These
are Consolidated Urgent Chamber Applications.
In
the case of Roy
Nyabvure v Hilda Kirimi
HC778/15, the applicant (respondent in HC795) is seeking a
provisional order in the following terms:
“TERMS
OF THE FINAL ORDER SOUGHT
That
you show cause to this Honourable Court why a final order should not
be made in the following terms;
1.
That the Respondent be and is hereby directed to, forthwith, and on
every school day, punctually take the children, TADIWANASHE NYABVURE,
TAPIWANASHE NYABVURE and TENDEKAI NYABVURE to Avondale Primary School
for their lessons.
2.
That the Respondent pays the costs of this Application.
INTERIM
RELIEF GRANTED
Pending
the return date of this matter, the Applicant is granted the
following relief;
That
the respondent is hereby ordered and directed to forthwith, and on
every subsequent school day, take the minor children, namely,
TAPIWASNASHE NYABVURE, TADIWANASHE NYABVURE and TENDEKAI NYABVURE to
Avondale Primary school for their lessons.
SERVICE
OF PROVISIONAL ORDER
Service
of this provisional order is to be effected by the Sheriff of
HARARE.”
On
the other hand, in the case of Hilda
Kirimi v Roy Nyabvure
HC795/15, the applicant (respondent in HC778/15) is seeking a
provisional order in the following terms:
“TERMS
OF THE FINAL ORDER SOUGHT
That
you show cause to this Honourable Court, if any, why a final order
should not be made in the following terms:-
1.
The Respondent shall continue to pay termly school fees at Twin
Rivers Primary School for the two minor children, namely, Tapiwanshe
and Tadiwanashe Nyabvure until both of them complete their primary
education.
2.
The Respondent shall continue to pay termly school fees at Elite
Academy for Tendekai Nyabvure until she completes her early childhood
development course and thereafter Respondent shall pay school fees
for Tendekai at any Primary School chosen by Applicant.
3.
The alleged enrolment of the two minor children at Avondale Primary
School from January 2015 be and is hereby declared null and void and
of no legal consequence.
4.
Respondent shall pay the costs of this Application at the rate of
Attorney and client scale.
INTERIM
RELIEF GRANTED
It
is hereby ordered that:-
Pending
confirmation of the Final Order Sought, Applicant is granted the
following relief:-
1.
The Respondent be and is hereby ordered to pay school fees for the
minor children at Twin Rivers Primary School and Elite Academy within
48 hours of this order.
2.
The Respondent be and is hereby interdicted, with immediate effect,
from interfering with or obstructing the minor children's class
attendance at Twin Rivers Primary School and Elite Academy.
3.
The Respondent be and is hereby ordered, with immediate effect, to
withdraw the notice to transfer the minor children from Twin Rivers
Primary School.
4.
Respondent be interdicted from removing the minor children from class
at Twin Rivers Primary School and Elite Academy without Applicant's
written consent.
5.
Respondent shall pay the costs of this application at Attorney and
client scale.
SERVICE
1.
Service of this Provisional Order shall be effected by the Sheriff of
Zimbabwe, or an Additional Sheriff or any member of the Zimbabwe
Republic Police or by the Applicant's legal practitioners upon the
Respondent.”
The
undisputed facts in these applications are that the parties lived as
husband and wife in an unregistered customary law union since
December 2000. The union was blessed with three minor children,
namely, Tapiwanashe aged 10 years, Tadiwanashe aged 7 years and
Tendekai Nyabvure aged 4 years. The parties separated in 2011. On
separation, the minor children remained in the custody of the mother,
Hilda Kirimi. The mother obtained a Maintenance Order which directed
the father (Roy Nyabvure) to pay a monthly sum of $300= and school
fees for Tapiwanashe and Tadiwanashe who were enrolled at Twin Rivers
Private School. The minor, Tendekai Nyabvure, was then not at school.
Currently, Tapiwanashe is in Grade 5M whilst Tadiwanashe is in Grade
3N at Twin Rivers Primary School. Tendekai is now enrolled at Elite
Academy Nursery School.
At
the time of the lodging of these applications, which were filed
simultaneously without the knowledge of the other, on 28 January
2015, none of the children were attending school. Each party is
blaming the other for the non- attendance.
According
to Roy Nyabvure, due to economic hardships and the fact that his
employer, the City of Harare, is erratic in payment of his salary he
found himself in a position whereby he could not meet the fees
obligations to the extent that he has always been in arrears. Each
child's termly fees are $1,600= which is hardly enough after
deducting the $300= for maintenance. He found it necessary to remove
the children from a private school to a public school whose
facilities are comparable and fees affordable. He advised the mother
to choose any other public school of her choice. The mother, through
her lawyers, objected to the idea citing that Government schools are
inferior to Twin Rivers Private School and asked him to obtain a
court order.
