. MUSINAZANO and CHIHAVA predeceased CHIHAVA (it appears there was a mistake as the name was repeated. It appears the second Chihava should have been Chatikobo as he was the last chief) and the Chieftainship therefore then went to the next brother SHUMBAYAWUNDA who was pre-deceased by his younger brother, CHIZEMA, and thence to MARGWIROKONA. He reigned a short time and then he was pre-deceased by his young brother TSUNGIRAI and the 'nyembi' went to the next young brother, ZISHIRI. ZISHIRI's young brothers, MUTODZANISO, HAPANYENGWI, TAVARERA, RUTORO, KUVENGASHE, RIMA, MUTUKWA, GOWO, CHIRUNDUMWA, RICHANYU, GANDA and WUSHE all pre-deceased him and the next Chief was BGWANGO. His young brothers, RUSHANGWE and TIRIVANERA, died before him, so the Chieftainship went to GWENHAMO, the Chief who has just died. His younger brother CHIVENDERA and TAIZIZIVA both died as bachelors.”

The above analysis of the chieftainship clearly reflects the fact that chieftainship was according to the line of brothers, and in accordance with their seniority. It was not, and it appears still is not according to the royal houses identified by the plaintiff.

The sons from the said royal houses did not succeeded to the chieftainship by design. It was by misfortune. The brothers before them had died before their turn and during the reign of their elder brothers.

It is also apparent that Vushangwe, the first defendant's father, and Tirivahera, did not succeeded because they pre-deceased Bgwango who was the chief during their lifetime.

The succession of Masimba Shumbayawonda was also not by design. It was because Gwenhamo's brothers, Chivendera and Taiziziva, had pre-deceased Gwenhamo. Upon Gwenhamo's death, the chieftainship was then to move to the next generation, the 6th generation, because Gwenhamo's younger brothers, Chivendera and Taiziziva had pre-deceased him. He was Mazorodze's last surviving son.

Masimba Shumbayawonda was found to be the eldest in that generation hence his appointment as chief. Upon his death, the next chief had to be the next eldest brother within the 6th generation.

The first defendant falls under the 6th generation.

The question as to whether there was any other person older that the first defendant within that generation was put to the plaintiff under cross-examination as follows:

“Q: The current chief is a brother to your father?

A: Yes. The current chief referred to my father as elder brother.

Q: Is there someone in the Chimbuya family now called 'father'?

A: Yes, there is one.

Q: Who is older between the one you refer to as your father and the current chief?

A: The current chief is older but they are almost the same age.

Q: I put it to you that your evidence that that chieftainship goes by fathers is correct and therefore the appointment of the current chief was proper?

A: I think you misquoted me. The father from the Chimbuya house is older.

Q: It is better for you to admit that you have made an error instead of saying that I misquoted you.

A: My apologies. It might have been a slip of the tongue. I wanted to say the father from the Chimbuya house is older.”

Apart from that belated correction, the plaintiff did not advance any evidence to prove that the “father” from the Chimbuya House was older than the first defendant.

Luckson Jayadhara Chimbuya did in fact concede that the first defendant was the oldest. This was also confirmed by Pesanai Gozho Chatikobo and in the letters from the District Administrator that the parties produced.

From the above, it is my view that the first defendant, being the eldest in the 6th generation, was entitled to be appointed as the Chief Mapanzure. This was in accordance with the customary principles of succession of the Mapanzure chieftainship.

In the result, the plaintiff's claim is dismissed costs.

“(a) An order declaring that the only families entitled to the Mapanzure chieftainship are the following families:

1. Chimbuya.

2. Magwirokona.

3. Mavhengere.

4. Bwangundoga.

5. Mupandasekwa.

6. Gwenhamo.

7. Shumbayaonda.

(b) An order declaring that according to customary principles of succession to the Mapanzure chieftainship, the 1st defendant, a descendent of the Rushangwe/Vusangwe family, has no title or claim to the Mapanzure chieftainship;

(c) An order removing the 1st defendant from his position as Chief Mapanzure;

(d) An order declaring the 8th to the 10th defendants (the District Administrator, the Provincial Administrator, and the Minister of Local Government, Public Works and National Housing respectively) acted contrary to custom when they recommended the appointment of 1st defendant as Chief Mapanzure; and

(e) An order of costs against any of the defendants who may oppose this application.”

On 12 October 2009, the plaintiff amended his prayer by the deletion of the first three claims.

Therefore, the only main issue for determination is whether or not the recommendation for the appointment of the current chief, the first defendant, was in compliance with the customs of the Mapanzure people.

The action was only defended by the first defendant.

The History of the Mapanzure Chieftainship

The plaintiff produced, as part of his exhibits, a copy of an extract of a report prepared on the chieftainship in 1965. It is not clear who the author of the report was.

