All
these matters were dealt with in terms of the Children's Act [Chapter 5:06]
although the learned magistrate who dealt with the matters mistakenly believed
that he did so in terms of the then Children's Protection and Adoption Act of
1972. This is the same Act which was renamed the Children's Act in 2001 with
amendments being done to the provisions of the old Act.
The query
raised by my brother MUSAKWA J was as follows in respect of In re: Enia
Sithole:
“This
is another delayed review having been occasioned by the late submissions of the
record of proceedings.
Section
19(1)(a) of the Children's Act enjoins a Children's Court to hold an inquiry in
respect of a child brought before it. Apart from a letter from SOS Children's Village Zimbabwe and on order in terms of the Children's Act,
there is nothing to show what inquiry was conducted by the magistrate. The
matter is remitted to the relevant magistrate to conduct an inquiry as required
by the Act.”
In
respect of Margret Chikombingo, the same query, that there was no record of the
inquiry held before the magistrate, was raised.
Lastly,
in respect of all the other matters, MAKARAU J…, raised the following issues;
“1.
These matters were handled by the same magistrate.
2.
There is no record of inquiry held by the magistrate.
3.
Please ask him to explain.”
The
trial magistrate who handled these matters responded to the queries raised in
all these matters in one minute, dated 16 August 2006, as follows;
“In
this matter, the probation officer presented the court with reports which the
court went through. Having satisfied myself with the contents of the
report, I did not feel it necessary to call him or other persons.
I
based my decisions on the provisions of s5(1) and (2) of the Children's
Protection and Adoption Act. In subs 2 it is stated that –
'(2)
The officer presiding over a juvenile court may, in his discretion, permit
evidence to be given to the court by way of affidavit or report.'
The
report of the probation officer form part of the records. From the
contents of the reports I did not feel that it was necessary for any other
person to appear before the court. I thus made the order that I made.”
It
is clear that the learned magistrate who handled these matters misdirected
himself and that even after the omissions he made were raised by all three
judges he seemed unwilling to accept that he erred. Before demonstrating this
fact, let me briefly summarise the facts of each case and the contents of each
record.
1.
In re: Panashe Gireya John
The
juvenile was born on 3 October 2004. Both parents of the juvenile died when
the juvenile was just 6 months old. The juvenile was left in the custody
of a 64 year old uncle who was unable to take care of the child and decided to
send the child to Howard Mission Hospital. The officials at the hospital
decided to put the juvenile at Montgomery Heights as no relative was willing to
take care of the juvenile. All this is outlined in the Probation Officer's
report filed of record. The Probation Officer, on that basis, made an
application to the Children's Court to have the juvenile placed at Montgomery
Heights Christian Centre on 5 April 2006. Attached to that application was
a letter of proof of vacancy from the institution confirming the institution's
willingness to accept the juvenile. The order was granted on 6 April 2006
placing the juvenile at Montgomery Heights Christian Centre.
The
record of proceedings in this matter consists of the Probation Officer's
report, the confirmation letter and the order granted by the magistrate only.
2.
In re: Mike Kanzimbe
At
the time the order was made, the juvenile was 11 years old. The facts of
the matter are that the mother of the child was unknown and the father died in
2004. The juvenile had nowhere to go and decided to board a bus in Matepatepa
area. The conductor of the bus took him to Bindura Police Station who
brought the plight of the juvenile to the Social Welfare Department who in turn
took the juvenile to Ponesai Vanhu Junior School being a place of safety. An
application was then made in terms of the Children's Act to have the juvenile
declared a child in need of care and placed at Ponesai Vanhu Junior
School. The order was granted on 5 January 2006.
In
this record, there are no notes from the presiding magistrate except the
Probation Officer's report and the order granted.
3.
In re: Letwin Dube (aged 9 years); Trinity Dube (aged 15 years); Edwin Dube
(aged 5 years)
Although
there are three separate records for these three juveniles their circumstances
are the same as they are siblings hence I have decided to deal with them at the
same time. The Probation Officer's report in respect of each of the
juveniles reflects the following;
The
parents for the juvenile are either deceased or unknown as they could not be
traced. All what is known is that the mother died in 2004 at Maizelands
Farm and that she had no relatives as she was just a migrant worker. An
employee at the farm took care of the siblings, Trinity a girl aged 15 years,
Philip, a boy, deaf and dumb, aged 6 years, Edwin, a boy, aged 5 years and
Letwin, a girl, aged 9 years. The owner of the farm, a Mr Nel, on a
voluntary basis, provided food and clothing from 2004 but was later unable to
help in 2006. The Social Welfare Department was alerted of the need to
institutionalise the juveniles hence the application to the Children's Court.
The order placing the three juveniles at SOS Village was made on 27 April
2006. However, the record shows that besides the Probation Officer's
report and a copy of the order, as per Form 8, no other notes were recorded by
the court which means no inquiry was held.
4.
In re: Jasper Hutu aged 6 months (Born on 19 July 2005)
The
mother of the juvenile died when the juvenile was 4 months old and was left in
the custody of the father. The father is alive. He had no experience
to look after the child and approached the Social Welfare Department who
decided to remove the juvenile from the father's custody and place it in the
children's home where the needs of the child's social needs would be met as the
child would be in a family environment with other children and receiving
motherly care and love. On the basis of the report, the Probation Officer
made an application to have the child declared to be a child in need of care
and to be placed in an institution. The order to that effect was granted
on 20 January 2006.
This
record of proceedings contains the Probation Officer's report and the court
order on Form 8. There is no affidavit from the father and neither was the
father heard during the inquiry.
5.
