MWAYERA J: This is an application to set aside
the first respondent's (the Master of High Court) direction wherein the Master
allowed the third to fifth respondents to inherit from the estate of late
Hoyini Hilary Komati Bhila. The bone of contention being that the third
to fifth respondents were born out of wedlock.
The brief background of the matter is that the
applicant was married civilly to the late Hillary Hoyini Komati Bhila.
The marriage was blessed with four children. In 1999 the applicant's
husband Hillary Hoyini Komati Bhila passed on prompting the registration of the
deceased estate. The applicant as surviving spouse was appointed the
executrix of the estate. At the time of the death of her husband the
applicant and her late husband were staying at 1247 Ardbennie Township also
known as 1247 Mukuvisi Road Hougton Park. Upon processing the estate the
applicant who had advertised the estate got to know that her late husband had 3
children born out of wedlock, that is third-fifth respondents. The 3 children
or their guardians then sought to inherit from their late father's
estate. It was then that the first respondent appointed a neutral
executor, the second respondent. The second respondent subsequently
prepared a distribution plan wherein the Houghton Park property was treated as
matrimonial property and awarded to the applicant as the surviving spouse.
The rest of the property which included a
Borrowdale house was then treated as free residue of the estate. Irked by
this distribution plan the applicant raised an objection with the first
respondent. The first respondent directed that the distribution plan as given
by the second respondent be advertised. It is these directions by the Master
(first respondent) which the applicant wishes set aside.
The applicant argued all the property is under
the umbrella of matrimonial estate and that during the subsistence of the
marriage she was gainfully employed and contributed to the estate even though
the properties were not registered in her name given the prevailing legal
situation then, prior to the legal age of majority which emancipated women to
own property. She further argued that the third-fifth respondents are precluded
from inheriting abintestato because they are children born out of
wedlock.
In summary issues which fall for determination in
circumstances of this case can be outlined as follows:
1. Whether
or not children born out of wedlock can inherit abintestato from the
estate of their father.
2. Whether
or not the Borrowdale house falls within the free residue of the estate of the
late Hillary Hoyini Komati Bhila.
3. Whether
or not the first respondent's directions should be set aside.
It is not in dispute that the deceased died intestate.
The legislative in roads on administration of estates cannot be ignored in
dealing with the present application. The legal position which is fairly
settled on inheritance will be of guidance and equally the supreme law of the
country the Constitution of Zimbabwe Amendment 20 Act 2013, international
provisions and case law will be of assistance in determination of issues at
hand.
Section 3A of the Deceased Estate Succession Act
[Chapter 6:02] deals with inheritance of matrimonial home and
household effects:
“The surviving spouse of very person who, on or
after the first November 1997, dies wholly or partly intestate shall be
entitled to receive from the free residue of the estate-
a. The
house or other domestic premises in which the spouses or the surviving spouse,
as the case maybe, lived immediately before the person's death; and
b. The
house hold goods and effects which immediately before the person's death,
were used in relation to the house on domestic premises referred to in
paragraph (a) where such house premises goods and effects form part of the
deceased person' estate”.
The applicant as surviving spouse was, in
compliance with the Deceased Estate Succession Act given as entitled to the
matrimonial home goods and effects in Houghton Park where she and her husband
were staying at the time of his death.
The remaining estate falls in the basket of free
residue to be determined again in terms of the law.
Section 3 of the Act clearly spells out
entitlement of a spouse of a deceased who dies intestate. The section in
specifying the entitlement of a surviving spouse also outlines entitlement of
descendants and parents, brother or sister. The use of the word
descendant together with parent, brother or sister in the relevant statutory
provision cannot be given a blind eye. The argument by the applicant that
a descendant is not defined therein is simply to distort the legislative
intention. The question that begs of answer with that line of argument is
why the applicant seeks to confine the argument of definition to descendent
only and not extend it to parent, brother and or sister, for they are equally
not defined in the Act.
A descendant is defined in the Oxford
Dictionary Thesaurus and Word Power Guide Indian Edition as “child, heir,
scion, successor, family issue, offspring posterity, and progeny”.
