Loyce Mrewa is an postgraduate student pursuing a Master of Laws in the Department of Public Law, the University of Cape Town . She is from Harare in Zimbabwe and has published on various topical issues including transnational criminal justice, international humanitarian law, women’s rights and human rights.
Bhila v Master of the High Court and Others
The deceased, Hillary Hoyini Komati, who died intestate, was married in a civil union to Elsie Bhila with whom he had four children. At the time of his death he owned two houses, one in Houghton Park where he lived with his wife and one in Borrowdale. According to the Deceased Estates Succession Act [Chapter 6:02], in the absence of a will the surviving spouse is entitled to the matrimonial home, its household goods and a higher share of the other assets falling into what is known as ‘free residue’. This free residue will be shared amongst the surviving spouse and the descendants of the deceased.
As the surviving spouse, Elsie Bhila was appointed executor of the estate by the Master of the High Court (hereinafter the Master). The estate was advertised in line with the Administration of Estates Act [Chapter 6:01]. Following the advertisement, three children born out of wedlock made inheritance claims to the estate, prompting the Master to appoint a neutral executor. The neutral executor made a distribution plan and awarded Elsie Bhila, as the surviving spouse, the Houghton Park house and all its household goods whilst the Borrowdale house was treated as part of free residue. The Master subsequently gave directions for this distribution plan to be advertised (para.3). Elsie Bhila objected to this distribution plan and filed an application at the High Court of Zimbabwe to set aside the directions, amongst other things.
Issues and resolution
The High Court of Zimbabwe examined the following issues:
- Whether children born out of wedlock can inherit ab intestate,
- Whether the Borrowdale house should be part of free residue, and
- Whether the directions of the Master should be set aside.
Justice J Mwayera relying on section 56 (3) of the Constitution of Zimbabwe Amendment (No. 20) Act, 2013 which prohibits discrimination against children born out of wedlock, ruled that such children are beneficiaries to the estate of a biological parent who dies interstate. Justice J Mwayera further ruled that the directions of the Master of the High Court were in accordance with the Deceased Estates Succession Act and dismissed the application with costs.
The ruling by Justice J Mwayera on the ability of children born out of wedlock to inherit ab intestato from the estate of their deceased biological father is a very welcome precedent. The case is exceptional as it is the first of its kind to clarify the succession rights of children born out of wedlock, having regards to the rights enshrined in the new Constitution of Zimbabwe. It is also unique because it departed from the traditional common law position, where children born out of wedlock were discriminated against simply because of their status.
Justice J Mwayera used domestic law, regional and international treaty law as well as Zimbabwean case law in her reasoning. Section 56 (3) of Zimbabwe’s Constitution, read together with the appropriate sections of the Deceased Estates Succession Act were used to demonstrate how children born out of wedlock had a right to inherit ab intestato. The court also relied on section 81 of the Constitution, which requires prioritising the best interests of the child in all matters, emphasises equal treatment and adequate protection by the courts. The court was particularly guided by subsection (2) of the provision, which places the court in the relationship of an ‘upper guardian’ to the child.
The court utilized Zimbabwean case law to justify purposive interpretation of section 56 (3) of the Constitution; and to illustrate the need for the law to be dynamic in order to respond to changing societal, economic and cultural needs and values (para. 18 & 21). In this regard, the court treated the law as a living instrument that must be responsive and adaptive to societal changes in order to avoid remoteness of the law from society (para. 21). The obiter dictum of Justice Gowora J in Mayiwa v Master of the High Court and Anor, which was decided under Zimbabwe’s 1980 Constitution, now amended - is particularly instructive, as it recognizes that societal values regarding children born out of wedlock are changing.
