EX-TEMPORE
CHITAKUNYE
JA: This
is an appeal against the judgment of the High Court dated 18 March
2020 in which it granted to the respondent joint custody and joint
guardianship of the minor child.
In
the same order, the court a
quo
thereafter ordered that an investigation be conducted by the
department of Social Welfare into how the parents were to exercise
joint custody and joint guardianship.
The
appellant appealed to this Court and has argued that joint custody
and joint guardianship is not in the best interests of the minor.
Counsel
for the appellant conceded that the court a
quo's
decision on the applicability of the common law as enunciated in the
court a
quo's
para 1 of this order is correct.
That
paragraph reads as follows:
The
common law rule that gives the mother of a child born out of wedlock
sole guardianship and sole custody and denies the natural father of
such a child parental power is inconsistent with sections 56(1),
56(3), 81(1)(a) of the Constitution of Zimbabwe 2013 and is invalid.“
The
appellant took issue with the granting of the joint custody and joint
guardianship of the minor child before an inquiry into what would be
in the best interests of the child had been made. Adv Damiso
submitted that the best interests of the minor child should have been
inquired into before granting joint custody and joint guardianship.
In
response, Adv Uriri
for the respondent, by reference to the chicken and egg conundrum
argued that while investigation was essential, the court a
quo
correctly granted joint custody and joint guardianship and thereafter
ordered that an investigation be conducted.
In
our view, the welfare of the minor child is delicate and important.
It should not be prematurely exposed to unverified parental
circumstances. It is therefore our view that the court a
quo
should not have determined the issue of joint custody and joint
guardianship before the investigations it ordered in para 4 had been
done. In the result:
1.
The appeal partially succeeds.
2.
The court a
quo's
order in para 1 is upheld.
3.
The court a
quo's
order in paras 2, 3 and 4 are hereby set aside.
4.
The matter is hereby remitted to the court a
quo
for it to determine the issue of joint custody and joint guardianship
after an inquiry as to whether or not joint custody and joint
guardianship in the circumstances of the parties is in the best
interest of the child.
5.
In the case of a finding that it is in the best interest of the
child, how joint custody and joint guardianship should be exercised
without jeopardising the best interest of the child.
6.
Each party shall bear its own costs.
UCHENA
JA :
I agree
KUDYA
JA:
I agree
Mutuso,
Taruvinga & Mhiribidi,
appellant's legal practitioners
Manase
& Manase, respondent's legal practitioners
