Cause of Action and Draft Orders re: Appearance to Defend iro Effect of Non-Appearance

On 16 June 2021, I partly heard the applicant's chamber application for condonation and reinstatement of an appeal in terms of Rule 70(2) of the Supreme Court Rules 2018.

On 11 May 2020, the applicant filed a notice of appeal, but failed to inspect the record within the time prescribed by the Rules. By letter dated 13 April 2021, the Registrar advised the applicant's legal practitioners that the appeal had been deemed abandoned.

It is that appeal the applicant wants to be reinstated.

At the hearing of the application, counsel for the first respondent raised a point in limine.

He submitted, that, the applicant should not be granted audience by the court because he is in contempt of court orders.

He submitted, that, the applicant snatched the minor child from the first respondent at a shopping centre in Waterfalls, Harare and took him out of Zimbabwe through an un-designated exit point. He further submitted, that, the first respondent has not seen the child since that incident.

Counsel for the applicant submitted, that, the applicant should be heard as it is his constitutional right to have access to the courts.

He initially could not say where the child was, but, eventually, conceded that he had been taken out of the court's jurisdiction and was staying in South Africa with the applicant.

Counsel for the third to sixth respondents (Commissioner General of Police, Registrar General, Chief Immigration Officer and Minister of Justice, Legal & Parliamentary Affairs) though having indicated that her clients will abide by the decision of the court, as an officer of the court, advised the court that the applicant is on the wanted list of Interpol and is a fugitive from justice.

Professional Ethics, Legal Duty to the Court and Clients, Dominus Litis and Correspondence with the Court

On 16 June 2021, I partly heard the applicant's chamber application for condonation and reinstatement of an appeal in terms of Rule 70(2) of the Supreme Court Rules 2018.

On 11 May 2020, the applicant filed a notice of appeal, but failed to inspect the record within the time prescribed by the Rules. By letter dated 13 April 2021, the Registrar advised the applicant's legal practitioners that the appeal had been deemed abandoned.

It is that appeal the applicant wants to be reinstated.

At the hearing of the application, counsel for the first respondent raised a point in limine.

He submitted, that, the applicant should not be granted audience by the court because he is in contempt of court orders.

He submitted, that, the applicant snatched the minor child from the first respondent at a shopping centre in Waterfalls, Harare and took him out of Zimbabwe through an un-designated exit point. He further submitted, that, the first respondent has not seen the child since that incident.

Counsel for the applicant submitted, that, the applicant should be heard as it is his constitutional right to have access to the courts.

He initially could not say where the child was, but, eventually, conceded that he had been taken out of the court's jurisdiction and was staying in South Africa with the applicant.

Counsel for the third to sixth respondents (Commissioner General of Police, Registrar General, Chief Immigration Officer and Minister of Justice, Legal & Parliamentary Affairs) though having indicated that her clients will abide by the decision of the court, as an officer of the court, advised the court that the applicant is on the wanted list of Interpol and is a fugitive from justice.

Approach, Language of Record, Open Justice, Discovery, Obligation to Disclose All Information, Suppression & Ambush Tactics

On 16 June 2021, I partly heard the applicant's chamber application for condonation and reinstatement of an appeal in terms of Rule 70(2) of the Supreme Court Rules 2018.

On 11 May 2020, the applicant filed a notice of appeal, but failed to inspect the record within the time prescribed by the Rules. By letter dated 13 April 2021, the Registrar advised the applicant's legal practitioners that the appeal had been deemed abandoned.

It is that appeal the applicant wants to be reinstated.

At the hearing of the application, counsel for the first respondent raised a point in limine.

He submitted, that, the applicant should not be granted audience by the court because he is in contempt of court orders.

He submitted, that, the applicant snatched the minor child from the first respondent at a shopping centre in Waterfalls, Harare and took him out of Zimbabwe through an un-designated exit point. He further submitted, that, the first respondent has not seen the child since that incident.

Counsel for the applicant submitted, that, the applicant should be heard as it is his constitutional right to have access to the courts.

He initially could not say where the child was, but, eventually, conceded that he had been taken out of the court's jurisdiction and was staying in South Africa with the applicant.

Counsel for the third to sixth respondents (Commissioner General of Police, Registrar General, Chief Immigration Officer and Minister of Justice, Legal & Parliamentary Affairs) though having indicated that her clients will abide by the decision of the court, as an officer of the court, advised the court that the applicant is on the wanted list of Interpol and is a fugitive from justice.

Court Management re: Approach, Case Management, Postponement of Proceedings and Judicial Directives of the Court

On 16 June 2021, I partly heard the applicant's chamber application for condonation and reinstatement of an appeal in terms of Rule 70(2) of the Supreme Court Rules 2018.

On 11 May 2020, the applicant filed a notice of appeal, but failed to inspect the record within the time prescribed by the Rules. By letter dated 13 April 2021, the Registrar advised the applicant's legal practitioners that the appeal had been deemed abandoned.

It is that appeal the applicant wants to be reinstated.

At the hearing of the application, counsel for the first respondent raised a point in limine.

He submitted, that, the applicant should not be granted audience by the court because he is in contempt of court orders.

He submitted, that, the applicant snatched the minor child from the first respondent at a shopping centre in Waterfalls, Harare and took him out of Zimbabwe through an un-designated exit point. He further submitted, that, the first respondent has not seen the child since that incident.

Counsel for the applicant submitted, that, the applicant should be heard as it is his constitutional right to have access to the courts.

He initially could not say where the child was, but, eventually, conceded that he had been taken out of the court's jurisdiction and was staying in South Africa with the applicant.

Counsel for the third to sixth respondents (Commissioner General of Police, Registrar General, Chief Immigration Officer and Minister of Justice, Legal & Parliamentary Affairs) though having indicated that her clients will abide by the decision of the court, as an officer of the court, advised the court that the applicant is on the wanted list of Interpol and is a fugitive from justice.

