The Struggle to Control Dispute Proceedings in Southern Rhodesia, 1930 - 1970, with Special Reference to the Lower Courts"
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"The Struggle to Control Dispute Proceedings in Southern Rhodesia, 1930 - 1970, with special reference to the lower courts" by Randal Carson Smith Dissertation submitted for the Degree of Doctor of Philosophy at the School of Oriental and African Studies. ProQuest Number: 11010621 All rights reserved INFORMATION TO ALL USERS The quality of this reproduction is dependent upon the quality of the copy submitted. In the unlikely event that the author did not send a com plete manuscript and there are missing pages, these will be noted. Also, if material had to be removed, a note will indicate the deletion. uest ProQuest 11010621 Published by ProQuest LLC(2018). Copyright of the Dissertation is held by the Author. All rights reserved. This work is protected against unauthorized copying under Title 17, United States C ode Microform Edition © ProQuest LLC. ProQuest LLC. 789 East Eisenhower Parkway P.O. Box 1346 Ann Arbor, Ml 48106- 1346 2 Abstract This thesis examines the political role of the Native Commissioners' and Chiefs' courts in Southern Rhodesia on two levels: the macro-political level of state hegemony and the micro-political level of district relations. Thus two chapters are devoted to a focus on Sipolilo District, and the remainder of the thesis sets this in the wider national and historical context, examining the implications of the Sipolilo study for the larger setting. The reasons for the initial integration of the "traditional" authorities into the state through the recognition and regulation of existing courts is considered. The means by which this progressed first institutionally and later ideologically is traced through twenty-five years. A further move to integrate the Chiefs occurred in the early 1960s, and the changed circumstances are examined. In both these phases of integration the "traditional" authorities played an active role in staking their claim to control these proceedings. The thesis will examine why both the state and Chiefs were eager to control these proceedings and consider how each made use of the power gained from this control. The role of the lower courts in extending and consolidating the cash economy and producing other norms is considered. The local nature of these courts made them sensitive to local conditions but the appeal court also extended the normative nature of some of the decisions. 3 The regional context of the policy to integrate the Chiefs through the recognition of judicial power is considered by contrasting the relevant pieces of legislation from East, Central, and South Africa. The time period for the dissertation is based on the drafting of the Native Law and Courts Act (1937), the first of its kind in Southern Rhodesia, and the implementation of the African Law and Tribal Courts Act (1969), the last of its kind in the colonial period. 4 Table of Contents Acknowledgement s 7 Abbreviations 9 Introduction 10 Judicial and Political Authority 10 Literature Review 17 Thesis structure 53 Chapter One: "New Directions" 58 Introduction 58 Social Transformation 63 Judicial Authority and Practice 77 The Native Department and the Role of "Chiefs" 93 Conclusion 108 Chapter Two: "The Assertion of Rhodesian Hegemony, 1927 to 1937" 112 Introduction 112 The Native Affairs Act (1927) 114 The Native Councils Act (1937) 118 Extending Judicial Authority 12 0 The Native Law and Courts Act (1937) 12 6 The Legislation 150 The Appeal Structure 167 Courts and the formulation of "customary" law 168 Conclusion 171 Chapter Three: "The Relations between "Traditional" leaders and Native Commissioners" 173 Introduction 173 Displacing the Chiefs 180 Building the Chiefs 197 Rationalising and Consolidating the Chiefly structure 209 Space and Authority 223 New Authorities 228 Conclusion 230 5 Chapter Four: "Sipolilo District" 235 Introduction 235 The District, the land and the people 237 The Economy 247 Credit and Boxes 269 Land and Cattle Distribution 272 A Political history 278 Missions, Religion, Education and Political Activity 289 The Native Land Husbandry Act (1951) and the local response 291 Native Councils and Congress activity 299 Conclusion 302 Chapter Five: "'Money breaks blood ties': From Lineage Debt to Commercial Debt 3 04 Introduction 304 Lineage Debt 312 Disputing and Norms in Sipolilo District 324 A Litigation Explosion and the Management of Debt 327 Scarcity and Disputing 345 Conclusion 347 Chapter Six: "Chiefs, the Rhodesian Order and the emergence of the nationalist challenge: the new context for African courts 350 Introduction 350 New Protagonists, old Alliances 352 The NAD re-considers the value of Native Courts 357 Community Development 3 76 African Law and Tribal Courts Act (1969) 3 83 Conclusion 396 Conclusion 396 Afterword 407 List of Sources 416 6 FiguresMaps and .Illustrations Figure 1. Land Distribution amongst those tilling, 1957 437 Figure 2. Land Distribution amongst those tilling and taxpayers, 1957 438 Figure 3. Distribution of stock, 1956 439 Figure 4. Disaggregate of Cases at Native Commissioner's