This trial is concerned with the identification of the correct house between two of the three houses that are eligible to ascend to the Nyajina Chieftainship of the vaZumba clan in the Uzumba Maramba Pfungwe district of Mashonaland East province of Zimbabwe.THE PLEADINGSOn 26 August 2005, the plaintiff issued summons ...
This trial is concerned with the identification of the correct house between two of the three houses that are eligible to ascend to the Nyajina Chieftainship of the vaZumba clan in the Uzumba Maramba Pfungwe district of Mashonaland East province of Zimbabwe.
THE PLEADINGS
On 26 August 2005, the plaintiff issued summons out of this court seeking an order setting aside the appointment of the first defendant as Chief Nyajina-designate; directing that the second and third defendants take into account and abide by the values, traditions, and customary principles of succession of the VaZumba people in selecting a chief and a declaratur that the next chief be selected from the Mukonde house.
The first defendant filed his plea on 28 October after the second and third defendants had filed their joint plea on 24 October 2005.
The pre-trial conference was held on 17 January 2006 and the parties filed a joint pretrial conference minute which referred two issues to trial.
I set down the matter for trial on 19 April 2006 for 22 May 2006.
In the meantime, on 2nd May 2006, the first defendant filed a court application, case number HC2427/2006, to amend his plea. It was opposed by the plaintiff on 17 May 2006. The result was that the trial was postponed indefinitely pending the determination of the application.
The first defendant proceeded to file his answering affidavit on 24 May 2006 and his heads of argument on 3 November 2006. The plaintiff filed his heads on 23 November 2006.
I consolidated the opposed application and the trial and set both for 22 May 2007.
At the conclusion of the oral submissions on the interlocutory matter, I granted the amendment and indicated that my reasons for doing so would appear in this judgment.
CASE NO. HC2427/06
The first defendant sought to amend his plea to reflect the averment that Nyamukapa of the Mukonde House had acceded to the chieftainship. The amendment would have the effect of demonstrating that the Mukonde House had acceded to the chieftainship four times and not three times as averred in the plaintiff's declaration.
He averred that he only accessed the documents, which showed that Nyamukapa was a chief, after the pre-trial conference had been held.
He prayed for the grant of the amendment on the basis that it was not driven by bad faith; would not cause injustice to the plaintiff; would not prevent, but, would provide a full inquiry into the disputed issue; and was not excipiable as in Cross v Ferreira 1950 (3) SA 443 (C).
The plaintiff opposed it on the basis that it was driven by bad faith.
The bad faith arose from the admission by the first defendant, at the meeting held on 15 October 2003, that, the Kawoko House had acceded to the chieftainship four times while the other two Houses had done so three times apiece, respectively.
It also arose from the fact that on 28 January 2005, the Kawoko House produced a document from the National Archives which indicated that Nyamukapa had been a chief. He therefore contended that the amendments were prejudicial to him and prayed for their dismissal with costs.
Order 20 Rule 132 and 135(3) of the Rules of Court gives this Court a wide discretion to allow amendments at any stage of the proceedings for the purpose of determining the real controversy between the parties.
See also The Civil Practice of the Superior Courts in South Africa, 3rd edition by HERBSTEIN and Van WINSEN…,; Moolman v Estate Moolman and Another 1927 CPD 27; Shill v Milner 1937 AD 101…,; Angelique Enterprises (Pvt) Ltd v Albco (Pvt) Ltd 1990 (1) ZLR 6 (H)…,: and Copper Trading Co. (Pvt) Ltd v City of Bulawayo 1997 (1) ZLR 134 (S)…,.
I was satisfied that the amendments were not driven by bad faith;
(i) Firstly, because in his plea the defendant had disputed the number of turns that the plaintiff averred his House had acceded to the throne; and
(ii) Secondly, the first issue referred to trial also sought a determination of the number of turns that each House had had on the throne.
While the first defendant was at the meeting of 15 October 2003, he was absent at the meeting of 28 January 2005.
In my view, no injustice would be caused to the plaintiff by the amendment, which would provide a platform for a full enquiry into the disputed issue of the number of turns that the Mukonde House acceded to the chieftainship. I saw no prejudice to the plaintiff's case from the amendments sought, especially in the light of the fact that the onus of proof lay on the defendant to show that Nyamukapa was a chief.
THE EVIDENCE
The second and third defendants did not attend trial. On the strength of their counsel's assurances that they would appear, I allowed him to participate in the proceedings up to the close of the first defendant's case. No evidence was adduced on their behalf. The reality of the matter was that the two were in fact in default.
Their fate is however intertwined with that of the first defendant.
The plaintiff did not testify. He called the evidence of Tayengwa Dugmore Muskwe, Farai Joseph Muskwe, Isaac Kavhu Nyamukapa, Tapera Musekiwa, and Dzikaunda Chimbwanda.
The first defendant gave evidence and further called Cry Murowa and Felix Joseph Kandemiri to support his version.
The parties agreed to the production of a 73 page document by the plaintiff as exhibit 1. It incorporated various documents which they relied on in their respective versions.
The plaintiff's version
Tayengwa Dugmore Muskwe (“TD”), born 24 January 1958, is a legal practitioner of this Court. He portrayed himself as the eye of the VaZumba clan. He gave a brief historical account of his clan from its migration from Southern Sudan to Uzumba via Mavuradonha, Mazowe, and Shamva. He stated that the movement from Mavuradonha to Uzumba was necessitated by palace intrigue in the Munhumutapa Empire. Sororo Ziome, the patriarch of the clan, first settled in the Mazowe area but was forced to relocate by the superior spirit medium of the area, Nehanda. He had one son, Nyanhewe, who dislodged Tumbare from the chieftainship of the area in the Chikwira Hills of Uzumba.
