The applicant and the respondent are husband and wife. In HC4530/07 the respondent instituted divorce proceedings. That divorce action is still pending. Arising from difficulties in their marriage the parties separated in or about April 2007 and they have been living apart since. On separation the custody of their three minor children remained with the respondent.

The respondent subsequently moved to Victoria Falls in or about December 2007. She took the children with her and enrolled them at a school in Victoria Falls. Their eldest child, Mathew Lewis Berens, born on 28 July 1996, is due to start secondary education this year, 2009. Each parent has purportedly secured a secondary school place for him at their own school of choice. The applicant said he has secured a place for Mathew at St. Johns College, Harare as a day scholar whereas the respondent said she had secured a place for Matthew at Falcon College, Esigodin as a boarder.

The applicant seeks an interim order to the effect that:-

The respondent be interdicted, with immediate effect, from interfering in or obstructing in any way the attendance at St. Johns College, Borrowdale, Harare of the minor child Matthew Lewis Berens to undertake his secondary education with effect from 12 January 2009.

The terms of the final order were that:-

“1. That the enrolment of the minor child, MATTHEW LEWIS BERENS, at St. Johns College Harare from January 2009 be and is hereby confirmed.

2. That the secondary education of MATTHEW LEWIS BERENS at St. Johns College shall commence on the 1st day of the 2009 calendar year and shall continue thereafter at the said College unless and until the parties may agree to change the school, or until his attendance at the said school may, for good cause, no longer be permissible or in his best interests.”

In seeking the above order the applicant, in paragraph 31 of his founding affidavit, alleged that:-

“In my capacity as Matthew's natural father and co-guardian I do hereby request this Honourable Court to intervene, as upper guardian of all minors, and to overrule what is, in my respectful submission, the unreasonable decision by Matthew's mother to enroll him at Falcon College in Esigodini near Bulawayo, where he has no family and friends at all, and to direct that he be enrolled at St. Johns College in Harare where he has his father and his devoted and caring grandmother (being my mother). And for which school (unlike Falcon) he has passed the entrance exam.

I should also point out that the respondent's parents also live in Harare.”

The respondent's response was to the effect that:-

“I oppose the relief sought vehemently. I have not acted unreasonably. Passing an entrance examination for St. Johns was excellent. However, all private schools have the same criteria. I have already denied that it is a good ground to insist on a child attending a day school merely because his parents and grand parents will have access to him daily. Living away from applicant and the grandparents is of course not a new experience to Matthew.”

On her efforts at securing a place at Falcon, the respondent said that:-

“My position is that Matthew must attend Falcon College. He has been placed in Chubb House and he is wanted at the school on 10 January 2009. I attach and mark 'H' a copy of an e-mail confirming this.”

The parties are agreed that the respondent has sole custody of Matthew in terms of section 5(1) of the Guardian of Minors Act [Chapter 5:08]. That section provides that:

“Where either of the parents of a minor leaves the other, and such parents commence to live apart, the mother of that minor shall have the sole custody of that minor until an order regulating the custody of that minor is made under section four or this section or by a superior court such as is referred to in subparagraph (ii) of paragraph (a) of subsection (7).”

As the custodian parent, the respondent is given certain rights and powers in the exercise of such custody.

In Makuni v Makuni 2001 (1) ZLR 189 GOWORA J alluded to the fact that a custodian parent is vested with all the rights that entail the nurturing, shaping, and bringing up of the minor children. She quoted with approval from BOBERG, Family Law…, wherein the author stated that:

“An award of custody to a mother entrusts to her all that is meant by the nurture and upbringing of the minor children, in this is included all that makes up the ordinary daily life of the child – shelter, nourishment, and the training of the mind…,. The child…, passes into the home of the mother, and there it must find all that is necessary to its growth in mind and body…,.

A custodian parent has therefore the right to regulate the life of the child; determining with whom he should or should not associate; how he should be educated; what religious training he should receive; and how his health should be cared for.

The non-custodian parent has no right to interfere in these matters, though he may petition the court to do so if it appears that the custodian parent has exercised his discretion in a manner contrary to the interests of the child or in conflict with an order of court. Otherwise, he is confined to his right of access to the child.”

It should thus be clear that the custodian parent is empowered to make decisions on the day to day needs of the child without having to refer to the non-custodian parent.

One of those decisions is the choice of school for the child.

In the exercise of such custody she may, if she so desires, consult the non-custodian parent. The non custodian parent can apply for intervention in the choice or decision made by the custodian parent where such decision is not in the best interest of the child or the decision is inimical to the child. In such intervention, the applicant needs to establish or show that the choice or decision is unreasonable or irrational or that no reasonable custodian parent can make such a decision and that such a decision is therefore not in the best interest of the child.

In casu, it is clear that each parent opted for a school of their own choice - for their own reasons.

In as far as the respondent's choice is concerned, as the custodian parent, the question is: is the decision by the respondent, to secure a place for Matthew at Falcon College, unreasonable, irrational, or one such that no reasonable custodian parent can make? Can it be said the decision is not in the best interest of the child?

There is no dispute that the school chosen by the respondent is an equally good school to that chosen by the applicant. The applicant did not point at any areas of inferiority of that school as compared to St. Johns College. No differences in the quality of education offered thereat were alluded to. There was no challenge to the assertion on the well-structured nature and disciplinary aspect of Falcon College. The applicant's bone of contention was simply on the fact of the College being a boarding school and the lack of family or friends of Matthew at or near the school. The applicant was averse to Matthew attending a boarding school apparently because of his own childhood experience at a boarding school.

The question that naturally arises is whether being a boarding school, and in a place where Matthew has no family members or friends, makes the choice of the school unreasonable or irrational and one that no reasonable custodian parent can make?

In my considered view, that is not so.

The boarding facilities were not shown to be unsuitable for Matthew's needs.

The issue of lack of friends is one that should not turn a good decision into a bad decision. As a child grows up, whether in a new environment or familiar environment, they make friends. In my view, a child should not be denied a good education at a good school just because he has no friends at that school.

As for family members, unless there is a particular need for family members to be close by in order to attend, say to the child's special needs, I do not see this as cause for concern.

The question of what is in the best interest of the minor has to be looked at from both the short term and long term. In assessing such, the court has to consider that which will assist the child to grow up and not that which serves selfish parental interests but ends up spoiling the child. Emotional or sentimental feelings may be disturbed in the short term for the long term interest of the child.

On consultation, it is my view that the custodian parent may consult the non-custodial parent as this would, in some cases, be in the best interest of the minor. However, failure to consult would not, on its own, turn a good decision into an unreasonable or irrational decision. Even where consultation has taken place, the final decision is still with the custodian parent with the non-custodian parent left to challenge such decision.

The non-custodian parent is at liberty to apply for custody as provided for in the Guardian of Minors Act [Chapter 5:08].

It may also be pertinent to point out that the net effect of what the applicant seeks is to be granted custody without having applied for it in terms of the Guardian of Minors Act [Chapter 5:08].

This cannot be.

I am of the view that the application cannot succeed. Accordingly, the application is hereby dismissed with each party to bear their own costs.

At a pre-trial conference, most of the issues were settled. The parties agreed that:

(1)...,. 

(2) Custody of the minor child, Charmaine Tadiwanashe Sande (born 30 January 1998), be awarded to the plaintiff with the defendant exercising reasonable rights of access....,.

(1)...,. 

(2) Custody of the minor child, namely, Charmaine Tadiwanashe Sande (born 30 January 1998) be and is hereby awarded to the plaintiff. The defendant shall have reasonable rights of access to the minor child, at his expense, in the following manner -

2.1 One week (7 days) every school holiday;

2.2 As and when the minor child requests to see him; and

2.3 On special occasions upon prior arrangement with the plaintiff.

The plaintiff and the defendant were married at Harare on 5 September 1998. Two daughters were born of the marriage. These were born in 2001 and 2004 respectively.

