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Landmark ruling on inheritance

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Landmark ruling on inheritance Justice Mwayera
Justice Mwayera

Justice Mwayera

Daniel Nemukuyu Senior Court Reporter
THE High Court yesterday ruled that children born in and out of wedlock now have the same right to their parents’ estate and property should be shared equally without discrimination.

In a landmark inheritance judgment, Justice Hlekani Mwayera, outlawed the practice of discriminating against children born out of wedlock in inheritance matters, saying it was in violation of the Constitution.

The judge made the ruling in a case in which a Harare widow Ms Elsie Bhila, was trying to bar her late husband’s three children (born out of wedlock) from benefiting from their father’s estate.

Justice Mwayera frowned at the outdated and unconstitutional belief of viewing children born out of wedlock as “bastards”, “devils” and “illegitimate”.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.

“The common law position of excluding children born out of wedlock violated the constitutional rights to protection of the law and freedom from discrimination.

“These rights have always been in the Zimbabwean Constitution, the old Act 1979 and have been more pronounced by the wording in the new Act, the Constitution of Zimbabwe Amendment (No.20) Act 2013.

“A reading of this section (56 (3) of the Constitution) clearly outlaws discrimination on the basis of being born out of wedlock.

“The third to fifth respondents (three children) have a right to equality and non-discrimination,” said Justice Mwayera.

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

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

“The surviving spouse is entitled to the matrimonial house plus goods and effects and in case of a civilly married spouse, he or she is entitled to a share in the joint estate and further share in free residue while descendants, parents, brothers or sisters are also entitled to a share in the free residue . . . ”

Mr Hillary Hoyini Komati Bhila, who was married to Ms Bhila died in 1999.

The estate was registered with the office of the Master of High Court.

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 one in Houghton Park among other properties.

Ms Bhila was awarded the matrimonial home House Number 1247 Mukuvisi Road in Houghton Park and the Borrowdale house together with other property 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 property although it was registered in her late husband’s name.

Ms Bhila argued that the three children born out of wedlock were not entitled to the free residue.

That resulted in the matter spilling into the High Court for determination.

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