On the welfare and best interest of the minor child, counsel for the applicant submitted, that, the child was in good health and could be shown to the court virtually.

Counsel for the first respondent submitted, that, it was not in the best interest of the child for him to be snatched away from his mother and be kept away from her for 15 months. He submitted, that, the child should be brought back to the court's jurisdiction. He submitted that it was the duty of the courts to protect minor children.

After hearing the parties, I gave an ex-tempore ruling, partly upholding the first respondent's point in limine and postponed the hearing of the application until the applicant brings back the minor child to the court's jurisdiction and present him to the court.

Final Orders re: Approach iro Functions, Powers, Obligations, Judicial Misdirections and Effect of Court Orders

On 16 June 2021, I partly heard the applicant's chamber application for condonation and reinstatement of an appeal in terms of Rule 70(2) of the Supreme Court Rules 2018.

On 11 May 2020, the applicant filed a notice of appeal, but failed to inspect the record within the time prescribed by the Rules. By letter dated 13 April 2021, the Registrar advised the applicant's legal practitioners that the appeal had been deemed abandoned.

It is that appeal the applicant wants to be reinstated.

At the hearing of the application, counsel for the first respondent raised a point in limine.

He submitted, that, the applicant should not be granted audience by the court because he is in contempt of court orders.

He submitted, that, the applicant snatched the minor child from the first respondent at a shopping centre in Waterfalls, Harare and took him out of Zimbabwe through an un-designated exit point. He further submitted, that, the first respondent has not seen the child since that incident.

Counsel for the applicant submitted, that, the applicant should be heard as it is his constitutional right to have access to the courts.

He initially could not say where the child was, but, eventually, conceded that he had been taken out of the court's jurisdiction and was staying in South Africa with the applicant.

Counsel for the third to sixth respondents (Commissioner General of Police, Registrar General, Chief Immigration Officer and Minister of Justice, Legal & Parliamentary Affairs) though having indicated that her clients will abide by the decision of the court, as an officer of the court, advised the court that the applicant is on the wanted list of Interpol and is a fugitive from justice.

On the welfare and best interest of the minor child, counsel for the applicant submitted, that, the child was in good health and could be shown to the court virtually.

Counsel for the first respondent submitted, that, it was not in the best interest of the child for him to be snatched away from his mother and be kept away from her for 15 months. He submitted, that, the child should be brought back to the court's jurisdiction. He submitted that it was the duty of the courts to protect minor children.

After hearing the parties, I gave an ex-tempore ruling, partly upholding the first respondent's point in limine and postponed the hearing of the application until the applicant brings back the minor child to the court's jurisdiction and present him to the court.

This morning, the Registrar brought to my attention the Constitutional Court's order to the effect that she should have ensured that my judgment was made available to the parties by 22 September 2021. She failed to bring the order to me before 22 September 2021.

My reasons for partly upholding the first respondent's preliminary point are as follows...,.

Condonation or Judicial Indulgence re: Approach, Time-Barred Proceedings, Extension of Time and Interests of Justice

On 16 June 2021, I partly heard the applicant's chamber application for condonation and reinstatement of an appeal in terms of Rule 70(2) of the Supreme Court Rules 2018.

On 11 May 2020, the applicant filed a notice of appeal, but failed to inspect the record within the time prescribed by the Rules. By letter dated 13 April 2021, the Registrar advised the applicant's legal practitioners that the appeal had been deemed abandoned.

It is that appeal the applicant wants to be reinstated.

At the hearing of the application, counsel for the first respondent raised a point in limine.

He submitted, that, the applicant should not be granted audience by the court because he is in contempt of court orders.

He submitted, that, the applicant snatched the minor child from the first respondent at a shopping centre in Waterfalls, Harare and took him out of Zimbabwe through an un-designated exit point. He further submitted, that, the first respondent has not seen the child since that incident.

Counsel for the applicant submitted, that, the applicant should be heard as it is his constitutional right to have access to the courts.

He initially could not say where the child was, but, eventually, conceded that he had been taken out of the court's jurisdiction and was staying in South Africa with the applicant.

Counsel for the third to sixth respondents (Commissioner General of Police, Registrar General, Chief Immigration Officer and Minister of Justice, Legal & Parliamentary Affairs) though having indicated that her clients will abide by the decision of the court, as an officer of the court, advised the court that the applicant is on the wanted list of Interpol and is a fugitive from justice.

On the welfare and best interest of the minor child, counsel for the applicant submitted, that, the child was in good health and could be shown to the court virtually.

Counsel for the first respondent submitted, that, it was not in the best interest of the child for him to be snatched away from his mother and be kept away from her for 15 months. He submitted, that, the child should be brought back to the court's jurisdiction. He submitted that it was the duty of the courts to protect minor children.

After hearing the parties, I gave an ex-tempore ruling, partly upholding the first respondent's point in limine and postponed the hearing of the application until the applicant brings back the minor child to the court's jurisdiction and present him to the court.

This morning, the Registrar brought to my attention the Constitutional Court's order to the effect that she should have ensured that my judgment was made available to the parties by 22 September 2021. She failed to bring the order to me before 22 September 2021.

My reasons for partly upholding the first respondent's preliminary point are as follows:

The rights of children should not be trampled upon by their parents. The rights of parents to exercise guardianship and access to their children must be exercised without adversely affecting the rights of the children.

In this case, it was clear to me, that, while the applicant was entitled to have guardianship and access to his son he had to do so lawfully, and, if hindered, by resorting to the courts to enforce his rights.

Snatching the child and fleeing the jurisdiction of the court with him through undesignated exit points, is, in my view, not in the best interest of the child.

I appreciate that the High Court had granted the parties joint custody and guardianship.

Those rights should be exercised in terms of the law and in a manner which ensures that the child is not exposed to illegalities.

The child should also be accessed by both parents to enable it to bond with both parents.

