GARWE
JA: In
August 2005, the appellant, as plaintiff, issued summons in the High Court in
which he sought an order setting aside the appointment of the first respondent
as Chief Nyajina – designate and a further order directing the second and third
respondents to take into account and abide by the values, traditions and
customary principles of the VaZumba people in selecting the next Chief
Nyajina. He also sought an order
declaring the Mukonde House as the house eligible to select a candidate to
become the next Chief Nyajina from its ranks.
After hearing evidence the High Court dismissed the claim with
costs. It is against that order that the
appellant now appeals to this court.
The
pater genitor i.e. founder of the VaZumba
clan, was one Sororoziome. He passed the
reins of power to his first son, Nyanhewe, who became the first chief of the
clan. Nyanhewe in turn bore a son, one
Nyahuma, who succeeded him after his death and burial at Marowe mountain. Nyahuma had four sons. These were Kanodzirasa (also known as
Nyambudzi or Bambo of the Madzimbahwe), Mukonde, Kawoko and Chikuwe. There was some dispute as to who between
Mukonde and Kanodzirasa was the eldest son.
It was common cause during the trial that Kanodzirasa lost the right to
accede to the chieftainship. The reason
for this remains unclear. The appellant
on the one hand says he had desecrated some of the traditions of the clan and
in particular had taken the meat of the guardian spirit, the result of which was
that he and his family were permanently barred from acceding to the
chieftainship. The first respondent on
the other hand says he murdered his younger brother Chikuwe and consequently
was barred by the guardian spirit of the clan from acceding to the
chieftainship. In addition he and
members of his family were relegated to the position of 'Mugovi wemarongo' which,
literally, meant “meat sharer”. The
dispute remains whether in this capacity his role was to kill, skin and cook
food whilst the other houses discussed issues of the chieftainship or whether
members of the family were allowed to attend those meetings and participate,
although they could not accede to the chieftainship.
After his death
Nyanhewe became the guardian spirit or svikiro of the clan and was known
interchangeably as Bvukura or Bvukupfuku.
The guardian spirit, which manifested itself through a living human
being, was intricately involved in the selection of a chief. The dispute during the trial was whether the
guardian spirit merely vetted the candidate who was to assume the role of
chief, as the appellant claims, or the spirit would, independently of the
houses of the clan, announce the house and the name of the person who should
succeed the deceased chief, as claimed by the first respondent.
The
chieftainship of the VaZumba clan, which is not in dispute, is as follows-
Name House
1. Nyanhewe -
2. Nyahuma
-
3. Kawoko Kawoko
4. Chikuwe Chikuwe
5. Nyajina Kawoko
6. Manyika Chikuwe
7. Muskwe Mukonde
8. Chikoso Mukonde
9. Kanemadadu Kawoko
10 Dyora Kawoko
11 Kapita Chikuwe
12 Bere Mukonde
It is common cause
that the last substantive chief, Bere, was from the Mukonde House, the same
house under which the appellant falls.
Bere died in 2000, having acceded to the chieftainship in 1971. Before him was Kapita from the Chikuwe House
who had reigned from 1931 to 1968.
Before Kapita, were Kanemadadu and Dyora both from the Kawoko house. Kanemadadu and Dyora were father and son
respectively.
Following the
death of Bere in 2000, a series of meetings took place between the houses and
officials from the Ministry of Local Government, National Housing and Urban
Development. Following those
consultations the second and third respondents decided in August 2005 to
recommend for appointment the first respondent as Chief Nyajina - designate.
It is that
decision that the appellant sought to have set aside before the court a quo.
The basis for the order sought was that according to the tradition and
customary principles of succession of the VaZumba people, succession was
collateral, based on the seniority of the houses and that, since the Kawoko
house had acceded to the chieftainship four (4) times, whilst Mukonde, the most
senior house, and Chikuwe, the most junior house, had each acceded to the
chieftainship only three (3) times, there had to be equal turns to the throne. Accordingly the appellant sought an order
declaring his house as the rightful house to appoint a candidate to take the
chieftainship. The first respondent, in
his plea, disputed the suggestion that evenness of turns has always been part
of the principles of succession of the VaZumba people. He claimed that there were two distinct periods
in the history of the VaZumba; the first was the period when persons acceding
to the chieftainship from the three eligible houses were chosen by Bvukura the
guardian spirit of the VaZumba clan, without regard to seniority of the houses
or evenness of turns; the second was the period after the guardian spirit ceased
to manifest itself and the VaZumba acted on their own and chose chiefs based on
collateral succession and seniority of the houses.
