The
only issue which was referred for determination at trial is on which of the
parties should be awarded custody of the two minor children, the nature of
access rights to be accorded to the non-custodian parent and the quantum of
maintenance to be paid for each of the minor children if custody is awarded to
the plaintiff.
During
the trial, both parties remained adamant that each of them is the best
custodian parent….,.
As
of now, in 2011, Nyasha is in Form 3 and about 15 years old. Hillary is about
13 years old and in Grade 7 at Lonchinvar Primary School in Harare. Nyasha
attends school at Glen View 2 High School in Harare. It is common cause that
the parties have been living apart for the past 5 years and that for all that
period the defendant had, and still has, custody of the two minor children. The
plaintiff has moved out of the matrimonial house and stays at her late parent's
house in Bulawayo. The defendant is now staying with another woman with whom he
now has a child. The defendant stays with the two minor children at the
matrimonial house in Budiriro, Harare. Initially, soon after separation, the
plaintiff was denied access to the minor children but this was rectified after
the intervention of both counsel and the court at pre-trial conference stage on
or about December 2009 or January 2010.
The
plaintiff is unemployed although she said she is a qualified pre-school teacher
and that she has done a course in cookery. However, since her separation from
the defendant she has been engaged in cross border trading to South Africa in
order to survive and she is still engaged in that activity. She indicated that
she was willing to abandon the cross border trading business if she is awarded
custody of the two minor children. Instead, she would look for another job in
Zimbabwe to fend for the children…,.
In
her evidence, the plaintiff stated that as the biological mother of the
children she loves the children and should be awarded custody. She, however,
conceded that the defendant loves the children too but she suspects that the
children are being ill-treated by the defendant's new wife - although she was
unable to substantiate those allegations. The plaintiff conceded that if she is
awarded custody the children would need to relocate to Bulawayo and secure
places in different schools. She also admitted that the children would have to
learn a new language, Sindebele, which may adversely affect the children's
performance in school. Under cross examination, the plaintiff conceded that she
has no means to look after the children on her own. She was also unable to
explain how the children are ill-treated by the stepmother who was a former
housemaid for the defendant.
The
defendant submitted that he is a better custodian parent. The defendant
indicates that the plaintiff, even before their separation in 2005, did not
show much interest in the welfare of the children as she would spend long
periods of time in South Africa. Prior to their separation, he said the
plaintiff was imprisoned in South Africa and he had to pay a fine for her to
secure her freedom. He said he then advised the plaintiff not to engage in the
cross border trade business but in 2005 the plaintiff deserted the matrimonial
home and was away for eight months and was again imprisoned in South Africa.
All
this was not refuted by the plaintiff.
It
is the defendant's view that the plaintiff should not be awarded custody of the
minor children since she is a cross border trader and would leave the children
on their own while in South Africa. In fact, the plaintiff conceded that she,
at times, secures piece jobs in South Africa to raise cash hence would have to
work illegally in South Africa for a couple of months. Due to the nature of her
cross border business, the plaintiff conceded that even after being allowed
access to the minor children she has been able to visit the children only three
times in ten months while she was coming to attend to this matter at court. It
is the defendant's contention that he has a stable job, a conducive environment
for the proper upbringing of the children and the means to fend for the
children's needs. The defendant refuted suggestions that his new wife
ill-treats the children and maintains that he is very close to the children
whom he drives to school every day.….,.
It
is trite law that in dealing with the question of custody of minor children the
court should be guided by the best interests of the children. In the case of
Makuni v Makuni 2001 (1) ZLR 189 (H)…,
GOWORA J had this to say -
“In
approaching a problem of this nature, the court is, of course, primarily
concerned with the welfare of the children; that is the paramount
consideration. Just as in custody cases, so also in dispute arising out of
custody orders, the welfare of the children is the predominant consideration
which should weigh with the court. (Shazin v Laufer 1968 (4) SA 657 at 662 G-H).”
