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The nullification followed a court application by brothers Cosmas and Joseph Kadzima, who argued that Mr Magaso was not in the lineage that was entitled to assume the chieftainship as required by their tradition.
The brothers, who were represented by Mr Joseph Mandizha of Mandizha and Company, cited Mr Magaso, Nyanga District Administrator, Mr Noel Mundeta, Local Government, Rural and Urban Development
Minister Ignatius Chombo and the President of Zimbabwe as respondents in a fully contested civil trial.
In his ruling, Justice Mawadze said the DA and the minister misdirected themselves and failed to properly advise the President when they recommended for the appointment of Mr Magaso as Chief Hata.
The court ruled that the DA, who convened a meeting to select the new chief at Sedze Business Centre on January 27 2005, failed to apply himself well and deal with issues that were raised.
The court also noted that the DA failed to give due regard to records in his office, some of which were obvious.
These include the fact that Mr Magaso’s family had never assumed the chieftainship and why the Kadzima family had in three successive times assumed the chieftainship.
Under cross examination, the DA said he was of the view that all the houses in the family tree were eligible to the chieftainship.
“I find this to be surprising especially coming from the DA when all witnesses inclusive of the first respondent (Mr Magaso) agree that not all the houses on the family tree are eligible to the Hata chieftainship,” said the judge in a 37-page judgment.
The DA had told the court that in settling for Mr Magaso he had taken into account the inconclusive 2004 meeting convened by his predecessor, the Sedze meeting, government circulars, and available records in his office and the enabling Act.
“Indeed I agree that these would be useful reference points to be used by the DA to arrive at an informed decision. The issue which then arises is whether he indeed walked the talk, that is made reference to all these sources,” said Justice Mawadze.
From the evidence adduced in court it was clear that the DA did not take on board the prevailing principles of succession custom.
“He failed to seek explanations and answers on obvious issues like why the Magaso house had never assumed chieftainship and why as per records it was never listed as eligible to the chieftainship,” said the judge.
“In fact the DA admits to have disregarded useful information available in his office. In my view he virtually admitted that he did not do a good and sound job.”
The DA should have used the meeting to establish claims by the Kadzimas, that Magaso house was not entitled to the chieftainship because their grandfather was an illegitimate son of Samuwazi Hata, the father of all the houses claiming the chieftainship.
The court ordered the DA and Minister Chombo to make recommendations forthwith to the President for the removal of Mr Magaso from the chieftainship. In their arguments, the Kadzimas had submitted that the Magaso house was not entitled to the chieftainship since their grandfather was an illegitimate son (mubvandiripo) of Samuwazi Hata as they claim that the mother had come to be married while already pregnant.
They submitted that the chieftainship should be rotated among those children born to Chief Kadzima’s three official wives as he was enthroned by his father in the 18th century owing to his bravery while his other brothers were entitled to headmanship.
In response, Mr Magaso argued that all the 12 families shown on the family tree kept at the DA’s office were eligible to ascend the Hata chieftaincy and that it was incorrect that only those who trace their lineage to Kadzima are entitled.
He submitted that at the Sedze meeting, seven houses had voted him to take over while three wanted the Kadzimas.
Mr Tinei Dodo from the Attorney-General’s Office, representing the President, the minister and DA submitted in their joint plea that they had complied with the relevant provisions of the Traditional Leaders Act and traditions of the Hata people.
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