Without
a court order, he secured vacancies for Tapiwanashe and Tadiwanashe
at Avondale Primary School. He, further, secured a vacancy for
Tendekai at Avondale Infant School for E.C.D. He advised the mother
of the developments. Despite writing to the mother and advising her
of the fact that he had already paid fees at Avondale Primary School,
the mother remained intransigent and refused to take the children to
Avondale Primary School. His contention is that the educational
welfare of the children is being affected by the ego of the mother.
He argued, further, that the mother's actions are actuated by
malice. As a result, the children are no longer going to school. He
has no other remedy hence he brought this application on an urgent
basis to compel the mother to take the children to Avondale Primary
School. In support of his application he produced correspondences,
proof of payment of fees as well as past Grade 7 Results Analysis
showing that Avondale Primary School is rated better than Twin Rivers
Private School.
The
mother, Hilda Kirimi, is of a contrary view. Her argument is that it
was on 14 January 2015, a few days after school opening that the
father, through his lawyers, wrote to her advising her that the
children had been enrolled at Avondale Primary School without her
consent and knowledge. On 16 January 2015 the father threatened to
forcefully take the children from her and force them into a school
which has no place open for them, an act which might cause prejudice,
suffering, and trauma to the minor children. On 22 January 2015, she
received a letter from Avondale Primary School Head stating that
Avondale had places for Tapiwanashe and Tadiwanashe on condition that
the father complied with certain requirements. The offer was open
until Thursday 22 January 2015. The offer to accept the children at
Avondale School has since lapsed. According to her, the minor
children have been sent out of class for failure by the father to pay
school fees at their current school, Twin Rivers Primary, and they
are traumatised by this development.
Further,
she argued that in terms of Clause 13 of the Agreement between the
two minor children and Twin Rivers School, the father should have
given the school a full term's written notice of intention to
withdraw the children from school or pay the term's fees in lieu of
notice. Since no notice was given by her, as the sole custodian and
guardian parent, in accordance with clause 13 the children are still
enrolled at Twin Rivers Primary School.
Her
contention is that it is not in the best interests of the children to
be transferred to Avondale Primary School from Twin Rivers Primary
School. The youngest child, Tendekai Nyabvure, should equally not be
transferred from Elite Academy where she enrolled her to Avondale
Infant School.
She
therefore approached this court, on an urgent basis, because the
children's rights to education are being violated by the father who
just wants to grab the children from their current schools to another
school without meeting the required terms of a proper transfer and
enrolment, and also without her consent as the sole custodian and
guardian of the minor children. She feels that such a transfer would
also not serve the best interests of the children.
To
support her application, she attached a copy of the contract she
signed with Twin Rivers Primary School; letter from the Headmaster of
Avondale Primary School; receipts from Elite Academy; as well as
other correspondences from the father's lawyers….,.
The
right that is at the centre of the dispute is the right to education.
As
we speak, the children in question are not attending school. This
reminds me of the proverbial saying that when two elephants fight it
is the grass that suffers. In this case, both parents opted for
schools of their own choice - for their own reasons. As the parents
fight to take the
children to schools of their choice, the children dropped out of
school. They are torn between the two choices. This resulted in a
breach of their fundamental right as enshrined in the Constitution of
Zimbabwe, under section 81(1)(f), which says -
“81
Rights of children
(1)
Every child, that is to say, every boy and girl under the age of
eighteen years, has the right –
(a)…,.
(b)…,.
(c)…,.
(d)…,.
(e)…,.
(f)
To
education, health care services, nutrition and shelter;….,.”
In
trying to resolve the dispute in this case the court is empowered, in
terms of section 81(2) of the Constitution, which says “a child's
best interests are paramount in every matter concerning the child.”
It
is common cause that the three minor children in this case were born
out of
wedlock. The parents separated four years ago. The children remained
in the custody of the mother. The position of the law, in relation to
the rights of the custodian parent, is very clear. The mother of a
child born out of wedlock has the sole rights of custody and
guardianship. See D
v M
1986 (1) ZLR 188; Cruth
v Manual
1999
(1) ZLR 7 (S); and Katedza
v Chunga
2003 (1) ZLR 470 (H).