On 31 January 2007, the plaintiff issued summons praying for a decree of divorce to issue on the grounds that his relationship with the defendant had broken down to such an extent that there is no possibility of reconciliation. In the main, the plaintiff lamented the fact that he had been denied conjugal rights by the defendant for a period in excess of three years.

The action was defended, and, after the pleadings in the matter had closed, the parties appeared before a judge in chambers for a pre-trial conference on more than one occasion.

During the discussions, under the guidance of the judge at the pretrial conference, the parties managed to agree, that, it was in the best interests of the minor children that their custody be awarded to the mother upon divorce with the plaintiff enjoying reasonable rights of access to the children....,.

1....,. 

2. Custody of the two minor children is hereby awarded to the defendant with the plaintiff enjoying reasonable rights of access.

The plaintiff and defendant were married in terms of the Marriages Act [Chapter 5:11] on 14 January 2005 at Harare. Their marriage was blessed with one child born on 25 November 2008.

On 28 June 2010, the plaintiff sued for a decree of divorce on the ground that the marriage has irretrievably broken down to such an extent that restoration to a normal marriage relationship is impossible. He outlined the causes of the breakdown as including the following:-

(a) That the defendant has denied him love, respect, affection, and companionship ordinarily expected of a married couple;

(b) The defendant has demonstrated a quarrelsome and bellicose attitude towards the plaintiff whom she has physically and verbally abused. The plaintiff had to apply for a protection order in terms of the Domestic Violence Act [Chapter 5:16] on 12 February 2010;

(c) Despite the protection order, the defendant has continued to harass the plaintiff making life unbearable for him;

(d) The defendant is in the habit of forcibly taking money from the plaintiff;

(e) The defendant harasses and insults the plaintiff in front of school teachers and pupils at the school where he is the Headmaster;

(f) The parties have, throughout their marriage, exhibited all signs of incompatibility; and

(g) For a period of about 13 months, the defendant lived in an adulteress relationship with a truck driver in South Africa. Here in Zimbabwe, the defendant has a lover whom she has refused to cut ties with.

As a result of this, the plaintiff alleged, that, the marriage has irretrievably broken down.

He therefore prayed for a decree of divorce and that the defendant be awarded custody of the minor child and all the movable property they acquired during their marriage. He wished to retain the property he acquired before the marriage.

The defendant, in her plea, did not concede that the marriage had irretrievably broken down. She made a bald denial of the improper conduct alleged by the plaintiff against her. She, instead, contended, that, it is in fact the plaintiff who committed adultery.

She revealed, in her plea, that, the parties also acquired an immovable property in Domboshawa which is apparently registered in the defendant's name. She contended, that, that property/Stand should be awarded to their child.

The defendant made a counter claim in which she sought that the immovable property in Domboshawa be awarded to their child.

At a pre-trial conference held on 11 February 2011, the parties reached settlement on a number of issues. They agreed that:-

1. Custody of the minor child be awarded to the defendant....,.

1....,. 

2. Custody of the minor, child Nyasha Ganyo, born on 25 November 2008, be and is hereby awarded to the defendant.

3. The plaintiff is hereby granted reasonable rights of access to the minor child upon notice to the defendant. The defendant shall not unreasonably withhold her consent to the plaintiff enjoying rights of access whenever such a request is made as long as the request is made at reasonable intervals without prejudicing the defendant's rights as the custodian parent.

The plaintiff and the defendant were joined in holy matrimony on 13 June 1997, in terms of the Marriages Act [Chapter 5:11]. The marriage still subsists. They had, however, commenced living together as husband and wife, in terms of customary law, in August 1985. Their marriage was blessed with two children, one born on 31 March 1989 and the other born on 17 August 1994.

After several years of apparently happy marriage some unhappy differences arose culminating in the plaintiff issuing summons for divorce and other ancillary relief on 6 July 2010. The plaintiff alleged that the marriage has irretrievably broken down to such an extent that there are no reasonable prospects of restoration to a normal marriage relationship. He outlined the grounds for the breakdown as that:

(a) The defendant has been seeing other men;

(b) The parties are currently on separation; and

(c) Consequently, the parties have lost love and affection for each other.

In the circumstances, the plaintiff sought a decree of divorce.

During the subsistence of the marriage, the parties acquired an immovable property, namely, Stand No.7865 Budiriro 5B, Harare and various movable property. The plaintiff offered the defendant a 25% share in the immovable property with him retaining 75%.

On the movable property, he offered most of the property to the defendant.

He also asked to be given custody of the minor child born on 17 August 1994.

The defendant, in her plea, denied that she was seeing other men. She however did not deny that the marriage has irretrievably broken down as the parties have lost love and affection for each other. She made a counter claim for:

(a) A decree of divorce.

(b) 50% share in the immovable property.

(c) Custody of the minor child born on 17 August 1994.

(d) An order for maintenance in respect of herself in the sum of USD300 per month.

(e) Sharing of the movable property in terms of her counter-proposal in paragraph 6 of her counter claim.

At a pre-trial conference held on 9 March 2011 the parties agreed that:

1. The marriage has irretrievably broken down.

2. Custody of the minor child, born on 17 August 1994, be given to the defendant with the plaintiff enjoying reasonable rights of access....,.

1. ...,.

2. Custody of the minor child, namely, Tanaka Matongo, born on 17 August 1994, be and is hereby awarded to the defendant.

3. The plaintiff is hereby granted reasonable rights of access to the minor child upon notice to the defendant, and at such times and during such periods as is necessary for the plaintiff to enjoy good relations with the minor child.

It is trite law that in dealing with the question of custody of minor children the court should be guided by the best interests of the children. See McCall v McCall 1994 (3) SA 201…,; Makuni v Makuni 2001 (1) ZLR 189 (H)…,; Galante v Galante (3) 2002 (2) ZLR 408 (H); Jere v Chitsunge 2003 (1) ZLR 116 (H)…,.

On the custody of the minor child, the defendant indicated that he is best suited as he had custody of the child since the plaintiff deserted the family in...,. He has been taking care of the child as the custodian parent. The defendant said he is amenable to the plaintiff being granted reasonable rights of access...,. He would, however, want the plaintiff to contribute towards the upbringing of the child by paying the child's school fees whilst he meets the child's daily needs.

It was his evidence that he had reason to believe that the plaintiff is capable of making such payments from the income she is earning.

Accordingly, default judgment is hereby granted in favour of the defendant as follows:

1....,.

2. In respect of the minor child...,.:

(a) Custody is hereby awarded to the defendant.

(b) The plaintiff be and is hereby granted to pay all school fees for..., and other expenses reasonably required for the attendance of the minor child at school, with the defendant taking care of all daily needs of the child.

(c) The plaintiff is awarded reasonable rights of access to the minor child to be exercised upon request over weekends and during holidays whenever she is in Zimbabwe.

3....,.

At pre-trial conference stage they agreed that..., custody of the children be awarded to the defendant....,.

The defendant did not want the plaintiff to have much access to the children. 

This was because the plaintiff had prevented her from visiting the children at their boarding school in Chipinge. She claimed that the plaintiff visits the children in the company of his girlfriend and this upsets the children. She prefers that the plaintiff be granted access to the children during alternate weekends commencing from Friday evening. During school holidays, she prefers that the plaintiff be with the children for a week....,.

There was also the issue of the children at boarding school resenting the presence of the plaintiff's girlfriend during school visits.

Although the defendant had stated that one of the teachers had drawn the issue to her attention she could not dispute that the plaintiff had communicated with the headmistress on the matter. She also conceded that the headmistress had not raised any issue....,.

1....,. 

