The Sunday Mail
Slyvia Chirawu
Justice Mwayera ruled that children born outside wedlock were entitled to inheritance
Audrey Pundo married Charles Pundo amid pomp and fanfare in 2001. They both took vows witnessed by hundreds of friends and relatives.
The priest extolled the virtues of fidelity, love and good communication among others.
Audrey could not help, but cry when the priest pronounced her Charles as husband and wife.
In 2013, Charles was involved in an accident travelling from Mutare and died on the spot. At the funeral, Charles’ sister and brother asked to see Audrey in private to discuss something.
For the first time Audrey learnt that Charles had another woman whom he had paid lobola for. Not only that, there were children as well.
Audrey was shown the twin boys.
If resemblance was anything to go by, there was no denying that Charles was the father because they looked exactly like him. Audrey also learnt that Charles died whilst coming from Mutare where the twins and their mother stayed.
She also learnt that relatives of the other “wife” were present at the funeral.
Audrey’s grief turned to anger and disbelief. Charles had vowed to be monogamous, to love Audrey only.
They had three lovely children. They had acquired their wealth from scratch. Now Charles was dead and it was unfair that he would never answer all her unanswered questions.
The rest of the funeral passed with Audrey in a daze. Over a decade of good memories was wiped away.
What irked her most was that Charles’ relatives knew, but they did not say anything to her until he died.
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Chido Musasa learnt of her late husband’s other family at the Master’s Office where she, her two children and relatives had gathered to appoint an executor for her late husband’s estate.
As the edict meeting was about to start, in came Chido’s brother-in-law whom she did not get along well with, accompanied by four children.
When the Master inquired who was present, the four children said they were the children of Peter Musasa, Chido’s late husband. They even had birth certificates indicating Peter as their father.
Chido collapsed and was hospitalised. She, too, was married to Peter under Chapter 5:11, the monogamous marriage.
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Daisy Mapiye learnt that her late husband, Gadzirai Mapiye, had a daughter with another woman. That daughter was almost the same age as her daughter Dadirai.
Gadzirai had enrolled Dadirai and the other daughter at the same mission school for Form One. She, too, was married to Gadzirai under Chapter 5:11.
When Daisy confronted Gadzirai, she was told that, “these things were common” and that if she did not want to accept the situation, she was, “free to go back to her people”.
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Vincent, Martha and Benjamin grew up believing that their grandfather was their father. They used their mother’s surname.
They later learnt that despite the fact that their father wanted to have a relationship with them, his Chapter 5:11 wife would hear none of it.
She was an elder in the church and she did not want to explain to church-goers who these children were.
When their father passed on, word was sent by their step-mother that they should not dare come to the funeral because she would have them arrested.
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The scenarios above are real and there are many more that show the difficult relationship that exists between step-mothers and step-children.
And yet, in the writer’s view, they are all victims of a man who, on one hand marries under a marital framework that expects him to be monogamous, but on the other hand, the monogamy exists only on paper.
The animosity that exists boils over when the man passes away.
The writer was, therefore, not surprised when the recent High Court judgment in the case of Bhila v The Master of High Court and Four Others raised different emotions.
In summary, the facts of the case are: The late Bhila was married under Chapter 5:11 and had four children with his wife. At the time of his death, they were staying in Houghton Park, but also had another house in Borrowdale. The wife registered the estate with the office of the Master of the High Court as required by law.
Upon advertising the estate as required by law, she got to know of the existence of three other children born to the late Bhila with other women.
The Master appointed a neutral executor to wind up the estate. In the distribution plan, the Houghton Park house was awarded to the wife as the surviving spouse. The Borrowdale house was treated as free residue and would, therefore, be shared by the wife and all the children including the ones born outside wedlock.
The wife objected.
The Master of the High Court ordered the distribution plan to be advertised. The wife then approached the High Court seeking to have the Master’s direction set aside.
One of the issues that the High Court was called upon to determine was whether or not children born out of wedlock under general law can inherit from their late father who dies without having written a will.
In that case, High Court judge Justice Hlekani Mwayera ruled that children born outside wedlock under general law were entitled to inherit from their late father.
The common law position is that such children cannot inherit from their father as confirmed in previous High Court decisions.
The High Court held that the common law position violated the new Constitution, especially the provision on non-discrimination of children on the basis that they are born in or outside wedlock and also on the basis of the best interests of the child.
From a legal perspective and also when compared to other jurisdictions such as South Africa, the judgment cannot be faulted insofar as it upholds the rights of children born outside wedlock.
It is legally sound.
The days of calling children born out of wedlock, “bastards”, “illegitimate”, “mubvandiripo” or “mwana wemusango” are over.
As rightly pointed out in the ruling, the Convention on the Rights of the Child, to which Zimbabwe is signatory, clearly calls for protection of the rights of the child and upholding of the best interests of the child principle.
From a social perspective, the judgment has raised and will continue to raise emotions depending on which side of the fence one is sitting.
To children’s rights activists, the judgment signals victory for the rights of the child.
To women’s rights activists, the judgment may infringe on gender equality as it fails to take into account the fact that the mothers of the children born out of wedlock never contributed to acquiring of the wealth that their children now seek to benefit from.
If anything, the surviving wife toiled with her late husband to acquire wealth and she now has to share with children born out of wedlock.
One of my acquaintances sent me a telling message: “This ruling is a complete loss and setback for the woman who is the breadwinner and has contributed or bought a large part of the family wealth. It’s a patriarchal position that assumes that the wealth belongs to the children’s father.
“The question of whose money, whose sweat are they inheriting must be brought into discussion. Are girlfriends and small houses going to target wealthy men, forge birth certificates and appear at funerals to inherit. This is a sad day chaiyo”.
In the Bhila case, the wife could only inherit the Houghton Park house as her own due to the fact that the operative law specifies that a surviving spouse can only inherit the house or other domestic premises in which the surviving spouse, as the case maybe, lived immediately before death.
It was perhaps unfair that the wife would get the house of lesser value. These are some of the issues that need to be addressed during the alignment of laws.
When all is said and done, it is important that society realises that the law cannot be a panacea to all social issues. Both the step-mothers and step-children are often victims of situations that they did not create.
Whilst surviving spouses have rights, children born out of wedlock have rights too. Finding a balance between those rights is tricky but not impossible.
Slyvia Chirawu is a lawyer, academic and gender and women’s rights activist. She writes in her personal capacity. Please note, names used here are not real.