Nyanhewe, the first chief of the clan, believed that he would reign forever and thus killed all his male issue. One of them, Nyahuma, survived by the craftiness of his mother who pretended that he was a girl before she ran away with the infant to Kandeya in the Dotito area of Mount Darwin. When he was older, he returned as a wealthy man. He held a feast where he revealed his identity to his father, who, in shame and fear, left his palace and disappeared in the Marowe Hills, where his remains were later found by Nyahuma, who became the second chief of the clan.
In death, Nyanhewe assumed spiritual significance to the VaZumba clan. He became the guardian spirit of the clan and assumed the name Bvukufpuku or Bvukura. He arrogated to himself the right to select his successors in title. Murderers, wizards, and those who indulged in black magic and other offences against the community were disqualified from acceding to the throne. His successors traced their lineage from the three eligible sons of Nyahuma. These were the eldest Mukonde, the middle Kawoko and the youngest Chikuwe. There was another son, who was younger than Mukonde but older than Kawoko, who was called Kanodzirasa - the Bambo of the Madzimbahwe. He was disinherited and relegated the menial function of chief caterer to his brothers at court. The derogatory title of Nyambudzi became his alias and that of all his male descendants in perpetuity.
He stated that the above history of his clan emerged from the deliberations and research that was conducted by a committee set for the purpose during the legal battle that the clan fought with the Hombiros in 1990, which culminated in the case of Amon Gadaga Chipfuyamiti v Phineas Bere Nyajina and Another HH175-92.
The plaintiff's house, Mukonde, was represented by Noah Denhere Muskwe, born 21 September 1894, who was the eldest at the time, Muyati Eliah Muskwe, whom he claimed was the most educated of his peers having done secondary education in the 1940s, Denford Muskwe, and the witness.
The Kawoko House, from which the first defendant comes from, was represented by the first defendant's father, Wilton Nyajina, Marongo Nyajina, who was an uncle to Wilton, headman David Nyajina, and the first defendant.
Lastly, the Chikuwe House was represented by Lazarus Manyika, who, at one time, acted as a chief for 4 years when his father was ill and Mutarimanja Jemwa, who was the eldest person in that house at the time.
The committee relied on Government papers on file at the Ministry of Local Government, National Housing and Urban Development; papers from the National Archives; and oral history.
The first white man to record the history of the clan was the first Native Commissioner for the area, William Edwards. He testified that Kanodzirasa was dis-inherited because he took the meat of the Guardian Spirit, and was, together with his descendants, forever banned from partaking in chieftainship deliberations and discussions.
He relied on the genealogy chart that he alleged was produced by the Committee to set out the chiefs who reined from Sororo Ziome to the last incumbent, Bere. He alleged that Mukonde predeceased his father and so could not become chief. Kanodzirasa had been disinherited, so he was superseded by Kawoko, the third chief of the clan. Kawoko was succeeded by his younger brother Chikuwe, the fourth chief. The throne jumped the Mukonde House and went back to Kawoko's Nyajina, the fifth chief, who was succeeded by Chikuwe's Manyika, the sixth chief. Manyika was succeeded by Muskwewebga, the seventh chief, who was succeeded by his brother Chikoso as the eighth chief. Muskwe and Chikoso were both from the Mukonde House. Chikoso was succeeded by Kanemadadu, the ninth chief, of the Kawoko house. When Kanemadadu died, his son Dyora took over in terms of the VaZumba tradition as an acting chief. The white man then colonized the area and Dyora clung to the throne, which should have gone back to the Mukonde House, as the tenth chief. When Dyora died he was succeeded by Kapita, the eleventh chief, of the Chikuwe House. The chieftainship should have devolved to the Mukonde House.
The witness averred that Kapita was not eligible to ascend to the throne because he belonged to a sub-house of the Shava nematombo totem of the Chimbwandas, who were ritual friends of the Chikuwe House.
On his death, the throne passed to Bere, the twelfth chief, of the Mukonde House. He stated that it should remain in that house and should not devolve to the Kawoko House.
It is interesting to note that he firmly believes that after Kanemadadu, the throne should have gone back to the Mukonde House. It is a chorus he repeated after the death of each succeeding chief. He based this chorus on two principles which he alleged found the core basis of the traditions, customs, and values of the VaZumba clan. He put them as follows:
“Our chieftainship is based on collateral succession in order of seniority and equal number of turns.”
He alleged that collateral succession forms the lynchpin of the clan's tradition. When a chief dies, his successor, if he has surviving younger brothers, devolves to these on the basis of seniority. Only after all have assumed the throne does it move to the eldest male issue of the eldest brother. It then moves laterally across the subsequent generations. Each eligible house must accede to the throne in turn. All things being equal, the number of turns should be equal.
He averred that until Muskwe became chief, the Mukonde House had missed the throne for 136 years. Even at that time, the Guardian Spirit realized the iniquity of this and decided to provide the Mukonde House with two chiefs in a row. After Chikoso, each house had had two turns on the throne. An equal number had been achieved. Dyora came onto the scene and spoiled the broth.
He reasoned that an objective analysis of these facts, from antiquity, demonstrate that succession is collateral and is based on seniority and on an equal number of turns. He pointed out that the number of turns is an important consideration as shown by the attempts by the first defendant's house to reduce the turns of their house by the ridiculous suggestion that Nyajina and Kanemadadu were one person in the meeting of 15 October 2003, which suggestion was only dropped after Dyora's son, David Nyajina, pointed out that the two were separate individuals.
He also averred that the use of CJKL's document of 20 May 1965, on page 10 of exhibit 1, which was touted as a recent discovery, to the extent that it attempted to show that Nyamukapa was a chief, also confirms the traditional significance of the number of turns in the quest for the throne by any of the three eligible Houses.
