PATEL J: All
of the three cases dealt with in this review involve the appointment of
guardians to minor children by the same Provincial Magistrate in September and
October 2009. Following jurisdictional queries raised in January 2010, the
learned magistrate eventually responded on the 22nd of September
2010. There is no explanation for his inordinate delay in responding.
The Facts
In the Parshotam
case, sole guardianship of the child was awarded to the natural mother who is
living separately from the natural father. The latter had expressly consented
to the award by way of a special power of attorney supported by his sworn
affidavit.
In
the Chibvembe case, guardianship of
the minor was granted to her elder sister following the death of their mother.
However, the mother's death certificate does not form part of the record.
Moreover, there is no indication in the papers as to the whereabouts of the
natural father or whether he is still alive.
In
the Chidzikwe case, the learned
magistrate awarded guardianship of the two minor children to their elder
brother. The natural father is still alive and has consented to the application.
However, there is no indication in the papers as to whether the natural mother
is dead or alive or whether she has consented to the application.
Written Reasons
There is a preliminary aspect that needs to be
addressed as a matter of general concern. The records in casu do not contain any reasons for the decisions made by the
learned magistrate. It has been held by this Court that the record of
proceedings of a juvenile court which is submitted to the High Court for review
in terms of section 9(4) of the Guardianship
of Minors Act [Chapter 5:08] must include written reasons
for the court's decision. Without a record and written reasons for the
decision, this Court cannot carry out its review powers to determine whether
the decision and proceedings were in the best interests of the minor and in
accordance with justice. See In re
Gonyora 2001 (2) ZLR 573 (H) at 578.
Jurisdictional
Competence
The Guardianship of Minors Act
regulates the guardianship of minors generally. In terms of section 4(1)(b) of
the Act, the High Court or a judge may, in the case of a minor whose parents
are divorced or are living apart, grant to either parent the sole guardianship
of the minor. Section 9 of the Act governs the appointment of guardians by the
children's court. The relevant portions of section 9 provide as follows:
“(1) Without prejudice to the rights, powers and privileges of the High
Court as upper guardian of minor children, and the Master in terms of section
74 of the Administration of Estates Act [Chapter
6:01], the children's court may, on application in terms of this section,
appoint a fit and proper person to be the guardian of a minor who has no
natural guardian or tutor testamentary.
(2) Where a minor has no natural guardian or tutor testamentary—
(a) a relative or person having the care
and custody of the minor; or
(b) a probation officer;
may apply
to the children's court by way of an application lodged with the clerk of that
court for the appointment of a person as guardian of the minor, and such
application may propose the appointment of a specified person as the guardian.”
It is manifestly clear
from the foregoing provisions that section 9 only applies to a minor who has no natural guardian or
tutor testamentary. The section simply cannot apply where a natural
guardian, i.e. natural parent, is or
may be still alive. In any such case, the matter must be dealt with by the High
Court qua upper guardian of minor
children. The Magistrates Court
is a creature of statute and cannot assume or exercise any power or
jurisdiction not specifically conferred by statute. As far as I am aware, there
is no other relevant legislation on the subject.
It follows that the
learned magistrate in casu
fundamentally misdirected himself in purporting to award guardianship in all
three cases. Moreover, each such appointment constitutes a nullity and anything
done pursuant thereto has no legal force or effect.
In the result, the decision in each case is hereby set
aside, in terms of section 9(7) of the Guardianship of Minors Act. The learned
magistrate is directed to instruct the Clerk of Court to notify all three
appointees accordingly and to advise them to apply to the High Court, should
they wish to pursue the matter further.
GUVAVA
J: I concur.