Having heard
evidence and submissions from the appellant and the first respondent, the court
a quo reached a number of findings of
fact. These may be summarized as
follows:-
-
The appellant's version
on the history of the VaZumba clan was more plausible than that of the first respondent.
-
Seniority of the houses
is part of the VaZumba tradition.
-
Bvukura, the clan spirit
medium, had a central role to play, which was not merely limited to vetting a
candidate chosen by a particular house.
It could, in its discretion, choose the house and candidate who was to succeed
in the chieftainship or leave the selection of the candidate to the house it
would have identified, subject to its approval of such candidate.
-
Nyamukapa of the Mukonde
house never become a chief and the attempt by the first respondent to show that
he ascended to the chieftainship was against the evidence and intended to
mislead.
-
Collateral succession
governs the appointment of chiefs in the VaZumba clan. Accession to the chieftainship was supposed
to start with the most senior house, Mukonde, and thereafter laterally move to
the houses of his brothers Kawoko and Chikuwe, before reverting to Mukonde.
-
Collateral succession of
the VaZumba after the advent of colonial rule followed this pattern. Dyora was succeeded by Kapita and Kapita by
Bere, although there were attempts by Dyora's son David Nyajina and Kapita's
son Joseph Manyika to seek progenitorial linear accession.
-
Succession moved from
Nyahuma to Kawoko, by-passing the Mukonde house because, in all probability,
Mukonde, the eldest son, had died.
-
It remains unclear why
after Chikuwe it did not immediately devolve to Munzwere, son of Mukonde. It was probable that Munzwere predeceased his
uncle Chikuwe as suggested by oral tradition, which resulted in the sub-house
being given the name Muskwewebga, which means “lonely survivor”.
-
As between the Kawoko and
Chikuwe houses, the guardian spirit followed the seniority of the houses.
-
The suggestion by the
appellant that Chikoso succeeded his elder brother Muskwe to even the turns was
not contradicted. This was the first
time that succession had moved from one brother to another in the same
house. Although there was a more or less
similar occurrence when Dyora took over from his father Kanemadadu, this
appears to have happened at the advent of colonial rule when the white local
government officials were tricked into appointing him as substantive chief.
-
If evenness of turns was
part of the VaZumba, it remains unclear why, after Chikoso died, Mundomera did
not take over so that Mukonde, being the most senior house, would have had the
first third turn to the chieftainship. Whilst
Chikoso may have been appointed to even the turns, so that each house would
have two turns, thereafter the succession was to revert to the house which
first succeeded Nyahuma, that is, Kawoko.
-
The colonial government
accepted that succession amongst the VaZumba was collateral, and was to devolve
around the three houses, without regard to the number of evenness of turns.
-
The involvement of the
guardian spirit was consensually dispensed with by all three houses.
-
Provision of a 'doo' and
designation of the burial spot are clearly part of the tradition and custom of
the VaZumba.
-
The 'doo' in which the
late Chief Bere died was supplied by the Kawoko house and it is the same house
that designated the spot where the late chief was buried.
-
The Nyambudzi house,
though forbidden from acceding to the chieftainship, could also take part in
the deliberations of the clan.
The court a quo was satisfied that the Kawoko
house, of which the first respondent is part, was properly nominated by the
second respondent, taking into account the customary principles of the VaZumba
clan, as the house from which the next chief should come. Consequently the court dismissed the
appellant's claim with costs. The
appellant, dissatisfied with this ruling, now appeals to this Court.
In his notice of
appeal, the appellant seeks an order reversing the judgment of the court a quo.
He attacks the decision of the court a
quo on the broad basis that the decision of the court was “so outrageous in
its defiance of logic that anyone who had properly applied his mind to it would
have (sic) come to such a decision”. More particularly it is the appellant's
contention that the court a quo erred
and misdirected itself:
“1.In
failing to find for the appellant when the respondent's witnesses were found to
be unreliable on substantive issues of the matter.
2.
In making a finding that the evenness of
turns is not part of the VaZumba custom and tradition contrary to the evidence
adduced before the court a quo.
3.
In accepting the evidence of the
respondents on the 'doo' contrary to the evidence that was adduced before the
court a quo when Magadu who is
alleged to have provided the 'mombe ye doo' was to all intents and purposes a
complete stranger in VaZumba chieftainship issues.
4.
In failing to make a finding that the
'tsika' is still in the possession of the plaintiff's 'house', and therefore
the eligible house.
5.
In failing to make a finding that, the
mere presence and subsequent participation of strangers, such as, Acting Chief
Chirinda, and Headman Magadu violated the VaZumba customs and tradition, more
so when this material fact remained uncontroverted by the conspicuous absence
of the 2nd and 3rd defendants (now 2nd and 3rd
respondents) throughout the trial.