The first defendant produced a copy of minutes of a meeting held in the District Commissioner's office on 5 December 1973. The then District Commissioner, who chaired the meeting, was one W.E.J. Henson. Present at the meeting from the Mapanzure people were Mangwande from the Chihava House, Mutubuki and Tafunda from the Chatikobo House, Mbombe from the Mutukwa House, Rawasindadi from the Zingoni House, Manyoka (Acting Chief) and Mazorodze from the Gwenhamo House.

Both documents contain the genealogy of the Mapanzure chieftainship.

The parties were in agreement that the genealogy reflected the chieftainship. They both relied extensively on the documents in support of their respective positions.

The following history of the Mapanzure chieftainship, which is explained in these two documents, appears to be common cause.

The great-great-grandfather of the chieftainship was Mutuna. After him came Muravu (2nd generation), then Mapanzure (third generation) and then Mazorodze and Mavhengere (4th generation). Upon the death of Mapanzure, Mazorodze became the chief. It is not in issue that Mavhengere did not succeed to the chieftainship because he pre-deceased Mapanzure.

Mazorodze had more than 30 sons falling under the 5th generation. These sons constitute what is referred to as “Houses” in this judgment. However, only thirty (30) sons appear in the genealogy. It is necessary to list these sons according to their seniority as they appear in the genealogy. These were:

1. Mupandasekwa 16. Rutoro

2. Chimbuya          17. Kuvengashe

3. Kufandada          18. Rima

4. Zingoni                19. Mutukwa

5. Chatikobo            20. Gowo

6. Musinazano         21. Chirudumwa

7. Chihava               22. Ruchanyu

8. Shumbayawonda 23. Ganda

9. Chizema              24. Wushe

10. Magwirokona    25. Bgwango

11. Tsungirai             27. Vushangwe/Rushangwe

12. Zishiri                 26. Tirivahera

13. Mutodzaniso        28. Gwenhamo

14. Hapanyengwi       29. Chivendera

15. Tavareva              30. Taiziziva

The names in bold are the names of Mazorodze's that the plaintiff allege were selected by Mazorodze for eligibility to succeed to the chieftainship. These are also some of Mazorodze's sons who succeeded to the chieftainship.

The eldest of Mazorodze's sons was Mupandasekwa followed by Chimbuya.

Upon Mazorodze's death, the next chief was Chimbuya because Mupandasekwa had pre-deceased Mazorodze. The last chief among Mazorodze's sons was Gwenhamo who died in 1973. The next chief was Masimba Shumbayawonda. He was Mazorodze's grandson and of the sixth generation. Masimba Shumbayawonda died on 8 June 1987. In 1995, the first defendant was appointed the chief. He, like Masimba Shumbayawonda, falls under the 6th generation. The plaintiff is Mazorodze's great grandson. He is the son of Chitana, Mazorodze's grandchild. Chitana was Chimbuya's son. Chitana was of the 6th generation. The plaintiff, being Chitana's son, therefore falls under the 7th generation.

Plaintiff's case

The plaintiff testified that he was 69 years old. He resided in Waterfalls, Harare. He was a member of the Chimbuya House. The customs of the Mapanzure people was that chieftainship revolved according to the order of House. There were only seven houses out of more than 30 houses that were eligible for chieftainship. Mazorodze, his great-grandfather, had several wives and he gave instructions that the chieftainship would revolve among the sons of his first wife. The seven royal Houses were those of Chimbuya, Chatikobo Magwirokona, Zishiri, Bwangundoga, Shumbayaonda and Gwenhamo.

Upon the demise of an entire generation of the royal Houses, the chieftainship would move to the next generation and rotate again within those royal houses. He disputed that chieftainship was on the basis of seniority within a given generation of the Mapanzure family as a whole.

His evidence was that even where the next household had a young son or a daughter, the son or daughter would be eligible to the chieftainship despite the fact that there may have been an elderly person within the Mapanzure family. The house would not be passed over on the basis that the next chief in that house was young.

He testified that the last chief, Masimba, was from the Shumbayaonda family. Had the 8th to 10th defendants (the District Administrator, the Provincial Administrator, and the Minister of Local Government, Public Works and National Housing respectively) observed the proper custom of the Mapanzure people, the chieftainship should have gone to the Chimbuya House and not to the Vushangwe house from which the first defendant hailed. The Vushangwe house was not a royal house.

It was his evidence that he was supposed to have been eligible for selection as the next chief instead of the first defendant because he was from a royal house.

He also stated that the proper procedure had not been adopted when Masimba Shumbayaonda was appointed chief following the death of Gwenhamo. The chieftainship should have gone to the Chimbuya House.

He further explained, that, according to their custom, upon the death of a chief, a meeting would be convened to select the next chief. Initially, the meeting was confined to the seven royal Houses. After the meeting had selected a chief, the other members of the clan would then be involved. The District Administrator (8th defendant) would only be advised of the selection after the meetings of the royal Houses and the clan.

