Urgent
Application
UCHENA
J:
The
applicant is the maternal grand-mother of the two minor children
Laura Edna Chigumadzi born on 4 August 1999 and Lawrence Takudzwa
Chigumadzi born on 28 September 2000, for whom she sought an order
granting her their custody and guardianship. The first respondent is
the biological father of the minor children. He however has not been
involved in their life since his separation from their late mother in
2005. He lives in the United Kingdom with his wife and child from a
subsequent marriage.
The
applicant filed an urgent application on 27 July 2015. The urgency
was based on her urgent need to have authority to apply for a
passport for Laura who has to urgently travel to Ghana to take up a
scholarship at SOS-HERMANN GMEINER INTERNATIONAL COLLEGE.
I
heard the application on 29 July 2015 and granted it on the following
terms;
1.
The applicant Naomi Mukundu be and is hereby appointed the legal
guardian and custodian of the minor children, Laura Edna Chigumadzi
(born 4th
August 1999) and Lawrence Takudzwa Chigumadzi (born 28 September
2000).
2.
Three shall be no order as to costs.
I
indicated that my reasons for judgment would follow. These are they.
The
Facts
The
applicant is the two minor children's maternal grandmother. She is
the mother of the minors late mother Elizabeth Lorraine Mukundu who
died on 13 July 2010. Elizabeth Lorraine Mukundu was initially
married to the respondent in terms of an unregistered customary law
union which they upgraded into a civil marriage in 2005.
Shortly
thereafter the respondent left her and the children presumably for
the UK where he now stays.
Sometime
in 2005 Elizabeth and her children were brought to the applicant by
her husband's relatives after she had had a miscarriage. Elizabeth
and her children later went to stay at the first respondent's
homestead in Murehwa. The first respondent neglected them and gave
them no support till the children stopped going to school.
Towards
the end of 2008 Elizabeth who was now sick and unable to look after
the children came back to stay with the applicant. The applicant
looked after her and the children till she died in 2010.
The
first respondent did not come back to attend his wife's funeral,
nor did he render any assistance towards her funeral's expenses.
The
applicant continued to look after the children to this date. She
arranged for the children to go back to school. She sought and
obtained SOS's assistance in the payment of their fees.
In
para 8 of her founding affidavit the applicant described the first
respondent's only contact with the children as follows:
“The
1st
respondent would call the children once a year and promise to send
them clothes or toys and they would never come. 1st
respondent sent Laura an amount of US42-00 twice on her birthday
after the death of her mother and has send nothing to Lawrence. He
also send a bag of clothes. In 2013 or thereabouts he sent a runner
to buy second hand bicycles for the children but the bicycles were
rusty and old so we could only take one.”
The
above while establishing that the first respondent has not completely
forgotten his children, does not show that he has their best interest
at heart.
Miss
Ndlovu
for
the applicant submitted that the applicant has always been there for
the children, and is suitable for appointment as their custodian and
guardian.
She
further submitted that the applicant has demonstrated that she has
the minor children's best interests at heart, as demonstrated by
her caring for their welfare and putting them back in school.
Her
submissions are supported by common cause evidence.
The
applicant stays with the two minor children and has for years been
taking care of them. In-spite of her limited means she put them back
in school and sought on their behalf SOS's help in paying their
school fees. This shows genuine love and care for her daughter's
children.
The
first respondent's counsel Mr Chabuka
orally
submitted that his client is opposed to Laura going to Ghana to
pursue her education under the scholarship she has been awarded. He
submitted that the first respondent wants her to continue with her
education in Zimbabwe and is able to fund her education.
The
disposition of a litigant is judged from his conduct as demonstrated
by what he has done or not done and not by what he promises to do in
the future.
The
first respondent has in the past neglected his children to the extent
of their having to drop out of school until the applicant had to seek
SOS's intervention. He neglected them and their mother to the
extent of denying them education, health care services, nutrition and
shelter. He left them in that condition until the applicant came to
their rescue.
He
therefore has demonstrated his attitude towards his children.
He
has contrary to the provisions of section 81(1)(f), exposed them to
lack of education, shelter and nutrition.
When
they came back from his homestead in Murehwa they were not going to
school and had been starving, as their mother was sick and could
no-longer fend for them as the first respondent had abandoned them.
The first respondent now opposes his daughter's chance to get sound
education.
He
clearly does not have her best interest at heart.
The
court as the upper guardian of all minors cannot be swayed by the
whims of a parent who has for years displayed that he does not care
about the welfare of his children.
Off
record submissions
During
his submissions Mr Chabuka
for the first respondent said he would off the record not oppose the
applicant's application as he had been touched by the curator's
detailed report on what the children had gone through as a result of
the neglect at the hands of their father.
I
unfortunately for him recorded that submission as a court of record
cannot go off record.
This
demonstrates that the first respondent's neglect of his children is
apparent and cannot be disputed.
A
legal practitioner has a duty to the court and to his client. If he
says something against his client to the court, the court is entitled
to take it seriously as he knows his client's case, better than
anybody else in the proceedings.
The
request to make off the record submissions is unlawful and
un-procedural. It however cannot prevent the court from using what
the legal practitioner said.
When
I pointed out that I could not go off record Mr Chabuka
to his credit maintained that he could personally not oppose the
order sought as it is in the minor children's best interest. His
view confirms the curators view, and my finding that the order sought
is in the children's best interest.
Curator
Ad Litem's Report
Through
a prior application Mr Takunda Emmanuel Gumbo was appointed curator
ad
litem
for the minor children. He in that capacity investigated the
circumstances of the minor children to establish what would be in
their best interest. His report is part of the record.