A descendant by no means excludes a child by
virtue of status of marriage. It is my considered view that a child
whether born out or in wedlock is one's child and thus descendent.
In outlining the entitlement of a spouse and
specifically mentioning the situation which will prevail where there is no
descendent the legislature clearly recognised entitlement of both surviving
spouse and descendants. Section 3 reads:
“Subject to section four, the surviving spouse of
every person who, on or after 1st April, 1977 dies either wholly or
partly intestate is hereby declared to be an intestate heir of the deceased's
estate according to the following rules
a. If
the spouses were married in community of property and if the deceased spouse
leaves any descendant who is entitled to succeed abintestato, the
surviving spouse shall-
i.
be entitled to receive from the free residue of
the joint estate, as his or her sole property, the household goods and
effects in such estate:
ii.
succeed in respect of the remaining free residue
of the deceased spouse's share of the joint estate to the extent of a child's
share or to so much as, together with the surviving spouse's share in the joint
estate, does not exceed the specified amount which ever is the greater:
b. If
the spouses where married out of community of property and the deceased's
spouse leaves any descendant who is entitled to succeed abintestato, the
surviving spouse of such person shall-
i.
be entitled to received from the free residue of
the deceased spouse's estate, as his or her sole property the household goods
and effects and such estate;
ii.
succeed in respect of the remaining free residue
of the deceased spouse's estate to the extent of a child's share or to so much
as does not exceed the specified amount which ever of greater:
c. If
the spouses were married in or out of community of property and the deceased
spouse leaved no descendant who is entitled to succeed abintestato but
leaves a parent or brother or sister, whether of the full or half blood, who is
entitled to succeed the surviving spouse shall-
i.
Be entitled to receive from free residue of the
joint estate or the deceased spouses estate, as the case may be, as his or her
sole property, the household goods and effects in such estate:
ii.
Succeed in respect of the remaining free residues
of the deceased spouse's share of the joint estate or the deceased spouse's
estate, as the case may be, to the extent of a half share or to so much as does
not exceed the specified amount whichever is greater
d. In
any case not covered by paragraph (a), (b) or (c), the surviving spouse shall
be the sole intestate heir.”
A reading of these provisions clearly map
way for sharing of property in situations where there are surviving spouse,
descendants, parents, brother and or sister.
There is no insinuation in the legislative
provisions that reveals where the deceased dies living descendants they ought
to be excluded from inheriting a share of the free residue on basis of being
illegitimate.
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.
I propose to revisit the constitutional
provisions after a brief discussion of the Deceased Estate Succession Act [Chapter
6:02]. Section 10 is to the effect that nothing in Part (III) shall
affect or alter the laws of Zimbabwe regarding inheritance abintestato.
The question is what is the law as regards
inheritance abintestato. The Constitution is the supreme law of
the country s 2 thereof reads:
“ (1) This Constitution is the supreme law of
Zimbabwe and any law, practices custom or conduct inconsistent with it is
invalid to the extent of the inconsistency.
1. The
obligations imposed by this constitution are binding on every person, natural
or juristic including the state and all excutive, legislative and judicial
institutions and agencies of government at every level and must be fulfilled by
them.”
The Master is duty bound to apply the law as
espoused by the law giver. In the present case the Master, the first
respondent accepted registration of the late estate Hillary HoyiniKomaniBhila
who during his lifetime was married in monogamous type of marriage to the
applicant. The first respondent appointed the applicant as an
executor. Upon being given information which is not in dispute that the
applicant's late husband had sired three children (third to fifth respondent)
out of wedlock the first respondent procedurally appointed a neutral executor
dative the second respondent. The second respondent in the process of
distribution plan attainment included the three respondents. The estate
has not been wound up given the common cause facts. There is no basis for
arguing that the constitution is not applicable as this is viewed by the
applicant as retrospective application of the law. The constitution of Zimbabwe
has always been the supreme law and applicable further in this case the estate
has not been wound up. The Provisions of the constitution had immediate
application as law on the date the constitution became law.