2. That custody of the minor children, namely, Fanuel Puwayi Chiutsi (born 12th December 1995), Takudzwa Candace Chiutsi (born 8th August 1997), Tabonga Lindsay Chiutsi (born 10th July 2000), Tristan Hunter Ngaakudzwe Chiutsi (born 29th January 2002), and Hayley Chiutsi (born 19th January 2006) be awarded to the defendant with the plaintiff having access upon reasonable notice to the defendant.

The plaintiff and the defendant are husband and wife. They married each other on 8 January 1993 in terms of the Marriage Act [Chapter 5:11]. The marriage was blessed with three children, Frank (born 6 March 1993), Margret (born 23 September 1997), and Emmanuel (born 24 June 2005). During the subsistence of the marriage, the parties acquired both movable and an immovable property known as Stand 2209 Prospect Township of Stand 2899 Prospect Township measuring 860 square meters commonly known as Stand 2209 Mainway Meadows, Waterfalls Harare (the property).

On 20 January 2007, the plaintiff issued summons seeking a decree of divorce on the basis of irretrievable breakdown, custody of two of the minor children, and division of the parties' matrimonial assets.

The defendant, whilst conceding that the marriage had broken down, disputed the reasons given by the plaintiff and counterclaimed for custody and maintenance of the minor children. She also disputed the suggested distribution by the plaintiff of their assets.

At pre-trial conference, the parties agreed on the distribution of their movable assets and decided to refer seven issues to trial. At the hearing, the parties abandoned three of the issues and only the following issues were referred for determination:

1. Which of the parties should be awarded custody of the minor children?

2. Which party is to be responsible for the maintenance of the minor children and related matters?

3. Whether the Hyundai Excel motor vehicle, registration number AAG 3526, constitutes matrimonial property which is subject to distribution, and, if it constitutes matrimonial property, how is it to be distributed?

4. What is the best way of distributing the matrimonial home between the parties?...,.

In relation to the claim for custody, the plaintiff testified as follows;

He is employed as Deputy Director in the Ministry of Health and Child Welfare. He earns a salary of Z$2,600 and a monthly allowance of US$100. He has three minor children with the defendant who are Frank aged 16, Margaret aged 12, and Emmanuel aged 4. He would like custody of the two eldest children. The youngest child is 4 years old and he would like the defendant to have custody of the child....,.

He stated that the eldest child was at a boarding school and therefore only came home during the holiday. Frank, at 16 years of age, would require his father's directions as he enters into manhood. He stated that Margaret was at a day school which is near their home and if the defendant gets custody of her she would have to change schools. In his opinion, the defendant would be a bad influence on the children. He has been looking after their needs in terms of the children's fees and uniforms. All three children are on his medical aid scheme.

The plaintiff further testified that the defendant was not a fit and proper person to be awarded custody of the two elder children because she had tried to poison him in the presence of the children. He produced a report compiled by the Government Laboratories that showed that they had examined a substance which contained camphor. The report described camphor as a poison. He said that he had found the substance in the possession of the defendant. He stated that the camphor was mixed with his food and when he ate it he vomited. He however stated that he did not go to hospital nor report to the police until after about two months.

He also told the court that she had tried to commit suicide when his mother wanted to take one of their children to the rural areas. In his opinion, she was so unstable that she could not be entrusted with the children.

The plaintiff also called his father, Mr Rugare Chinyavanhu.

He told the court that he was called to the plaintiff's home because there was a dispute in December 2006. The plaintiff was alleging that the defendant was trying to poison him. He stated that they called the defendant's parents so that she could be questioned in their presence. He stated that she then told them that she had put a substance in his food. In cross examination, he said that the defendant stated that she was trying to save her marriage. He confirmed that the plaintiff and the defendant had had problems previously and he had been called to assist.

The defendant testified that she is employed as a secondary school teacher. She wanted custody of all the minor children. She stated that she could pay for the children's daily needs and clothing but she would want the plaintiff to look after their full school account. In that respect she was no longer claiming a monthly allowance from the plaintiff for maintenance for the minor children.

She denied that she had tried to poison the plaintiff. She stated that whilst the plaintiff had vomited after eating the food she had prepared he was drunk on that day and that could have caused him to throw up. She admitted having burnt some incense which did contain camphor for the purpose of chasing away evil spirits. She apologized to the plaintiff's family for having burnt the incense without her husband's permission and not for trying to kill him. She stated that although the case was later reported to the police the prosecutor withdrew the charges against her and she was never prosecuted. She also denied that she tried to commit suicide. She explained that she had told the plaintiff that she was not happy with his mother taking the child, who was about one year and three months at the time, to the rural areas.

The defendant stated that she did not consider it proper to separate the children as had been suggested by the plaintiff. One of the children, Margaret, was a girl who was entering puberty and would need her mother's love and guidance during that period. She also stated that the plaintiff's moral conduct was reprehensible as he had an adulterous relationship with their maid who was looking after the children. She also states that he is unduly harsh with the children. She gave an example of how he assaulted their eldest child with an electric cable all over his body.

In determining an issue of custody, the court must be guided by the principle of what is in the best interest of the children.

In Hackim v Hackim 1988 (2) ZLR 61 the court held that in considering the best interest of the child a court should take into account such factors such as the sex, age, health, educational needs of the child and the social and financial position of each parent as well as the character, temperament and past behaviour towards the child.

In assessing the evidence, I was of the view that the plaintiff had not established that the defendant was not a fit and proper parent to have custody of the minor children;

(i) Firstly, the plaintiff alleged that she was suicidal and had tried to poison him so she could also kill the children.

However, he is prepared to let the defendant have custody of the youngest child who is least able to protect himself against the defendant's excesses whilst he has the elder children. In my view, if the plaintiff was convinced that the defendant was a danger to the children he would not wish her to have custody of any of the children at all.

(ii) Secondly, the allegation of attempted murder has not been substantiated at all.

The defendant was never prosecuted for the offence. The plaintiff himself did not even go to hospital after the alleged attempt to his life. The report to the police was made two months later - almost as an afterthought. In spite of these allegations, the plaintiff has continued to live in the same house as the defendant to this day. The plaintiff's father, in his evidence, said the defendant stated that she was trying to save her marriage not to kill the plaintiff.

The plaintiff and the defendant both struck the court as caring parents who want the best for their children.

In applying the principles set out in Hackim v Hackim 1988 (2) ZLR 61, and other cases, it seems to me that a court must look at each individual child's needs and make an award following such assessment.

Frank is 16 years old. He is almost a major. He attends boarding school and is only with his parents during the school holidays. He will obviously share the school break with both his parents. Whether or not the plaintiff is granted custody he would only be able to have him over the holidays. This should give him ample opportunity to exert the necessary masculine influence on the boy.

Margaret, on the other hand, is 12 years old. She is a day scholar and lives at home. She is a young girl entering puberty. Whilst the court accepts that there is no basic principle that a girl child should be placed in the custody of the mother, there is a presumption that the best interests of the girl child would be best served by placing her in the custody of her mother. Goto v Goto 2000 (1) ZLR 257…,.

It is my view that the best interests of this child would be served by being with her mother. She will require the assistance of a mother with dealing with problems associated with girls at that age. There was no evidence that she is of any danger to the children. Her love for her children cannot be doubted considering that she was extremely upset when it was suggested, by her husband, that her baby, aged 1 year and 3 months, should go with her mother-in-law to live in the rural areas.

This court, and the Supreme Court, have stated, repeatedly, that minor children should not be separated unless there are cogent reasons for doing so. This position is stressed in the following headnote in Van der Linde v Van der Linde 1996 (3) SA 509…,.:

"The question of whether children should be separated in applications for custody comprises two enquiries;

(a) Is it desirable that the children be separated from each other; and

(b) Is the quality of a parental role determined by gender?