Court, Sipolilo 440 Map 1. Districts of Southern Rhodesia 441 Map 2. Sipolilo District in Southern Rhodesia 441 Map 3. Sipolilo District and the major lines of communication 442 Illustration l. District Commissioner's Court (Northern Rhodesia), 1929 443 Illustration 2. Chief's Court, 1952 444 Illustration 3. Chief's Court, 1973 445 7 Acknowledgments There are many people to whom I am indebted for their help and support in the completion of this thesis. Their encouragement, stimulation, friendship and love have been integral to the process of producing this thesis. I suspect that many of them are unaware just how much they helped m e . Foremost amongst these are my parents, Joy and Basil, and my sister Tinie to whom the study is dedicated. I must thank them all for their generous support and Tinie especially for taking care of my financial affairs in Canada. Betty Kalmanasch has also given me support. In England John and Isobel always offered a safety net, while Jim, Karen and Ab put up with typing and printing into late hours of the night. Again, special thanks to Jim who looked after my financial affairs while I was in Zimbabwe. Considering that this was in the time of the Poll Tax, this was not always an easy task! To Michael Anderson I owe a very great debt. Not only did he tutor me in legal studies, but has always been quick to offer personal support when I had difficulties. Hilary owes a special mention. Without her, I doubt this thesis would have got very far. Her encouragement got me over some of the most difficult obstacles. I only wish she could have shared some of the Zimbabwean splendours with me. I sincerely hope she will experience them some day. Two people in particular have offered me that special blend of friendship and intellectual encouragement that I hope I have been able to repay. They are Tim Scarnecchia, whom I met while we were both researching our theses in Harare, and Andrea Hintze in London. Jocelyn, David and Diana read and commented on parts of the thesis. Any scholar will know that such comments are crucial. But I must thank them most for making me believe that this work is of some relevance. The two people who worked as research assistants with me in Guruve, Actor Tapfumaneyi and Colleen Karambwe, must be credited with more than providing me with valuable insights into rural Shona culture. I will always remember the discussions we had while walking the many miles from one interview to the next. 8 Several others in Zimbabwe, including Ian & Irene Redman, Stuart & Val, and Craig Hughes welcomed me into their homes. The maps were produced by Andre Boucher and Jim Rowe based on sources cited with the maps themselves. My supervisor, Andrew Roberts, I would like to thank for his dedicated supervision, his support which allowed me to pursue my interests and all that he has taught me about how to approach such a piece of work. I can only agree with one of his former research students who noted his professional approach with appreciation. Financially, I owe the possibility of travelling to and working in Zimbabwe to the generous support I received from the Irwin Fund of the University of London's Central Research Fund and a Travel Grant awarded to me by the Registry of the School of Oriental and African Studies. Despite all the welcomed support and valued criticisms I have received from friends and colleagues, I am sure many shortcomings will be found in this work. Of course, I acknowledge them as entirely my responsibility and only hope that they don't taint those who have tried to help me see the error of my ways. Abbreviations ALTC - African Law and Tribal Courts Act (1969) AR - Annual Report CC - Civil Case CNC - Chief Native Commissioner CR - Civil Record JSAS - Journal of Southern African Studies MIA - Ministry of Internal Affairs NAD - Native Affairs Department NAPA - Native Affairs Department Annual NAZ - National Archives of Zimbabwe NC - Native Commissioner ND - Native Department NDP - National Democratic Party NLCA - Native Law and Courts Act (1937) NLHA - Native Land Husbandry Act (1951) NM - Native Messenger PNC - Provincial Native Commissioner RAA - Rhodesian African Association RLI - Rhodes-Livingstone Institute SRANC - Southern Rhodesia African National Congre SN - Superintendent of Natives ZANLA - Zimbabwe African National Liberation Army ZANU - Zimbabwe African National Union ZAPU - Zimbabwe African People's Union ZIPRA - Zimbabwe People's Revolutionary Army Introduction Judicial and Political Authority It is only in the last thirty years that historians of Southern Rhodesia and Zimbabwe have considered chiefs to be lackeys of the government. This interpretation of official and semi-official sources has been misleading. To some extent it has been naive, over-reliant on "chiefs" as passive and exploitable characters. While it is true that the Southern Rhodesian government played a large role in the construction of the office of "chief", bolstering and creating a great deal of "tradition" to accompany the "chief", these men (no chieftainesses were recognised by the government) played important roles and many were indeed perceived as crucial allies at key moments in Southern Rhodesian history.