The
mother in this case, as the custodian parent has certain rights and
powers in the exercise of such custody. The rights of the custodian
parent were clearly stated in the cases of Hughson
and Another v Greyling
2000 (1) ZLR 434 (H) and Makuni
v Makuni
2001 (1) ZLR 189 (H) quoted with approval in Berens
v Berens
HH28-09. In Makuni
v Makuni
2001 (1) ZLR 189 (H) the learned Judge, JUSTICE GOWORA, quoting from
Boberg
Family Law…,
had this to say:
“An
award of custody to a mother entrusts to her all that is meant by the
nurture and upbringing of the minor children. In this is included all
that makes up the ordinary daily life of the child – shelter,
nourishment and the training of the mind…,. The child…, passes
into the home of the mother, and there it must find all that is
necessary to its growth in mind and body…,. A custodian parent has
therefore the right to regulate the life of the child, determining
with whom he should or should not associate, how he should be
educated, what religious training he should receive and how his
health should be cared for. The non-custodian parent has no right to
interfere in these matters, though he may petition the court to do so
if it appears that the custodian parent has exercised his discretion
in a manner contrary to the interests of the child or in conflict
with an order of court. Otherwise, he is confined to his right of
access to the child.”
In
casu,
in his founding affidavit, the father, Mr Roy Nyabvure. did not
allege that the custodian parent did not exercise the right of
control in the best interests of the children warranting the
intervention of this court.
In
fact, it is him who is interfering with the education of the
children. It is him who is moving the children away from the
educational environment which the children have been accustomed to
for the past five years. He wants to move them to a new environment
which they are not accustomed to. In deciding to move them he is
taking into account his own interests, that is to say, his inability
to continue to pay fees. His failure, if ever it is there, has
nothing to do with the custodian parent. The only sin the custodian
parent is accused of having committed is refusal to give in to his
demands. He unilaterally removed the children from their present
schools without the consent and knowledge of the custodian parent. To
make matters worse he did not move them to any of the schools which
he had initially suggested.
The
question that this court has to decide is whether or not the removal
of the children is in their best interest.
The
father raised two reasons;
(i)
The first one being that the standard of education at Twin Rivers is
lower than that at Avondale Primary School.
One
would wonder when he realised that when the eldest child has been at
Twin Rivers for the past five years and the second has been there for
the past three years. As the record shows, he is now staying with
another wife elsewhere. Why did he not notice the sub-standard level
of education when he was staying with the mother of the children?
When he finally decided to move them why not get the consent of the
custodian parent? As I outlined in the case authorities above, his
right is only limited to access only.
In
my view, and on this point, the mother's refusal to move the
children cannot be said, in any manner, to be detrimental to the
interests of the children. The other problem is that the father, as
confirmed by the letter written by the Head of Avondale School, has
not complied with the requirements for the acceptance of these
children who are not even appearing in the school's registers at
Avondale Primary School. He also has not secured transfer
certificates from the schools he wants to remove them. What guarantee
is there that the children will be accepted? If this court were to
order the mother to take the children, it would be tantamount to
forcing the releasing and accepting schools to transfer and accept
the children without transfer certificates.
(ii)
The second issue raised by the father is that he cannot afford the
fees. The basis being that his employer is erratic in payment of
salary.
What
comes to mind is that nothing has really changed financially. What is
not stable are the pay dates. When the pay date comes he gets his
full salary. The reality on the ground is that even public employees
who are employed by public institutions are experiencing the same
erratic payment of salaries. There is nothing to stop him from paying
as and when it comes….,.
In
my view, the children are now in settled and comfortable
circumstances at their respective schools. What is only required is
for their fees to be paid forthwith so that they continue with their
education where they are currently enrolled. Any further delay in the
payment of fees would be a violation of their constitutional rights.
If there is a need to transfer them this has to be done with the
consent of the mother, and in an orderly manner. To move them to
another school so abruptly would not be in their best interests.
It
is accordingly ordered that:
1.
The application in HC778/15, in light of the foregoing, is dismissed.
2.
The applicant in HC795/15, in my view, is entitled to the relief that
she seeks on the following terms -
INTERIM
RELIEF GRANTED
Pending
confirmation of the Final Order Sought, Applicant is granted the
following relief:-
1.
The Respondent be and is hereby ordered to pay school fees for the
minor children at Twin Rivers Primary School and Elite Academy within
48 hours of this order.
2.
The respondent be is hereby interdicted, with immediate effect, from
interfering with or obstructing the minor children's class
attendance at Twin Rivers Primary School and Elite Academy.
3.
The Respondent be and is hereby ordered, with immediate effect, to
withdraw the notice to transfer the minor children from Twin Rivers
Primary School.
4.
The respondent be interdicted from removing the minor children from
class at Twin Rivers Primary School and Elite Academy without the
applicant's written consent.
5.
Respondent shall pay the costs of this application at Attorney and
client scale.
SERVICE
1.
Service of this Provisional Order shall be effected by the Sheriff of
Zimbabwe or an Additional Sheriff or any member of the Zimbabwe
Republic Police or by the Applicant's legal practitioners upon the
Respondent.