He tore the document apart.
It provided, contrary to known folklore and written history, that, Ziome had two sons Nyahuma and Nyakushama, and that Chikuwe was the son of Nyakushama. It stated that Mukonde was part of the Magadu family and that Chikuwe ascended to the throne before his elder brother Kawoko. The Magadu family is given as originating from Kamutimbikwa, who, in reality, was an illegitimate son of Dyora's sister.
The document desecrates the traditions of the VaZumba as it seeks to give matrilineal eligibility to the throne. Further, it portrays Kanodzirasa and Nyambudzi as two separate persons. It further suggests that Chikoso became chief before his predecessor Muskwe.
To the extent that the document was in conflict with accepted wisdom, it was clearly unreliable.
He testified that Nyamukapa was never a chief. He suggested that he was a contemporary of Dyora who was chief in Uzumba at the time that Chinyerere was chief in Pfungwe and Chirinda in Maramba. He found support in the second and third defendant's plea that the Mukonde House had 3 turns, Kawoko 4 and Chikuwe 3. He alleged that all the VaZumba chiefs were buried in Marowe Hills while the grave of Nyamukapa was known to be in a different hill called Denje.
Nyamukapa had a daughter who gave birth to Denga. This Denga would testify as to whether his maternal grandfather was ever a chief.
He further challenged PLOWDEN's 1965 paper, on page 16 of exhibit 1 and stated that Nyamukapa should not be confused with his later day grandson who bore the same name but also used the name Makwembere who was a headman in 1965.
He also relied on a meeting that was chaired by Munakira, an assistant Provincial Administrator for Mashonaland East, on 28 January 2005, at which it was agreed that the Mukonde and Chikuwe houses had 3 turns each while the Kawoko house had 4 turns. Munakira had requested the Mukonde and Kawoko houses to deliberate and choose the eligible house between them. This was in line with their tradition for the eligible Houses to choose the house from which the chief would emerge without consulting the guardian spirit, which he averred had last manifested in the 1890s.
There was a general belief that the one that died during Kapita's rein in 1945 was an impostor.
The houses agreed to dispense with the role of the Guardian Spirit, which was merely to vet a candidate of good character.
He was surprised that when the last meeting was convened, on 18 June 2005, this official position was abandoned and the whole issue was revisited.
At this meeting, the Mukonde House laid claim to the throne but the second defendant selected the Kawoko House.
He stated that the manner in which that meeting was conducted desecrated the VaZumba customs and traditions:
(i) The first desecration was that the Kanodzirasa House, represented by Zungunde and Farisi, was permitted to contribute to the discussion.
(ii) The second was that the second defendant abandoned the principle of the equality of turns and stated that this was not a consideration in Buhera where he came from. He even boasted that even if he did not follow the VaZumba tradition, the Attorney-General would defend him in any suit launched by the Mukonde House.
(iii) Thirdly, after an hour of deliberations, the second defendant adjourned the meeting in preparation of choosing the eligible house. He went and conferred, in private, with acting chief Chirinda, a stranger, acting chief Nyajina a biased member of the Mukonde House, acting headman Nyajina, and headman Magadu, of the Kawoko House, and left out headman Muskwe.
The second defendant also took irrelevant issues into consideration, falsely labelling the Mukonde House as an MDC sympathizer.
It appeared to him that the Mukonde House was jumped because it boasts of the most educated persons in the clan.
He was adamant that the genealogy on page 8 of exhibit 1 was a correct reflection of the family tree of the clan. It was compiled by eminent oral historians of the clan from the three eligible houses.
It was handed, by Joseph Kandemiri, DB Muskwe, Eliah Muskwe, Lazarus Chikuwe Manyika, and the first defendant, to the former District Administrator of Uzumba, Gwizo, in 2001, though it bears a 2003 date stamp. This was before there was any contemplation that the Houses would come before this Court in the present dispute.
He was cross-examined at great length.
His father was born in 1919 and died in 2005. His grandfather died in 1922 and was the second son of Maiyagoto whom he alleged was poisoned by Dyora in 1893. He gave the source of the history that he related as Noah Denhere Muskwe who was on born 1 September 1894 and died in 2002 and Lazarus Manyika who died in 1989 who were both born during Dyora's reign.
He maintained that the genealogy on page 8 of exhibit 1 was written by the committee appointed to record the clan history. It was handed to Gwizo and his deputy Mlambo. There was no need, at the time, for any minutes or signatures to verify its adoption.
He knew of two versions on the Kanodzirasa disinheritance.
The first version was that he volunteered to be the meat sharer while the second was that he tampered with meat meant for the guardian spirit.
He was not the eldest of Nyahuma's sons. He did not make war with Chikuwe for the throne after the death of Nyahuma as Kawoko ascended to the throne as the older of the two.
He accepted that the Kanodzirasa house chaired the meeting of 16 August and confirmed the minutes on 15 October 2003. He alleged that this happened because he was not present. He objected to their presence on 16 November 2003 and Gwizo removed them. He suggested that their presence was an exception which did not make the rule just as one sparrow does not make a summer.
He knew that collateral meant side by side, that is, from brother to brother as opposed to from father to son. Seniority was based on birth right.
He suggested that this was at play in the choice of the first defendant.
Even though he was younger than some members of his house, who were in their 80s, he was chosen because he was from the Kamukanya sub-house which was senior to the Mutanda sub-house. The older ones were traditionally disqualified because of their mothers' status.
In his own house, Bere, who descended from a younger sub house assumed the throne ahead of the elder Maiyagoto subhouse because there were no older sons in the elder houses who were Bere's contemporaries.