6.
In failing to make a finding that the mere
fact that the Kanodzirasa/Nyambudzi house was not being formally invited to the
chieftainship meetings means that they were not supposed to deliberate on the
VaZumba chieftainship matters.
7.
In failing to make a finding that in light
of the default of the 2nd and 3rd respondents, all that
was alleged against them by applicant should have been accepted as proved by
appellant (plaintiff in the court a quo).”
Although various
issues are raised in the above grounds of appeal, the real issue is whether the
finding by the court a quo that the
appointment of the first respondent is in accordance with the values,
traditions and customs of the VaZumba clan.
Section 3 of the Traditional Leaders Act, [Chapter 29:17] gives the President powers to appoint chiefs to
preside over communities living in communal and resettlement areas. In terms of s 2, in appointing a chief, the
President:
“(a) shall give due consideration to-
(i)
The prevailing customary principles of
succession, if any, applicable to the community over which the chief is to preside;
and
(ii)
The administrative needs of the
communities in the area concerned in the interests of good governance;
and
(b) wherever practicable, shall appoint a
person nominated by the appropriate persons in the community concerned in
accordance with the principles referred to in subparagraph (i) of paragraph
(a):
Provided that, …”
In
the court a quo, the onus was on the
appellant to show, on balance, that the recommendation that the first
respondent be appointed Chief Nyajina did not take into account the prevailing
customary principles of succession of the VaZumba clan. In particular the question that required
determination was whether evenness of turns is part of the VaZumba people.
Although there was
an unsuccessful attempt by the first respondent to show that Nyamukapa of the
Mukonde house had acceded to the throne, the parties are agreed that Nyamukapa
never became chief. This means that from
the house of Nyahuma, the Mukonde and Chikuwe houses have each acceded to the
chieftainship three (3) times whilst the Kawoko house has acceded four (4)
times. The last chief to reign was Bere,
from the Mukonde house, which is the appellant's house. It is the appellant's contention that the concept
of 'ushe madzoro' namely, equality of turns, is part of the VaZumba people and that
since Mukonde, being the most senior house, has had only three (3) turns, it
must be given a fourth turn, notwithstanding the fact that the last Chief
(Bere) was from that house.
A consideration of
the genealogy of the VaZumba shows that although Mukonde was the most senior
house, it only acceded to the chieftainship as seventh chief. Thereafter the same house nominated Chikoso
who also acceded to the throne as the eighth chief. Thereafter the Kawoko house had two
successive turns to the throne. The
genealogy in my view raises more questions than it provides answers.
It is apparent
that both Kawoko and Chikuwe each had two (2) turns to the throne before
Mukonde, the most senior house. The
explanation for this is, for want of a better word, unknown. The appellant's explanation was that for a
period of approximately one hundred and thirty-six (136) years, there was no male
issue from the Mukonde house to take the throne. Whilst possible, it is highly improbable, and
begs the question: where did Muskwe, the seventh chief come from? As the court a quo noted, it remains unclear why, after Kawoko and Chikuwe had
each taken a turn on the throne, the chieftainship did not revert to Munzwere,
the son of Mukonde. Although the court a quo considered that Munzwere may have
predeceased his uncle Chikuwe, as suggested by oral tradition, this was not
backed by any evidence. Moreover it is not
known for a fact why the Mukonde house acceded to the throne as the seventh and
eighth chiefs. The trial court was of
the view that this may have been an attempt to even the number of turns that
each house had had to the throne. Whilst
that is possible, it is by no means backed by any real evidence. At best it remains mere speculation. As submitted by the first respondent, if the
intention was to even the turns, and, considering that Mukonde was the most
senior house, the Mukonde house would have retained the throne after Chikozo so
that, as the most senior house, it would have had the first third turn on the
throne. This did not happen. Instead, Kanemadadu and his son Dyora of the
Kawoko house took the reign one after the other. It may be that Dyora had been acting at the
time colonial settlers come to this country and was made substantive chief in
error. Whilst this is possible, no-one
can say so with certainty.
I now turn to the
role of the guardian spirit. The
position must be accepted as correct that, within the Shona culture, the
guardian spirit can, in its discretion, select both the house and the candidate
to accede to the chieftainship. Indeed
the court a quo accepted this
position. The court stated at page 20 of
its judgment:
“The
spirit medium could in its discretion select and appoint or it would ask the
house to select a candidate and seek its approval. The spirit medium therefore had the crucial
role in the selection process of a chief.
