15 October 2012

Zimbabwe: Two Masvingo Chiefs Take Econet to Court

Two Masvingo chiefs have taken Econet Wireless to court for allegedly defiling a traditional shrine by exhuming human remains and destroying relics while installing a base station at a local hill. Chief Murinye (Ephias Munodawafa) and acting Chief Mugabe (Matubede Mudavanhu) said in their urgent chamber application that Econet workers scattered the human remains after excavating tombs.

They want construction of the base station stopped forthwith.

They filed the urgent application before Justice Joseph Musakwa on Friday who reserved judgment on the preliminary arguments raised by lawyers representing both parties.

The chiefs pleaded with the courts to issue the urgent interdict, saying Sviba Hills where Econet was installing the base station was a burial site and a place of ancestral worship for the Duma people.

They argued that the traditional customary rights preserved at Sviba Hills had become exposed to desecration as a result of Econet's construction activities.

"Without regard for the authority of the traditional leaderships and contrary to the construction industry's best practice and ethics, Respondent (Econet) in 2011 intentionally destroyed parts of the sacred site, excavating tombs, scattering human remains, destroying relics and artifacts," said Chief Murinye in his founding affidavit.

"I am also advised that at general law, as at customary law, it is an offence to violate a grave. The construction that Respondent is carrying out is in violation of a burial site."

Chief Murinye said Econet's actions were a violation of the rights of the Murinye and Mugabe people and the entire clan of the Duma.

"Construction ought to be stopped to protect our customary rights and to prevent further desecration of the sacred site," he said.

"It is extremely urgent that the exposed human remains should be properly buried by second applicant (acting Chief Mugabe) and myself, the descendants of the people who are buried at Sviba."

Acting Chief Mugabe concurred with the arguments raised by Chief Murinye.

The two chiefs were represented by Mr Lispen Zinyengere of Mutumbwa and Mugabe partners who said the matter should be treated as urgent.

The case sucked in National Museums and Monuments of Zimbabwe executive director Dr Godfrey Mahachi who instructed Econet to rehabilitate the vandalised shrine.

This was after NMMZ carried out a cultural heritage impact assessment study which confirmed the cultural and spiritual importance of the Sviba Hills, including its significance to the community under Chief Murinye.

"The said recommendations as submitted in our report were discussed with the community leadership and I am advised that there is concurrence on the matter," said Dr Mahachi.

"However, we find it difficult to comment on Mambo Murinye's letter dated 22 November 2011 and copied to yourselves that requests Econet to build the chief's homestead."

Dr Mahachi's letter to Econet was attached to the court papers.

Econet's lawyers Mtetwa and Nyambirai argued that the matter should not be treated as urgent because the chiefs knew since July 2010 that the company was granted permission by the Masvingo Rural District Council to put up the base station on the site, but did not take any action to stop construction. But they concurred that Econet's activities at Sviba Hills resulted in human remains being exposed.

"Excavation work started in 2011 and continued till November 2011 when it stopped after human remains in question were exposed as the Respondent's constructors were picking stones for use during construction," the lawyers said.

"The exposure of the remains is quite unfortunate. It was never foreseen nor intended. I repeat that Respondent did not know that when it commenced work that the hill was sacred.

"It had no reason to believe that it was sacred as it was never advised so. Respondent does not accept that it is guilty of any offence."

The lawyers said the chiefs would not suffer irreparable harm if the remedy they sought was not granted.

They implored the court to grant an order for construction work to continue, arguing that the chiefs had not shown any regard or care for the exposed remains.

Econet attached a lease agreement it entered into with the Masvingo Rural District Council to establish the base station at the hill. The company also attached a letter written to Chief Murinye last year asking for permission to resume work at the site and undertaking to restore the vandalised graves.

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