Civil
Review
MUTEMA
J: On
12 November, 2014 the provincial magistrate issued the applicant
Gonyora with a certificate of guardianship in respect of the minor
child whose name is stated supra.
In
the application for the guardianship in the magistrates' juvenile
court the applicant was represented by an organisation called Justice
For Children as her legal practitioners. The papers filed in the
application ventilate the following facts:
The
minor child's mother Sekai Mwale died on 7 January, 2001. She was
not employed. The father Moses Mwale died on 4 April, 2014. He was a
retired soldier. The applicant Gonyora is the late Moses Mwale's
sister.
She
averred that she has been staying with the minor child since 2001
when his mother passed away.
The
minor child's parents left four children including the minor in
question. The minor child is doing form 3 at Founders High School.
The
applicant is a widow with three children. She is self-employed
vending clothes. She resides in Gwabalanda in the house belonging to
the minor child' late father Moses Mwale.
The
applicant proffered two reasons for her application, viz
-
(i)
to enable her to apply for a passport for the minor child so that she
can travel with him to South Africa where most of his paternal
relatives are; and
(ii)
that she will be able to legally act for the minor child in all
issues affecting him.
She
attached four supporting affidavits to her application two of which
were deposed to by the minor child's purported paternal uncles Lion
Phiri and Stanford Chirwa while one was by Nhamo Richard Mandaza who
purported to be a maternal uncle to the minor child and the other was
by Jane Nhamo who said is a maternal aunt to the minor child.
It
was not elucidated how a Chirwa and a Phiri came to be paternal
uncles to a Mwale and also how the Nhamos came to be maternal aunt
and uncle to the minor child whose late mother was Sekai Mwale (nee
Mahupete).
As
the upper guardian of minor children, this court finds that the trial
provincial magistrate was enjoined to make an indepth and more
thorough enquiry clarifying the alleged relationships alluded to
above.
Even
the applicant was supposed to disclose her maiden surname to find out
whether she truly is who she averred to be vis-a-vis
the late Moses Mwale.
Over
and above the eyebrows raised by the shortcomings pointed out above
what makes the entire scenario worse is that the applicant is staying
in the minor child's late father's house.
The
father died on 4 April, 2014. To date his estate is still not
registered. No explanation for it has been proffered.
It
does not require a being from outer space to smell a rat here. Even
the Deputy Master's report is to the effect that registration of
the deceased Moses Mwale's estate was supposed to have been done
first.
When
the record of proceedings landed on my desk on automatic review in
terms of section 9(6) of the Guardianship of Minors Act [Chapter
5:08] I asked the trial magistrate whether the deceased estate was
registered and if so proof thereof and the response was simply that
it was not; who the minor child's siblings are, how old they are,
what they do in life and where they are and the reply was that he has
two sisters Norine Savi Mwale (now late) and Tatenda Mwale who is
unemployed and resides with her husband in South Africa yet in
paragraph 4 of her affidavit the applicant avers that including the
minor child, the deceased parents left four children – so the
fourth child has not been accounted for, and whether the minor
child's parents were employed to which the reply was that “only
the father was retired from the army and there seems to be no pension
benefits therein” (sic).
If
the father retired from the army it is inconceivable how there could
be no pension accruing to him which this minor child should benefit
from.
Experience
has taught us that orphaned minor children must by all means be
protected against the vagaries and avarice of certain members of
society, relatives or not, hence the need for magistrates in
enquiries of this nature to think outside the box and make exhaustive
enquiries in the interests of the innocent children who might end up
destitute on the streets as a result of inadequate fact-finding.
In
the result, in terms of the powers vested in me in terms of section
9(7)(b) and (c) of the Guardianship of Minors Act, [Chapter 5:08],
the matter is hereby remitted to the children's court for the
following to be done:
1.
to establish the via documentary proof the relationship between the
applicant and the late Moses Mwale, between Lion Phiri and Stanford
Chirwa on one hand and Moses Mwale on the other hand; between Nhamo
Richard Mandaza and Jane Nhamo on one hand and Sekai Mwale (nee
Mahupete) on the other;
2.
to account for the unnamed fourth sibling to the minor child, how old
he/she is, where he/she is and whether employed or not;
3.
to establish if the late Moses Mwale has pension benefits from the
army he is entitled to and if so the certificate for guardianship
must incorporate a provision that such proceeds be deposited into the
Guardian's Fund;
4.
to establish the Gwabalanda house number and its title deeds or other
title and that the late Moses Mwale's deceased estate be registered
and an executor appointed before the appointment of the guardian can
be confirmed;
5.
to establish the views towards the application of the minor child's
sister Tatenda Mwale as well as those of the unnamed sibling alluded
to in 2 above.