He denied that he appointed himself as the eye of the clan.
He accepted that the genealogy on page 8 did not show any acting chiefs before Dyora although it was their custom for a son to act for a year after the death of his father, the chief.
He denied that the letter of 10 April 2003 and the minutes of 28 February and 22 May 2003 that were written by the Maiyagoto sub-house to the District Administrator depicted a power hungry house.
He denied that his sub-house was positioning itself for succession and declaring its right as the elder house to chair the meetings as it had done in the past.
It was apparent, from the minutes of 16 August and 15 October 2003, that, the eligible houses unanimously abandoned the involvement of the Guardian Spirit in the selection of a chief. The collective modern mind of the representatives of the houses could no longer trust the impartiality of the human agents of the Guardian Spirit.
He maintained, by reference to the visit to the spirit medium Nyashawa on 1 June 1971 on page 57-60 as confirmed by RC PLOWDEN on 11 November 1982, in paragraph 5 of page 15 that the role of the Guardian Spirit was to vet the candidate identified by the eligible house.
Farai Gilbert Muskwe was born on 15 May 1939. He testified, that, in the event of the death of a chief, the most senior house calls a meeting of the three eligible houses of Mukonde, Nyajina and Chikuwe. The fourth house, of Nyambudzi, is involved to the extent that it slaughters the goats and serves food consumed at the meetings.
A series of meetings were held to select a chief after the death of Bere. He alleged that the Nyambudzi house attended one meeting. It was chaired by Zungunde and Kandemiri. An objection over their presence was raised but it was not minuted in the meeting of 16 August 2003. These two attended the meeting of 15 October 2003 but not of 28 January 2005 and were present on 18 June 2005.
He said Nyamukapa was not a chief. He was buried in Denje Mountain and not in Marowe Mountain where chiefs are buried.
He averred that a spirit medium did not choose a chief. People in the eligible house sat and selected a candidate who was then vetted by the spirit medium.
He averred that their tradition accepts collateral succession based on seniority and equal number of turns.
Under cross examination, he stated that tradition arrogated to the Mukonde House the duty to call such meetings. To his knowledge TD Muskwe was just a son of the clan. He did not regard him as the eye of the clan. He alleged that TD was mandated by Eliah and Denhere Noah Muskwe of the Mukonde House to record the clan history.
He attended the meeting chaired by the Nyambudzi two. He objected but was overruled by the eldest Mukonde at the time, David Dombodzvuku Muskwe. He averred, by reference to the meeting of 15 October, that, Nyambudzi could attend and contribute at the meetings but could not chair.
He remained adamant that succession was collateral and was based on seniority and equality of turns.
Isaki Kavhu Nyamukapa was born in 1930. His father was Nyamukapa's second son.
He stated that his grandfather never assumed the chieftainship. The only Nyamukapa who was once a headman was Makwembere, a cousin to the witness (their fathers are brothers). Their grandfather was buried in Denje Mountain and not in Marowe where all chiefs of the clan are buried.
On the appointment of chiefs, he stated that the house whose turn it was to accede to the chieftainship would select a candidate and take him to the spirit medium for vetting. He stated that the houses would have an equal number of turns. He was not able to provide a solution where one house had more turns than the others.
He knew the Nyambudzi sub-house, which is called Madzibaba, was responsible for slaughtering goats and serving food consumed during the deliberations of the eligible houses. He did not know the effect of their attendance on the discussions.
Under cross-examination, he stated that he only saw two chiefs, Kapita and Bere. His father told him there were three chiefs from the Mukonde House. These were Muskwe, Chikoso, and Bere. He maintained “madzoro” turns were a sign of equality.
He maintained that it was proper for a member of the Mukonde House to accede to the chieftainship for the equality of turns to be achieved as it was the senior house.
In his view, thereafter, a member of the Chikuwe House would succeed to the chieftainship for equality of turns to be achieved.
He could not say why this was not done when Kanemadadu became chief.
He spoke of “doo”(hide in which a chief is wrapped in for burial) and “tsika” (fire-friction sticks). The latter was given during the installation of a chief to the house of his successor.
Tapera Musekiwa was born 1922. His paternal grandmother, Gumbate, was Nyamukapa's daughter.
He was adamant that Nyamukapa did not ascend to the throne. He is buried in Denje as opposed to Marowe. He has been to the grave to check on its upkeep.
Under cross examination, he maintained his version and logically asserted that his grandmother would have known had her father been chief.
Dzikaunda Chimbwanda is the man tasked with the burial of chiefs in the clan, interchangeably called the Chikari or Nechombo.
He took the job from his grandfather. He refused to bury Kapita because he did not supply two beasts for the funeral of the witness' grandfather. Kapita was buried by his own nephews (vazukuru), children of Sori. He buried Bere. He confirmed that all the clan's chiefs are buried in Marowe, without exception. He did not know about Nyamukapa. He was not versed in the method used to rotate chieftainship from one house to the other but he knew that they took turns (majana/madzoro). The eligible house chose their candidate.
He knew the Nyambudzi as the father figure who were food caterers and who did not ascend to the throne. He did not know if they were permitted to participate in the regal discussions.
On the basis of the equality of turns, he believed that the next chief should be from the Mukonde House.
Under cross-examination, his national identity card gave his date of birth as 13 August 1920.
He knew of the graves of the last three chiefs only. They are not marked. The chieftain families did not go to Marowe Hill.
He believed that in line with “majana”, Dyora took over from a member of the Mukonde House. He believed that after Bere it should go to the Kawoko House.
The first “doo” was done wrongly and Magadu, who supplied the first, provided the second one, which the witness approved.
