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Constitutional Rights re: Children, Youth, the Upper Guardian of Minors and the Principle of Best Interests of Children

HH20-09 : SHERRIE HARRIS vs MARK HARRIS
Ruled By: MUSAKWA J

The Child Abduction Act [Chapter 5:05] gives effect to the Convention on the Civil Aspects of International Child Abduction. The Convention is incorporated as a schedule to the Child Abduction Act.
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SC11-12 : JESTINA MUKOKO vs THE ATTORNEY-GENERAL
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

Section 15(1) of the Constitution provides that:“(1) No person shall be subjected to torture or to inhuman or degrading punishment or other such treatment.”In this case, the only relevant concepts are “torture”; “inhuman treatment” and “degrading treatment”. They make up the three key elements of the protection of a person's ...
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HH549-15 : ELSIE BHILA vs THE MASTER OF HIGH COURT and FREDDY CHMBARI NO and RATIDZO BHILA and KELVIN BHILA and KWATINI BHILA
Ruled By: MWAYERA J

Social and legal dictates clearly show that no child should be punished by virtue of not having been sired in a registered union or marriage. It is not in dispute the third to fifth respondents are the late Hillary Kamoti Bhila's children, thus his descendants and beneficiaries to the estate. The current Constitution of Zimbabwe outlaws ...
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SC54-17 : NDABEZINHLE MAZIBUKO vs THE BOARD OF GOVERNORS, CHRISTIAN BROTHERS COLLEGE and THE NATIONAL INCOMES AND PRICING COMMISSION and THE SECRETARY, MINISTRY OF EDUCATION
Ruled By: GARWE JA, GOWORA JA and HLATSHWAYO JA

Lastly, the basis upon which it is suggested that the respondent's conduct violates section 7 of the Children's Act [Chapter 5:06] remains unclear. Section 7 of the Children's Act [Chapter 5:06] criminalises the ill-treatment, neglect, abandonment, assault of a young person by a parent or guardian of a child. Allowing, causing or procuring ...
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HHH47-16 : THE STATE vs SHEPHERD BANDA and EVERTON CHAKAMOGA
Ruled By: CHAREWA J and TSANGA J

Judicial officers ought also to take into consideration the following: (i) Firstly, domestic law has seen fit to prescribe extensive provisions for the protection of children, for which judicial officers must not be seen to be giving mere lip service. Chapter 2 of the Constitution, sets out national objectives, of which section 19 prescribes the protection ...
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Appealed
SC37-18 : TRACEY LEIGH MACKINTOSH (NEE PARKINSON) vs ANTONY WILLIAM MACKINTOSH
Ruled By: GARWE JA, GUVAVA JA and UCHENA JA

The need to have due regard to the best interests of the minor children has been part of our law for some time now. Indeed, with the advent of the new Constitution, section 81(2) thereof has codified this position and provides that in every matter concerning a child, it is the child's best interests that ...
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Appealed
HHH718-14 : THE STATE vs WILLARD CHOKURAMBA
Ruled By: MAWADZE J and MUREMBA J

Sections 81(1)(a) and 81(1)(e) make it clear that children are not half-human beings as they ought to be treated equally as adults and protected from all forms of abuse - including violence. They read as follows: “81(1) Every child, that is to say every boy and girl under the age of eighteen years, has the right ...
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CC10-19 : THE STATE vs WILLARD CHOKURAMBA (JUSTICE FOR CHILDREN'S TRUST INTERVENING AS AMICUS CURIAE and ZIMBABWE LAWYERS FOR HUMAN RIGHTS INTERVENING AS AMICUS CURIAE)
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, HLATSHWAYO JCC, MAVANGIRA JCC, BHUNU JCC, UCHENA JCC and MAKONI AJCC

Article 3.1 of the United Nations Convention on the Rights of the Child (1989) (CRC) is to the effect that in all actions concerning children, the best interests of the child shall be a primary consideration. Section 81(2) of the Constitution also provides that “a child's best interests are paramount in every matter concerning the child”. See also ...
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HH117-15 : In re LEO MASHIZHA NHERERA vs x
Ruled By: MUREMBA J and MAWADZE J