With regard to (a), all being equal, siblings should not be unnecessarily separated from each other. The reason being that siblings experiencing trauma of a divorce tend to bond with each other. A bond which, to a great extent, gives them a feeling of security against the onslaught from outside."

In this case, no real reason has been offered for separating the children.

It is already conceded that the defendant should have custody of the youngest child. The defendant has shown that she has been the caregiver in this relationship. Her evidence to the effect that she is the one who makes sure that the children are fed and clothed was not challenged by the plaintiff. 

In my view, the best interests of the children would be served by the award of custody being made to the defendant....,.

1....,. 

2. Custody of the three minor children, Frank Chinyavanhu (born 6 March 1993), Margaret Chinyavanhu (born 23 September 1997), and Emmanuel Chinyavanhu (born 24 June 2005) is hereby awarded to the defendant.

3. The plaintiff is awarded reasonable access to the minor children which shall not be less than half of every school holiday. The access shall be exercised in consultation with the defendant.

Both parties were legally represented during the pleadings, but, by the time the matter came for trial their respective legal representatives had filed notices of renounciation of agency making the parties self actors when the matter came for trial.

The parties attended a pre-trial conference on 11 May 2008 whereat issues for trial had been formulated. However, at the trial, the parties informed the court there were now only two issues for the determination of the court, namely:

(a) Which one of the parents should be awarded the custody of the two minor children?; and

(b) How should the maintenance of the minor children of the marriage be apportioned between the parties?...,.

Each party then gave viva voce evidence.

The plaintiff's evidence was that he got married to the defendant on 7 April 1996 in Bulawayo. The parties were blessed with two children, namely: (a) Senzosihle Mfanelo Mavume - (girl) born on 22 June 1992 before the parties solemnized their marriage, and, (b) Bhekumuzi Khulile Mavume – (boy) born on 22 July 1999.

The plaintiff dealt with the issue of the custody of the children under four heads, viz:

1. Abandonment of children;

2. Denying children basic rights;

3. Parenthood/motherhood experience; and

4. Children's future.

(1) Abandonment of children

Under this head, the plaintiff alleged that all started going wrong in May 2002 when Bhekumuzi, the boy, was only 2 years 9 months, and the girl, Senzosihle, was 9 years 9 months. Their mother, the defendant, decided to leave Zimbabwe to go and work in Botswana. Without consulting the plaintiff about the plight of the children, she left them under the care of her sister, one Sihle, who was allegedly a heavy drinker of alcohol.

At that time, the boy had no place for pre-school and the sister had no place for secondary school. The defendant had made no arrangements for that. The plaintiff had to take care of those situations by looking for places for the children. He secured places for the boy at Queen Elizabeth Pre-school and Dominican Convent for the girl respectively. The plaintiff did all that without the participation or input from the defendant. Both parties were out of the country. The plaintiff was in South Africa while the defendant was in Botswana.

The children had been left with Sihle at the house of the defendant in Matshemhlophe. However, in January 2005, the defendant removed them from her house and allegedly dumped them at the plaintiff's house in Khumalo. She did that without consulting the plaintiff. He was only informed by his brother's daughter about what had happened.

The boy was due to start school by 2005. The defendant did not do anything about getting him a place to start primary education. That, again, was done by the plaintiff who finally secured him a place at Masiyephambili School.

In October 2008, the defendant allegedly took the girl away from the plaintiff's house in Khumalo to her house in Matshemhlophe. She however left the boy behind. That, again, according to the plaintiff, the defendant did without consulting him.

After removing the girl from the plaintiff's house, the defendant e-mailed the plaintiff explaining that the girl had moved to Matshemhlophe because she had gone hungry at the plaintiff's house in Khumalo in August. She alleged that there was no bread and meat. The plaintiff found that hard to believe as he always ensured that there was enough food at his house. What made the defendant's story more difficult to believe was that the alleged shortage of food at the house occurred during the month of August but the defendant only brought it to the attention of the plaintiff in October when the girl had already relocated.

The plaintiff had to conduct an investigation into the matter and established the girl had obtained a driver's licence and had moved to Matshemhlophe to drive her mother's car. He established that the true reason why the girl relocated was to go and drive her mother's car. That was the agreement the girl had since reached with her mother. The plaintiff emphasized that that agreement excluded the boy who was left alone at his Khumalo house.

He said since education in Zimbabwe had become uncertain due to the strike by teachers, he decided to take the boy to join him in South Africa so that he could attend school there; but, because the parents were not on talking terms, he asked the boy to inform his mother about the intended move. In January, the defendant took the boy to South Africa and left him with the father. He has been there ever since attending school there.

(2) Denying children basic rights

This allegation was premised on the following facts;

The defendant only participated in securing pre-school and primary school places for the girl. Thereafter, she did nothing more. She made no effort to secure the girl a secondary school place. She made no effort to ensure that the boy got a place at a pre-school or primary school.

Secondly, when the plaintiff was processing application forms for the children's passports he sent the forms to the defendant for her signature, as a parent; she refused to sign them and returned them unsigned.

The defendant did not end there, but she also refused to sign application forms for the children's South African resident permits. The plaintiff had to use other means and succeeded in obtaining South African resident permits for the children.

The defendant's explanation for refusing to comply was that she did not quite understand what all that meant.

She, briefly, was attributing that to ignorance. That excuse is lame and clearly unacceptable.

(3) Parenthood/motherhood

The plaintiff averred that the defendant had not lived with the boy since he was 2 years 9 months; she, therefore, did not have sufficient experience for his upbringing on a day to day basis. It was his evidence that the defendant had not demonstrated foresight in as far as the children's future was concerned. He held the view that the defendant did not care about the children and did not display any sensitivity in relation to their plight. For instance, the plaintiff stated, under cross-examination, that any caring mother would not leave behind a 2 year 9 months toddler to go and work in Botswana.

(4) Children's future

The plaintiff's evidence under this head was that the girl would be turning 17 on 22 June. She therefore needed an identity card in order to attend any tertiary institution outside this country. He claimed that the defendant did not seem to be doing anything about that.

As regards the boy, the plaintiff's evidence was that he was now in his third school i.e. from St Thomas Aquinas, to Masiyiphambili in Zimbabwe, and now at Birchacre in South Africa. If he were to be moved to Botswana, where the mother is on contract, he would have to go to a fourth school before writing Grade 7. The mother's contract can be terminated at any time and she would have to look for another job elsewhere. The boy would also be moved to the new town or city where the mother gets a new job.

The plaintiff was cross-examined by the defendant, and, when asked why he alleged that she had abandoned the children he replied that he was saying so because she had left the children without securing places for school and that any caring mother would not leave behind a 2 year 9 months child to go and work in the diaspora. It was put to him that the pre-school where he had got a place for the boy was of sub-standard in terms of hygiene and the boy ended up suffering from ring-worms. His reply was that he had not been made aware of that. All he knew was that she had left the children without making any arrangements for their schooling. He had to come from South Africa to find the child a place for school. He said the situation was desperate which needed an urgent solution.

The defendant tried to justify why she left the child behind by saying that she had joined a pharmacy where she had to go from place to place in Botswana, but, the plaintiff said that was no justification for leaving a toddler with her sister who was an alcoholic. He also told her, under cross examination, that the explanation that she returned the forms unsigned due to ignorance was unacceptable because she used to be represented by some lawyers. She should have therefore sought legal advice.

The plaintiff gave his evidence in a clear and straight forward fashion. He is worth to be believed.

The same cannot be said about the defendant when she gave viva voce evidence although she also had no witness to call.