The first defendant's version
The first defendant testified. He was born on 2 June 1954. He is the son of Muchabaiwa Nyajina the son of Bopoto Nyajina the son of Kamukanya the son of Kanemadadu. Kamukanya was the elder brother to Dyora.
At first, he stated that after Bere died, the VaZumba sat down to determine which House was entitled to assume the throne and unanimously agreed that it was the turn of the Kawoko House.
He was wrong on this aspect as there was never unanimity amongst the eligible Houses.
The Kawoko House deliberated over the issue. Kanemadadu had three sons; that is, Kamukanya, Dyora and Mutanda. Dyora had assumed the chieftainship ahead of his elder brother. It was decided, by the Kawoko House, that, the throne should go to the descendants of Kamukanya ahead of Mutanda as Kamukanya was the older of the two. The Kamukanya descendants chose the witness.
He could not explain why Dyora superseded Kamukanya save to state that, at the time, the mhondoro appointed whomsoever it pleased to be chief without regard to age or seniority.
At least in the Kawoko House, they agreed that seniority entitled Kamukanya over Mutanda.
The fact that Kawoko decided to follow seniority seems to my mind to suggest that seniority is part of the VaZumba tradition in selecting chiefs.
He was asked to comment on page 9, an unsigned document produced by the plaintiff in exhibit 1, which is written in Shona, which shows the chiefs who reigned since the inception of the clan from Nyanhewe to the last substantive incumbent, Bere. It sought to portray that Nyanhewe ruled from 1589.
TD Muskwe was at pains to explain how he estimated this year on the probability matrix based on the average number of years of Dyora, Kapita, and Bere. He gave each chief a period of 34 years. The witness attacked the formula and thus the document on five (5) grounds:
(i) Firstly, the document, to his mind, did not state who had commissioned and compiled it and the source of the contents therein;
(ii) Secondly, it started in 1589, a period during which the clan was not able to write;
(iii) Thirdly, it does not provide for the acting chiefs who ruled between chiefs as known in custom, that, after the death of a chief, and before the appointment of another, a caretaker acting chief is appointed;
(iv) Fourthly, the recorded history provided by the white man showed that Dyora ruled for 33 years, Kapita for 37 years, and Bere for 29 years. He supposed that the earlier chiefs must have ascended to the throne at different ages, that is, some when young, others in their middle ages, and yet others in old age. It therefore did not make sense to attempt to give a uniform duration of chieftainships; and
(v) Fifthly, he disputed that the Mukonde House had had 3 turns of the chieftainship in the history of the clan. He denied that the chieftainship was based on seniority on the basis that though Mukonde was eldest, his descendants tasted the throne for the first time in chief number 7. It had rotated between Kawoko and Chikuwe's descendants. To his knowledge, Mukonde and Kawoko had 4 turns each while Chikuwe had 3 turns.
The spirit mediums who were responsible for appointing chiefs in the past could appoint young children who then were assisted by regents.
He did not point out which of the chiefs had been assisted by regents.
He was asked to relate the traditions, customs, and norms of the VaZumba.
He stated that Nyanhewe was the first chief. He was succeeded by Nyahuma. Nyahuma had four sons, that is, Nyambudzi, also known as Kanodzirasa, Mukonde, Kawoko and Chikuwe. When Nyahuma was about to die, or was dead, Chikuwe, the last son, was appointed chief. This angered Nyambudzi who stabbed his younger brother to death. Members of the Chikuwe House then fled from Uzumba. Nyambudzi did not assume the throne but was disqualified in person and through him all his descendants were barred from acceding to the throne in perpetuity.
The first tradition was that the chieftainship rotated among the three houses of Mukonde, Kawoko and Chikuwe. The mhondoro in charge was the re-incarnation of Nyanhewe called Bvukura. It provided two fire-making sticks “tsika” to the House that would be the next in line to accede to the throne. The “tsika” was not given to the ruling chief or his House but to the House of his successor. When the chief died, the House with the “tsika” was obliged to supply the beast that was slaughtered and whose hide “doo” was used to inter the chief in. The House was also responsible for choosing the site of the grave of the dead chief.
The last chief who was appointed by Bvukura was Kapita. Bere was appointed by Bvukura's nephew (paternal sons born of Nyanhewe's sister) Nyashawa of the Bushu clan. Thereafter, the two spirit mediums disappeared and the VaZumba agreed, that, in their absence, they would select their chief-designate from amongst themselves on their own following the rotational system.
He was asked to comment on page 8 of exhibit 1. This is the genealogy of the male issue of Nyanhewe to 3 November 2001. It indicates that it was compiled by Batsirai Denford Muskwe from information supplied by Denhere Noah Muskwe; Muyati Eliah Muskwe; Douglas M. Nyajina; and the Manyika family.
It was revised at the Chief's Hall- Muskwe in Uzumba on 3 November 2001.
In his view, it did not show that the issue of seniority was part of the VaZumba tradition.
He said in the Kawoko House, Dyora took over the chieftainship over his elder brother Kamukanya. In the Chikuwe House, Manyika acceded to the throne ahead of his elder brother Chiwara.
He did not explain why he believed that the two elder brothers were still alive.
When the throne returned to the Chikuwe House, Kapita of the Katsande sub house superseded his contemporaries Manjera and Mutarimanja the sons of Chidyamatiyo who was Katsande's elder brother. He superseded the descendants of Chiwara the son of Chikuwe and the elder brother of Manyika (the 6th chief).
In the Mukonde House itself, the genealogy chart showed that Bere was the son of Nyajambwa. Nyajambwa was the youngest of Muskwewebga's sons Maiyagoto and Nyamukapa. Bere superseded his contemporaries who were descendants of his two elder brothers.