The snatching away of the child, and keeping him away from his mother for 15 months, is not in the best interest of the child, and is not consistent with the exercise of joint custody and guardianship.

I did not think it prudent to completely deny the applicant audience because it is in the best interest of the child that his parents issues over him be resolved by the courts.

It is for that reason that I thought it prudent that the child be brought back to the court's jurisdiction for him to be protected by the courts, according to the law, while his parents issues are being dealt with by the courts.

These are the reasons why I partly upheld the first respondent's point in limine.

Appeal re: Dismissal of Appeal Without Hearing, Striking Out or Lapsing of Appeal and Reinstatement of Lapsed Appeal

On 16 June 2021, I partly heard the applicant's chamber application for condonation and reinstatement of an appeal in terms of Rule 70(2) of the Supreme Court Rules 2018.

On 11 May 2020, the applicant filed a notice of appeal, but failed to inspect the record within the time prescribed by the Rules. By letter dated 13 April 2021, the Registrar advised the applicant's legal practitioners that the appeal had been deemed abandoned.

It is that appeal the applicant wants to be reinstated.

At the hearing of the application, counsel for the first respondent raised a point in limine.

He submitted, that, the applicant should not be granted audience by the court because he is in contempt of court orders.

He submitted, that, the applicant snatched the minor child from the first respondent at a shopping centre in Waterfalls, Harare and took him out of Zimbabwe through an un-designated exit point. He further submitted, that, the first respondent has not seen the child since that incident.

Counsel for the applicant submitted, that, the applicant should be heard as it is his constitutional right to have access to the courts.

He initially could not say where the child was, but, eventually, conceded that he had been taken out of the court's jurisdiction and was staying in South Africa with the applicant.

Counsel for the third to sixth respondents (Commissioner General of Police, Registrar General, Chief Immigration Officer and Minister of Justice, Legal & Parliamentary Affairs) though having indicated that her clients will abide by the decision of the court, as an officer of the court, advised the court that the applicant is on the wanted list of Interpol and is a fugitive from justice.

On the welfare and best interest of the minor child, counsel for the applicant submitted, that, the child was in good health and could be shown to the court virtually.

Counsel for the first respondent submitted, that, it was not in the best interest of the child for him to be snatched away from his mother and be kept away from her for 15 months. He submitted, that, the child should be brought back to the court's jurisdiction. He submitted that it was the duty of the courts to protect minor children.

After hearing the parties, I gave an ex-tempore ruling, partly upholding the first respondent's point in limine and postponed the hearing of the application until the applicant brings back the minor child to the court's jurisdiction and present him to the court.

This morning, the Registrar brought to my attention the Constitutional Court's order to the effect that she should have ensured that my judgment was made available to the parties by 22 September 2021. She failed to bring the order to me before 22 September 2021.

My reasons for partly upholding the first respondent's preliminary point are as follows:

The rights of children should not be trampled upon by their parents. The rights of parents to exercise guardianship and access to their children must be exercised without adversely affecting the rights of the children.

In this case, it was clear to me, that, while the applicant was entitled to have guardianship and access to his son he had to do so lawfully, and, if hindered, by resorting to the courts to enforce his rights.

Snatching the child and fleeing the jurisdiction of the court with him through undesignated exit points, is, in my view, not in the best interest of the child.

I appreciate that the High Court had granted the parties joint custody and guardianship.

Those rights should be exercised in terms of the law and in a manner which ensures that the child is not exposed to illegalities.

The child should also be accessed by both parents to enable it to bond with both parents.

The snatching away of the child, and keeping him away from his mother for 15 months, is not in the best interest of the child, and is not consistent with the exercise of joint custody and guardianship.

I did not think it prudent to completely deny the applicant audience because it is in the best interest of the child that his parents issues over him be resolved by the courts.

It is for that reason that I thought it prudent that the child be brought back to the court's jurisdiction for him to be protected by the courts, according to the law, while his parents issues are being dealt with by the courts.

These are the reasons why I partly upheld the first respondent's point in limine.

Contempt of Court re: Defiance of Court Orders

On 16 June 2021, I partly heard the applicant's chamber application for condonation and reinstatement of an appeal in terms of Rule 70(2) of the Supreme Court Rules 2018.

On 11 May 2020, the applicant filed a notice of appeal, but failed to inspect the record within the time prescribed by the Rules. By letter dated 13 April 2021, the Registrar advised the applicant's legal practitioners that the appeal had been deemed abandoned.

It is that appeal the applicant wants to be reinstated.

At the hearing of the application, counsel for the first respondent raised a point in limine.

He submitted, that, the applicant should not be granted audience by the court because he is in contempt of court orders.

He submitted, that, the applicant snatched the minor child from the first respondent at a shopping centre in Waterfalls, Harare and took him out of Zimbabwe through an un-designated exit point. He further submitted, that, the first respondent has not seen the child since that incident.

Counsel for the applicant submitted, that, the applicant should be heard as it is his constitutional right to have access to the courts.

He initially could not say where the child was, but, eventually, conceded that he had been taken out of the court's jurisdiction and was staying in South Africa with the applicant.

Counsel for the third to sixth respondents (Commissioner General of Police, Registrar General, Chief Immigration Officer and Minister of Justice, Legal & Parliamentary Affairs) though having indicated that her clients will abide by the decision of the court, as an officer of the court, advised the court that the applicant is on the wanted list of Interpol and is a fugitive from justice.

On the welfare and best interest of the minor child, counsel for the applicant submitted, that, the child was in good health and could be shown to the court virtually.

Counsel for the first respondent submitted, that, it was not in the best interest of the child for him to be snatched away from his mother and be kept away from her for 15 months. He submitted, that, the child should be brought back to the court's jurisdiction. He submitted that it was the duty of the courts to protect minor children.

After hearing the parties, I gave an ex-tempore ruling, partly upholding the first respondent's point in limine and postponed the hearing of the application until the applicant brings back the minor child to the court's jurisdiction and present him to the court.

