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Justice Mwayera

Daniel Nemukuyu Senior Court Reporter
A High Court ruling that children born in and out of wedlock are equal in the sharing of their parents’ estate is being challenged at the Supreme Court.

The landmark ruling was handed down by the High Court in a dispute over the sharing of Mr Hillary Hoyini Komati Bhila’s property.

He died in 1999.

Justice Hlekani Mwayera ruled that children born in and out of wedlock now had the same right to their parents’ estate.

He said property should be shared equally. The judge outlawed the practice of discriminating against children born out of wedlock in inheritance matters, saying that was a violation of the Constitution. The surviving spouse, Ms Elsie Bhila, wanted to bar her late husband’s three children (born out of wedlock) from benefiting from their father’s estate.

The widow, through her lawyers, Mambosasa Legal Practice, has filed an application for permission to file her notice of appeal at the Supreme Court outside the stipulated timeframe.

She pleaded with the court for her appeal to be accepted saying the delay was due to challenges in raising money for the appeal and the legal fees.

Ms Bhila argues that her rights as the surviving spouse are being violated by the judgment because she personally contributed a lot to the acquisition of the property.

She argues that it would be a violation of her property rights to allow her late husband’s children from outside to benefit from the estate on a 50-50 basis with her own children.

“The learned judge in the court a quo erred in fact by failing to recognise the appellant’s property rights as asserted in terms of Section 71 of the Constitution of Zimbabwe.

“The appellant contributed substantively to the matrimonial estate . . .”

Ms Bhila said the court also erred by concluding that a Houghton Park house was the matrimonial home when facts before her showed that the most valuable property, being a Borrowdale immovable asset, was in fact the matrimonial home.

“Further, the court a quo deemed the appellant’s property rights as inferior to the children born out of wedlock by deeming that the most valuable property in Borrowdale should fall into the free residue of estate, excluding the appellant who contributed immensely to its purchase and upkeep,” reads the court papers.

Ms Bhila argues that the Borrowdale house was jointly acquired by the couple but was registered in the name of Mr Bhila because that time women lacked legal capacity to own properties.

In the contested judgment, Justice Mwayera frowned at the outdated and unconstitutional view that children born out of wedlock were “bastards”, “devils” and “illegitimate”.

Harare lawyer Mr Caleb Mucheche of Matsikidze and Mucheche Legal Practitioners, represented the three children in the matter, while Mambosasa Legal Practice acted for Ms Bhila.

Justice Mwayera’s judgment was based on Section 56 (3) of the Constitution of Zimbabwe which reads: “Every person has the right not to be treated in an unfairly discriminatory manner on such grounds as their nationality, colour, tribe, place of birth, ethnic or social origin, language, class, religious belief, political affiliation, opinion, custom, culture, sex, gender, marital status, age, pregnancy, disability, or economic or social status or whether they were born in or out of wedlock.”

The judge said the common law position of excluding children born out of wedlock in inheritance matters was discriminatory and in breach of the Constitution.

However, the judge said the surviving spouse was entitled to inheriting the matrimonial home that the couple used to stay in at the time of death.

The other properties, according to the judge, fall under the free residue of the estate that should be shared among all the beneficiaries.

Ms Bhila, being the surviving spouse, was appointed executor but an independent executor later replaced her upon discovery of the existence of the three other children.

The estate had two houses, one in Borrowdale and the other in Houghton Park, among other properties.

Ms Bhila was awarded the matrimonial home, House NO. 1247 Mukuvisi Road in Houghton Park. The Borrowdale house, together with other properties, were treated as free residue to be shared among the other beneficiaries.

Irked by the decision, Ms Bhila approached the High Court arguing that she worked hard to acquire all the properties although they were registered in her late husband’s name.