Application
for Custody
CHEDA
J: On
24 September 2003 applicant through an urgent chamber application
applied for custody and the terms of that order are:
“1.
That custody of the minor child Precious Paidamoyo Musendo be and is
hereby granted to the applicant with the respondent being accorded
access on prior arrangement with applicant.
2.
That the Deputy Sheriff be and is hereby authorised and directed to
remove the minor child from respondent's custody and deliver it to
the applicant forthwith.
3.
That respondent bears the cost of this application at an attorney and
client scale.
Interim
Relief Granted
4.
That applicant be and is hereby granted leave to immediately assume
custody of the minor child Precious Paidamoyo Musendo.
5.
That the Deputy Sheriff be and is hereby directed to uplift the minor
child and place it in the custody of the applicant.”
I
granted the interim order on 25 September 2003. The matter then came
for argument on 30 October 2003.
The
parties were married under customary law and were blessed with one
child Precious Paidamoyo Musendo (female) born on 11 May 2001. In
August 2001 applicant secured employment in Bulawayo which
necessitated her to move there leaving behind the minor child with
its father.
The
arrangement had been that applicant would stay with respondent's
uncle which she did but subsequently left due to some family
misunderstandings which are irrelevant to the issue at hand.
The
parties, however, came to live together.
In
February 2003 respondent ordered her to move out with the child which
she did. On 9 August 2003 respondent approached her seeking custody.
The parties would not agree and they ended up at Hillside Police
Station. At the police station respondent advised the police that he
only wanted to have custody of the child for a few days and this was
mutually agreed to by the parties. However, respondent did not
return the child as promised but instead approached the Harare
Magistrates' Court on 1 September 2003 seeking custody of the said
minor child.
His
application was however dismissed. Applicant then approached this
court for the relief referred to supra.
Respondent
argues that his reason for taking the child is because applicant has
denied him access. Further that she is a member of the Apostolic
Faith Church whose doctrine does not subscribe to medical treatment.
To
back up his story he filed a “medical report” from a Dr B Madzima
which reads:-
“To
whom it may concern
Re:
Precious Musendo, 2 and a half years
I
can confirm that I am the medical practitioner of the above named
since December 2002. I can confirm that I have seen her in May and in
August 2003 with signs and symptoms of malnutrition, social neglect,
and respiratory tract infection.
I
can also confirm that on all occasions the father has been very
supportive in terms of buying medication and bringing the baby for
review.
To
me, as it stands, the child seems to be doing very well in terms of
weight for age, height for age etc and would
definitely approve of whoever is currently looking after the child,
serve for the two incidences mentioned earlier. (my
underlining)
I
make these statements sorely believing its true.
Yours
sincerely
(Signed)
Dr
B Madzima, MBChB”
I
find that the parties were married under customary law and applicant
had custody of the child by consent of respondent. Respondent
unlawfully and deceitfully took the child from applicant.
Mr
Nyathi
has argued that I ignore Dr Madzima's letter.
I
agree with his suggestion because it is clear that it was solicited
by respondent in order to strengthen his case.
Doctors
are professional people who are expected to practice their profession
without fear or favour. This is the hallmark of their profession and
part of their ethics. A doctor should understand that his
observations and opinion in a particular case will go a long way in
helping the court in making a proper determination and as such it is
important that he remain neutral in his report. He should not be
partisan to a party that has consulted him.
This
practice by some doctors if allowed to continue will no doubt shake
the public's confidence in them.
It
is trite and settled law that in matters of custody the determining
factor is the interest of children: see Fletcher
v Fletcher
1948 (1) SA 130.
In
making a determination the courts should be guided by the following
factors among others:
1.
Sex of child
A
girl child is naturally attached to its mother and as such her
removal can only be justified if the mother is of such a character
that the interest of the child will not be served by the mother's
association with the child.
2.
Age
The
younger the child the more attachment to its mother it becomes and
that is a natural bond in my view.
In
Stieger
v Stieger
1958
(2) PH B24 (D) an application for custody for two girls aged 4 years
2 months and 2 years 6 months was made before the court. Their
father had claimed their custody it was held that the younger child
in the absence of special circumstances should remain in the custody
of their mother.
In
Ferguson
and Ferguson
1906
EDC 218 at 227 SHEIT J stated;
“As
a general rule no doubt the father is entitled to the custody of his
children, but the first duty of the courts, in cases like the
present, is to consider the interest of the children, and having
regard to their
tender ages,
one not being two years old, I think the best interests of these
children will be safeguarded by giving their custody to their mother,
who has not been proved guilty of such moral misconduct as would
disentitle her to their custody.” (my emphasise)
See
also Shawzin
v Laufer
1968
(4) SA 657.
3.
Character of parents
The
way a parent conducts himself should also be taken into consideration
for the child is bound to learn a lot from a parent whom it daily
associates with. The parent's character can easily be mirrored
through the child: see Milstein
v Milstein
1943 TPD 227 at 230-1 where it was held that the character of the
parties had to be taken into account in determining the question of
custody.
In
the present case respondent took custody of the child in a deceitful
manner. He lied to the police Hillside, Bulawayo and also
misrepresented the facts when he sought custody at the Magistrates'
Court in Harare.
In
my view, this type of behaviour is an indication of a dishonesty man
which then casts doubt on respondent's bona
fides
in this matter.
If
this is the kind of life style respondent leads, then he is not the
kind of a father in whose custody a minor child should be entrusted.
In
this case, the child is a little above 2 years and is a girl.
For
those two reasons alone respondent's chances of succeeding in his
endeavour to claim custody are slim, in my view, he will have to
prove on a balance of probabilities that in the circumstances
applicant is of such a personality that it will not be in the
interest of the child that she be granted custody.
Applicant
is employed and lives with her brother in the leafy suburbs of
Hillside which is regarded as a high class area with a sought after
postal code.
I
accept that fathers naturally would like to associate themselves with
their off-spring. This is quite proper, as that bond should always be
maintained. However, the natural instinct of continuing with the bond
should not be allowed to cloud a father's judgment to an extent
that prejudices the physical and mental development of the said minor
child.
The
best interest of the child will not be served by granting him
custody.
In
the light of the above I am convinced that applicant has made out a
good case, accordingly the provisional order issued by this court on
25 September 2003 be and is hereby confirmed with costs.
Messrs
Sibusiso Ndlovu
applicant's legal practitioners
Messrs
Ziweni & Company Associates
c/o Messrs
Hwalima & Associates
respondent's legal practitioners
