Cosmas Kadzima and Kizito Kadzima v Joseph Magaso and Others

The plaintiffs, members of the Hata (Wanyama) clan, challenged the appointment of the first defendant as Chief Hata on 26 April 2006. They alleged the appointment violated the prevailing customary principles of succession. According to the plaintiffs, only three houses descended from Chief Kadzima (Zviseko, Hakunemutsa, and Makoko) were eligible for the Hata chieftainship, and the first defendant belonged to the ineligible Magaso house. The plaintiffs contended that Magaso was an illegitimate son of Samuwozi (mubvandiripo), making his descendants ineligible. They further alleged the District Administrator used an improper voting system (7 houses to 3) at a meeting on 27 January 2005, contrary to customary principles requiring consensus and spirit medium approval. The first defendant claimed all houses on the family tree were eligible through rotation, that Magaso was Samuwozi's legitimate son, and his appointment followed proper custom. Documentary evidence from 1967-1997 showed that only certain houses (never including Magaso) were historically recognized as eligible, and all chiefs from 1966-2001 traced lineage to Kadzima.

• What are the prevailing customary principles of succession of the Hata (Wanyama) chieftainship?
• Which families/houses are eligible for the Hata chieftainship?
• Whether the first defendant is a descendant of Samuwozi Hata and entitled to the chieftainship
• Whether the District Administrator gave due consideration to the prevailing customary principles of succession in recommending the first defendant's appointment
• Whether a voting system is consistent with the Hata customary principles of succession
• Whether the appointment process complied with section 3 of the Traditional Leaders Act [Cap 29:17]

1. It is declared that the customary principles of succession of the Hata (Wanyama) chieftainship were not given due consideration in the appointment of the first defendant as substantive Chief Hata. 2. The second and third defendants shall forthwith make a recommendation to the President of the Republic of Zimbabwe for the removal of the first defendant from the chieftainship of the Hata (Wanyama) clan. 3. The first, second and third defendants shall pay costs of suit jointly and severally, the one paying the other(s) absolved.

In appointing a chief under section 3 of the Traditional Leaders Act [Cap 29:17], the President (through his advising officials) must give "due consideration" to the prevailing customary principles of succession, which means "proper consideration." Due consideration requires that officials: (1) investigate and understand the specific community's established customary principles through documentary evidence and credible witnesses; (2) examine historical records showing which houses have been recognized as eligible; (3) inquire into reasons why certain houses may have been excluded from succession; (4) not substitute alien systems (such as majority voting) for the community's established consensus-based processes; and (5) not rely solely on family trees showing all descendants when eligibility is limited to specific houses by custom. A family tree showing descendants of a founding chief is not determinative of eligibility for chieftainship - it must be distinguished from the actual eligible houses as established by customary practice and historical precedent. Where 30 years of documented evidence consistently excludes a particular house from eligibility, and all appointed chiefs trace lineage to specific houses, officials cannot disregard such evidence without proper investigation and justification.

The court noted uncertainty about whether certain traditional practices such as the ineligibility of twins or persons with long navels remain applicable requirements, observing that "traditional customs evolve with time." The court also commented that it was not conducting an inquiry under section 31K of the Constitution, but rather examining whether the Minister and officials "in formulating their advice to the President acted on sound principle," following the precedent in Chagaresango v Chagaresango 2000 (1) ZLR 99 (S). Mawadze J observed that the District Administrator's production of two materially different sets of minutes for the same meeting was highly problematic and that some participants were misrepresented in the official version. The court made observations about the credibility of various witnesses, noting that the first defendant "totally discredited himself" and was "a very poor and incredible witness," while the plaintiffs' witnesses, particularly Cosmas Kadzima, gave evidence "with evident passion" and demonstrated "very sound knowledge" gained from serving as chief's aide for 10 years and acting chief for two years.

This case is significant in Zimbabwean customary law as it affirms the requirement under section 3(2)(a)(i) of the Traditional Leaders Act that "due consideration" must be given to prevailing customary principles of succession in appointing chiefs. The court clarified that administrative officials cannot ignore documented historical records and established customary practices in favor of majority voting systems alien to the particular community's customs. The judgment emphasizes that family trees showing all descendants of a founding chief do not automatically confer eligibility for chieftainship on all listed houses - eligibility must be determined by the specific community's customary principles and historical practice. The case demonstrates the court's willingness to scrutinize whether officials properly formulated their advice to the President, even where the President's final decision is constitutionally protected. It reinforces that customary principles of succession must be based on evidence, including documented historical practices, witness testimony from knowledgeable community members, and consistency with recorded precedents. The case also illustrates the importance of traditional elements such as spirit medium approval, sacred burial places (chitsanza), traditional regalia, and lineage legitimacy in determining chiefly succession.