Civil
Appeal
MOYO
J: This
is a custody dispute.
The
appellant is the mother of the minor child whose custody is the
subject matter of this appeal. The respondent is the father of the
said minor child. The child, namely Z, is a female who was aged 2
years at the time the custody dispute was dealt with by the
magistrates court. The magistrates court sitting at Bulawayo on 16 of
July 2014 awarded the custody of the minor child to the respondent
who is the father of the child.
Dissatisfied
with the order of the court a
quo
the appellant then approached this Honourable court.
The
grounds of appeal are as follows:
(1)
The court a
quo
erred in fact in finding that it was in the best interests of the
minor child that the two year old female minor child be removed from
its mother, the appellant and custody be awarded to the respondent.
(2)
The court a
quo
erred in law in finding that this case constituted an exception to
the general rule that mothers are custodians of children born out of
wedlock.
(3)
The court a
quo
erred in fact in holding that the appellant once attempted to abort
the minor child while no evidence was led to that effect.
(4)
The court a
quo
seriously misdirected itself in holding that the appellant did not
enlighten the court as to where the minor child would be staying, the
security and health environment under which the minor child would
survive, whereas the appellant had clearly told the court as to where
she was staying with the child.
(5)
The court a
quo
erred in law in failing to make a specific order of access of the
child by the appellant.
It
is important at this juncture to note that this is a case where the
parents of the minor child are not married to each other and
therefore we are dealing with the issue of custody as it relates to
the rights of parents of children born out of wedlock.
The
crux of the matter in our view is whether the respondent as the
father of a minor child born out of wedlock has any claim or
entitlement to the custody of his minor child.
The
legal position is that in Zimbabwe custody rights in relation to a
child born out of wedlock vest in the mother of the child. The father
of such a child is equated to any third party and as such the custody
rights that vest in the mother can only be interfered with if the
mother is not exercising such rights properly.
We
can not put it any better than the case of Cruth
vs Manuel
1999 (1) ZLR 7 (SC). In that case at 14E–G this is what
MUCHECHETERE JA (as he then was) had to say:
“The
rights of legitimate parents and those of the mother of a child born
out of wedlock cannot be interfered with ordinarily. Third parties
(including the father of a child born out of wedlock) are placed in
the same category, and can only interfere with those rights in the
interests of the child when they are not being exercised properly.
In
my view it should first be appreciated that it is the rights of the
parents and the mother which the third parties would seek to
interfere with, and they cannot interfere with another's rights if
the other person is exercising them properly.
The
trigger that only warrants interference must therefore be an
allegation that the rights are not being exercised properly and it is
therefore in the interests of the child that these rights be
interfered with.
The
welfare of the child in cases of this nature only becomes an issue
when there is an allegation that the exercise by the mother of her
rights raises some concern.
It
therefore follows, in my view, that a father of a child born out of
wedlock cannot come to court and simply allege that because he is the
father of the child, or he is richer than the mother, or he pays
maintenance etc, it is in the interests of the child that the rights
of the mother should be interfered with.”
The
learned Judge further states at page 15A that:
“This
would in my view, be elevating the legal status of an illegitimate
father to that of a spouse in a divorce situation and negating the
accepted principle of law that he has no inherent right in the child
born out of wedlock.”
EBRAHIM
JA had this to add at page 16A:
“The
court is being asked to substitute its own decision for that of a
person in whom the parental authority of the minor child concerned
vests where such person has not been shown to be incompetent to make
such a decision.
I
do not believe that the function of the court as the upper guardian
of all minors embraces the right to assume such a role. The mere fact
that the court may reach a different conclusion as to where the best
interests of the minor child lie does not automatically make you the
best arbiter of such an issue.
Accordingly
it is my view that the starting point in conducting an enquiry of
this nature is whether the third party instituting the enquiry has
provided some basis on which a finding could be made that the court
is more competent than the person having parental authority to make
the decision.
If
no such basis exists the enquiry can proceed no further, whether the
third party is the father of a minor child born out of wedlock or
otherwise.
If
the law is to be changed with regard to such fathers the decision
must be that of the legislature not the court.”
The
aforestated case lays the following foundation in our law:
(1)
That the father of a child born out of wedlock has no inherent rights
of custody as opposed to the mother in whom parental authority in
such a situation vests.
(2)
That the father of a child born out of wedlock is equated to any
third party competing for custody rights.
(3)
That for the father of a child born out of wedlock to challenge the
custody rights vested in the mother with success, he should lay a
proper foundation, like any other third party would for the
interference with the mother's custody rights.
In
his founding affidavit the respondent stated that he lived with the
child from when the child was 8 months old as the mother attended a
nursing school. He also says he fears that the mother would expose
the child to human trafficking and baby dumping. He further states
that he is permanently employed and can fully support his daughter.
It
is our considered view, that the respondent's affidavit that was
filed before the court a
quo,
barely lays any ground or foundation for this court to interfere with
the parental rights that are vested in the appellant as the mother of
a child born out of wedlock.
It
is clear that, in launching the application in the magistrates court,
the respondent was of the view that he is at par with the appellant
in so far as parental authority is concerned.
Respondent
did not appreciate that his position is in fact similar to any third
party who wants to wrestle custody rights from the mother.
His
founding affidavit falls far short of meeting the test as clearly
stated in the case of Cruth
vs Manuel
(supra).
It
is for these reasons that we find that there is no single reason on
the court record that warrants an interference with the parental
rights that vest in the appellant as the mother of the child.
We
accordingly find that the learned magistrate misdirected himself in
awarding custody of a child born out of wedlock to the father without
first making sure that the father had sufficiently tabulated before
the court, cogent reasons why the appellant as a mother of a child
born out of wedlock, should be stripped of such rights.
We
accordingly allow the appeal.
The
issue of maintenance immediately arises as the father of the minor
child has a legal duty to provide for the upkeep of the minor child.
The
appellant has claimed maintenance in the sum of $300 per month.
We
however are not in a position to deal with the issue of maintenance
as all the relevant factors and considerations have not been
canvassed. It is our view that the matter should be remitted back to
the Magistrates Court sitting as the Maintenance court for an award
to be determined therein after all the relevant factors, that is the
child's needs, the parents' respective means and their respective
expenses, have been taken into account.
We
accordingly make the following order:
(1)
The order of the court a
quo
is set aside and substituted with the following:
(a)
The custody of the minor child namely Z be and is hereby awarded to
the appellant.
(b)
The issue of maintenance for the child is hereby referred back to the
magistrates court for a proper assessment to be made after
consideration of all the relevant factors.
(c)
That the respondent pays the costs of this appeal.
MUTEMA
J agrees…………………………………………….
Lazarus
and Sarif,
appellant's legal practitioners