The suggestion that it simply vetted is not borne out by the instruction
given to Samuel Chirimuuta.”
In African Law and Custom in Rhodesia, by B. Goldin and M. Gelfand,
the authors state at p. 48:
“…. The medium (svikiro) becomes possessed and then announces which house is to
have the privilege, and the name of the man who should succeed the dead
chief. But it has happened that a
person, not selected by the svikiro,
becomes chief. Generally speaking, the svikiro, when possessed, has the
prerogative of selecting the person who should succeed to this position.”
Notwithstanding its
finding in this respect, the court a quo
did not relate this to the circumstances of this case, and in particular, the
role that Bvukura played in the selection of a chief in the VaZumba clan. It is common cause Bvukura was the clan's
guardian spirit until it disappeared in or about 1945 after the installation of
Kapita as chief.
Once it is
accepted that Bvukura had a role to play in the selection of chiefs of the
clan, it must follow that for the period estimated by the appellant to be one
hundred and thirty-six (136) years, there must have been a reason why no chief
was appointed from the eldest house, the Mukonde house. The suggestion that for that length of time
Mukonde and the other male issue that followed him predeceased their
counterparts in the other two houses of Kawoko and Chikuwe, though possible,
appears improbable. There must have been
a reason why no candidate was selected from Mukonde. The difficulty is that no-one can say with
certainty why this happened or whether the two turns taken in succession when
Mukonde and Chikoso acceded to the throne as seventh and eighth chief respectively
were intended to even the number of turns that each house had had to the
throne. It is clear, as pointed by the
first respondent in his heads, that the guardian spirit did not give any due
regard to seniority or equality of turns before it ultimately disappeared with
the appointment of Kapita.
It was on a consideration of the
known facts and the probabilities, rather than the credibility of the
witnesses, that the court a quo came
to the view that evenness of turns was not part of the VaZumba clan.
In coming to this conclusion the
court a quo remarked:
“There
was no evidence from the plaintiff to explain why, if evenness was the primary
objective, Mundomera did not take over from Chikoso so that the Mukonde house,
as the most senior of the trilogy, would have the first third turn. It seems to me that the appointment of
Chikoso was meant to even the turns to two apiece for each house and thereafter
succession would and did revert to the house which first succeeded Nyahuma,
that is Kawoko, hence the accession of Kanemadadu. Dyora was clearly an aberration. The effect of that aberration was that the
appointment of all subsequent chiefs followed a hybrid procedure determined by
the pre-independence legal provisions.
That regime shared the tradition of the VaZumba. The pre-independence government functionaries
accepted that the tradition was for collateral succession to devolve around the
houses without regard to the evenness of turns.
This is apparent from the fact that neither after Dyora nor after Kapita
did the Mukonde house ever suggest that the chieftainship should devolve to it.”
The court a quo
further remarked;
“I am
thus satisfied that evenness of turns is not a custom or tradition of the
VaZumba. The Chagaresango case, supra,
demonstrates that an eligible person from one house can be passed over for
chieftainship by death or other suitable ground for disqualification. Once that happens his turn disappears for
good to await the next turn after all other eligible houses and sub houses have
had their turns. I hold that the
equitable distribution of turns between the houses is not part of the VaZumba
principles of succession to chieftainship.”
On the facts of this case, I am
unable to find that the above conclusion is wrong.
The other issues
raised by the appellant have no effect on the finding by the court on the evenness
of turns. Whilst the court made certain adverse
observations on the credibility of the first respondent, it found that,
generally speaking, the appellant's version on the genealogy of the VaZumba was
preferable whilst the first respondent's version on the customs and usages of
the VaZumba was the more plausible. I do
not find anything contradictory in these findings. It is also clear that the court a quo, on the common cause facts, found
that evenness was not a custom of the VaZumba clan. The court went further and found that,
consistent with the traditions of the VaZumba, the Kawoko house had not only
provided the 'doo' in which Chief Bere had been buried, but had also designated
the burial site. The court considered
that these were further indications that the Kawoko house was next in line to
the throne. The provision of the 'doo'
and designation of the burial spot by the Kawoko house was not, on the evidence,
seriously contested by the other two houses.
Further, although much was made of
the presence of “strangers” such as Acting Chief Chirinda, and Headman Magadu,
there is nothing to suggest that their presence changed anything. In any event, it is quite possible, as the
appellant seems to accept, that a person in the position of the second
respondent may want to seek the opinion of persons considered to be experts on
what constitutes the values, customs and traditions of a particular clan. The court a
quo in any event found that the Mukonde house did not object to the
presence of these strangers.