He
conducted a thorough investigation by interviewing the applicant, the
children, Mrs Nyika of SOS Children's Village Association, the
first respondent's sisters, which established the following;
1.
That the 1st
respondent abandoned the children and their late mother.
2.
That the 1st
respondent did not pay school fees for his children resulting in the
applicant, having to apply to SOS Children's Home Association for
assistance with the payment of the minor children's school fees.
That organisation pays half of the children's fees while the
applicant pays the other half.
3.
That the applicant has been the de
facto
parent who has been there for the children since their mother died.
4.
That the urgency of this application arose from the need for the
applicant to apply urgently for Laura's passport to enable her to
travel to Ghana to take up a scholarship awarded to her by
SOS-Hermann Gmeiner International College an Organisation associated
to SOS which has been paying her fees, for the 2015 academic year
starting on 7 July 2015, but had been extended to the end of July
2015, because of her circumstances.
5.
That the Scholarship is in the best interest of Laura as it opens
doors for an unlimited funding of her education at prestigious
Universities, and assures her of a proper grounding towards a
prosperous future.
The
curator's report is supported by in depth interviews and a
dispassionate assessment of the information gathered. It is a good
guide towards a determination which takes into consideration the best
interest of the minors.
The
best Interest of the minor children
It
is trite that any determination which affects the rights of a child
should be guided by the child's best interests.
Our
case law states that position clearly. The principle is applied in
many nations of the world.
Article
3 of the United Nations Convention on the Rights of a Child and
Article 4 of the African Charter on the Rights of and Welfare of a
Child, which are identical, provides for the rights of a child as
follows;
“In
all actions concerning the child undertaken by any person or
authority the best interests of the child shall be the primary
consideration”.
The
position has been reinforce by section 81(2) of the Constitution of
Zimbabwe Amendment (No.20) Act 2013. Section 81(2) provides as
follows;
“(2)
A child's best interests are paramount in every matter concerning
the child.”
I
will therefore concentrate on the best interests of the minor
children and not be detained by the feelings and protestations of the
applicant and the first respondent.
I
will however consider their suitability in advancing the best
interests of the minor children.
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
have to protect the children from harmful conduct by the child's
own biological parent.
Section
81(3) of the Constitution provides as follows;
“(3)
Children
are entitled to adequate protection by the courts, in particular by
the High Court as their upper guardian.” (emphasis
added)
This
case is therefore not a contest between the applicant's and the
first respondent's rights over the minor children. It is about the
best interests of the children which, in terms of section 81(2) of
the Constitution are paramount.
Section
81(1) spells out the rights of a child which throws light on what the
court should consider in upholding the best interests of a child. It
provides as follows;
“81(1)
Every child, that is to say every boy and girl under the age of
eighteen years, has the right —
(a)
to equal treatment before the law, including the right to be heard;
(b)
to be given a name and family name;
(c)
in the case of a child who is —
(i)
born in Zimbabwe; or
(ii)
born outside Zimbabwe and is a Zimbabwean citizen by descent; to the
prompt provision of a birth certificate;
(d)
to family or parental care, or to appropriate care when removed from
the family environment;
(e)
to be protected from economic and sexual exploitation, from child
labour, and from
maltreatment, neglect or any form of abuse;
(f)
to education, health care services, nutrition and shelter;
(g)
not to be recruited into a militia force or take part in armed
conflict or hostilities;
(h)
not to be compelled to take part in any political activity; and
(i)
not to be detained except as a measure of last resort and, if
detained —
(ii)
to be detained for the shortest appropriate period;
(iii)
to be kept separately from detained persons over the age of eighteen
years; and
(iv)
to be treated in a manner, and kept in conditions, that take account
of the child's age.”
Section
81(1)(d) to (f) entitles every child to family or parental care, or
to appropriate care when removed from the family environment to be
protected from economic and sexual exploitation, from child labour,
and from maltreatment, neglect or any form of abuse; and to
education, health care services, nutrition and shelter.
These
rights should be assessed in order to determine whether it would be
appropriate to grant custody and guardianship to the applicant.
Ordinarily
custody and guardianship should be reserved for a child's
biological parents.
Section
81(1)(d) however envisages circumstances which may lead to a child
being removed from the family environment.
The
facts of this case where a father has neglected his children to the
extend, of dropping out of school and their being educated by SOS and
the applicant justifies the removal of the children from the custody
and guardianship of the biological parent to that of the maternal
grandmother who has consistently been there for them and took care of
their best interests. She is the one who has been providing care,
shelter, education and nutrition, since their mother came back to the
applicant with them in 2008.
Disposition
It
is common cause that half of the minor children's fees is being
paid by SOS at the instance of the applicant who sought assistance
from them due to the difficulties she was facing in educating them
after the death of their mother. The elder child Laura, has now
secured a scholarship to study at SOS Hermann Gmeiner International
College in Ghana. According to the curator Mr Gumbo who investigated
the circumstances of the minor children and filed his report the
programme of study is in the best interest of the minor child.
I
therefore was satisfied that the applicant should be granted custody
and guardianship of the minor children who she has been looking after
since their mother brought them to her in 2008. It is in their best
interest that their custody and guardianship be granted to the
applicant.
These
therefore are the reasons why I granted the minor children's
custody and guardianship to the applicant.
Wintertons,
applicant's legal practitioners
Madotsa
& Partners,1st
respondent's legal practitioners
