HIGH Court judges of appeal on Thursday ruled in favour of the late former President Robert Mugabe's children who are challenging the exhumation of their father's remains for re-burial at the National Heroes Acre
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.