As regards the Nyambudzi subhouse,
whilst the appellant says it is not involved in the deliberations of the three
houses, the first respondent told the court a
quo it was entitled to attend and participate in discussions although members
of that house could not accede to the throne.
The court a quo accepted the
first respondent's claim and found that the conduct of Mukonde, the appellant's
own house, appeared to confirm that the Nyambudzi house could attend, as the
presence of the Nyambudzi family never attracted any objections from the
appellant's house.
Finally, it must
be mentioned that what the appellant sought to impugn are the findings of fact
and credibility made by the court a quo. The approach of the court in matters such as
these is now well settled. I cite three
cases in this respect. The first is Susan Rich v Jack Rich SC 16/01 in which
EBRAHIM JA cited with approval the remarks in Hoffman and Zeffert: The
South African Law of Evidence, 4th ed, at p 489, that:
“There
are no rules of law which define circumstances in which a finding of fact may
be reversed, but as a matter of common sense the appellate court must recognize
that the trial court was in some respects better situated to make such
findings. In particular, the trial court
was able to observe the demeanor of the witnesses, and courts of appeal are
therefore very reluctant to disturb findings which depend upon
credibility. The appeal court has rather
more latitude in criticizing the reasons which the court a quo has given for its decision.
The reasons given for accepting certain evidence may be unsatisfactory,
e.g. they may involve a clear non
sequitur. Alternatively, it may be
plain from the record that the reasons are based upon a false premise, e.g. a
mistake of fact, or that the trial judge has ignored some fact which is clearly
relevant. Errors of this kind are
generally referred to as misdirections of fact.
Where there has been no misdirection of fact by the trial court, the
appeal court will only reverse it when it is convinced that it is wrong.”
The second is Hama vs National Railways of Zimbabwe 1996 (1) ZLR 664 (S). At page 670, KORSAH JA remarked:
“The
general rule of the law as regards irrationality, is that an appellate court
will not interfere with a decision of a trial court based purely on a finding
of fact unless it is satisfied that, having regard to the evidence placed
before the trial court, the finding complained of is so outrageous in its
defiance of logic that no sensible person who had applied his mind to the
question to be decided could have arrived at such a conclusion. …”
The third is Charuma Blasting and Earth Moving Services
(Private) Limited vs (1) Isaac Njainjai (2) Timothy John Walter Pres (3) The
Registrar of Deeds 2000 (2) ZLR 85. At
p 91 D–F, SANDURA JA stated as follows:
“The
circumstances in which this Court can interfere with the exercise of a judicial
discretion were clearly set out by GUBBAY CJ in Barros & Anor v Chimphonda 1999 (1) ZLR 58)(S).
At p 62F-63A,
the learned CHIEF JUSTICE said:
'The
attack upon the determination of the learned judge that there were no special
circumstances for preferring the second purchaser above the first – one which
clearly involved the exercise of a judicial discretion, see Farmers' Co-operative Society (Reg.) v Berry
1912 AD 343 at 350 – may only be interfered with on limited grounds. These grounds are firmly entrenched. It is not enough that the appellate court
considers that if it had been in the position of the primary court, it would
have taken a different course. It must
appear that some error has been made in exercising the discretion. If the primary court acts upon a wrong
principle, if it allows extraneous or irrelevant matters to guide or affect it,
if it mistakes the facts, if it does not take into account some relevant
consideration, then its determination should be reviewed and the appellate
court may exercise its own discretion in substitution, provided always it has
the materials for so doing.'”
Whilst, as indicated elsewhere in
this judgment, I do not agree entirely with all the findings made by the court a quo, I am not persuaded that the court
a quo was wrong in arriving at the
decision that although there may have been an attempt only once to ensure that
the Mukonde house was given the opportunity to have an equal number of turns,
equality of turns is not part of the VaZumba clan. It must be appreciated that the evidence
adduced before the court a quo was
not based on written testimony but rather oral history and tradition. Neither oral history nor tradition lend themselves
to a proper and accurate record of a clan's history. There are instances in the history of the
clan where it is not clear exactly what transpired. The court a
quo was dealing with a case where not all the facts were readily available
or ascertainable. In my view the court a quo did the best it could in these
circumstances and there can be no basis upon which its ultimate conclusion can
be impugned.
In the result the appeal must fail.
The appeal is accordingly dismissed
with costs.
GOWORA JA: I
agree
OMERJEE AJA: [RETIRED]
Madanhi,
Mugadza & Company Attorneys, first appellant's legal
practitioners
Muvingi & Kamudefwere, first
respondent's legal practitioners