This traditional meeting of the royal Houses was not convened and the first defendant was not selected by the royal Houses.

He frequently goes to the village (at least once or twice per month) and would have known if such a meeting had been held. He only became aware of the appointment of the first defendant sometime between 2003 and 2005 through rumours when he had gone to attend a funeral. It was his evidence that the appointment of the first defendant was with the collusion of a councillor called Manyoka, without any reference to the Mapanzure people. Manyoka had grown up together with the first defendant and he may have thought that if the first defendant were to die he would be the next chief.

The plaintiff called his brother, Luckson Jayadhara Chimbuya.

Luckson Jayadhara Chimbuya testified that he was 66 years old and also hails from the Chimbuya House. He had resided in the Mapanzure rural area for all his life. There were seven houses which were eligible for chieftainship. In terms of their custom, the Mapanzure chieftainship would rotate within the seven houses and among the “fathers” of those houses in their order of seniority.

Upon the death of Mazorodze, the chieftainship went to Chimbuya and not to Mupandasekwa's house because Mupandasekwa's children were still too young. When Chimbuya died, the chieftainship was supposed to go to Kufandada. The appointment of Masimba Shumbayaonda as chief, after Gwenhamo, was not in accordance with their custom. The chieftainship should have come to the Chimbuya house.

However, under cross-examination, he testified that the chieftainship had rotated the line of Mazorodze's sons and it was the turn of Mazorodze's grandchildren. When Masimba was appointed as chief, the elders had realised that he was the eldest grandchild.

He testified that the traditional meeting to select a chief, after the death of Masimba and before the appointment of the first defendant, was never convened. He would have known of this meeting as he resided in the rural areas. He only became aware that the first defendant was a chief well after his appointment.

First Defendant's case

The first witness for the first defendant was Pesanai Herbert Gosho Chatikobo. He testified that he was 71 years old and was from the Chatikobo house. He has resided in the Mapanzure rural area all his entire life. Mazorodze was his grandfather. Chimbuya and Chatikobo were brothers. Chimbuya was from Mazorodze's senior wife and Chatikobo from a junior wife.

In terms of their custom, chieftainship revolved according to seniority of the “fathers” within a generation. He narrated the history of the Mapanzure chieftainship up to the appointment of the first defendant. He disputed the plaintiff's evidence that only seven sons had been chosen by Mazorodze to succeed to the chieftainship. He further disputed that the chieftainship revolved according to those seven houses as suggested by the plaintiff. His evidence was that all the Mapanzure houses were eligible to succeed to the chieftainship. The houses are considered as one and the same house and chieftainship therefore follows the eldest surviving “father” in a given generation irrespective of the house from which he hails.

His evidence was that Gwenhamo was the last surviving “father”, being Mazorodze's son. Upon his death, the chieftainship went to the next generation of “fathers”. Masimba Shumbayawonda was appointed chief because he was the eldest surviving “father” within his generation.

When Masimba Shumbayawonda died, a meeting of the houses was convened by the then acting Chief Masimba to select the next chief. The meeting was held at the homestead of the late Chief Masimba. He could not remember if representatives of the Chimbuya family attended the meeting. The houses had initially selected Mavhengere, from the Chatikobo house, as the next chief. The houses also agreed, at that meeting, that the first defendant was the next eldest surviving “father” after Mavhengere. Mavhengere however died before his appointment hence the appointment of the first defendant as the next chief. The appointment of the first defendant was therefore in accordance with the custom of the Mapanzure people.

The first defendant took the stand.

However, it became apparent that he could not follow the proceedings and recall past events due to his advanced age. He therefore did not testify.

His son, Ignatius Vushangwe, testified on his behalf.

He testified as follows:

He acted as an advisor to the first defendant. He testified that the selection to chieftainship was based not according to houses but according to the seniority of the surviving “fathers”. When Mazorodze died, his first son, Mupandasekwa, had pre-deceased him. Chimbuya was the second son and therefore next in line. Chimbuya had not been living among the Mapanzure people. He had to be recalled to take up the chieftainship because, according to their custom, young brothers could not take chieftainship if there was a surviving elder brother. As a result, it was possible for people from the same house to succeed each other if they were the eldest surviving brothers in that generation. He explained that this was the reason why other houses had not ascended to the Mapanzure chieftainship over the years.

When Gwenhamo died, the sons of Mupandasekwa, Chimbuya, Kufandada and Zingoni would have been older than Masimba Shumbayawonda who succeeded him. However, Gwenhamo ruled for a very long time and these sons had predeceased Gwenhamo. Masimba Shumbayawonda was then found to have been the eldest among Mazorodze's grandchildren hence his selection and appointment as chief.

He disputed, under cross examination, the suggestions by the plaintiff's counsel that collateral succession means succession according to houses.