This morning, the Registrar brought to my attention the Constitutional Court's order to the effect that she should have ensured that my judgment was made available to the parties by 22 September 2021. She failed to bring the order to me before 22 September 2021.

My reasons for partly upholding the first respondent's preliminary point are as follows:

The rights of children should not be trampled upon by their parents. The rights of parents to exercise guardianship and access to their children must be exercised without adversely affecting the rights of the children.

In this case, it was clear to me, that, while the applicant was entitled to have guardianship and access to his son he had to do so lawfully, and, if hindered, by resorting to the courts to enforce his rights.

Snatching the child and fleeing the jurisdiction of the court with him through undesignated exit points, is, in my view, not in the best interest of the child.

I appreciate that the High Court had granted the parties joint custody and guardianship.

Those rights should be exercised in terms of the law and in a manner which ensures that the child is not exposed to illegalities.

The child should also be accessed by both parents to enable it to bond with both parents.

The snatching away of the child, and keeping him away from his mother for 15 months, is not in the best interest of the child, and is not consistent with the exercise of joint custody and guardianship.

I did not think it prudent to completely deny the applicant audience because it is in the best interest of the child that his parents issues over him be resolved by the courts.

It is for that reason that I thought it prudent that the child be brought back to the court's jurisdiction for him to be protected by the courts, according to the law, while his parents issues are being dealt with by the courts.

These are the reasons why I partly upheld the first respondent's point in limine.

Dirty Hands Principle and the Doctrine of Obedience of the Law Until its Lawful Invalidation or Repeal re: Approach

On 16 June 2021, I partly heard the applicant's chamber application for condonation and reinstatement of an appeal in terms of Rule 70(2) of the Supreme Court Rules 2018.

On 11 May 2020, the applicant filed a notice of appeal, but failed to inspect the record within the time prescribed by the Rules. By letter dated 13 April 2021, the Registrar advised the applicant's legal practitioners that the appeal had been deemed abandoned.

It is that appeal the applicant wants to be reinstated.

At the hearing of the application, counsel for the first respondent raised a point in limine.

He submitted, that, the applicant should not be granted audience by the court because he is in contempt of court orders.

He submitted, that, the applicant snatched the minor child from the first respondent at a shopping centre in Waterfalls, Harare and took him out of Zimbabwe through an un-designated exit point. He further submitted, that, the first respondent has not seen the child since that incident.

Counsel for the applicant submitted, that, the applicant should be heard as it is his constitutional right to have access to the courts.

He initially could not say where the child was, but, eventually, conceded that he had been taken out of the court's jurisdiction and was staying in South Africa with the applicant.

Counsel for the third to sixth respondents (Commissioner General of Police, Registrar General, Chief Immigration Officer and Minister of Justice, Legal & Parliamentary Affairs) though having indicated that her clients will abide by the decision of the court, as an officer of the court, advised the court that the applicant is on the wanted list of Interpol and is a fugitive from justice.

On the welfare and best interest of the minor child, counsel for the applicant submitted, that, the child was in good health and could be shown to the court virtually.

Counsel for the first respondent submitted, that, it was not in the best interest of the child for him to be snatched away from his mother and be kept away from her for 15 months. He submitted, that, the child should be brought back to the court's jurisdiction. He submitted that it was the duty of the courts to protect minor children.

After hearing the parties, I gave an ex-tempore ruling, partly upholding the first respondent's point in limine and postponed the hearing of the application until the applicant brings back the minor child to the court's jurisdiction and present him to the court.

This morning, the Registrar brought to my attention the Constitutional Court's order to the effect that she should have ensured that my judgment was made available to the parties by 22 September 2021. She failed to bring the order to me before 22 September 2021.

My reasons for partly upholding the first respondent's preliminary point are as follows:

The rights of children should not be trampled upon by their parents. The rights of parents to exercise guardianship and access to their children must be exercised without adversely affecting the rights of the children.

In this case, it was clear to me, that, while the applicant was entitled to have guardianship and access to his son he had to do so lawfully, and, if hindered, by resorting to the courts to enforce his rights.

Snatching the child and fleeing the jurisdiction of the court with him through undesignated exit points, is, in my view, not in the best interest of the child.

I appreciate that the High Court had granted the parties joint custody and guardianship.

Those rights should be exercised in terms of the law and in a manner which ensures that the child is not exposed to illegalities.

The child should also be accessed by both parents to enable it to bond with both parents.

The snatching away of the child, and keeping him away from his mother for 15 months, is not in the best interest of the child, and is not consistent with the exercise of joint custody and guardianship.

I did not think it prudent to completely deny the applicant audience because it is in the best interest of the child that his parents issues over him be resolved by the courts.

It is for that reason that I thought it prudent that the child be brought back to the court's jurisdiction for him to be protected by the courts, according to the law, while his parents issues are being dealt with by the courts.

These are the reasons why I partly upheld the first respondent's point in limine.

Constitutional Rights re: Access to Courts, Legal Literacy, Judicial Independence, Impartiality, Dignity and Competence

On 16 June 2021, I partly heard the applicant's chamber application for condonation and reinstatement of an appeal in terms of Rule 70(2) of the Supreme Court Rules 2018.

On 11 May 2020, the applicant filed a notice of appeal, but failed to inspect the record within the time prescribed by the Rules. By letter dated 13 April 2021, the Registrar advised the applicant's legal practitioners that the appeal had been deemed abandoned.

It is that appeal the applicant wants to be reinstated.

At the hearing of the application, counsel for the first respondent raised a point in limine.

He submitted, that, the applicant should not be granted audience by the court because he is in contempt of court orders.

He submitted, that, the applicant snatched the minor child from the first respondent at a shopping centre in Waterfalls, Harare and took him out of Zimbabwe through an un-designated exit point. He further submitted, that, the first respondent has not seen the child since that incident.

