MATANDA-MOYO J: On 8 February 2014 I dismissed the
applicant's application as not urgent. I found that the urgency was self
– created. I however realized that the interests of a minor child was at
stake and decided to bring sanity to the matter by giving effect to
JUSTICE GUVAVA J's (as she then was) order as follows;
a) That the physical custody
of the child be returned to the applicant.
b) The ticket of the
travelling of the minor child be handed over to the applicant to enable the
applicant to comply with HC5759/12 order referred to above.
c) That the applicant travel
to England with the minor child on KLM flight leaving Zimbabwe on that same
day.
d) That should the applicant fail
to avail herself at the airport that day the Sheriff be and is hereby
authorized to remove the child from the applicant's custody into the 1st
respondent's custody who would travel with the minor child to England.
The applicant has requested for reasons for the
order. These are they.
Justice GUVAVA J as she then was issued an order in
HC 5759/12 on 16 January 2014 as follows;
1) That the continued
retention of the minor child, C (born 24 January 2009) by the respondent
(applicant herein) be and is hereby declared unlawful.
2) The respondent shall
return the said minor child to the country of habitual residence namely England
within 10 days of this order.
3) The applicant pays for the
air fares in order to enable the respondent and the minor child to return to
England.
The above order was granted on 16 January 2014.
Applicant had ten days from the court's decision to return the child to
England. She had up to 30 January 2014 to comply with the court
order. She did not. However I took it that she was awaiting the
tickets from first respondent to comply with the court order. In compliance
with the court order first respondent bought tickets for applicant and the
minor child to travel to England on 8 February 2014. The respondent however
took physical custody of the minor child from the applicant. As a result
the applicant on 8 February 2014 the applicant brought this application on an
urgent basis seeking the following relief;
“INTERIM RELIEF GRANTED
1. In the interim, and
pending the finalization of this matter it is ordered that the 1st
and 3rd respondents be and are hereby ordered barred, and
interdicted from removing the minor child namely C (born on 24 January 2009)
from the jurisdiction of this court.
2. That the 1st
respondent shall forthwith return custody of this minor child to the applicant
failing which, Sheriff or his assistant be and is hereby authorized and
empowered to visit any place in Zimbabwe where this minor child may be housed
and to take the minor child in the Sheriff's possession and to there and then
hand over custody of this minor child to the applicant and in the event of
resistance the Sheriff shall enlist any member of the Zimbabwe Republic Police
to carry out that objective.”
The final order sought was to stay the operation of the
order granted by GUVAVA J pending appeal. As there was no appeal; filed
before the Supreme Court the final order sought was incompetent.
Respondent challenged the urgency of this matter. He
argued that an order of this court was issued on 16 January 2014. From
then to date of hearing no appeal had been noted against the said
judgment. The first respondent had purchased tickets in compliance with
the court order and applicant sought to suspend the operation of the court
order by approaching this court on an urgent basis. The applicant argued
that she only became aware of GUVAVA J's order on 31 January 2014. She
conceded she had not appealed against that order and that the judgment was
enforceable against her. However she argued that she was still within the
ten day period and could still file an appeal on 10 February 2014.
I found that the applicant had failed to treat the matter
with some degree of urgency. Since the order by GUVAVA J enjoined her to
act within ten days, she should have immediately noted an appeal; or applied
for stay of execution.
The need to act arose on 16 January 2014 and I found that
the applicant did not intend to comply with court order nor to note an
appeal. The urgency became self created after she was given her ticket to
fly to England. See Kuvarega v Registrar-General & Anor
1998 (1) ZLR 188(H) NO reasonable explanation was proferred for the delay.
I could have dismissed the matter on that basis
alone. However the applicant counsel submitted that the purpose of the
order they had sought was for the return of the physical custody of the minor
child to the applicant was so as to enable the applicant to comply with the
order of GUVAVA J. Counsel for the respondent indicated he had no problems with
an order directing his client to return the child to applicant for purposes of
complying with the order. In the interest of the minor child I then
proceeded to give effect to the order granted by this court in case HC1042/14.
Chinyama & Partners,
applicants' legal practitioners
Atherstone
& Cook, 1st respondent's legal
practitioners
