This
is a civil appeal against the decision of a Gokwe Senior Magistrate.
The
parties were customarily married in 2000. The union was blessed with two
children, Samuel and Anotidaishe. The parties' union was terminated pursuant to
action instituted by the respondent on 8 April 2008 under case number Gokwe CL 11/2008.
At the time of the dissolution of the union, the appellant was granted custody
of the children coupled with an order for her personal maintenance and that of
the two children. The appellant, however, surrendered the children to the
respondent but continued to receive maintenance notwithstanding the fact that
the children were staying with respondent. The appellant claimed custody of the
children and immediately thereafter made an application for upward variation of
the maintenance amount.
Thereafter,
she once more surrendered the children to the respondent.
The
appellant said she did this because of her poor health at the time. Once more,
she received maintenance money after surrendering the children. When the
respondent took back the children after their three month's stay with the
appellant, the elder one was no longer attending school. The respondent stayed
with the children from the time when the youngest child was 3 years 10 months
until the child attained age of 7 years. After three (3) years, the respondent,
naturally, did not see the necessity of paying maintenance for the children to
the appellant when the children are actually residing with him. He protested
the payment of this maintenance by way of an application “for stoppage of
maintenance” on 25 November 2010. At the end of the hearing the Senior Magistrate
made the following order:-
“After
assessing all the evidence, it is ordered that:
(a) The
maintenance order against the applicant which relates to the two children ($40)
is hereby discharged.
(b)
Maintenance order against applicant which relate to the respondent ($30) is
temporarily suspended up to March 2011 whereupon the respondent will restitute
it.
(c)
Custody of the 2 minor children will remain with the applicant.
(d) Each
party shall pay its own costs.”
This
decision did not amuse the appellant, and, as a result, she noted the current
appeal.
In
his/her judgment, the learned magistrate reasoned that it is not in the
interest of the children to uproot them (so to speak) and surrender them to the
applicant after about three (3) years. The magistrate also noted that on three
occasions, between 2008 and 2009, the appellant surrendered the children to the
respondent after being granted custody and maintenance by the Magistrates' Court. The learned magistrate felt that the welfare
of the minor children would be served by the respondent being granted custody.
Looking
at the facts of this case, this finding of the magistrate cannot be faulted. As
alluded to above, when the appellant had custody of the children, one of them
ended up not attending school. At one point, she left the children in the
custody of a friend. Her own father opined that the best interest of the
children would be served by the respondent having custodial rights. The
evidence points to the respondent being a responsible parent who has
established a stable home environment for the upbringing of the children. The
fact that he intends to get married does not change anything. In any event,
there is nothing that would stop the appellant from getting married.
In
the result, therefore, I cannot fault the decision of the Senior Magistrate.
The magistrate did not act irrationally. There is no basis on which this court
can interfere with the decision of Magistrates' Court.
In
the circumstances, the appeal is dismissed with costs.