Counsel for the applicant submitted, that, the applicant should be heard as it is his constitutional right to have access to the courts.

He initially could not say where the child was, but, eventually, conceded that he had been taken out of the court's jurisdiction and was staying in South Africa with the applicant.

Counsel for the third to sixth respondents (Commissioner General of Police, Registrar General, Chief Immigration Officer and Minister of Justice, Legal & Parliamentary Affairs) though having indicated that her clients will abide by the decision of the court, as an officer of the court, advised the court that the applicant is on the wanted list of Interpol and is a fugitive from justice.

On the welfare and best interest of the minor child, counsel for the applicant submitted, that, the child was in good health and could be shown to the court virtually.

Counsel for the first respondent submitted, that, it was not in the best interest of the child for him to be snatched away from his mother and be kept away from her for 15 months. He submitted, that, the child should be brought back to the court's jurisdiction. He submitted that it was the duty of the courts to protect minor children.

After hearing the parties, I gave an ex-tempore ruling, partly upholding the first respondent's point in limine and postponed the hearing of the application until the applicant brings back the minor child to the court's jurisdiction and present him to the court.

This morning, the Registrar brought to my attention the Constitutional Court's order to the effect that she should have ensured that my judgment was made available to the parties by 22 September 2021. She failed to bring the order to me before 22 September 2021.

My reasons for partly upholding the first respondent's preliminary point are as follows:

The rights of children should not be trampled upon by their parents. The rights of parents to exercise guardianship and access to their children must be exercised without adversely affecting the rights of the children.

In this case, it was clear to me, that, while the applicant was entitled to have guardianship and access to his son he had to do so lawfully, and, if hindered, by resorting to the courts to enforce his rights.

Snatching the child and fleeing the jurisdiction of the court with him through undesignated exit points, is, in my view, not in the best interest of the child.

I appreciate that the High Court had granted the parties joint custody and guardianship.

Those rights should be exercised in terms of the law and in a manner which ensures that the child is not exposed to illegalities.

The child should also be accessed by both parents to enable it to bond with both parents.

The snatching away of the child, and keeping him away from his mother for 15 months, is not in the best interest of the child, and is not consistent with the exercise of joint custody and guardianship.

I did not think it prudent to completely deny the applicant audience because it is in the best interest of the child that his parents issues over him be resolved by the courts.

It is for that reason that I thought it prudent that the child be brought back to the court's jurisdiction for him to be protected by the courts, according to the law, while his parents issues are being dealt with by the courts.

These are the reasons why I partly upheld the first respondent's point in limine.

Pleadings re: Admissions or Undisputed Facts iro Confessionaries, Confession and Avoidance & Concession and Avoidance

On 16 June 2021, I partly heard the applicant's chamber application for condonation and reinstatement of an appeal in terms of Rule 70(2) of the Supreme Court Rules 2018.

On 11 May 2020, the applicant filed a notice of appeal, but failed to inspect the record within the time prescribed by the Rules. By letter dated 13 April 2021, the Registrar advised the applicant's legal practitioners that the appeal had been deemed abandoned.

It is that appeal the applicant wants to be reinstated.

At the hearing of the application, counsel for the first respondent raised a point in limine.

He submitted, that, the applicant should not be granted audience by the court because he is in contempt of court orders.

He submitted, that, the applicant snatched the minor child from the first respondent at a shopping centre in Waterfalls, Harare and took him out of Zimbabwe through an un-designated exit point. He further submitted, that, the first respondent has not seen the child since that incident.

Counsel for the applicant submitted, that, the applicant should be heard as it is his constitutional right to have access to the courts.

He initially could not say where the child was, but, eventually, conceded that he had been taken out of the court's jurisdiction and was staying in South Africa with the applicant.

Counsel for the third to sixth respondents (Commissioner General of Police, Registrar General, Chief Immigration Officer and Minister of Justice, Legal & Parliamentary Affairs) though having indicated that her clients will abide by the decision of the court, as an officer of the court, advised the court that the applicant is on the wanted list of Interpol and is a fugitive from justice.

On the welfare and best interest of the minor child, counsel for the applicant submitted, that, the child was in good health and could be shown to the court virtually.

Counsel for the first respondent submitted, that, it was not in the best interest of the child for him to be snatched away from his mother and be kept away from her for 15 months. He submitted, that, the child should be brought back to the court's jurisdiction. He submitted that it was the duty of the courts to protect minor children.

After hearing the parties, I gave an ex-tempore ruling, partly upholding the first respondent's point in limine and postponed the hearing of the application until the applicant brings back the minor child to the court's jurisdiction and present him to the court.

This morning, the Registrar brought to my attention the Constitutional Court's order to the effect that she should have ensured that my judgment was made available to the parties by 22 September 2021. She failed to bring the order to me before 22 September 2021.

My reasons for partly upholding the first respondent's preliminary point are as follows:

The rights of children should not be trampled upon by their parents. The rights of parents to exercise guardianship and access to their children must be exercised without adversely affecting the rights of the children.

In this case, it was clear to me, that, while the applicant was entitled to have guardianship and access to his son he had to do so lawfully, and, if hindered, by resorting to the courts to enforce his rights.

Snatching the child and fleeing the jurisdiction of the court with him through undesignated exit points, is, in my view, not in the best interest of the child.

I appreciate that the High Court had granted the parties joint custody and guardianship.

Those rights should be exercised in terms of the law and in a manner which ensures that the child is not exposed to illegalities.

The child should also be accessed by both parents to enable it to bond with both parents.

The snatching away of the child, and keeping him away from his mother for 15 months, is not in the best interest of the child, and is not consistent with the exercise of joint custody and guardianship.

I did not think it prudent to completely deny the applicant audience because it is in the best interest of the child that his parents issues over him be resolved by the courts.