The witness conceded that he had not attended any meeting to choose the first defendant as the next chief. He however testified that the first defendant was residing in Rushinga, Mount Darwin when he was selected as chief. The Mapanzure people invited him, as they had invited Chimbuya, to come and take up the chieftainship. He disputed that the first defendant had connived with the councillor, Manyoka, that he be selected Chief Mapanzure.

Assessment of Evidence

The plaintiff appeared not to be sure of the custom of the Mapanzure people on the appointment of chief Mapanzure. This confusion is aptly captured by counsel for the plaintiff in paragraph 6 of the plaintiff's closing submissions. It is necessary to quote the entire paragraph of the submissions. Counsel for the plaintiff stated as follows:

“The witness indicated that the last chief was Shumbayaonda, and that after the death of Shumbayaonda, the next house in line was that of Chimbuya. However, the witness could not explain how this succession would dovetail with the custom abovementioned. The witness was keen to show that the house of Vushangwe was not eligible at all to ascend to the Mapanzure chieftainship.

The witness explained that Mapanzure often took two wives from the same family. However, only the first son from the first wife would become eligible for chieftainship.

Under cross-examination, the witness did not convincingly expound on how this mode of succession actually worked. This became clearer when cross examination was made with the assistance of pages 1-6 of Exhibit 2. The witness then altered his stance and maintained that, assuming the first defendant was eligible for chieftainship, he could not assume the Mapanzure chieftainship because his turn had not yet arrived.

In this vein, the witness contended that if the last chief had come from Shumbayawonda, the next house to provide a chief would be Chizema, followed by Magwirokona; first defendant's house would be number 18 in the line of precedence if houses of chieftainship, as shown on pages 3-6 of Exhibit 2, were followed. The witness dismissed as untrue the contention by the first defendant that chieftainship would go by seniority.”

The concession by counsel for the plaintiff, that the plaintiff was confused, was, in my view, proper. I commend him for making the concession.

The plaintiff could not identify Mazorodze's children from the first wife. He also did not know if the houses that he had identified as the royal houses were from the first wife.

This explains the difficulty that he experienced in explaining how succession by Mazorodze's sons from the first wife actually worked. This mode of succession was not supported by the fact that Chatikobo, who was Mazorodze's son from a younger wife, and not the first wife, ascended to the chieftainship.

In any event, the plaintiff's evidence was further confused and confusing in that the first wife would only have one first son.

The plaintiff's evidence, that Mazorodze selected his first wife's eldest son to form a royal house, begs the question as to how many first wives Mazorodze had who gave birth to all the chiefs in the 5th generation.

The plaintiff further testified that chieftainship revolved according to houses such that even a young child in that house, or a woman, would ascend to chieftainship if it was the turn of that house. The plaintiff testified that Mupandasekwa is one of the royal houses. He conceded that although Mupandasekwa pre-deceased Chimbuya, he had young children when Mazorodze died. He could not however explain why these children did not ascend to the chieftainship upon the death of Mazorodze if succession was according to houses regardless of the age of the children in that house.

The following is the plaintiff's evidence, under re-examination, on that issue:

“Q: On page 3 of exhibit 2, under cross-examination, it was stated that those are Mazorodze's sons starting with Mupandasekwa. Mupandasekwa died whilst his father was alive. When a father died the chieftainship went to whom?

A: Chimbuya.

Q: If Chimbuya died?

A: To Kufandada.

Q: Why would chieftainship devolve that way?

A: These are the fathers who were supposed to take up chieftainship.

Q: Read out the names of the first five fathers (Mazorodze's sons).

A: (plaintiff read out the names)

Q: You said Mupandasekwa had two children. If Mupandasekwa dies would chieftainship go to Makatu (Mupandasekwa's son)?

A: No. Makatu is a child.

Q: At what time would Makatu become chief?

A: After the line of fathers had died, the chieftainship would then go to the children.

Q: Defendant says if Shumbayawonda dies there would be a meeting to find the oldest of the surviving fathers and that person becomes chief.

A: That is not correct. In the event that Shumbayawonda died, the next house would be Chizema.

Q: I put it to you that the eldest surviving child becomes the chief. If the chieftainship is in the line of brothers, the eldest brother becomes chief. If all the brothers die, then the eldest son of those brothers becomes chief.

A: That is correct. The eldest surviving brother takes up the chieftainship; if no brothers, then the eldest son.

Q: You seem to be contradicting yourself. I thought you said that chieftainship follows houses, even the smallest; now you are saying it's the brothers first.

A: It might be that you misquoted me. I said if Chimbuya house was supposed to take up chieftainship, and there are no old children, then the youngest in the family succeeds.”

The plaintiff's answers are inconsistent with his claim, that the only the royal houses succeeded to the chieftainship and that it was not on the basis of seniority.

The mode of succession that appears in the answers is in fact supportive of the succession of the Mapanzure's chieftainship according to seniority.

