The
matter was brought for review by the trial magistrate who presided
over an application for guardianship involving two minors.
The
biological mother of the two minors testified in the proceedings
agreeing to have guardianship rights passed on to the grandmother of
the children. The trial magistrate, with hindsight, realized that he
had presided over the matter in error. He hence referred the record
of proceeding for revocation of the proceeding by a review judge as
he had no power to deal with cases where a parent is still alive.
Section
9(1) of the Guardianship of Minors Act [Chapter 5:08] reads:-
“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 [Cap
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.”
It
is clear, as correctly observed by the trial magistrate, that
magistrates are precluded from dealing with an application for
guardianship where one of the biological parents is available. The
proceedings conducted by the magistrate therefore have no legal basis
on which to stand.
Accordingly,
the proceedings are a nullity and are hereby set aside.
