Bona Mutsahuni, Tinotenda and Bellarmine were challenging
an order for the exhumation of Mugabe’s remains and confiscation of their
livestock as ordered by Chief Zvimba, Stanley Mhondoro.
In the judgment, Justices Amy Tsanga and Fatima Maxwell
ruled against Chinhoyi magistrate Ruth Moyo who had ruled Mugabe’s children had
no rights to appeal against a judgment handed by the traditional court against
their mother, Grace.
In May 2021, Chief Zvimba ordered the exhumation of Mugabe
from his rural home. The court also
fined Grace for breaking burial rites and defaulting.
A messenger of court was granted authority to seize five
heifers and a goat, which the Zvimba chief said was for cleansing of the
country.
Bona and her siblings were aggrieved by the ruling and took
the matter to court.
Bona said she was duly appointed executor to the estate of
her father, hence her interest in the matter.
The appeal at the lower court was challenged by Tinos
Manongovere, a villager who initiated the matter. The magistrates upheld
Manongovere’s challenge.
Bona and her siblings then appealed against the ruling at
the High Court which ruled in their favour.
“In the context of customary law, the court finds no
absurdity in allowing any person aggrieved by a decision of a community court
to appeal against it, even though the aggrieved person was not a party in
proceedings before the community court,” the judges ruled.
“The court below erred in restricting the right of appeal
to persons who were parties in proceedings before the community court. On the
basis of the above, the first and second grounds of appeal succeed.
“The appeal be and is hereby allowed with costs. The
judgment of the court a quo is set aside and is substituted as follows, the
first preliminary point be and is hereby dismissed and costs be in the cause.”
The judges also referred the matter back to Chinhoyi
Magistrates Court for continuation of the hearing.
During the hearing, Bona and her siblings argued that no
one except them had the authority over their father’s grave, warning that
anyone who would tamper with it would be committing a criminal offence as
outlined in the Burial Act.
Through their lawyer, Tawanda Zhuwarara, Mugabe’s children
insisted that the lower court must first determine if the traditional leader
who ordered the exhumation and reburial had the rights to do so.
Mugabe died aged 95 in September 2019 and was buried at
Kutamba after his family refused to have him interred at the National Heroes
Acres. Newsday
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