It is for that reason that I thought it prudent that the child be brought back to the court's jurisdiction for him to be protected by the courts, according to the law, while his parents issues are being dealt with by the courts.

These are the reasons why I partly upheld the first respondent's point in limine.

Custody, Guardianship and Access re: Minors iro Children Born out of Wedlock, Parents on Separation & Customary Law Unions

On 16 June 2021, I partly heard the applicant's chamber application for condonation and reinstatement of an appeal in terms of Rule 70(2) of the Supreme Court Rules 2018.

On 11 May 2020, the applicant filed a notice of appeal, but failed to inspect the record within the time prescribed by the Rules. By letter dated 13 April 2021, the Registrar advised the applicant's legal practitioners that the appeal had been deemed abandoned.

It is that appeal the applicant wants to be reinstated.

At the hearing of the application, counsel for the first respondent raised a point in limine.

He submitted, that, the applicant should not be granted audience by the court because he is in contempt of court orders.

He submitted, that, the applicant snatched the minor child from the first respondent at a shopping centre in Waterfalls, Harare and took him out of Zimbabwe through an un-designated exit point. He further submitted, that, the first respondent has not seen the child since that incident.

Counsel for the applicant submitted, that, the applicant should be heard as it is his constitutional right to have access to the courts.

He initially could not say where the child was, but, eventually, conceded that he had been taken out of the court's jurisdiction and was staying in South Africa with the applicant.

Counsel for the third to sixth respondents (Commissioner General of Police, Registrar General, Chief Immigration Officer and Minister of Justice, Legal & Parliamentary Affairs) though having indicated that her clients will abide by the decision of the court, as an officer of the court, advised the court that the applicant is on the wanted list of Interpol and is a fugitive from justice.

On the welfare and best interest of the minor child, counsel for the applicant submitted, that, the child was in good health and could be shown to the court virtually.

Counsel for the first respondent submitted, that, it was not in the best interest of the child for him to be snatched away from his mother and be kept away from her for 15 months. He submitted, that, the child should be brought back to the court's jurisdiction. He submitted that it was the duty of the courts to protect minor children.

After hearing the parties, I gave an ex-tempore ruling, partly upholding the first respondent's point in limine and postponed the hearing of the application until the applicant brings back the minor child to the court's jurisdiction and present him to the court.

This morning, the Registrar brought to my attention the Constitutional Court's order to the effect that she should have ensured that my judgment was made available to the parties by 22 September 2021. She failed to bring the order to me before 22 September 2021.

My reasons for partly upholding the first respondent's preliminary point are as follows:

The rights of children should not be trampled upon by their parents. The rights of parents to exercise guardianship and access to their children must be exercised without adversely affecting the rights of the children.

In this case, it was clear to me, that, while the applicant was entitled to have guardianship and access to his son he had to do so lawfully, and, if hindered, by resorting to the courts to enforce his rights.

Snatching the child and fleeing the jurisdiction of the court with him through undesignated exit points, is, in my view, not in the best interest of the child.

I appreciate that the High Court had granted the parties joint custody and guardianship.

Those rights should be exercised in terms of the law and in a manner which ensures that the child is not exposed to illegalities.

The child should also be accessed by both parents to enable it to bond with both parents.

The snatching away of the child, and keeping him away from his mother for 15 months, is not in the best interest of the child, and is not consistent with the exercise of joint custody and guardianship.

I did not think it prudent to completely deny the applicant audience because it is in the best interest of the child that his parents issues over him be resolved by the courts.

It is for that reason that I thought it prudent that the child be brought back to the court's jurisdiction for him to be protected by the courts, according to the law, while his parents issues are being dealt with by the courts.

These are the reasons why I partly upheld the first respondent's point in limine.

Custody, Guardianship and Access re: Minors iro Approach, the Upper Guardian of Minors and Best Interests of Children

On 16 June 2021, I partly heard the applicant's chamber application for condonation and reinstatement of an appeal in terms of Rule 70(2) of the Supreme Court Rules 2018.

On 11 May 2020, the applicant filed a notice of appeal, but failed to inspect the record within the time prescribed by the Rules. By letter dated 13 April 2021, the Registrar advised the applicant's legal practitioners that the appeal had been deemed abandoned.

It is that appeal the applicant wants to be reinstated.

At the hearing of the application, counsel for the first respondent raised a point in limine.

He submitted, that, the applicant should not be granted audience by the court because he is in contempt of court orders.

He submitted, that, the applicant snatched the minor child from the first respondent at a shopping centre in Waterfalls, Harare and took him out of Zimbabwe through an un-designated exit point. He further submitted, that, the first respondent has not seen the child since that incident.

Counsel for the applicant submitted, that, the applicant should be heard as it is his constitutional right to have access to the courts.

He initially could not say where the child was, but, eventually, conceded that he had been taken out of the court's jurisdiction and was staying in South Africa with the applicant.

Counsel for the third to sixth respondents (Commissioner General of Police, Registrar General, Chief Immigration Officer and Minister of Justice, Legal & Parliamentary Affairs) though having indicated that her clients will abide by the decision of the court, as an officer of the court, advised the court that the applicant is on the wanted list of Interpol and is a fugitive from justice.

On the welfare and best interest of the minor child, counsel for the applicant submitted, that, the child was in good health and could be shown to the court virtually.

Counsel for the first respondent submitted, that, it was not in the best interest of the child for him to be snatched away from his mother and be kept away from her for 15 months. He submitted, that, the child should be brought back to the court's jurisdiction. He submitted that it was the duty of the courts to protect minor children.

After hearing the parties, I gave an ex-tempore ruling, partly upholding the first respondent's point in limine and postponed the hearing of the application until the applicant brings back the minor child to the court's jurisdiction and present him to the court.

This morning, the Registrar brought to my attention the Constitutional Court's order to the effect that she should have ensured that my judgment was made available to the parties by 22 September 2021. She failed to bring the order to me before 22 September 2021.