Her evidence was that during the year 2002 she decided to go and work in Botswana in order to fend for her children. She asked her sister to stay with her children at her Matshemhlophe house during her absence. At that time, she thought the arrangement was just temporary as she intended to come back home after receiving her share from the proceeds of the sale of Bulawayo Centre Pharmacy. To her disappointment she never got her share when the pharmacy was sold. She alleged that that was the reason why she was still working in Botswana up to this day.

Her first job was with a Group which had pharmacies all over Botswana. So she was moved from place to place in Botswana. It was then practically impossible to take her son to Botswana.

However, in August 2004, she changed jobs and joined the Botswana Government. During that same year, her sister went to South Africa in December. It also turned out that the maid went on maternity leave at that same time. A new maid had to start in January, but, the children were not comfortable with a new maid at the defendant's house. They allegedly told the defendant that they would be comfortable if she moved them to the plaintiff's house in Khumalo to stay with their cousin there.

The defendant alleged that she attempted to explain her predicament to the plaintiff but he would not hear from her whereupon she explained to his niece and requested her to pass that information to him. To make assurance double sure she asked her daughter to do the same.

She told the court that the rules at her new job did not allow her to take leave before she completed a year. She nevertheless managed to come to Zimbabwe fortnightly to check on the children. After completing a year she was entitled to a month's leave.

When she wanted to make arrangements to return the children to her house in Matshemhlophe they told her that they were happy at their father's house in Khumalo. The need to move them did not arise.

She then sent the plaintiff an sms message telling him to find a place for the boy at St Thomas Aquinas in Khumalo. The boy transferred from Masiyephambili to St Thomas Aquinas in 2007. The defendant had hired a driver to deliver the children at their respective schools as well as collecting them therefrom.

She went on to allege that during the children's stay at their father's house in Khumalo they were not allowed to visit her in Botswana during school holidays. However, at one stage the girl managed to go and visit her without the father's approval. It was during that visit that the girl allegedly revealed to her that the father was no longer giving her pocket money which the mother started to give her. It was at that stage that she stopped going to visit her father in South Africa. The reason for that was that she played tennis at national level being sponsored by the mother who supplements the money for sponsorship with the proceeds from the Mpopoma house rentals.

The defendant received a report from the girl, during 2007, to the effect that her father was no longer phoning her - even to just say hello. He used to phone her at least three times a day during the construction of the Khumalo house but had allegedly stopped when construction was over. The defendant herself continued to phone the children at least three times a week.

The situation deteriorated in May 2008 when the niece of the plaintiff left for South Africa. Another niece went to stay with the children. They did not get on well with her. Suddenly, there was a shortage of food at their father's house. The father was allegedly no longer sending any food for the children. The girl had to go to the mother's house in Matshemhlophe to collect food. In the circumstances, the girl made up her mind to move from Khumalo to Matshemhlophe. When she told her mother about what she wanted to do she was advised not to do so. She allegedly told the girl that she could not leave behind her little brother.

When she turned 16 years last year the mother enrolled her at a driving school. She requested to have the car parked at the Khumalo house but the father is alleged to have said the car should never enter his yard.

That seems to have worsened the situation because the girl allegedly persisted with her wish to move to Matshemhlophe. She began to allege that her father no longer loved her and that the mother did not also want her at her Matshemhlophe house. When asked if she had told her father about the move she said she had and he had told her to leave the mobile phone that he had given her to use. It was for these reasons that the girl returned to her mother's house.

The boy remained at his father's house in Khumalo. When the defendant emailed the plaintiff suggesting that she would like to take the boy with her to Botswana she got no response.

At the beginning of this year she took the boy to South Africa to visit his father. According to her, the boy was initially happy to learn in South Africa but changed his mind when he learnt that the parents were divorcing. She alleged that he now preferred to be with her than with his father.

In conclusion, she said it would be in the best interest of the children if they remained with her after the divorce.

Her conclusion is baseless because she literally dumped them when they were of very tender ages - particularly the boy who was at the age of learning how to speak sensible things. Any caring mother would not leave behind such a child. Caring mothers are always seen with their little ones strapped at their backs in times of hardships. They cross borders with them; yet, the defendant, who was going into a very good job as a pharmacist, left behind her child. Now that he can do things for himself she wants to take him away.

She is working as a contract worker with the Botswana Government. She refused to answer the plaintiff's question when he asked her to tell the court when her contract was due for renewal. Even when told by the court to answer the question she would only say her contract was due for renewal sometime next year. It is common practice the world over that a contract may be renewed or may not.

The boy has now got a place at Birchacre School in South Africa. It would not be in his best interest to pluck him off from there to either go to Petra School in Zimbabwe or go to some yet unknown school in Botswana.

The defendant was an unreliable witness.

She wanted the court to believe that she did not get her share from the proceeds of the sale of the Bulawayo Centre Pharmacy. It only came out, under cross-examination, that she in fact got a car, a table and some chairs. So it was not true to say she was still in Botswana because she had not received her share.

The defendant was also evasive and did not want to answer questions.

For instance, when asked why she had left the children without planning what was going to happen to them next her reply was that the plaintiff and herself never used to talk to each other. When asked why she did not tell her lawyer that the children had no food at the Khumalo house her answer was that the lawyer, who had over 20 years experience, was expensive. When pressed further why she did not even tell her lawyer that the children were unhappy at the Khumalo house and about the father not loving his daughter she was unable to explain and maintained that her lawyer was expensive.

She clearly had no acceptable explanation. She and her lawyer were in the habit of producing very long documents. Her plea and claim in reconvention were long. Her synopsis of evidence was twelve (12) pages; yet, in all those long documents she does not mention these material points.

This court has no hesitation in making a specific finding that the allegations of the children not having food at the Khumalo house, and not being happy there, are after-thoughts which are false and are accordingly rejected.

The defendant told the court, under cross examination, that the girl was likely to go to study in the United States of America but produced no evidence showing that a place for study has indeed been secured.

The girl turns 17 years on 22 instant and will attain age of majority next year. She has already made her decision to stay with her mother. It would not be fair to force her to go and live with her father in South Africa. She should be left with the mother to enjoy driving her mother's car to and from school.

As for the boy, who will be turning 10 years on 22 July 2009, it is in his best interest to continue living with his father. He is already attending school at Birchacre in South Africa. The education in our country collapsed last year when teachers went on strike. Examination papers are taking nearly a year to mark. It would not be in the best interest of the child to purport to put him in such an education system. Neither would it be in his best interest to pluck him from where he has been learning since January in order to go to some school in Botswana. In the result, the court shall allow him to remain with his father in South Africa.

In the light of the foregoing I would issue the following order:-

It is ordered that:-

(1)...,. 

(2) The custody of the girl, namely, Senzosihle Mfanelo Mavume, born on 22 June 1992, be and is hereby awarded to the defendant with the plaintiff being given reasonable rights of access to her;

(3) The custody of the boy, namely, Bhekumuzi Khulile Mavume, be and is hereby awarded to the plaintiff with the defendant being given reasonable rights of access to him;

There are the two parties' two minor children, one of whom is now a major.

The plaintiff claimed that he should be awarded custody of the two children as he is gainfully employed and he spends more time with them. He claimed that the defendant devotes no time to the children as she is a cross-border trader. On some occasions, the defendant was said to have spent two months away from home. On her return she would spend only about a week.

The defendant also testified that the elder child had finished O'Level whilst the younger one was doing Grade Seven. The children only join her during holidays. She conceded going to South Africa to source goods for resale and this was attributed to ill-treatment by the plaintiff. At some stage she claimed she resorted to vending meat illegally. She would return home and find the doors locked. In February 2009 she was locked out for two nights. She was only restored after she secured a court order. In October and November she was away for two weeks.

On custody, apart from citing relevant authorities, counsel for the plaintiff submitted that custody must be awarded on the basis of parent's ability to communicate and provide basic needs. He also pointed out the children's preferences, especially the younger one.

