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Daniel Nemukuyu Senior Court Reporter
TEN children born out of wedlock by former Masvingo Mayor Alderman Thomas Zawaira will now benefit from their late father’s estate after the Supreme Court ruled that they must be treated equally to those born in wedlock in terms of customary law.

The 10 are part of the 16 children left behind by the now late Masvingo businessman Mr Thomas Zawaira.
Zawaira died in 2003 and the High Court had allowed only six children, who were born in wedlock, to benefit from their father’s estate.

The 10 had been barred from benefiting from the estate in terms of the general law, which disregards children born out of wedlock.

A High Court judge ruled that the law creates only a presumption that if a person contracted marriage under the Marriage Act (Chapter 5:11), his or her estate is administered under the general law.

The High Court ruled that the only lawful beneficiaries of the estate were children from Zawaira’s union with the late Ms Felistus Zawaira.

The 10 children born out of wedlock to Zawaira, asked the Supreme Court to overturn the lower court’s decision, which bars them from the estate.

Supreme Court judge Justice Ben Hlatshwayo, sitting with the now Chief Justice Luke Malaba and Justice Anne Mary Gowora, heard the appeal by the 10 children and quashed the High Court judgment.

“Accordingly, it is ordered as follows:
1) The appeal succeeds.

2) The judgment of the court a quo is set aside and substituted with the following; ‘The application is hereby dismissed’.

3) The costs of this appeal and the costs of the application in the court a quo below shall be borne by the estate of the late TT Zawaira.”

Chief Justice Malaba and Justice Gowora agreed with the decision. Ms Zawaira and the late Thomas Zawaira were married under the general law (Marriage Act) in 1958 and were blessed with six children, who are now adults.

Zawaira also had 10 children born out of wedlock.

These children wanted the court to give them equal protection before the law in terms of the Constitution, arguing the general law is discriminatory.

The Supreme Court found that it was unfair to treat the children born out of wedlock differently from others for inheritance purposes. The court found that the circumstances of the case called for the application of the customary rather than general law.

“When the case is looked at holistically, the out-of-wedlock children were children whom the deceased, during his lifetime looked upon as being on par with his in-wedlock children, ruled Justice Hlatshwayo.

“They were entitled equally to the use of his surname, acknowledgement by family and support.
“Had the deceased devolved his property through a will, he would have been entitled at law to treat all his children equally.
“The justice of this case supports the conclusion that customary law should apply as amply demonstrated by the nature of the case and the surrounding circumstances when viewed holistically.”

The estate will be referred back to the Master of High Court for fresh distribution, accommodating the 10 children who had been left out.