He disputed that the absence, through death, of his contemporaries from his elder brothers' descendants meant that Bere had to be nominated because he was the eldest survivor of his generation. He maintained that age did not matter at all as long as the House had male issue.
He stated that oral history passed down to him had it that Nyamukapa was a chief.
He went to the District Administrator's office at Mutawatawa and was given page 16 of exhibit 1. It is the genealogy of the VaZumba chiefs compiled from Head Office records by R.C. PLOWDEN in Harare on 11 November 1982.
PLOWDEN further recorded that “it may not be accurate”.Nyamukapa is shown as the 10th chief.
He did not doubt its accuracy notwithstanding that it showed that Sororo Ziome had two sons Nyanhewe and Nyakushama. Nyakushama was shown as the father of Chikuwe while Nyanhewe was shown as the father of Nyahuma. The sons of Nyahuma were depicted as Kanodzirasa, Kawoko, Mukonde and Kamutimbikwa.
He said while these were contrary to the oral history he knew, he could not dispute it because the informants of PLOWDEN must have known what they were talking about.
This was a disingenuous answer as he knew that no one had informed PLOWDEN who simply used Head Office records to compile a genealogy. It was not clear why he did so. He did not even state which Head Office records he used.
I found the suggestion by counsel for the first defendant, that, the information therein was supplied by Bere an inaccurate interpretation of PLOWDEN's documents.
The first defendant also relied on page 10 of exhibit 1. This is another genealogy chart that he recovered from the National Archives.
The Kawoko House produced it for the first time at the meeting of 28 January 2005. It is an official Government document compiled by a person with the initials CJKL on 20 May 1965.
It seemed to me that PLOWDEN copied some of the information on his chart from this document.
It depicts Sororo as the father of Nyanhewe and Nyakushama. Nyakushama bore Chikuwe while Nyanhewe bore Nyahuma. Nyahuma was the father of Nyambudzi, Kanodzirasa, Kawoko, Muskwewebga and Kamutimbikwa.
The writer suggested that he received some of the information from the reining chief, Kapita.
The genealogy was a distortion of the oral history the first defendant relied on in the aspects also highlighted by TD Muskwe. He however accepted its content notwithstanding that it did not show who the 11th chief was.
He accepted these documents because they showed that Nyamukapa, of the Mukonde House, was a chief.
He said Dyora, of the Kawoko House, took over from him and Kapita, of the Chikuwe House, took over and it retuned to the Mukonde House through Bere and now it is the turn of the Kawoko House, which chose him to be the next chief.
He preferred these two documents to the genealogy on page 8 because the two were produced by neutral persons at a time when there was no chieftainship dispute while page 8 was produced by the Mukonde House after the dispute had arisen and in contemplation of a suit.
He attended some of the clan meetings to deliberate on which House was entitled to assume the vacancy left by Bere. At the meetings that he attended, the Nyambudzi House was represented. He stated that as the father figure and the guardian of the clan they were entitled to participate in the deliberations.
The two houses of Kawoko and Chikuwe agreed on the next House and were supported by the Nyambudzi House. The Mukonde House, especially the Muskwe sub-house, did not agree with the other houses.
He revealed that page 9 was the disputed handiwork of the Muskwe sub house who compiled it without the consent of the other houses.
He was present at the meeting of 18 June 2005 which was chaired by the second defendant.
In his view, the second defendant did not breach the traditions of the clan. He saw nothing amiss in the consultations he had with the acting chief Pedzisai from the Mukonde House, Headman Magadu from Kawoko House, and acting headman Nyajina from the Kawoko House.
His uncle, Marongo Nyajina, supplied the “doo” used at the death of Bere. The skin was prematurely cut at the knees and not at the hooves so another beast was supplied by Magadu.
The Mukonde House looked up to the Kawoko House to supply the “doo”. His uncle, and father, designated the burial place of Bere in Marowe as representatives of the succeeding house.
He equated the present challenge to the previous ones of David Nyajina on 12 November 1947 and Joseph Manyika on 27 November 1971. He suggested that it also lacked merit.
He was cross-examined at length.
He said the clan was spread in a wide area and so all members of the three houses were unknown to each other. They were not close. He only came to know the plaintiff after the death of Bere during the meetings that were held to select his successor.
He was asked what he disputed on page 8 of exhibit 1.
He denied being an informant to the writer of the document in question. He confirmed that it accurately depicted the genealogy of the Kawoko House and even of his own sub-house. He had no knowledge about the accuracy of the genealogy of the other two houses. He relied on the oral history passed to him by his father. He was taught that Kanodzirasa was the eldest son, followed by Mukonde, Kawoko, and Chikuwe.
As regards the chart on pages 10 and 16, he agreed with both in their entirety. He said that while page 10 showed Chikuwe as Nyakushama's son, he had been told by his father that he was the fourth son of Nyahuma. Oral history had taught him that Kanodzirasa was also known as Nyambudzi. He did not accept that Nyambudzi, Kanodzirasa, Kawoko, Muskwewebga and Kamutimbikwa were all children of Nyahuma.
He regarded it as unfortunate that some of the information on the three houses on page 10 was inaccurate.
I found his testimony in this regard confused. He was evasive and elusive. I had to warn him to answer the questions asked and not to anticipate questions.
He believed that the sources of information which gave rise to page 10 and 16 must have known what they were talking about.
He accepted that he took this attitude because both documents showed that the 10th chief was Nyamukapa. His father never told him that Nyamukapa was a chief.
Page 10 does not show who took over from him while page 16 shows that it was Dyora. Page 16 further indicated that Nyahuma's four sons were Kanodzirasa, Kawoko, Chikuwe and Kamutimbikwa. It also showed that the founding patriarch, Sororo Ziome, had two sons - Nyahuma and Nyakushama. The latter son was the father of Chikuwe.