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.”
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HH120-15 : ROY NYABVURE vs HILDA KIRIMI
Ruled By: TAGU J

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 ...
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HMA36-18 : AMALGAMATED RURAL TEACHERS UNION OF ZIMBABWE vs OBERT MASARAURE and ZIMBABWE AFRICAN NATIONAL UNION [PATRIOTIC FRONT] and MINISTER OF PRIMARY AND SECONDARY EDUCATION
Ruled By: MAFUSIRE J

The High Court is the upper guardian of all minor children in Zimbabwe. No one tramples on their rights and freedoms and expects the court to look the other way - it will not….,. Section 81[2] of the Constitution says a child's best interests are paramount in every matter concerning the child.
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HHB89-15 : EDNA SIBANDA vs THE STATE
Ruled By: MUTEMA J and MOYO J

This is an appeal against a sentence of 24 months imprisonment of which 8 months imprisonment were suspended for 5 years on the usual conditions of future good conduct.The appellant, who then was aged 32 years, was arraigned before a senior magistrate sitting at Kezi on 24 November 2009 facing ...
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SC86-20 : CONSTANTINE CHIWENGA vs MARRY MUBAIWA
Ruled By: GWAUNZA DCJ, GARWE JA and BHUNU JA

This is an appeal against the whole judgment of the High Court handed down on 24 January 2020. The appeal seeks to impugn the court a quo's order awarding custody of the parties' three minor children to the respondent upon the separation of the parties.The appellant also challenges the jurisdiction ...
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HH404-16 : STANCILOUS MAJURU vs ESTATE LATE CAROLINE MAJURU and DARLINGTON MUCHENJE and FAITH MUNJERI and GODWIN MUNJERI and MASTER OF HIGH COURT N.O.
Ruled By: MWAYERA J

The Constitution makes it clear that in the spirit of protection of marriages and family the spouses have equal rights and obligations during marriage, upon divorce, and at death.Section 26(c) and (d) of the Constitution of Zimbabwe Amendment (No.20) Act 2013 is instructive it states that:“The State must take appropriate ...
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SC94-20 : ZIMBABWE HOMELESS PEOPLE'S FEDERATION and OTHERS vs MINISTER OF LOCAL GOVERNMENT AND NATIONAL HOUSING and ZVIMBA RURAL DISTRICT COUNCIL and LEENGATE PL and MINISTER OF LANDS
Ruled By: PATEL JA, MAVANGIRA JA and MATHONSI JA

This is an appeal against the judgment of the High Court dismissing an application by the appellants for a declaratory order and consequential relief pertaining to various fundamental rights, in particular, the right of children to shelter.The application was dismissed with no order as to costs.The first appellant is an ...
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SC94-20 : ZIMBABWE HOMELESS PEOPLE'S FEDERATION and OTHERS vs MINISTER OF LOCAL GOVERNMENT AND NATIONAL HOUSING and ZVIMBA RURAL DISTRICT COUNCIL and LEENGATE PL and MINISTER OF LANDS
Ruled By: PATEL JA, MAVANGIRA JA and MATHONSI JA

Reasonable Limitations and Reasonable MeasuresSection 86 of our Constitution prescribes the manner in and extent to which fundamental human rights and freedoms may be subjected to limitation or derogated from. Section 86(1) stipulates that rights and freedoms “must be exercised reasonably and with due regard for the rights and freedoms ...
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CC20-20 : MATHEW SOGOLANI vs MINISTER OF PRIMARY AND SECONDARY EDUCATION and HEADMASTER, MASHAMBANHAKA SECONDARY SCHOOL and HEADMASTER, CHIZUNGU PRIMARY SCHOOL and ATTORNEY-GENERAL OF ZIMBABWE
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, GUVAVA JCC, MAVANGIRA JCC, BHUNU JCC and UCHENA JCC