A
similar view was expressed by SMITH J in Galante v Galante (3) 2002 (2) ZLR 408 (H) in which the learned judge cited the
celebrated case of McCall v McCall 1994
(3) SA 201…,. In Galante v Galante (3) 2002 (2) ZLR 408 (H) SMITH J
considered what constitutes the best interest of a child and the learned judge,
quoting McCall v McCall 1994 (3) SA 201, had this to say…,-
“In
determining what is in the best interest of the child the court must decide
which of the parents is better able to provide and ensure his physical, moral,
emotional and spiritual welfare. This can be assessed by reference to certain
factors or criteria which are set out hereunder not in order of importance and
also bearing in mind there is a measure of unavoidable overlapping and that
some of the listed criteria may differ only to nuance. The criteria are the
following:
(a)
The love, affection or other emotional ties which exist between parent and
child and the parent's compatibility with the child;
(b)
The capabilities, character and temperament of the parent and the impact
thereof on the children's needs and desires;
(c)
The ability of the parent to communicate with the child and the parent's
insight into, understanding, and sensitivity to the child's feelings;
(d)
The capacity and disposition of the parent to give the child guidance he
requires;
(e)
The ability of the parent to provide for the basic physical needs of the child,
the so called “creature of comfort”, such as food, clothing, housing and other
material needs – generally speaking, the provision of economic security;
(f)
The ability of the parent to provide for the educational well-being and
security of the child both religious and secular;
(g)
The ability for the parent to provide for the child's emotional, psychological,
cultural and environmental development;
(h)
The mental, and physical health and moral fitness of the parent;
(i)
The stability or otherwise of the child's existing environment having regard to
the desirability of maintaining the status a quo;
(j)
The desirability or otherwise of keeping siblings together;
(k)
The child's preference, if the court is satisfied that, in the particular
circumstances, the child's preference should be taken into consideration;
(l)
The desirability or otherwise of applying the doctrine of same sex matching,
particularly here, whether a boy of 12.., should be placed in the custody of
his father; and
(m)
Any other factor which is relevant to the particular case with which the court
is concerned.”
In
my view, useful guidance can also be placed on the provisions of the CHILDREN'S
ACT OF SOUTH AFRICAN 2005 section 7(1)(a)-(n) which also defines the…, best
interest of the child by providing for specific bench marks the court should
take into account.
In
the case of Jere v Chitsunge 2003 (1) ZLR 116 (H) CHEDA J.., summarized, in a
very brief and succinct form, some of the factors which constitutes the best
interests of the child.
I
now proceed to apply the principles of the law set out above to the facts of
this case.
There
are a number of factors which militate against awarding custody of the minor
children to the plaintiff. The two minor children, who are both male, are aged
15 years and 13 years respectively. They have been in the custody of the
defendant for the past 5 years (since they were 10 years and 8 years
respectively). It is, therefore, clear that the children have been in the
custody of the defendant for a long time. The question which arises, therefore,
is whether, at this point, it is in the best interest of the children to remove
them from the defendant's custody.
I
find no compelling reason to do so.
Both
children are staying in a stable environment with the defendant in Budiriro and
are attending school. If custody was to be awarded to the plaintiff this would
entail a number of challenges for the children. To begin with, the plaintiff
has no means to meaningfully fend for the children. An order of contributory
maintenance against the defendant may not be adequate in view of the
defendant's salary. The children would have to relocate from Harare to Bulawayo
and start life in a completely new environment. They may well have to learn a
new language, Sindebele, at a stage they are in, Grade 7 and Form 3
respectively. The plaintiff was non-committal as to the type of schools she
would enrol the children.
The
nature of the plaintiff's business of cross border trading, in my view, would
adversely affect the children. In the absence of the plaintiff, who spends so
many months in South Africa, the children would be virtually alone. The
plaintiff may not have the capacity to employ a maid. The business the
plaintiff engages in South Africa is risky as she has been imprisoned twice in
South Africa. If the plaintiff abandons the cross border trading business she
has no meaningful means to fall back on for survival save for a maintenance
order the court would have awarded against the defendant, which, on its own, is
wholly inadequate. In my view, the risk of ill-treatment of the children by the
defendant's new wife is very minimal and remains an unsubstantiated allegation.
This court accepts, generally, that the plaintiff, being the biological mother
of the children, would invariably love the children more than the stepmother.
However, that factor, alone, may not be enough to tilt the balance in favour of
the plaintiff.
It
is therefore my considered view that it is in the best interest of the minor
children to award custody to the defendant….,. The plaintiff should be allowed
reasonable access to the children during the first 3 weeks of each school
holiday and on any other special occasions as the parties many agree from time
to time….,.
1.
..,.
2.
Custody of the two minor children, Nyasha Chipofya (born on 12 March 1996) and
Hillary Chipofya (born on 25 October 1998), is hereby awarded to the defendant.
3.
The plaintiff is hereby granted reasonable access rights to the minor children
which shall be exercised as follows:
(i)
She shall have the minor children for the first three weeks of every school
holiday.
(ii)
She shall have the minor children on any other special occasions as the parties
may agree from time to time.
(iii) The access shall be exercised in
consultation with the defendant.