He preferred the version written down by the white man to his own oral tradition on the basis that it was written and sourced from his forefathers.
When it was brought to his attention that Bvukura would have no relevance to Chikuwe if page 16 were correct, he could only stutter that the providers of that information must have known what they were talking about.
He also attempted to duck the import of the question by averring that the trial was not about the forefathers but about which House should accede to the chieftainship.
He further revealed that he produced it to show that Nyamukapa ruled.
He accepted that a document had to be accepted in its entirety and not in piece meal fashion.
He could not say when Nyamukapa became chief. It was clear that when Willie Edwards became the first native commissioner for Uzumba, the reigning chief was from the Kawoko House. Had it been from the other two Houses, they would not have given him the name Nyajina, a derivative of the Kawoko House. It is likely that they may have used their own house names or even their common ancestors' name.
He was present at the meeting of 15 October 2003 minuted by the Assistant District Administrator, Mlambo. In those minutes, at page 32, the witness expressed the view that the rotational system as opposed to the number of turns be followed in selecting the eligible House.
Joseph Kandemiri (the last witness in this case) said the concept of seniority would confuse the rotational system.
It was noted that Mukonde and Kawoko assumed the chieftainship once in succession; that is, chiefs 7 and 8 and 9 and 10. The Kawoko House then argued that 9 and 10 were one person.
These minutes indicated that there was no room for Nyamukapa to rule.
He ended up conceding, under cross examination, that, Dyora took over from Kanemadadu. It was clear that though he retrieved documents after the pre-trial conference, his House, in his absence, produced them at the meeting of 28 January 2005 chaired by Munakira, an Assistant Provincial Administrator, which was minuted by Mandizvidza a member of his staff.
The Mukonde House had disputed the accuracy of these documents concerning Nyamukapa.
He accepted that it was his clan's traditional custom that chiefs acceded to the throne in turns hence the Shona idiom “ushe madzoro”.
To him, it was demonstrated by the movement from Dyora of Kawoko to Kapita of Chikuwe and to Bere of Mukonde. He believed that it was now the turn of Kawoko who had selected him.
He refused to accept that the selection be compared to turns taken in herding cattle. He said during the precolonial era chiefs were appointed by the Guardian Spirit (mhondoro) whose decision was unquestioned and final. He stated that once a House missed its turn it missed it forever. There was no room for catching up and for equality of turns.
He denied that the Guardian Spirit simply vetted but alleged that it appointed.
In his view, David Nyajina and Joseph Manyika's evil spirit, of seeking the chieftainship to remain in one House in 1947 and 1971, was manifesting itself in the plaintiff.
The only written record of a visit to a spirit medium is found on page 57 to 60 of exhibit 1.
The District Commissioner was represented by Samuel Chirimuta. The three eligible Houses were represented as was the house of Nyamupfuchira, which, from the minutes of 16 August 2003, were part of the Kawoko House maternal line. It is recorded, on page 59, that the Mukonde House led the entreaties. Kanyimo clapped his hands and stated that the Muskwe House was acting on the spirit medium, Nyashawa's instructions. The spirit medium then asked whether they sat together as a family and reached a decision. At page 59, the spirit medium gave glimpses of its involvement. Apparently, one Gotora was a contender to the throne. The Muskwe family held a meeting under the instruction of the spirit medium. The spirit medium was concerned with whether the family had made a decision to which the delegates answered in the negative and in unison stated that they did not have to take the lead as the decision lay with the spirit medium. It responded that it was not requesting them to nominate a man, a function it would carry out, but merely wanted to know whether they had decided on the sub house within the Muskwe sub-house of the Mukonde House. Kanyimo then answered that Muskwe handled the “tsika” (fire friction sticks) at the installation of the dead chief (reference to Kapita) and that it was agreed by everybody that the man should be from the Muskwe House.
The spirit medium then instructed the Muskwe House to go back and sit together and nominate a sincere man of good, clean character and integrity. They were to give his name to the District Commissioner who was put it to the vote of the Uzumba tribesman.
The spirit would accept and approve whatever the white man did.
Kanyimo voiced his concern about involving the white man but was told to await the return of the spirit Nyanhewe [Bvukura] if he disliked the idea. The spirit medium told the District Commissioner's emissary that the District Commissioner was to help the spirit medium in choosing and appointing a good man who had done good work in the past; a man with a good past reputation.
The visit demonstrated that the eligible Houses selected, in terms of tradition, the House from which the chief would come. The known tradition was the use of “tsika”. It was handled by the House that would succeed the sitting chief at his installation. The eligible Houses would visit the spirit medium and await its instructions on the selection and appointment of the new substantive chief. The spirit medium could, in its discretion, select and appoint or it would ask the House to select a candidate and seek its approval. The spirit medium therefore had the crucial role in the selection process of a chief.
The suggestion that it simply vetted is not borne out by the instruction given to Samuel Chirimuta.
I would agree with the first defendant that there was no difference in selection and approval, for, in the final analysis, he who approves, is, in reality, the ultimate selector.
On seniority, the defendant stated that this was not followed by the VaZumba. He maintained, that, on the death of Nyahuma, he was succeeded by his youngest son, Chikuwe, who was killed by Kanodzirasa in anger.
He denied that his great grandfather, Kamukanya, was killed by Dyora and thrown into the Nyadire River at a pool referred to this day as Nyajina.
He also disputed that Dyora also poisoned Maiyagoto of the Mukonde House.
He was not aware that the Nyambudzi House is not allowed to participate in the courtly discussions but is behooved to skinning goats and serving food to the three Houses.