Kufandada was not from one of the alleged royal houses. He was Mazorodze's third son. Chizema was not also one of the alleged royal sons. He was the next son after Shumbayawonda. The next royal son, after Shumbayawonda, would have been Magwirokona.

The explanation by the plaintiff, that, upon the death of Chimbuya, the chieftainship did not go to Mupandasekwa's house because Mapandasekwa's children were very young but therefore went to Chatikobo was supported by Luckson Jayadhara Chimbuya. Jayadhara testified that Mupandasekwa's children were so young that they had not yet started talking.

This explanation is also at variance with the plaintiff's case that chieftainship rotates among the royal houses irrespective of the age of the children from the next royal house.

The plaintiff therefore conceded and supported the first defendant's contention that chieftainship was according to seniority although he would retract the concession under the pretext that he had been misquoted.

The plaintiff could not further explain why, upon the death of Gwenhamo, the chieftainship went to Masimba Shumbayawonda of the Shumbayawonda house instead of either to the Mupandasekwa or the Chimbuya houses.

He accepted that Mupandasekwa was Mazorodze's first son and Chimbuya the second son. Gwenhamo was the 28th son and Shumbayawonda the 8th. If succession follows the royal houses, the plaintiff failed to explain why the chieftainship by-passed both the Mupandasekwa and Chimbuya houses to go to the 8th house of Shumbayawonda.

The plaintiff's evidence, that there were only seven royal houses, is also not supported in the 1965 report that he produced as an exhibit. At p17 of Exhibit I, it is stated that:

“The order of birth of Mazorodze's sons, as given here, is probably not 100 percent accurate; Sister Aquina, in her article 'The Tribes in Victoria Reserve' (NADA 1965) records: Eight out of the twenty sons of Mazorodze…, became chiefs. This implies that there were twenty sons of Mazorodze. As can be seen from the genealogy given here, I have now established there were no less than 30 sons and probably more…,.”

It therefore follows, that, in 1965, when Sister Aquina did her own research, eight and not seven of Mazorodze's sons had become chiefs.

Although the plaintiff's initial evidence was that the first defendant was not entitled to ascend to chieftainship, he finally conceded, under cross-examination, that he was in fact eligible.

He however made a qualification that the first defendant's turn had not yet arrived.

He conceded that the last chief, Masimba, was his uncle (or “father”) and of the 6th generation. He further conceded that the incumbent, the first defendant, is also his uncle, his father's brother and of the 6th generation. Masimba and the first defendant would therefore be his “fathers”.

If one were to go by his concessions, he cannot be entitled to chieftainship as he is of the 7th generation and therefore a “son” to the incumbent. The plaintiff could therefore not be in the line of fathers as he alleged in his evidence. The plaintiff's concessions in fact support the first defendant's evidence to the effect that he (the first defendant) was eligible for succession as he was the eldest surviving in the generation of the plaintiff's “fathers”.

Turning to the question whether or not a meeting of the houses was held to select the incumbent, Luckson Jayadhara Chimbuya confirmed, in his evidence, that a meeting was indeed held although did not attend the meeting. The fact that a meeting was held is also confirmed by Pesanai Gozho Chatikobo.

It appears to me that Pesanai Gozho Chatikobo was not confused as to which meeting selected the first defendant as chief as alleged by the plaintiff's counsel and confirmed in the first defendant's closing remarks.

He testified, under cross-examination, as follows:

“Q: Apart from members of the clan who else who is notable was present at the meeting?

A: Most of the people are now dead.

Q: (Question was repeated). Was the Minister present?

A: The Minister was not present. We might not understand each other. I am referring to the meeting where the name of the current chief emerged. That is what I have referred to as the meeting that was attended by the elders. Even the DA was not there. We were still holding meetings as the clan.”

Even assuming that the witness may have been confused, I do not find that the confusion was intended to mislead the court.

The witness gave the clearest explanation of the Mapanzure chieftainship which substantially tallied with the documents and genealogies that the plaintiff and the first defendant relied on. He also gave the clearest evidence on how the meeting was convened. He stated that the meeting was convened by the acting Chief Masimba and was held at the late Chief Masimba's homestead.

The plaintiff was not able to challenge this evidence.

The fact that meetings were held is further supported by the letters produced by the parties.

It is recorded, in a letter dated 1 December 1993, from the District Administrator to the Provincial Administrator, that, several meetings were held to choose the next chief. The last meeting where the first defendant's selection was confirmed was attended by members of all the houses of the Mapanzure chieftainship. There were 38 kraal heads, 120 elders of the Mapanzure chieftainship, councillor Mapanzure, Vidco, and Ward chairpersons of the Mapanzure chieftainship and the District Administrator.

The letter was common to both parties' bundle of documents.

In another letter, dated 21 June 2004, from the Provincial Administrator to the plaintiff, produced by the first defendant, the Provincial Administrator stated as follows:

“I wish to advise you that this issue should not just be Chimbuya House v Bvuramai. All houses must be involved like they were involved in the initial selection process. The initial meeting must be held without the involvement of this office. 'Tangai mataurirana vana vanyamunhu.'”…,.