My reasons for partly upholding the first respondent's preliminary point are as follows:

The rights of children should not be trampled upon by their parents. The rights of parents to exercise guardianship and access to their children must be exercised without adversely affecting the rights of the children.

In this case, it was clear to me, that, while the applicant was entitled to have guardianship and access to his son he had to do so lawfully, and, if hindered, by resorting to the courts to enforce his rights.

Snatching the child and fleeing the jurisdiction of the court with him through undesignated exit points, is, in my view, not in the best interest of the child.

I appreciate that the High Court had granted the parties joint custody and guardianship.

Those rights should be exercised in terms of the law and in a manner which ensures that the child is not exposed to illegalities.

The child should also be accessed by both parents to enable it to bond with both parents.

The snatching away of the child, and keeping him away from his mother for 15 months, is not in the best interest of the child, and is not consistent with the exercise of joint custody and guardianship.

I did not think it prudent to completely deny the applicant audience because it is in the best interest of the child that his parents issues over him be resolved by the courts.

It is for that reason that I thought it prudent that the child be brought back to the court's jurisdiction for him to be protected by the courts, according to the law, while his parents issues are being dealt with by the courts.

These are the reasons why I partly upheld the first respondent's point in limine.

Custody, Guardianship and Access re: Minors iro Retention or Removal From a Domestic or International Jurisdiction

On 16 June 2021, I partly heard the applicant's chamber application for condonation and reinstatement of an appeal in terms of Rule 70(2) of the Supreme Court Rules 2018.

On 11 May 2020, the applicant filed a notice of appeal, but failed to inspect the record within the time prescribed by the Rules. By letter dated 13 April 2021, the Registrar advised the applicant's legal practitioners that the appeal had been deemed abandoned.

It is that appeal the applicant wants to be reinstated.

At the hearing of the application, counsel for the first respondent raised a point in limine.

He submitted, that, the applicant should not be granted audience by the court because he is in contempt of court orders.

He submitted, that, the applicant snatched the minor child from the first respondent at a shopping centre in Waterfalls, Harare and took him out of Zimbabwe through an un-designated exit point. He further submitted, that, the first respondent has not seen the child since that incident.

Counsel for the applicant submitted, that, the applicant should be heard as it is his constitutional right to have access to the courts.

He initially could not say where the child was, but, eventually, conceded that he had been taken out of the court's jurisdiction and was staying in South Africa with the applicant.

Counsel for the third to sixth respondents (Commissioner General of Police, Registrar General, Chief Immigration Officer and Minister of Justice, Legal & Parliamentary Affairs) though having indicated that her clients will abide by the decision of the court, as an officer of the court, advised the court that the applicant is on the wanted list of Interpol and is a fugitive from justice.

On the welfare and best interest of the minor child, counsel for the applicant submitted, that, the child was in good health and could be shown to the court virtually.

Counsel for the first respondent submitted, that, it was not in the best interest of the child for him to be snatched away from his mother and be kept away from her for 15 months. He submitted, that, the child should be brought back to the court's jurisdiction. He submitted that it was the duty of the courts to protect minor children.

After hearing the parties, I gave an ex-tempore ruling, partly upholding the first respondent's point in limine and postponed the hearing of the application until the applicant brings back the minor child to the court's jurisdiction and present him to the court.

This morning, the Registrar brought to my attention the Constitutional Court's order to the effect that she should have ensured that my judgment was made available to the parties by 22 September 2021. She failed to bring the order to me before 22 September 2021.

My reasons for partly upholding the first respondent's preliminary point are as follows:

The rights of children should not be trampled upon by their parents. The rights of parents to exercise guardianship and access to their children must be exercised without adversely affecting the rights of the children.

In this case, it was clear to me, that, while the applicant was entitled to have guardianship and access to his son he had to do so lawfully, and, if hindered, by resorting to the courts to enforce his rights.

Snatching the child and fleeing the jurisdiction of the court with him through undesignated exit points, is, in my view, not in the best interest of the child.

I appreciate that the High Court had granted the parties joint custody and guardianship.

Those rights should be exercised in terms of the law and in a manner which ensures that the child is not exposed to illegalities.

The child should also be accessed by both parents to enable it to bond with both parents.

The snatching away of the child, and keeping him away from his mother for 15 months, is not in the best interest of the child, and is not consistent with the exercise of joint custody and guardianship.

I did not think it prudent to completely deny the applicant audience because it is in the best interest of the child that his parents issues over him be resolved by the courts.

It is for that reason that I thought it prudent that the child be brought back to the court's jurisdiction for him to be protected by the courts, according to the law, while his parents issues are being dealt with by the courts.

These are the reasons why I partly upheld the first respondent's point in limine.

Constitutional Rights re: Children, Youth, the Upper Guardian of Minors and the Principle of Best Interests of Children

On 16 June 2021, I partly heard the applicant's chamber application for condonation and reinstatement of an appeal in terms of Rule 70(2) of the Supreme Court Rules 2018.

On 11 May 2020, the applicant filed a notice of appeal, but failed to inspect the record within the time prescribed by the Rules. By letter dated 13 April 2021, the Registrar advised the applicant's legal practitioners that the appeal had been deemed abandoned.

It is that appeal the applicant wants to be reinstated.

At the hearing of the application, counsel for the first respondent raised a point in limine.

He submitted, that, the applicant should not be granted audience by the court because he is in contempt of court orders.

He submitted, that, the applicant snatched the minor child from the first respondent at a shopping centre in Waterfalls, Harare and took him out of Zimbabwe through an un-designated exit point. He further submitted, that, the first respondent has not seen the child since that incident.

Counsel for the applicant submitted, that, the applicant should be heard as it is his constitutional right to have access to the courts.

He initially could not say where the child was, but, eventually, conceded that he had been taken out of the court's jurisdiction and was staying in South Africa with the applicant.