He averred that the Nyambudzi House was also invited by the second defendant to attend the meetings to select the House from which the chief would come from notwithstanding that page 28 showed that only members of the three Houses were invited.
The minutes that were produced when all the Houses were in attendance showed that the Nyambudzi House attended all the meetings except that of 28 January 2005. The minutes do not show that any member of the eligible Houses objected to their presence and participation.
He could not say which member of the Mukonde House demanded “doo” from the Kawokos as a sign that the next chief was to come from their house.
He was not at the funeral but his late father, who died in 2005, advised him that the two beasts were supplied by Marongo and Magadu from the Kawoko House.
This was stated in the minutes of 15 October 2003, page 32 under: 'Way Forward'.
Kurauone Mutanda, of the Kawoko House, indicated that the provision of “doo”, the selection of the burial spot, and the distribution of the property of the deceased were done by the House that would be next in line for the chieftainship. The acting chief and the deceased chief are quoted, by Zungunde Bongu, as accepting that the Kawoko House would accede to the throne.
He denied that anything untoward took place at the last meeting where the Kawoko House was chosen to select the chief.
He did not see the second defendant take acting chief Nyajina, acting headman Kawoko, headman Magadu, a stranger, chief Chirinda, aside after adjourning the meeting and on resumption anoint the Kawoko House.
Magadu did not qualify to the chieftainship as a Kawoko candidate as he was not able to trace his male lineage in that House.
His attempt to impugn the report of the visit to Nyashawa was contradicted by paragraph 5 of page 15 of exhibit 1.
He called Cry Murowa, from the Chikuwe House, born 15 May 1951, who grew up with the defendant as they lived in contiguous villages.
His father, Jasi, told him of the clan history.
Kapita, who died on 4 July 1974, was the last chief installed by Nyanhewe, the Guardian Spirit that disappeared in 1945. Bere was selected by Nyashawa, a grandson of Nyanhewe. The seniority of the eligible Houses was not an issue in succession. The House given “tsika” on installation of a chief would select whomsoever it wanted and could bypass the old or young. The age of the incumbent was not a consideration.
He said the name of Nyamukapa, and his reign, came up after the death of Bere in meetings that were convened to select the eligible House. He did not know if he had been a chief.
He knew that Chikuwe took over from Nyahuma and was killed by Nyambudzi. The Guardian Spirit then disqualified Nyambudzi and his descendants from the chieftainship.
He was present at the meeting of 18 June 2005 where the Kawoko House was chosen to select the next chief. The Kawoko and Chikuwe Houses agreed that it was the turn of the Kawoko House to accede to the chieftainship. It was supported by the Nyambudzi House, the Bambo House, which is allowed to participate though it cannot assume to the throne.
Under cross-examination, he agreed that he was not the eldest living member of the Chikuwe House. He was not testifying as a representative of his House. He did not know the genealogy of the other two Houses. He did not know Mutarimanja of the Chikuwe House.
He accepted the general accuracy of the genealogy of the Chikuwe House on page 8. A few names of members of his generation had been omitted.
He did not see the aside meeting that was convened by the second defendant on 18 June 2005.
He said he ascribed to the rotational and not to the equality of turns system of succession. The past selections and appointments were governed and controlled by the Guardian Spirit. He preferred the clear trend that has prevailed since the coming of the white man.
It seems to me that he confirmed the accuracy of page 8 of exhibit 1.
The last witness was Felix Joseph Kandemiri of the Nyambudzi House who was born on 6 June 1949.
He supplied his genealogy. He alleged that Nyambudzi was Nyahuma's first son. His House was allowed to attend the meetings on the selection of chiefs though it could not accede to the throne. Nyambudzi was disqualified after he killed Chikuwe but was appointed the Tsiye, that is, the guardian of his younger brothers on the death of Nyahuma. He understood that “mugovi wemarongo” was a figurative expression which should not be subjected to literal translation. They were not sharers of meat from pots but were mediators in disputes, like the present one, that arose amongst the eligible Houses.
He disputed the principle of seniority, averring that the plaintiff was a village head yet his uncles (cousins and age mates of his father) were still alive.
The turns, in his view, could not be equated to herding cattle, for, in the era of the Guardian Spirit, it chose whomsoever it deemed fit. There was no evenness of turns. Once a House missed its turn it could not be redeemed.
He alleged that the designation of the burial spot of a chief was the prerogative of the Nyambudzi House and not of the Chikari. This averment was contrary to the minutes of 23 August 2003 in which members of the Nyambudzi House were directed to Chikari if they wanted to know where Bere was buried.
His further averment that his House was involved in courtly discussions since time immemorial was not borne out by the record of the visit to the spirit medium, Nyashawa, as it was not represented.
He stated that the second defendant did not abrogate any traditions of the clan at the meeting of 18 June 2005.
Under cross-examination, he exhibited ignorance of the fact that his House was also called the Kanodzirasa House and that Nyambudzi was a nickname.
He exhibited confusion by averring that Chikuwe was appointed chief during his father's lifetime. He only knew his House's genealogy. He did not know the names of the chiefs who reigned over his clan throughout the ages save for Bere.
He agreed that the Guardian Spirit vetted chiefs chosen by the eligible House and that all the chiefs of the clan were interred in Marowe.
He stated that he could not produce his invitation letter as he had lost it and went on to confirm that there had been no objections to the presence and participation of his House at the meetings convened to select the eligible House.
He averred that seniority did not affect chieftainship in a House, yet, Nyashawa said no son could assume the throne over his fathers (uncles).
To his knowledge, “doo” would be supplied by a different House from that of the deceased chief.
He alleged that the customs and traditions of the VaZumba reposed in the Nyambudzi House and said that “tsika” was given to the incumbent at his installation.