I had difficulties in accepting the plaintiff's evidence that it took him over 10 years to discover that the first defendant had been appointed in 1995.

The plaintiff testified that he visited his communal home frequently. On the other hand, Luckson Jayadhara Chimbuya testified that when the plaintiff did not visit his communal home, he (Jayadhara) would visit the plaintiff at his urban home.

The appointment of a chief is a momentous occasion attended by a lot of people including senior Government officials. This was confirmed by Pesanai Gozho Chatikobo.

If the plaintiff did visit his communal home frequently, and I do not doubt him on that score, he does not appear to have been telling the truth when he said that he only became aware of the first defendant's appointment after ten years.

Luckson Jayadhara Chimbuya also sought to mislead the court when he initially testified that he had also not known of the appointment of the first defendant.

He resided in the rural area and such news could not have passed his ears. At least, he later, in his evidence, had the decency to confirm that he had heard of the meetings where the first defendant was selected and appointed chief but he did not attend any of the meetings.

He testified that although he knew of the appointment of the first defendant, he could not complain because Manyoka, the councillor, had told the villagers not to challenge the appointment as it was according to seniority.

It appears to me that he would not have missed telling the plaintiff of the appointment considering that the Chimbuya family had been vying for the chieftainship since the death of Gwenhamo.

I found the first defendant's witnesses to have been truthful and their evidence reliable.

As already indicated, Pesanai Gozho Chatikobo gave a clear explanation of the succession process and the history of the Mapanzure chieftainship.

I am mindful of the fact that Ignatius Vhushangwe was present in court when both the plaintiff, Luckson Jayadhara Chimbuya and Pesanai Gozho Chatikobo testified. I am therefore alive to the fact that his evidence may therefore have been influenced by that of the other witnesses. However, I found his narration of the history of the Mapanzure people to have been very clear and original. It would not have been contrived in court. He substantially supported Pesanai's evidence. He introduced evidence that had not been brought up by the other witnesses, such as the fact that Chimbuya was invited to return to the Mapanzure community to take up the chieftainship and the reasons why he had left that community.

Both Pesanai Gozho Chatikobo's and Ignatius Vushangwe's evidence was consistent with the 1965 and 1973 genealogies and history of the Mapanzure chieftainship.

The Issue

A chief is appointed by the President in terms of section 3 of the Chiefs and Headmen Act [Chapter 29:01]. In so doing, the President must give due consideration to the customary principles of succession, if any, applicable to the community over which the chief is to preside.

As indicated earlier, following the amendment of summons and declaration by the plaintiff at the commencement of the trial, the only issue for determination is whether or not the appointment of the first defendant was in accordance with customary principles of succession of the Mapanzure people.

The plaintiff alleges that the custom of the Mapanzure people is that they follow the collateral principle of succession, in terms of which the chieftain revolves according to the royal houses identified by Mazorodze and not according to seniority. Therefore, in the event that a royal house is due for chieftainship, the house will select the person to be the next chief from that house irrespective of the age of that person.

The first defendant alleged that succession is based on seniority within each generation. All the houses constitute one entity. When all the people in one generation die, the chieftainship rotates within the next generation. The eldest person within that generation will be appointed the next chief irrespective of which house they come from.

The present dispute, relating to the Mapanzure chieftainship, was anticipated in 1965 when Gwenhamo was still the chief.

In order to avoid such a dispute, the Mapanzure chieftainship was documented in the 1965 report, in the copy of the extract that the plaintiff produced. When the report was prepared, Gwenhamo, who was the chief then, was very old and the report was intended to document the Mapanzure chieftainship so as to avoid any succession disputes. On page 2 of the report, the author of the report lays the basis for the preparation of the report and the genealogy therein as follows:

“They (the Mapanzure people) pride themselves on their confidence that they can settle the succession amicably. Unfortunately, the elder grandsons of Mazorodze (that is the first sons of Mupandasekwa, Chimbuya, Kufandada, Zingoni, etc) were themselves older that Mazorodze's own young sons (that is, Gwenamo, Taziziva, Chivendere etc). Therefore, Gwenamo's own sons (who are now middle-aged) are a generation senior to the grandsons of Mupandasekwa, Chimbuya, Kufandada, etc. Yet, these latter grandsons are older than Gwenamo's sons.

It will be extremely difficult to sort out the generations of the various prospective claimants unless some research is done now.”

The research then disclosed that succession of the Mapanzure chieftainship was “true collateral succession.” (page 1 of exhibit I).

The difficulty that has appeared from the evidence from both the plaintiff and the first defendant's case is that they both do not seem to understand what collateral succession is.

The collateral principle of succession has been described in a number of decided cases in our jurisdiction.

