CHEDA
J: On the 16th October 2012 applicant Senzeni Moyo applied
for Guardianship of two minor children namely Martin Gugulethu Hamandishe (Date
of Birth 3rd February 1995) and Jacqueline Nkosinothando
Hamandishe (Date of Birth 2nd February 1998) at the Juvenile
Court, Bulawayo. The application was granted on the 14th
November 2012 by the Juvenile court. It was then forwarded to me for
confirmation of the proceedings as per the usual procedure.
The background and genesis of this
application is that, applicant is a State Registered Nurse residing in the
United Kingdom and employed as such. The minor children are her
deceased's sister and brother-in-law respectively.
Upon the death of their parents, these
minor children were being looked after by their maternal grandmother,
Ellie Moyo who is a retired nurse here in Zimbabwe.
Applicant now applies for their
guardianship on the basis that she is a nurse in the United Kingdom and that
she has been financially supporting them.
It is trite law that the High Court is an
undisputed upper Guardian of all minors in Zimbabwe. For that reason, the
law empowers this Court/Judge to carefully consider all factors where a minor
child's or children's custody or guardianship is an issue. The court
should be slow in acceding to applications to remove children from its
jurisdiction. On that score, it should, in my view, do so only when it is
in the interest of the said children that they be removed to a new environment,
see Chamberlain v De La Mare CA 1983 FLR 434; and Au v Au CA
[1979] Fam Law 116 and in RE: Edith Hleziphi Maphosa.
In that regard any person who desires to assume guardianship should be of both
financial and social good standing to an extent of being unimpeachable, see Re
Thain v Taylor [1926] Ch 676 at 864 CA.
An applicant who seeks to be awarded
guardianship of a minor child must not only prove her relationship with the
minor and some consent from other relatives, but, must submit among other
requirements depending on the cirxumstances;
(1)
sufficient proof of her right of stay in the foreign country;
(2)
proof of financial support or regular income;
(3)
proof of suitable accommodation; and
(4)
in case of a child of school-going age proof of adequate arrangements for the
child,
The list is inexhaustive. In all this, the court will always bear in mind
the need for the safety and comfort of the children in the host country, see in
RE (an Infant) 1981 (2) SA 330 (2).
The fact that the adoptive parent is in the diaspora is not enough legal reason
to shepherd a minor child or children to a foreign land.
In my view if our courts fail to be
stringent in their determination of such applications they may easily find
themselves unconsciously assisting or abetting child trafficking.
The court a quo granted its order without sight of proof of
applicant's socio-economic standing. There is a possibility of an error
in its conclusion.
For the above reason the following order
is made:
Order
(1)
The order granted by the Juvenile Court on the 14th November 2012 at
Bulawayo Magistrates Court be and is hereby set aside; and
(2)
The matter is referred back for a further inquiry in line with the principles
laid down in this judgment.
Kamocha J
agrees..............................................................................
Web,
Low and Barry, applicant's legal practitioners
