Fungai Mushonga, the Headman for Tamunesa village in Nyanga District
in Manicaland province, in January 2022, took the unprecedented and
odd decision in which he ordered 76 year-old Peter Makunura to pay
four goats, two chickens and US$20 after faulting him for allowing his
15 year-old grandson, who had visited him, to wear a red cap during
the rainy season, a practice which is outlawed in the village.
Makunura was also charged for undermining authority of the Headman by
not presenting himself at a primary court session, where he was
supposed to answer to the frivolous charges.
An aggrieved Makunura then engaged Kelvin Kabaya and Peggy Tavagadza
of Zimbabwe Lawyers for Human Rights, who filed an application for
review of the proceedings presided over by Mushonga at Nyanga
Magistrates and seeking to set aside the absurd decision of the
primary court.
In the application, Kabaya and Tavagadza argued that Mushonga’s
decision to summon a minor child to appear in court without his
guardian and to permit the Messenger of Court to attach and take into
execution Makunura’s property, when he was never a party to the
proceedings and was never summoned to appear in the primary court, was
grossly irregular as to amount to an illegality.
The human rights lawyers also contended that the decision by Mushonga
to enter a judgment in default in circumstances involving a minor
child was grossly irregular as to induce a sense of shock and
revulsion.
Kabaya and Tavagadza asked the court to set aside Mushonga’s judgment
and that he be ordered to pay back the four goats, two chickens and
US$20 to Makunura.
In his defence, Mushonga, who opposed the application, argued that it
is taboo in his jurisdiction for his subjects to “wear red clothing
during the rainy season” and that he could not ascertain the age of
Makunura’s grandson for him to realise that he was a minor.
Now, Makunura is a relieved man after Nyanga Magistrate Notebulgar
Muchineripi recently set aside Mushonga’s judgment and ordered him to
return four live goats and two live chickens to Makunura within seven
days.
In his judgment, Magistrate Muchineripi faulted Mushonga for gross
irregularity when he granted a default judgment against Makunura
because the Customary Law and Local Courts Act does not allow him to
do so. In addition, Magistrate Muchineripi ruled that Mushonga’s
decision to summon a minor to appear in court without the assistance
of an adult such as a parent or guardian was grossly irregular.
Post published in: Featured
