Magistrate Outlaws Custom Which Prohibits Wearing Red During Rainy Season1 year ago
A Nyanga Magistrate, Notebulgar Muchineripi, has outlawed a custom which bans the wearing of red colours during the rainy season. This followed an appeal by Nyanga villager Peter Makunura, who lost his livestock and US$20 to Fungai Mushonga, the headman of Tamunesa village.
Makunura was fined four goats, two chickens and US$20 after his grandson was seen wearing a red cap while it was raining. The incident took place in January this year. Makunura was also charged with undermining the authority of the headman by not presenting himself at a primary court session, where he was supposed to answer the charges.
He then engaged Kelvin Kabaya and Peggy Tavagadza of Zimbabwe Lawyers for Human Rights (ZLHR), who filed an application for review of the proceedings presided over by Mushonga at Nyanga Magistrates Courts and sought to set aside the decision of the primary court. Pindula News presents the case update issued by the ZLHR:
ZIM COURT ENDS SEPTUAGENARIAN’S AGONY OVER BIZARRE TRADITIONAL CUSTOM
A NYANGA Magistrate has ended the agony of a 76-year-old man by outlawing the imposition of a penalty imposed by a traditional leader for allegedly violating a bizarre custom banning the wearing of red colours during the rainy season.
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.
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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.