In re: Margaret Chikombingo (born 7 October 1995 – 10 years)
The
background facts are that the juvenile was staying with a step-brother and his
wife at a farm in Concession. The brother is called Jeremiah. He was
employed at this farm. This brother raped the complainant and was
subsequently convicted and incarcerated. The juvenile had to leave the
farm and a step sister, one Mary, in Glendale, who is a commercial sex worker,
took care of the juvenile. The juvenile was exposed to immoral behaviour
by the step-sister who brought many boyfriends home to spend the nights in
a single room with the juvenile also present. Members of the Glendale
Child Welfare Forum notified the Probation Officer of the juvenile's plight and
authorities at SOS Children's Village in Bindura agreed to take the juvenile
into their custody. An application to that effect was made and
granted. This order, however, expired on 18 March 2003 and the current
application is for the renewal of the order as the juvenile is still in need of
care because no relative was willing or capable of looking after the juvenile.
The order reviewing the previous order was granted on 25 February 2005.
In
this record of proceedings, there is only the Probation Officer's report and
the court order. There is no confirmation letter from SOS Children's Village in
Bindura. A copy of the expired order is not attached.
6.
In re: Enia Sithole
The
facts of this matter are not explained as there is no Probation Officer's
Report. The record only contains Form 8 which is this court order placing the
juvenile at Shearly Cripps Children's Home, dated 23 February 2005, and a
letter from Shearly Cripps Children's Home to the Department of Social Welfare,
Glendale, dated 10 April 2001, confirming that the juvenile was placed at that
institution in 2000 and that there was need for the Department of Social
Welfare to regularise this position urgently by obtaining a court order to that
effect. This probably triggered the order granted by the court on 23 February
2005. The circumstances of the juvenile however remain unknown.
It
is common cause that applications of this nature are brought to the Children's
Court in terms of section 18 of the Children's Act [Chapter 5:06]. In terms of
section 19(1)(a) of the Children's Act [Chapter 5:06], the Children's Court, in
dealing with such an application, is enjoined to hold an inquiry in respect of
the child or juvenile brought before it. This inquiry is important to verify
the facts upon which the application is premised. It is also to assist the
Children's Court to establish whether the child is in need of care as is
defined in the Children's Act [Chapter 5:06]. The inquiry also assists the
court to exercise any of the powers vested in the Children's Court in terms of
section 20 of the Children's Act [Chapter 5:06]. It is therefore as a result of
such an inquiry that the Children's Court may decide on the proper option to
take in terms of section 20 of the Children's Act [Chapter 5:06].
It
is common cause that the Children's Court is a court of record. This means that
all proceedings in this court should be recorded. The inquiry held should be
recorded. The inquiry may entail the hearing of viva voce
evidence or may be based on affidavits and reports admitted in court as exhibits
during the inquiry. The record of proceedings should reflect all this. It is therefore
disingenuous for the trial magistrate in this case to argue that since there
was no viva voce evidence led there was no
need to keep a record of proceedings showing the nature of the inquiry held.
The Children's Court has a duty to keep a full legible record of proceedings in
all matters dealt with. In addition to that there should be brief reasons
explaining the decision made by the Children's Court. The Children's Court
should explain the brief circumstances of the child, the nature of the evidence
relied upon, findings made on why the child is in need of care and the basis of
the particular order granted in terms of section 20 of the Children's Act [Chapter
5:06]. This entails the confirmation of the requisite vacancy at the relevant
institution.
In
terms of section 27 of the Children's Act [Chapter 5:06], after the holding of
the inquiry and the granting of the order, the Children's Court is enjoined,
within seven (7) days to submit the record of proceedings to the High Court for
review. Such a review can only be meaningful where a proper record of
proceedings has been kept.
In the
case of In re: Gonyora 2001 (2) ZLR 573 (H) it was pointed out that
the record of proceedings of a Children's Court which is submitted for review
(whether in terms of the Guardianship of Minors Act [Chapter 5:08] or the
Children's Act [Chapter 5:06] must include reasons for the court's decision.
The reason for this is clear. This court cannot carry out its review powers to
determine whether the proceedings were in accordance with real and substantial
justice where there is no record of proceedings and no written reasons for the
decision made. In the absence of a proper inquiry, the record of proceedings,
and reasons for the order made, this court is hamstrung in deciding whether the
Children's Court has taken into consideration the principles that bear on the
child's best interests.
It
is clear that in all these eight (8) matters dealt with by the magistrate there
are no records of proceedings. There is no evidence on record that an inquiry,
as envisaged in terms of section 19(1) of the Children's Act [Chapter 5:06] was
held before the relevant orders were granted in terms of section 20 of the
Children's Act [Chapter 5:06]. This constitutes a misdirection; see In re: Gonyora 2001
(2) ZLR 573 (H)…,.
It
is not helpful for the magistrate to allege that an inquiry was held without
such evidence in the form of a record of proceedings. Such a purported inquiry,
which remains stored in the mind of the magistrate, falls far short of what is
required in terms of section 19(1) of the Children's Act [Chapter 5:06]. In the
absence of the reasons for decisions made in all eight (8) matters it is
difficult to assess, on review, if the proceedings were in accordance with
justice.
Due
to the lapse of time, it is now not possible, through the process of review, to
rectify the anomalies. No useful purpose would be served by remitting the
matters to the magistrate for a proper inquiry to be held. Due to lapse of time,
some of the juveniles are now majors. Further, the circumstances of the
juveniles have changed since 2005 and 2006. All I can do now is to withhold my
certificate and decline to certify the proceedings in all matters as in
accordance with real and substantial justice.
