This
matter was dealt with by a magistrate on 16 January 2015. It involves
the application for guardianship of a minor child aged 14 years.
The
applicant is the minor's paternal uncle. The father of the minor
child, who was a brother of the applicant, is deceased. However, the
minor child's mother is still alive.
On
16 January 2015, the applicant made an application for guardianship
of the minor child before the Children's Court at Harare
Magistrates Court. The mother of the child deposed to an affidavit
consenting to the application. This application was made in terms of
section 9(1) of the Guardianship of Minors Act [Chapter
5:08].
The
magistrate granted the application.
However,
upon sending the record for review, in terms of section 9(6) of the
Guardianship of Minors Act [Chapter
5:08],
the magistrate attached a note to the effect that she had erroneously
granted the application without realising that one of the biological
parents of the minor child was still alive. She was seeking guidance
on how to proceed.
In
terms of section 9(1) and (2) of the Guardianship of Minors Act
[Chapter
5:08],
the Children's Court may only appoint a person to be a guardian of
a minor child who has no natural guardian or a tutor testamentary. It
reads;
“9
(1) 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 [Chapter
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.
(2)
Where a minor has no natural guardian or tutor testamentary -
(a)
A relative or person having the care and custody of the minor; or
(b)
A probation officer;
may
apply to the children's court by way of an application lodged with
the clerk of that court for the appointment of a person as guardian
of the minor and such application may propose the appointment of a
specified person as the guardian.”
So
the magistrate was quite correct in her observation that she had no
jurisdiction to entertain the application. The unfortunate part is
that she made this realization after she had already granted the
application.
The
Children's Court's jurisdiction is limited to circumstances or
situations where the minor has no natural guardian or tutor
testamentary. The Magistrates Court, being a creature of statute,
cannot exercise jurisdiction which is not conferred upon it by
statute. So, as long as the minor's natural parents or one of the
natural parents is still alive or maybe alive, an application for
guardianship cannot be made to the Children's Court.
For
parents who are both alive, but are divorced or living apart, the
parent who wishes to have sole guardianship of the minor child can
make an application to this court in terms of section 4(1)(b) of the
Guardianship of Minors Act [Chapter
5:08].
The provision reads:
“On
the application of either parent of a minor whose parents are
divorced or are living apart;
if
it is proved that it would be in the interests of the minor to do so,
grant to either parent the sole guardianship, which shall include the
power to consent to a marriage, or sole custody of the minor, or
order that on the pre-decease of the parent named in the order, a
person other than the survivor shall be the guardian of the minor, to
the exclusion of the survivor or otherwise.”
However,
the Guardianship of Minors Act does not cover a scenario like the
present scenario where the natural guardian is alive and a relative
wants guardianship. Since the Magistrates Court has no jurisdiction
in such a scenario, the application must be made to the High Court on
the basis that it is the upper guardian of minor children. Section
81(3) of the Constitution of Zimbabwe Amendment Act (Number 20)
states that;
“Children
are entitled to adequate protection by the courts, in particular by
the High Court as the upper guardian.”
The
High Court also exercises jurisdiction on the ground that it has
inherent jurisdiction based on section 171(1)(a) of the Constitution
which states that;
“The
High Court has jurisdiction over all civil and criminal matters
throughout Zimbabwe.”
Section
13 of the High Court Act also states that;
“Subject
to this Act and any other law, the High Court shall have full
original civil jurisdiction over all persons and over all matters
within Zimbabwe.”
This
therefore means that the applicant ought to have made his application
to this court instead of making it at the Magistrates Court.
The
Children's Court's decision is therefore null and void. It is
hereby set aside in terms of section 9(7)(a) of the Guardianship of
Minors Act [Chapter
5:08].
The learned magistrate is directed to instruct the Clerk of Court to
notify the applicant accordingly and to advise him to apply to this
court for guardianship if he still wishes to pursue the matter.