The first respondent's directions do not only conform with the Deceased Estate
Succession Act in so far as it provides for descendants but his directions also
resonate with the constitution in so far as the law should not discriminate. I
find solace in the remarks expressed in the case of Smyth v Ushewokunze
and Anor 1997 (2) ZLR 544 wherein the court expressed the view that the
provisions of the constitution must be given a purposive interpretation so as
not to strangle the right that is being protected. To seek to discriminate the
third to fifth respondents on basis of them being children born out of wedlock
would not only be unfair and unjust but undemocratic for it would amount to
punishing innocent children in an inhuman manner for an iniquity beyond their
control. An “inquity” by those who sired them at no request by the said
children let alone their consultative in put, would surely be discrimination
which no civilised democracy would legally sanction
In the Zimbabwean context the question whether
or not children born out of wedlock can inherit abintestato from the
estate of their father; is ably answered by provisions of the Constitution of
Zimbabwe Amendment (N.O. 20) Act 2013 section 56 (3) ) provides:
“Every person has the right not to be treated in
an unfairly discriminatory manner on such grounds as their nationality, race,
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.”
A reading of this section clearly outlaws discrimination on basis of being born
out of wedlock. The third to fifth respondents have a right to equality and
non-discrimination. The constitution itself actually regulates its application
and interpretation. Section 44 reads:
“The state and every person, including juristic
persons and every institution and agency of the government at every level must
respect, protect, promote and fulfil the rights and freedoms set out in this
chapter”.
It accordingly follows that the declaration of
Rights as given in Chapter 4 must be
given full effect so as not to distort the
purpose of the law maker in protecting the right in question. It would
therefore follow that discrimination occasioned on basis of being born out of
wedlock to exclude children or descendants of a deceased from inheriting from
the estate of their father abintestato is ultra vires the
constitution. In Edith Mayiwa v Master of the High Court and Anor
HH 278/11 Gowora J as she then was outlined an interesting debate on the common
law position wherein children born out of wedlock were excluded from inheriting
from their father's estate when it was remarked that would be in violation of
constitutional right to protection of the law, freedom from discrimination and
to privacy. The constitution referred to then is the one repealed and replaced
by the current constitution. The current constitution outlaws any sort of
discrimination against children on basis that they are born in or out of
wedlock. The law is not static but dynamic going along with economic social and
cultural values. If the law is construed in a narrow sense negating the social
values on which the constitution which is the supreme law is anchored on then the
law will not resonate with what is reasonable. It will cease to serve the
purpose for which it is enacted and society will not have respect for the law
thus leading to lawlessness and anarch.
In the present case one cannot give a blind eye to the values of the
constitution in seeking to bridge the gap between children born in and out of
wedlock.
The reasoning where children born out of wedlock were viewed as “devils,
bastard illegitimate” is unacceptable and has been overtaken by dynamics in
culture society and legal development. I subscribed to the sentiments echoed in
ZIMNAT Insurance Company Pvt Ltd v Chawanda1990(2) ZLR 145 (S)
wherein it was held:
“If the law is to be a living force it must be
dynamic and accommodating to change. It must adapt to fluid economic and social
norms and values and to altering views of justice. If it fails to respond to
these needs and is not based on human necessities and experiences of the actual
affairs of men rather than a philosophical notion it will one day be cast off
by the people because it will cease to serve any useful purpose”.
The constitutional provisions outlawing
discrimination on basis of being born out
of wedlock find support in international
conventions and indeed reflect progressive development of the law in response
to social and cultural development.
Children's rights as outlined in the convention on Rights of the Child Articles
and The African Charter on the Rights and welfare of The Child Article 3 and 4
emphasise the best interest of the child being of primary importance and also
emphasises the right to non-discrimination. Article 3 provides:
“Every child shall be entitled to the enjoyment
of the rights and freedoms recognised and guaranteed in this charter irrespective
of the child's or his or her parents or legal guardian race, ethnic group,
colour, sex language, religion political or other opinion, national and social
origin, … birth or other status.”. Clearly therefore discrimination on
basis of maternity status is unacceptable.”
Social and legal dictates clearly show that no
child should be punished by virtue of
not having been sired in a registered union or
marriage. It is not in dispute third-fifth respondents are the late Hillary
Komati Bhila's children thus his descendants and beneficiaries to the estate.