On custody, the elder of the parties' two children is now a major. However, both parties want custody of the younger child as was the case in respect of the elder child.

Although the plaintiff contested this issue he had long conceded that custody be awarded to the defendant in his replication. Since no amendment was sought it was futile on the part of the plaintiff to pursue this issue. Even the authorities cited by the plaintiff's counsel on the best interests of the child are of no consequence....,.

(b) Custody of the minor child Tinashe Talent Nyamayedenga be awarded to the defendant with the plaintiff having access during the first two weeks of every school holiday.

The parties have one child, a girl called Nicole Mtengwa, born on 27 February 2001.

The plaintiff's reasons for claiming custody were the child's gender, and that she goes to work and returns home by 5pm. On that basis, she said she would have adequate time to spend with the child. On the other hand, she stated that the defendant sometimes returned home late. At the time of trial, she was residing in the matrimonial home in Westlea, and did not know where the defendant was residing with the child. The defendant moved out of the matrimonial home with the child, during the plaintiff's absence, at the beginning of June 2008. The defendant is said to have undertaken to return the child....,. Subsequently, the child only visited the plaintiff twice during weekends. They then agreed that the defendant would take the child to school as he had at his disposal a company vehicle and fuel allowance. On the other hand, the plaintiff was self-employed. The plaintiff was asked to respond to claims that the defendant is the one who used to help the child with homework. She explained that when they started to experience problems with their marriage the child would inform her that she had already done homework with the defendant. On claims that she used not to take the child to school during the defendant's absence she explained that she would take the child to school if the defendant communicated his absence. In the event that custody is awarded to the defendant, the plaintiff stated that she would prefer to be with the child every weekend, and school as well as public holidays. Under cross-examination, the plaintiff conceded that the child enjoys staying with the defendant, although she attributed this to her age. The weekend the child visited her she elected to go back to the defendant. The plaintiff also agreed that if custody is granted to the defendant she should be granted to exercise rights of access every alternate holiday. She also conceded that the defendant paid most of the fees for the child.

The defendant also testified, and indicated that he resides at 6027, Westgate. In respect of the minor child, he stated that he wants custody to be granted to him for the child's best interests. In addition, he stated that the child prefers to stay with him. He takes the child to school and has been responsible for fees since pre-school. When he took the child to the matrimonial home and left her there she cried and wanted to go back to him. On another occasion, when he went to collect uniforms the child was crying claiming that the plaintiff had refused that she take away some of her clothes. The defendant conceded that the best interests of the child mattered. He also resides with his niece who assists in taking care of the child. The latest time he claims to be home is 6pm. He also stated that he supervises the child's homework. He is the one who initiates communication with the plaintiff in respect of the child. The plaintiff used not to take the child to school in his absence. Under cross-examination, the defendant conceded that he had no problem if custody of the child is granted to the plaintiff and he is granted reasonable access. He also conceded that his niece has a child. He is renting a two-bedroomed property in Westgate.

It is well-established that the determining factor in a custody dispute are the best interests of the child. In support of this submission, counsel for the plaintiff cited the case of Zvorwadza v Zvorwadza 1996 (1) ZLR 404 (H). He also submitted that the plaintiff is better-placed to be granted custody as she has more earning power than the defendant. Counsel for the plaintiff also submitted that the sex of the child should be taken into account, and cited the case of  Goba v Muradzikwa 1992 (1) ZLR 212 (SC). In that case, after the dissolution of the parties' customary law union, the wife went to her parents' home with their two daughters. The husband subsequently sought custody of the children. The community court granted custody of one of the children to the husband whilst the wife retained custody of the other. In upholding the appeal by the wife, GUBBAY CJ had this to say..., –

“In this case, I am satisfied that the presumption that the interests of female children of tender years are better served in the custody of their mother was not rebutted by the respondent. I need only refer to the gracious words of BROOME J (as he then was) in the celebrated case of Dunsterville v Dunsterville 1946 NPD 594 at 597:

'..., it is often said that the best person to look after young children is their mother. So far as mere physical well-being is concerned, I do not think this is a matter of any importance. Few mothers are capable of attending to the bodily needs of their offspring as efficiently as an institution-trained nurse. 

But that is not the end of the matter. Experience goes to show that a child needs both a father and a mother, and that, if he grows up without either, he will, to some extent, be psychologically handicapped. But the maternal link is forged earlier in the child's life than the paternal, and, if not forged early, may never be forged at all. The psychological need of a father, on the other hand, only arises later. It seems to me that if the father is awarded custody of these young children they will, in all probability, notwithstanding the loving care which they will undoubtedly receive from their paternal grandmother, grow up as motherless children with all the attendant psychological disadvantages. If, on the other hand, the mother is awarded their custody, at any rate during their years of infancy, they will not necessarily grow up as fatherless children; for the relationship between a father and his young children is never one of continuous intimacy but is necessarily intermittent. The children will realize that they have a father, notwithstanding that they do not see him everyday. And when they reach the age at which a father becomes important in their lives there will be nothing to hinder the forging of the paternal link.'”

Notwithstanding the above remarks, the underlying consideration is the best interests of the child – and each case must be decided on its own facts.

Counsel for the applicant also cited the case of McCall v McCall 1994 (3) SA 201 (C) went into great detail on what constitutes the best interests of the child. The case concerned an application for variation of a consent order in which custody of the minor child had been granted to the respondent. KING J had this to say about what constitutes the best interests of the child..., -

“In determining what is in the best interests of the child, the court must decide which of the parents is better able to promote and ensure his physical, moral, emotional, and spiritual welfare. This can be assessed by reference to certain factors or criteria which are set out hereunder, not in order of importance, and also bearing in mind that there is a measure of unavoidable overlapping, and that some of the listed criteria may differ only as to nuance. The criteria are the following:

(a) The love, affection, and other emotional ties which exist between parent and child, and the parent's compatibility with the child;

(b) The capabilities, character, and temperament, of the parent and the impact thereof on the child's needs and desires;

(c) The ability of the parent to communicate with the child, and the parent's insight into, understanding of, and sensitivity to the child's feelings;

(d) The capacity and disposition of the parent to give the child the guidance which he requires;

(e) The ability of the parent to provide for the basic physical needs of the child, the so-called 'creature comforts', such as food, clothing, housing, and other material needs – generally speaking, the provision of economic security;

(f) The ability of the parent to provide for the educational well-being and security of the child, both religious and secular;

(g) The ability of the parent to provide for the child's emotional, psychological, cultural, and environmental development;

(h) The mental and physical health and moral fitness of the parent;

(i) The ability, or otherwise, of the child's existing environment, having regard to the desirability of maintaining the status quo;

(j) The desirability, or otherwise, of keeping siblings together;

(k) The child's preference, if the court is satisfied that in the particular circumstances the child's preference should be taken into account;

(l) The desirability, or otherwise, of applying the doctrine of same sex matching, particularly here, whether a boy of 12 (and Rowan is almost 12) should be placed in the custody of his father; and

(m) Any other factor which is relevant to the particular case with which the court is concerned.”

The above excerpt is quite useful in determining which parent should be granted custody of the minor child in the present case.

The defendant took away the minor, and, one might be tempted to say, took advantage of that to secure the affections of the child. However, it can also be noted that he facilitated communication between the child and the plaintiff – and this happened the first weekend after the separation. It is common cause that the child did not want to remain with the plaintiff.

It is also not in dispute between the parties that the child prefers to be with the defendant.