Counsel for the third to sixth respondents (Commissioner General of Police, Registrar General, Chief Immigration Officer and Minister of Justice, Legal & Parliamentary Affairs) though having indicated that her clients will abide by the decision of the court, as an officer of the court, advised the court that the applicant is on the wanted list of Interpol and is a fugitive from justice.

On the welfare and best interest of the minor child, counsel for the applicant submitted, that, the child was in good health and could be shown to the court virtually.

Counsel for the first respondent submitted, that, it was not in the best interest of the child for him to be snatched away from his mother and be kept away from her for 15 months. He submitted, that, the child should be brought back to the court's jurisdiction. He submitted that it was the duty of the courts to protect minor children.

After hearing the parties, I gave an ex-tempore ruling, partly upholding the first respondent's point in limine and postponed the hearing of the application until the applicant brings back the minor child to the court's jurisdiction and present him to the court.

This morning, the Registrar brought to my attention the Constitutional Court's order to the effect that she should have ensured that my judgment was made available to the parties by 22 September 2021. She failed to bring the order to me before 22 September 2021.

My reasons for partly upholding the first respondent's preliminary point are as follows:

The rights of children should not be trampled upon by their parents. The rights of parents to exercise guardianship and access to their children must be exercised without adversely affecting the rights of the children.

In this case, it was clear to me, that, while the applicant was entitled to have guardianship and access to his son he had to do so lawfully, and, if hindered, by resorting to the courts to enforce his rights.

Snatching the child and fleeing the jurisdiction of the court with him through undesignated exit points, is, in my view, not in the best interest of the child.

I appreciate that the High Court had granted the parties joint custody and guardianship.

Those rights should be exercised in terms of the law and in a manner which ensures that the child is not exposed to illegalities.

The child should also be accessed by both parents to enable it to bond with both parents.

The snatching away of the child, and keeping him away from his mother for 15 months, is not in the best interest of the child, and is not consistent with the exercise of joint custody and guardianship.

I did not think it prudent to completely deny the applicant audience because it is in the best interest of the child that his parents issues over him be resolved by the courts.

It is for that reason that I thought it prudent that the child be brought back to the court's jurisdiction for him to be protected by the courts, according to the law, while his parents issues are being dealt with by the courts.

These are the reasons why I partly upheld the first respondent's point in limine.

Cause of Action re: Suits or Proceedings Involving Persons Under Disability, Minors and the Presumption of Doli Incapax

On 16 June 2021, I partly heard the applicant's chamber application for condonation and reinstatement of an appeal in terms of Rule 70(2) of the Supreme Court Rules 2018.

On 11 May 2020, the applicant filed a notice of appeal, but failed to inspect the record within the time prescribed by the Rules. By letter dated 13 April 2021, the Registrar advised the applicant's legal practitioners that the appeal had been deemed abandoned.

It is that appeal the applicant wants to be reinstated.

At the hearing of the application, counsel for the first respondent raised a point in limine.

He submitted, that, the applicant should not be granted audience by the court because he is in contempt of court orders.

He submitted, that, the applicant snatched the minor child from the first respondent at a shopping centre in Waterfalls, Harare and took him out of Zimbabwe through an un-designated exit point. He further submitted, that, the first respondent has not seen the child since that incident.

Counsel for the applicant submitted, that, the applicant should be heard as it is his constitutional right to have access to the courts.

He initially could not say where the child was, but, eventually, conceded that he had been taken out of the court's jurisdiction and was staying in South Africa with the applicant.

Counsel for the third to sixth respondents (Commissioner General of Police, Registrar General, Chief Immigration Officer and Minister of Justice, Legal & Parliamentary Affairs) though having indicated that her clients will abide by the decision of the court, as an officer of the court, advised the court that the applicant is on the wanted list of Interpol and is a fugitive from justice.

On the welfare and best interest of the minor child, counsel for the applicant submitted, that, the child was in good health and could be shown to the court virtually.

Counsel for the first respondent submitted, that, it was not in the best interest of the child for him to be snatched away from his mother and be kept away from her for 15 months. He submitted, that, the child should be brought back to the court's jurisdiction. He submitted that it was the duty of the courts to protect minor children.

After hearing the parties, I gave an ex-tempore ruling, partly upholding the first respondent's point in limine and postponed the hearing of the application until the applicant brings back the minor child to the court's jurisdiction and present him to the court.

This morning, the Registrar brought to my attention the Constitutional Court's order to the effect that she should have ensured that my judgment was made available to the parties by 22 September 2021. She failed to bring the order to me before 22 September 2021.

My reasons for partly upholding the first respondent's preliminary point are as follows:

The rights of children should not be trampled upon by their parents. The rights of parents to exercise guardianship and access to their children must be exercised without adversely affecting the rights of the children.

In this case, it was clear to me, that, while the applicant was entitled to have guardianship and access to his son he had to do so lawfully, and, if hindered, by resorting to the courts to enforce his rights.

Snatching the child and fleeing the jurisdiction of the court with him through undesignated exit points, is, in my view, not in the best interest of the child.

I appreciate that the High Court had granted the parties joint custody and guardianship.

Those rights should be exercised in terms of the law and in a manner which ensures that the child is not exposed to illegalities.

The child should also be accessed by both parents to enable it to bond with both parents.

The snatching away of the child, and keeping him away from his mother for 15 months, is not in the best interest of the child, and is not consistent with the exercise of joint custody and guardianship.

I did not think it prudent to completely deny the applicant audience because it is in the best interest of the child that his parents issues over him be resolved by the courts.

It is for that reason that I thought it prudent that the child be brought back to the court's jurisdiction for him to be protected by the courts, according to the law, while his parents issues are being dealt with by the courts.

These are the reasons why I partly upheld the first respondent's point in limine.

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Zimbabwe

SC132-21 - FRANK BUYANGA SADIQI vs CHANTELLE MUTESWA and OTHERS