This is an application made in terms of section 85(1)(a) of the Constitution of Zimbabwe Amendment (No.20) Act, 2013 (“the Constitution”) for appropriate relief based on a freedom of religion claim.The application raises questions of the constitutionality of the policy and the actions of the education authorities of compelling school ...
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CC20-20 : MATHEW SOGOLANI vs MINISTER OF PRIMARY AND SECONDARY EDUCATION and HEADMASTER, MASHAMBANHAKA SECONDARY SCHOOL and HEADMASTER, CHIZUNGU PRIMARY SCHOOL and ATTORNEY-GENERAL OF ZIMBABWE
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, GUVAVA JCC, MAVANGIRA JCC, BHUNU JCC and UCHENA JCC

APPLICATION OF THE LAW TO THE FACTSThe Applicant and His ChildrenThat recitation of the pledge is made compulsory in schools has not been disputed by the respondents. The applicant, in his founding affidavit, made a positive allegation to the effect that he had been informed that his children were required ...
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HH29-09 : FIDELIS CHIRAMBA and OTHERS vs MINISTER OF HOME AFFAIRS N.O. and COMMISSIONER GENERAL OF POLICE and OFFICER COMMANDING CID HOMICIDE, Chief Supt MAKEDENGE and DETECTIVE CONSTABLE MUUYA
Ruled By: HUNGWE J

In this application, the applicants seek an order -(a) Declaring their arrest and continued detention unlawful;(b) Requiring the respondents and all those calling through them or acting on their behalf to permit the applicants access to medical treatment at medical centres of their choice;(c) Directing the respondents or anyone calling ...
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HH333-13 : GIVEMORE SAMBADZI and SALATIEL NHUBU vs REGISTRAR OF DEEDS
Ruled By: BHUNU J

The facts that gave rise to this dispute are as follows:In January 2010, the first applicant, Givemore Sambadzi, purchased certain immovable property known as Stand 2048 Chadcombe Township of Stand 1257 Chadcombe Township from one Charity Nyarai Mupaya and a Deed of Transfer was made in his favour.In November 2010, ...
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HH955-15 : SAMUEL UNDENGE vs BONGANI UNDENGE
Ruled By: MAKONI J and MWAYERA J

The appeal is against the entire judgment of the court a quo wherein the court ordered, that, the appellant pays maintenance in the sum of $350 per month until the respondent becomes self-supportive. The appellant raised grounds of appeal as follows:“1. The learned magistrate erred and misdirected herself in awarding ...
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HHMT19-19 : THE STATE vs LYDIA KAHWEMA
Ruled By: MWAYERA J and ASSESSORS: MAWONEKE and CHIPERE

The accused was initially charged with murder as defined in section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].It is alleged, that, on 26 February 2018, and at Mangatu Village, Chief Marange, Mutare the accused unlawfully caused the death of Tafadzwa Kahwema by assaulting him several times ...
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SC78-21 : ZIMBABWE HOMELESS PEOPLES FEDERATION and OTHERS vs MINISTER OF LOCAL GOVERNMENT AND NATIONAL HOUSING and OTHERS
Ruled By: GARWE JA, MAVANGIRA JA and MATHONSI JA

After hearing argument from the parties, the High Court of Zimbabwe made an order dismissing the application filed by the appellants in terms of section 85(1) of the Constitution of Zimbabwe. The court also ordered the appellants to pay the costs of the application.This followed a finding by the court ...
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HH818-15 : NAOMI MUKUNDU vs LAWRENCE CHIGUMADZI and TAKUNDA GUMBO and THE MASTER OF THE HIGH COURT
Ruled By: UCHENA J

Section 81(2) of the Constitution of Zimbabwe Amendment (No.20) Act 2013 provides as follows;“(2) A child's best interests are paramount in every matter concerning the child.”...,.This Court, as upper guardian of all minors, has a duty to adequately protect the rights of a child. In appropriate cases, the court may ...
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HHH374-19 : MUNYARADZI KEREKE vs FRANCIS MARAMWIDZE N.O.
Ruled By: HUNGWE J and WAMAMBO J

The appellant was convicted of rape, as defined in section 65 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], by the Regional Magistrate, Harare, and sentenced to 14 years imprisonment of which four years were suspended for five years on the usual conditions, on 11 July 2016.The appellant ...
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SC130-21 : PHILIPPA COUMBIS vs RONALD COUMBIS and DOVES FUNERAL ASSURANCE (PVT) LTD
Ruled By: GARWE JA, GOWORA JA and UCHENA JA