In Ruzane v Paradzai & Anor 1989 (1) ZLR 118 (HC), MUTAMBANENGWE J referred to a number of authorities on the principle. He observed as follows…,:

“Thus, HAROLD CHILD, The History and Extent of Recognition of Tribal Law in Rhodesia, at p6, says:

“Succession to chieftainship also shows a difference, being in most instances collateral.

Younger brothers succeed to elder brothers until the succession has been held by each in turn, when it reverts to the son of the first chief and then to the sons of the collateral lines. There are tribal variations, and the system is not always complete."

Similarly, JF HOLLEMAN, Shona Customary Law…, says:

"Succession to chieftainship is governed by the common principles of collateral succession prevailing in central Mashonaland. According to these principles, the eldest son, regardless of the position or rank of his mother, succeeds to the personal name and position of his father.

When he dies, his next youngest brother or half-brother succeeds to the father's name, until the generation of sons of the father is exhausted and the eldest grandson succeeds to the name and position of his grandfather, the determining factor again being the order of birth amongst collateral grandsons."

And E B GOLDIN and M GELFAND, African Law and Custom in Rhodesia…, say:

"Whilst among the Ndebele, the chief (induna) is selected by a system of primogeniture, in which, upon his death, the office is passed on to his eldest son, a more complicated one is adopted by the more numerous Shona-speaking people.

Their chiefs are chosen by a collateral system in which the position is passed from the head of one of the 'special families' to that of another. Each of these families is known as an 'imbahuru' or 'royal family' and on the death of a chief (ishe, mambo) his successor is selected from the representatives of two, three or even four 'royal' families in the clan. Thus, when a chief dies, his office passes on to the representative of the next family until each has had its turn, when the cycle is repeated.”

C BULLOCK, The Mashona, says…,:

"With very few exceptions, primogeniture did not govern succession. The chieftaincy theoretically descended from the elder to the younger brothers of a family, until all had held it."

At pp124E-G MUTAMBANENGWE J held:

“At pp21-22 of Holleman's Shona Customary Law it is stated:

'A man cannot, for instance, succeed to his elder brother's own name and position, but he may, after his brother's death, succeed to the name of their common father or forefather.

Especially in the case of an old and established chieftainship its succession may involve the candidacies of numerous clansmen between whom agnatic relations may be very remote.

As it is the relative age on a certain generation level which is, in principle, the determining factor, it is often difficult to know who is the eldest and therefore most eligible amongst the candidates. It is the task of tribal elders, mostly belonging to the ruling clan, and of other important kinsmen, to determine which candidate has the best rights to become chief. In the event of serious rivalry, recourse may be had to a svikiro (spirit medium) of an important ancestor to ascertain the views and wishes of the ancestral spirits.'”…,.

In Chagaresango v Chagaresango 2000 (1) ZLR 99…, MUCHECHETERE J also quoted with approval GOLDIN and GELFAND's African Law and Custom in Rhodesia and referred to Ruzane v Paradzai & Anor 1989 (1) ZLR 118 (HC) and Ruzane v Paradzai & Anor 1991 (1) ZLR 273 (S): see also Pharoah B. Muskwe v Douglas Nyajina & ORS HH92-07…

As observed in the cases, the principle varies with each community. However, it appears that the authorities are agreed that chieftainship among most of the Shona-speaking people passes from elder brother to younger brother in one generation until all the brothers have succeeded to the throne. It is therefore based on the seniority of those brothers. It then moves to the next generation.

What appears from JF HOLLEMAN's Shona Customary Law is that sons of the chief constitute one house irrespective of the rank of their mothers. It is the father who is the determining factor. Therefore, a half-brother can succeed another half brother according to their seniority.

A variation of this principle of succession is given in GOLDIN and M GELFAND's African Law and Custom in Rhodesia…,. It is apparent from the above quote that succession can be according to houses where there is more than one royal house. But, even in such a case, succession is according to seniority, with the head of one house succeeding another until each royal house has had its turn.

As indicated earlier, the plaintiff failed to establish that there were seven royal houses. The 1965 report that he produced did not support him.

I was persuaded by the evidence of Pesanai Gozho Chatikobo and Ignatius Vhushangwe that Mazorodze's sons all constituted one house irrespective of their mothers and that succession was according to the seniority of these sons.

The same principle of succession would equally apply in respect of Mazorodze's grandchildren and their own children ad infinitum.

This explains why Chatikobo succeeded Chimbuya as chief despite the fact that the two were from different mothers.

The collateral succession practised by the Mapanzure chieftainship is captured in both the 1965 report and the 1973 minutes. In the 1965 report, it is stated that:

“The previous svikiro was Gwenamo's own half-sister, Mavengedzene (same father, Mazorodze, but different mothers). Gwenamo 'accepted the spirits' because he seemed to have no chance of succeeding to the chieftainship. Obviously, as svikiro, he did not have a say in his own appointment - nor did he officiate at his own installation. In fact, there was simply no selection necessary after Bwango's death.