In Mayiwa, Gowora J asserted - obiter - that discriminating against children born out of wedlock would violate the constitutional rights to protection of the law, freedom from discrimination and the right to privacy (para.21). These protections implicitly prohibit discrimination against children under the old Constitution. Gowora J’s dictum now reflects the position of the law under the new Constitution of Zimbabwe Amendment (No. 20) Act of 2013, which explicitly prohibits any discrimination against such children in section 56 (3). By citing the Mayiwa case, Mwayera J affirms that social values regarding the inheritance rights of children born out of wedlock are changing and that the new Constitution, as a living instrument, now reflects this change (para.21). This is in principle correct, bearing in mind that the new Constitution was people-driven and promulgated after countrywide consultations with the general public.
In Bhila, Mwayera J also cited provisions of the United Nations Convention on the Rights of the Child (UNCRC) and the African Charter on the Rights and Welfare of the Child (ACRWC) regarding the right to non-discrimination and the best interest principle to iterate how Zimbabwe’s protection and recognition of these right and principle reflects a regional and global standard on the subject. By citing and relying on these instruments, the court gave effect to the letter and spirit of section 327 (6) of the Constitution, which confers a positive duty on courts to interpret legislation in a manner that is consistent with binding international conventions, treaties and or agreements.
Justice J Mwayera’s ruling complements a string of decisions from various jurisdictions across the world, where courts have struck down discrimination against children born out of wedlock on the basis that they have rights to equal treatment in succession cases. The South African Constitutional Court in Bhe v. Magistrate, Khayelitsha and others, the High Court of Namibia in Frans v Paschke, the Supreme Court of USA in Trimble v. Gordon, the European Court of Human Rights in Fabris v. France and Marckx v Belgium have all ruled against discrimination of children born out of wedlock and affirmed their rights to equal treatment in succession processes (Jonas & Gunda, 2015: 96-97). In Bhe v. Magistrate, Khayelitsha and others case, the Constitutional Court of South Africa found that protecting children was vital for the creation of a better future, and that differential treatment based on birth amounted to unfair discrimination prohibited in the South African Constitution (para. 52 & 58). The Court reasoned that:
“…extra-marital children did, and still do, suffer from social stigma and impairment of dignity. The prohibition of unfair discrimination in our Constitution is aimed at removing such patterns of stigma from our society. Thus, when section 9(3) prohibits unfair discrimination on the ground of “birth”, it should be interpreted to include a prohibition of differentiation between children on the grounds of whether the children’s parents were married at the time of conception or birth…” (para.59).
The decision in Bhila v Master of the High Court and Others is an important jurisprudential outcome that could have far reaching social impact. It should overtime move society to view children who are born out of wedlock with less social stigma. After all, they deserve the protection of their rights as other children do. For those who would want to avoid the legal consequences of the decision, the case might be seen as an incentive to execute a will. However, it will be interesting to see whether children born out of wedlock can challenge a will that excludes them from inheriting part of their deceased parent’s estate.
Constitution of Zimbabwe Amendment (No. 20) Act, 2013
Deceased Estates Succession Act [Chapter 6:02]
Administration of Estates Act [Chapter 6:01]
Bhe v. Magistrate, Khayelitsha and others (CCT 49/03)  ZACC 17
Bhila v. Master of the High Court and Others (HC 4396/13) 
Fabris v. France [GC] - 16574/08 ECHR (7 February 2013)
Frans v. Paschke and Others (PI1548/2005)  NAHC 49 (11 July 2007)
Marckx v. Belgium - 6833/74  ECHR 2 (13 June 1979)
Trimble v. Gordon 430 US 762 (1977)
Jonas, O. & Gunda, P. 2015.Children born out of wedlock and their right to inherit from their fathers under customary law in Botswana–Baone Kealeboga & Anor v Tidimalo Mercy Kehumile & Anor. Comparative and International Law Journal of Southern Africa.48 (1): 89-97
Legal Resources Foundation (LRF) - Zimbabwe.2011. Edith Mayiwa v Master of the High Court and Anor HH 278/11. Case Summaries 2011-2: July- December. Retrieved from: http://www.lrfzim.com/wp-content/uploads/2016/02/Recent-Cases-20112.pdf