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Protect children from abuse
Sithokozile Thabethe
June16, 2006

http://www.dailymirror.co.zw/dailymirror/view_news.cfm?

FOLLOWING the verdict in the Magaya Case that held that under customary law the woman could not inherit, there was an uproar from civil society. Women-s organisations immediately demanded amendments to the legislation on customary intestate succession (inheritance where there is no will) in Zimbabwe.

The Government responded by enacting legislation to address this anomaly, being the Administrators of Estates Amendment Act No. 6 of 1997. Thus, in all estates of married persons dying after the 1st of November 1997, the surviving spouse or spouses became the primary beneficiary/ies to the estate together with the children of the deceased.

Of particular importance was the provision that upon the death of one spouse, the remaining spouse would inherit the matrimonial home. This development came as a relief to most women as prior to this, the heir being a male child of the husband’s family would inherit property in his personal capacity.

Invariably most heirs abused the inheritance and it was not uncommon for widows to be rendered destitute by the disposal of residences by these male heirs. The law was thus recognising that when parties get married they work together to establish a joint estate, which is primarily for the benefit of themselves and their children.

Years later it appears that the draftsmen overlooked some implications of this legislation posed primarily by the advent of the HIV and Aids pandemic.

These complications arise as follows: A married couple hypothetically Anne and Joe Moyo are diagnosed as HIV positive. Years later Anne Moyo dies and Joe Moyo remains and subsequently remarries one Susan. Incidentally Joe Moyo dies leaving his wife, Susan Moyo and his children from the first wife. When his first wife died Moyo was declared the sole owner of the matrimonial home and now that he himself is deceased, his second wife Susan Moyo inherits the property in her own capacity. This entitles her to deal with the property in any way she deems fit and this may include disposing or alienating the property or at times evicting the orphaned children.

The above stated facts have become so common with orphaned children being rendered homeless either because the step parent has evicted them or has rendered them destitute by disposing of the house that was previously owned by both their parents and has always been their home.

In a country where most families hardly ever have any other assets to be shared by the beneficiaries apart from the immovable property because of the economic hardships, there will be no other savings left to devolve on the beneficiaries.

Destitute/homeless children are more vulnerable to abuse. These children would be disturbed of their routine, would have to relocate i.e. find other relatives to live with (if any are willing to take them in), they would have to change schools.

Usually the house is the only remaining asset to the estate and is the only source of income to the beneficiaries. In most instances the desire would be to let out the house or part thereof to generate income to accrue funds for food, education and other ancillary needs. In the absence of this the plight of orphaned children who are currently estimated to be approximately 3 million, is exacerbated. School drop outs, children living on the streets, child labour and prostitution of young children can all be resultant of the fact.

In some cases, some magistrates cognisant of this problem have ordered that the immovable property be registered jointly with children but this is not in accordance with the law.

It is apparent that the law in this respect has exposed orphaned children to abuse.

On a moral standpoint it is vexatious to imagine that a third party can inherit property to the prejudice of children born of a marriage whose parents formed a joint estate and acquired property during the subsistence of the marriage.

Faced with almost a similar scenario in South Africa the law was amended such that the surviving spouse and children each get what they have termed a child’s share of the estate of the deceased.

What this would imply is that the surviving spouse and children are all entitled to an equal share of the estate.

In my view Zimbabwe should consider opting for this route, which in my opinions equitably balances the rights of surviving spouse and those of the orphaned children.

Where there is a house for instance, the property would be registered in the names of the surviving spouse and children in equal shares thus dealing with the mischief currently pertaining as a result of the existing legislation.

*Sithokozile Thabethe is the Programme Officer, Children’s Legal Services Department of the Zimbabwe Women Lawyers Association

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