From the evidence led before this court, it is clear that the plaintiff did not prove why she is a better parent. Despite the child having been taken away against the plaintiff's will she did not exhibit any desire to be reunited with the child. Even before separation, it is the defendant who always assisted the child with its homework and paying school fees. After separation, the plaintiff did not make meaningful efforts to be appraised of the child's progress at school. It must be pointed out that both parties were fair in that they did not mind custody being granted to either of them – save that even without the court having interviewed the child it was also common cause that the child prefers staying with the defendant. I would therefore hold that the best interests of the child are best served by awarding custody to the defendant....,.

1. ...,.

It is with this background, and in particular section 81(3) of the Constitution of Zimbabwe that in the exercise of my discretion, upon observing that there is no report by the curator accompanying the fifth respondent's opposition papers, the court held the view that as upper guardian of the minor child the best interests of the child would be served by the full ventilation into the matter.

The plaintiff issued summons claiming a decree of divorce, rights of access to the minor child, a division of matrimonial assets and costs of suit. The defendant also filed a counter-claim seeking similar relief.

The parties agreed that the marriage had irretrievably broken down.

They had also settled on custody of the minor children...,.

1...,.. 

2. Custody of the minor child, Dennis Tawanda Simango, is granted to the defendant with the plaintiff exercising access during alternative weekends and half of each school holiday.

One usually expects that once a married couple agrees to end their relationship premised on irretrievable breakdown, then they ought to come to a settlement in respect of some, if not all, ancillary issues.

There appears to have been acrimony that militated against that in the present matter, such that the court has to parcel out mundane items - like knives.

The parties, having agreed that the marriage relationship had irretrievably broken down, the issues referred to trial were -

(a) Who should be granted custody of the minor children....,.

There are two children born during the marriage, a girl now aged 13 years and a boy aged 11 years. They were attending school at Louis Mt Batten Primary School.

By mutual consent of the parties, the defendant went to the United Kingdom in 2002. According to the plaintiff, their daughter was then four years whilst the boy was two years. He thus raised the children on his own. He was assisted by his nephew and a maid. The defendant was supposed to be away for six months but she only returned in 2006....,.

The defendant moved out of the Ridgeview home in 2008. She went away with the children. The plaintiff said he had subsequently seen the children only for one week during the first term of 2009.

The defendant does cross-border trade whereby she travels to South Africa and Mozambique. According to the plaintiff, she is out of the country for two weeks every month. In addition, she was said to have a Malawian and Zimbabwean passport. She was also said to have two birth certificates relating to her which are in different names.

In essence, the plaintiff's contention was that this is proof of the defendant's unreliability as a suitable custodian for their children....,.

The plaintiff also stated that if he is not awarded custody he should be granted access twice a month, during weekends, and during half of each school holiday.

The plaintiff's nephew, Noah Nyamupinda, also testified. His testimony corroborated that of the plaintiff regarding how he took care of the children during the defendant's absence. Part of the evidence also dwelt on the fights that he witnessed between the plaintiff and the defendant.

The defendant testified that she commenced residing with the plaintiff in 1995 before the marriage in 1996. When she went to the United Kingdom, the air ticket was funded by the plaintiff's friend....,.

She confirmed that she took the children to her mother's house on account of the differences she was experiencing with the plaintiff. For example, she said eggs are kept in the bedroom by the plaintiff. The mealie-meal was rationed out in a five litre container. Keys to the pantry were kept by the plaintiff's niece.

Since the time she moved out, the plaintiff had not followed up on the children. She had no problem if custody was granted to the plaintiff although she claimed to be a better parent. She confirmed that she goes out of the country once a month since she operates a stall at Mupedzanhamo flea market. She sated that she realized about US$400 per week.

The defendant also confirmed having differences with the plaintiff and his niece. She obtained a Peace Order against the plaintiff. The children's school performance was affected. She talked to the deputy school head who suggested that they go for counselling. The plaintiff was said to have declined to participate. As a result, she went to Connect. She produced a letter from Connect who recommended that the children be enrolled at boarding school....,.

Now, in determining the issues, it is well established that the best interests of the child determine which parent can be awarded custody.

Counsel for the plaintiff cited the case of Zvorwadza v Zvorwadza 1996 (1) ZLR 404 (SC).

In that case, the parties agreed to divorce as well as that custody of one of the children be awarded to the appellant. Custody of two other children, as well as other matters, remained in contention. By the time the matter went to trial one of the children had attained majority age. Custody of the other child was then awarded to the respondent. The trial court, had among other things, reasoned that custody of older boys should be awarded to the father. MUCHECHETERE JA had this to say…,:

“The learned judge misdirected himself on the matter. For it is proper to canvass the views of the minor children on their preference when the court is considering the best interests of the children. It would have been much more preferable, in a case such as the present one, where the infant in question is of sufficient age and intelligence to be questioned on the matter, and where both parents cannot be said to be irresponsible.

See Clark v Clark 1939 (1) PH B29 (SR) where, in a judicial separation, BLAKEWAY J awarded custody of the minor child to the husband. One of the reasons why custody was granted to the husband was because the minor child had said that he wanted to remain with his father and that he was afraid of his mother.

In Siyaya v Siyaya 1958 (2) PH B17 (C), where ROSENOW J awarded custody in accordance with the preference of the children, it was held that:

'The interests of the children could not be measured purely in terms of superior accommodation and amenities. A child required, above all, care and affection. The court had been influenced, particularly, in coming to a decision, by the preference shown by the children themselves. Although the applicant might not be able to offer as much luxury and comfort as they would have with (the) respondent, there was the evidence that she was able to look properly after them, and the five youngest children themselves would be happier if, in the meantime, they were allowed to remain in the care of the party for whom they themselves had shown a preference…,.'”

The first thing to note in the present matter is that both parties may be able to provide financially for the children. Both may also be able to help with the children's school work. That the plaintiff was able to take care of the children cannot be given more prominence than other factors. It is common cause that the parties had agreed on the defendant's sojourn in the diaspora although the plaintiff was not happy with her extended stay. That the plaintiff is disabled is not a factor as he was able to look after the children during the defendant's four year absence.

One other aspect worth considering is the plaintiff's attitude towards the children as revealed by the evidence.

It was stated by the defendant that he keeps some food items in the bedroom and shares out the mealie-meal. When the defendant took away the children the plaintiff did not follow up.

This evidence was not challenged by the plaintiff.

The defendant further stated that the children's school performance was affected and she talked to the deputy head who recommended that the parties seek counseling. The defendant went to Connect. The plaintiff was said to have declined to avail himself for counselling. The defendant appeared more forthcoming as she said she also wanted to know where she was failing. Had the plaintiff availed himself for counseling the court could have benefited from the report that would have been prepared in as far as suitability of the parties as custodians is concerned.

Much was made of the defendant's unsuitability for custodianship on the basis of her dishonesty. The copies of the defendant's birth certificates, produced by the plaintiff, show that they were obtained in 1968 and 1979. The births were registered by the defendant's mother. In the circumstances, one cannot make much of the issue.

The defendant also did not deny using two different passports. She explained that whilst she was in the United Kingdom she obtained a Malawian passport in order to enhance her chances of securing more jobs in order to boost her earnings. Whilst her conduct fell foul of Zimbabwean law that cannot disqualify her from being awarded custody. Her dishonest conduct does not make her an unfit parent. To the contrary, her conduct on parenting, since her return from abroad, does not exhibit any signs that might militate against an award of custody....,.

(a)...,. 

(b) Custody of the minor children, Chiedza Muokomberanwa (born on 2 July 1997) and Tinotenda Mukomberanwa (born on 20 April 1999), be awarded to the defendant with the plaintiff having access during two weekends each month and during half of each school holiday.

The parties were blessed with two children Elena Gloria Koumides, born 24 May 1990, and Andreas Wilfred Koumides, born 13 March 1995. In addition to the claim for a decree of divorce the plaintiff also claims custody of the minor child of the marriage, Andreas Wilfred Koumides, subject to the defendant's right of access.