The fifth respondent is a juvenile and again well protected by the law, s 81 of
the constitution clearly spells out Rights of Children. Section 81(1)(a):
“Every child, that is to say every boy and girl
under the age of eighteen years has the right to equal treatment before
the law, including the right to be heard”. (underlining my emphasis).
Section 81(2):
“A child's best interests are paramount in every
matter concerning the child and s 81(3) Children are entitled to adequate
protection by the courts, in particular the High Court as their upper
guardian”.
It is with this background and in particular s 81(3) that in the exercise of my
discretion upon observing that there is no report by the curator accompanying
the fifth respondent's opposition papers, the court held the view that as upper
guardian of the minor child the best interest of the child would be best served
by full ventilation into the matter. Moreso given that the natural mother
and legal guardian of the minor one Mary Ncube deposed to an affidavit in
opposition and that all the 3 children inclusive of the fifth respondent are
legally represented by the same legal practitioner. There is no prejudice which
will be occasioned given the best interest of the child are of paramount
interest and that clearly from evidence the fifth respondent just like the
third and fourth respondent cannot be discriminated against on basis of being
born out of wedlock.
Turning now to whether or not the Borrowdale house falls within the free
residue of the estate, from evidence filed it is not in dispute that
immediately before the late Hillary Komati Bhila passed on he was staying with
the applicant at their Houghton Park house. Further it is common knowledge that
both the Houghton Park and Borrowdale houses fall into the estate of the
deceased since these properties were registered solely in the name of the
deceased. There is no argument that the applicant is the surviving spouse and
in compliance with the Deceased Estate Succession Act s 3A the applicant's is
entitlement to the Matrimonial home and household goods and effect is
unquestionable. This then leaves the other property forming the estate for
consideration. It is for this property that the first respondent gave a
directive that the house in which the applicant was not immediately staying in
at the time of death of her husband fell under free residue. This brings in the
last issue of whether or not in the circumstances of this case the direction
should be set aside for being in conflict with the legal position.
Section 3 and 3A sought to cure the mischief which was created in estates were
spouses died intestate and relatives embarked on property grabbing. It is crystal
clear from the Act that the matrimonial home which is the house in which the
surviving spouse was residing in immediately before death of the spouse is
inherited by the surviving spouse without debate. The applicant's matrimonial
house or home per evidence is the Houghton Park house which she was allocated.
The same Act in seeking the redress anomalities on inheritance abinstestatois
clearly couched to show descendants, parents, brother or sisters get a share of
the free residue while the spouse also gets a share over and above the
matrimonial assets. The legislature made in roads giving guidance on sharing
ratio to cater for situations were an individual would have died without a
will. The constitution outlaws rules, conduct, practice and law which is discriminatory.
Hence the third-fifth respondents as off spring/descendants/children/progeny
albeit out of wedlock are also entitled to a share of the free residue just
like the children/descendants or off springs born in wedlock. The first
respondent directed for distribution plan to factor in the factual position of
the additional three children. That cannot be viewed as a directive not based
on existing law given the constitutional and legislative provisions. The
applicant's husband died intestate and hence estate must be administered
accordingly.
The recognition of one individual's rights has to be as much as practically
possible upheld, while at the same time bearing in mind that the next person
equally has rights that have to be upheld. It is in that process of seeking to
balance all individual's rights that of necessity the rights of one do not
necessarily retain the absolute status.
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,
parent, brothers or sisters are also entitled to a share in the free residue.
In absence of all these descendants, parents, brother or sisters then the
surviving spouse (Deceased Estate Succession Act) inherits as the sole
intestate heir.
The first respondent's directive after appointment of a neutral executor was
above board and in compliance with the laws of this country. Clearly children
whether born in or out of wedlock are beneficiaries in the estate of their
biological father or mother who would have died intestate. The
application lacks merit and must fail.
Accordingly the application is dismissed with costs.
Mambosasa, applicant's legal
practitioners
Matsikidze
and Mucheche, 3rd-5th respondents' legal
practitioners