Gwenamo was the last surviving son of a long line of brothers, and his selection was automatic. As the chief himself put it: 'I was son of my father'.

He meant that he is the last surviving son of Mazorodze for two younger brothers, Chivendera and Taiziziva, pre-deceased him.” (p2 of exhibit I).

“Later, Chimbuya died, and, according to custom, Chatikobo was selected to succeed his brother. Kufandada and Zingoni had pre-deceased Chatikobo.

Chatikobo had a small badge so he said: 'How can I take two badges?'

He therefore gave his own badge to his son, Tasarirawona, whose other name was Mukasi, and retained the big badge for himself. Chatikobo was then chief over the whole area, including that over which he himself had been placed in charge.

When Chatikobo died, his young brother, Shumbayaonda, took over the chieftainship, and so on until the youngest surviving son Gwenhamo. He is our Chief today. He is the rugohwe (last born).” (see p3-4 of exhibit I).

The 1973 minutes (p1 of Exhibit 2) state:

“The District Commissioner asked for enlightment on certain aspects of the family tree as recorded by Mr. Kaschula in May 1965.

It was agreed by all present that MUPANDASEKWA was the first born son of MAZORODZE, but he died before he could succeed to the Chieftainship, which then went to his young brother CHIMBUYA. His young brothers, KUFANDADA and ZINGONI, pre-deceased him and the chieftainship then went to CHATIKOBO. MUSINAZANO and CHIHAVA predeceased CHIHAVA (it appears there was a mistake as the name was repeated. It appears the second Chihava should have been Chatikobo as he was the last chief) and the Chieftainship therefore then went to the next brother SHUMBAYAWUNDA who was pre-deceased by his younger brother, CHIZEMA, and thence to MARGWIROKONA. He reigned a short time and then he was pre-deceased by his young brother TSUNGIRAI and the 'nyembi' went to the next young brother, ZISHIRI. ZISHIRI's young brothers, MUTODZANISO, HAPANYENGWI, TAVARERA, RUTORO, KUVENGASHE, RIMA, MUTUKWA, GOWO, CHIRUNDUMWA, RICHANYU, GANDA and WUSHE all pre-deceased him and the next Chief was BGWANGO. His young brothers, RUSHANGWE and TIRIVANERA, died before him, so the Chieftainship went to GWENHAMO, the Chief who has just died. His younger brother CHIVENDERA and TAIZIZIVA both died as bachelors.”

The above analysis of the chieftainship clearly reflects the fact that chieftainship was according to the line of brothers, and in accordance with their seniority. It was not, and it appears still is not according to the royal houses identified by the plaintiff.

The sons from the said royal houses did not succeeded to the chieftainship by design. It was by misfortune. The brothers before them had died before their turn and during the reign of their elder brothers.

It is also apparent that Vushangwe, the first defendant's father, and Tirivahera, did not succeeded because they pre-deceased Bgwango who was the chief during their lifetime.

The succession of Masimba Shumbayawonda was also not by design. It was because Gwenhamo's brothers, Chivendera and Taiziziva, had pre-deceased Gwenhamo. Upon Gwenhamo's death, the chieftainship was then to move to the next generation, the 6th generation, because Gwenhamo's younger brothers, Chivendera and Taiziziva had pre-deceased him. He was Mazorodze's last surviving son.

Masimba Shumbayawonda was found to be the eldest in that generation hence his appointment as chief. Upon his death, the next chief had to be the next eldest brother within the 6th generation.

The first defendant falls under the 6th generation.

The question as to whether there was any other person older that the first defendant within that generation was put to the plaintiff under cross-examination as follows:

“Q: The current chief is a brother to your father?

A: Yes. The current chief referred to my father as elder brother.

Q: Is there someone in the Chimbuya family now called 'father'?

A: Yes, there is one.

Q: Who is older between the one you refer to as your father and the current chief?

A: The current chief is older but they are almost the same age.

Q: I put it to you that your evidence that that chieftainship goes by fathers is correct and therefore the appointment of the current chief was proper?

A: I think you misquoted me. The father from the Chimbuya house is older.

Q: It is better for you to admit that you have made an error instead of saying that I misquoted you.

A: My apologies. It might have been a slip of the tongue. I wanted to say the father from the Chimbuya house is older.”

Apart from that belated correction, the plaintiff did not advance any evidence to prove that the “father” from the Chimbuya House was older than the first defendant.

Luckson Jayadhara Chimbuya did in fact concede that the first defendant was the oldest. This was also confirmed by Pesanai Gozho Chatikobo and in the letters from the District Administrator that the parties produced.

From the above, it is my view that the first defendant, being the eldest in the 6th generation, was entitled to be appointed as the Chief Mapanzure. This was in accordance with the customary principles of succession of the Mapanzure chieftainship.

In the result, the plaintiff's claim is dismissed costs.