Section 81(2) of the Constitution..., provides, that, in every matter concerning a child, it is the child's best interests that are paramount and that minor children are entitled to protection of the courts, particularly by the High Court as the upper guardian of the rights of children.Section 81(2) and (3) ...
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SC132-21 : FRANK BUYANGA SADIQI vs CHANTELLE MUTESWA and OTHERS
Ruled By: UCHENA JA

On 16 June 2021, I partly heard the applicant's chamber application for condonation and reinstatement of an appeal in terms of Rule 70(2) of the Supreme Court Rules 2018.On 11 May 2020, the applicant filed a notice of appeal, but failed to inspect the record within the time prescribed by ...
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CC12-15 : LOVENESS MUDZURU and RUVIMBO TSOPODZI vs MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS N.O and MINISTER OF WOMEN'S AFFAIRS, GENDER & COMMUNITY DEVELOPMENT and ATTORNEY GENERAL OF ZIMBABWE
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and GUVAVA JCC

MERITSThe respondents' case, on the merits, is that section 78(1) of the Constitution does not set the age of eighteen years as the minimum legal age of marriage.They argued that section 78(1) of the Constitution gives a person who has attained the age of eighteen the “right to found a ...
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CC12-15 : LOVENESS MUDZURU and RUVIMBO TSOPODZI vs MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS N.O and MINISTER OF WOMEN'S AFFAIRS, GENDER & COMMUNITY DEVELOPMENT and ATTORNEY GENERAL OF ZIMBABWE
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and GUVAVA JCC

Surprisingly, counsel for the respondents sought to justify marriage under section 22(1) of the Marriage Act [Chapter 5:11] on the ground that a girl physiologically, psychologically, and emotionally matures earlier than a boy.The contention is without scientific evidence to support it. The Zimbabwe Human Rights Bulletin Number 98, August 2014 ...
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HHMA20-19 : THE STATE vs X
Ruled By: MAWADZE J and MAFUSIRE J

This review judgment has been occasioned by the need to assist judicial officers, especially Magistrates, in sentencing juveniles convicted of criminal offences in light of the decision of the Constitutional Court in the case of State v Willard Chokuramba 4 Ors CC10-19.The Constitutional Court outlawed corporal punishment administered ...
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CC03-22 : DIANA KAWENDA vs MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and MINISTER OF HEALTH AND CHILD CARE and THE ATTORNEY-GENERAL OF ZIMBABWE
Ruled By: MAKARAU JCC, HLATSHWAYO JCC and PATEL JCC

On 20 January 2020, the High Court dismissed with costs, an application to that court by the appellant and another who is not before us, challenging the constitutional validity of the law that governs the age at which children can consent to sexual activities.This is an appeal against that order.BackgroundThe ...
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HH24-19 : MOHAMMED ISMAIL (as the guardian of X - a minor) vs SAINT JOHNS COLLEGE and CAVALIERE COORRADO TRINCI N.O. and STEVE MARTIN N.O. and MINISTRY OF PRIMARY AND SECONDARY EDUCATION
Ruled By: CHITAKUNYE J

This is a chamber application brought on a certificate of urgency. The provisional order the applicant seeks was couched as follows:“FINAL ORDER1. That, the conduct of the 1st, 2nd and 3rd respondents consisting of ordering X, a minor enrolled as an Upper Six student at the 1st Respondent, to shave ...
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HH335-14 : ZUWA DAMSON vs LINCOLN USHAMBA
Ruled By: TSANGA J

This urgent application turned upon the issue of whether an order of maintenance from the Magistrate Court, that is currently pending review, can be varied, even provisionally, by the High Court through an urgent chamber application.My immediate legal view was that this was not possible.However, since the parties were self-actors, ...
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HHMT62-19 : LAWRENCE ZINHUMWE vs THE STATE
Ruled By: MWAYERA J and MUZENDA J

Irked by the conviction and sentence imposed by the court a quo, the appellant approached this court on appeal.The appellant was convicted of indecent assault, as defined in section 67(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].He was sentenced to 18 months imprisonment of which 6 months ...
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