Hlekani Mwayera

Mwayera was one of six new Supreme Court judges who took oath on 3 June 2021.^[2]

Notable Cases

Inheritance

Mwayera delivered a landmark ruling on inheritance. On 23 June 2015, Hlekani Mwayera ruled that children born in and out of wedlock have the same right to their parents’ estate and property should be shared equally without discrimination.

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

She 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.

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."

Mwayera said the common law position of excluding children born out of wedlock in inheritance matters was discriminatory and in breach of the Constitution.

However, she 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 fell under the free residue of the estate that should be shared among all the beneficiaries.^[3]

Munyaradzi Kereke Bail

Hlekani Mwayera granted Munyaradzi Kereke $500 000 bail pending his appeal against both the conviction and the sentence for raping a juvenile relative at gunpoint.

Kereke was serving an effective 10-year jail term for the offence. He was convicted of rape in July 2016. Kereke had 20 months to serve before he was due for release after time off for good behaviour when Mwayera granted him the freedom to prosecute his appeal out of custody.

His first appeal against conviction and sentence by a regional magistrate was dismissed on 29 May 2019 by the High Court which declined to grant him an automatic leave to appeal from the first appeal to the Supreme Court. Kereke then applied to the Supreme Court for leave to appeal and last month he was granted leave to appeal to the Supreme Court. He then filed his appeal and so returned to the Supreme Court seeking bail pending that appeal.

After hearing arguments from his legal counsel and the private prosecutor for almost three hours, Justice Hlekani Mwayera found merit in Kereke’s application and granted him bail, with the reasons for her decision to follow later.^[4]

References