Regarding the plaintiff's claim to be awarded custody of Andreas Wilfred Koumides, the defendant's only request is for a specific access order to be made in his favour....,.

1. ...,.

2. That custody of the minor child Andreas Wilfred Koumides be and is hereby awarded to the plaintiff with the defendant having reasonable access to him.

3. That the defendant shall be entitled to have access to the minor child as set out below:

(a) Every alternate weekend from close of school on Friday afternoon until he returns the minor child to school on Monday morning;

The applicant, Sekai Ndoro, is the natural mother of Samatha Ruhukwa. She applied to the Mutare Juvenile Court for an order granting her guardianship and custody of Samatha.  

The Juvenile Court granted the application.

The minor's father was entitled to notice because after his separation with the applicant, he, in terms of section 3 of the Guardianship of Minors Act [Chapter 5:08], retained guardianship of Samatha. Section 3 of the Guardianship of Minors Act [Chapter 5:08] provides as follows –

“Where the parents of a minor –

(a) Are living together lawfully as husband and wife; or

(b) Are divorced, or are living apart, and the sole guardianship of the minor has not been granted to either of them by order of the High Court or a judge; the rights of guardianship of the father shall be exercised in consultation with the mother, and if a decision of the father on any matter relating to guardianship is contrary to her wishes, and, in her opinion, likely to affect the life, health or morals of the minor to his detriment, the mother may apply to a judge, in chambers, who may make such order in the matter as he thinks proper.”

The applicant should have applied for guardianship to the High Court in terms of section 4(1) of the Guardianship of Minors Act [Chapter 5:08]. Section 4(1) of the Guardianship of Minors Act [Chapter 5:08] provides as follows –

“(1) The High Court, or a judge thereof, may –

(a) On the application of either parent of a minor in proceedings for divorce, or judicial separation, in which an order for divorce or judicial separation is granted; or

(b) On the application of either parent of a minor whose parents are divorced or are living apart; if it is proved that it would be in the interests of the minor to do so, grant to either parent the sole guardianship which shall include the power to consent to a marriage, or sole custody of the minor, or order that on the pre-decease of the parent named in the order, a person, other than the survivor, shall be the guardian of the minor, to the exclusion of the survivor or otherwise.”  

The marriage was blessed with three children.

The plaintiff claimed custody of the three minor children of the marriage.

At the pre- trial conference, the parties agreed that the defendant should be awarded custody of the three children with the plaintiff paying maintenance in terms of a Maintenance Order granted by the Maintenance Court in Case No. M1219/07....,.

1. ...,.

2. The defendant is awarded custody of the minor children namely;

(i) Colleen Tanyaradzwa Makonza, born on the 1^st April 1999;

(ii) Tawananyasha Langton Junior Makonza, born on the 5th April 2004;

(iii) Tinomudaishe Lillian Lora Makonza, born on the 5^th May 2006.

3. The plaintiff shall have access to the minor children on:-

(i) Alternate weekends from Friday 5:00pm to 5:00pm on Sunday;

(ii) Alternate weeks of each school holiday, commencing the first day after the term ends, with access during that first week being exercised by the plaintiff, provided, however, that these periods can be altered by the parties by prior arrangement.

(iii) Every alternate public holiday, that is to say, the first holiday in this case being New Year's Day, followed by the other holidays during the year, which is Good Friday, Easter Holiday, Independence Day, Labour Day Africa Freedom Day, Heroes Day, Armed Forces Day, Unity Day, Christmas Day and Boxing Day.

The parties had agreed that custody of the minor child be awarded to the defendant....,.

(a) ...,.

(b) ...,.

(a) ...,.

Regarding the custody of the minor children, the joint pre-trial conference minute is silent on the child “A”. I see no reason, and none have been advanced, why the minor child should not also be in the custody of the plaintiff.

All three minor children will thus be placed in the custody of their mother, the plaintiff….,.

1. ….,.

2. That custody of the minor children O, F and A be and is hereby awarded to the plaintiff.

All of the three cases dealt with in this review involve the appointment of guardians to minor children by the same Provincial Magistrate in September and October 2009.

The Facts

In the Parshotam case, sole guardianship of the child was awarded to the natural mother who is living separately from the natural father. The latter had expressly consented to the award by way of a special power of attorney supported by his sworn affidavit.

In the Chibvembe case, guardianship of the minor was granted to her elder sister following the death of their mother. However, the mother's death certificate does not form part of the record. Moreover, there is no indication in the papers as to the whereabouts of the natural father or whether he is still alive.

In the Chidzikwe case, the learned magistrate awarded guardianship of the two minor children to their elder brother. The natural father is still alive and has consented to the application. However, there is no indication in the papers as to whether the natural mother is dead or alive or whether she has consented to the application.

Jurisdictional Competence

The Guardianship of Minors Act [Chapter 5:08] regulates the guardianship of minors generally. In terms of section 4(1)(b) of the Guardianship of Minors Act [Chapter 5:08], the High Court or a judge may, in the case of a minor whose parents are divorced or are living apart, grant to either parent the sole guardianship of the minor. Section 9 of the Guardianship of Minors Act [Chapter 5:08] governs the appointment of guardians by the Children's Court. The relevant portions of section 9 of the Guardianship of Minors Act [Chapter 5:08] provide as follows -

“(1) Without prejudice to the rights, powers and privileges of the High Court as upper guardian of minor children, and the Master in terms of section 74 of the Administration of Estates Act [Chapter 6:01], the Children's Court may, on application in terms of this section, appoint a fit and proper person to be the guardian of a minor who has no natural guardian or tutor testamentary.

(2) Where a minor has no natural guardian or tutor testamentary—

(a) A relative or person having the care and custody of the minor; or

(b) A probation officer;

May apply to the Children's Court by way of an application lodged with the Clerk of that court for the appointment of a person as guardian of the minor, and such application may propose the appointment of a specified person as the guardian.”

It is manifestly clear from the foregoing provisions that section 9 of the Guardianship of Minors Act [Chapter 5:08] only applies to a minor who has no natural guardian or tutor testamentary. The section simply cannot apply where a natural guardian, i.e. natural parent, is or may be still alive. In any such case, the matter must be dealt with by the High Court qua upper guardian of minor children.

The Magistrates Court is a creature of statute and cannot assume or exercise any power or jurisdiction not specifically conferred by statute. As far as I am aware, there is no other relevant legislation on the subject.

It follows that the learned magistrate in casu fundamentally misdirected himself in purporting to award guardianship in all three cases. Moreover, each such appointment constitutes a nullity and anything done pursuant thereto has no legal force or effect.

In the result, the decision in each case is hereby set aside, in terms of section 9(7) of the Guardianship of Minors Act [Chapter 5:08]. The learned magistrate is directed to instruct the Clerk of Court to notify all three appointees accordingly and to advise them to apply to the High Court should they wish to pursue the matter further.

The basic principle in adjudicating on issues pertaining to children is the best interests of the children.

In determining what is in the best interests of the child there are many factors which must be taken into account.

In Galante v Galante (3) 2002 (2) ZLR 408 (H), SMITH J quoted in extensor some of the factors stated in McCall v McCall 1994 (3) SA 201 (C)…,. In that case, KING J stated that -

“In determining what is in the best interests of the child, the court must decide which of the parents is better able to promote and ensure his physical, moral, emotional and spiritual welfare. This can be assessed by reference to certain factors or criteria which are set out hereunder, not in order of importance, and also bearing in mind that there is a measure of unavoidable overlapping and that some of the listed criteria may differ only as to nuance. The criteria are the following:

(a) The love, affection and other emotional ties which exist between parent and child and the parent's compatibility with the child;

(b) The capabilities, character and temperament of the parent and the impact thereof on the child's needs and desires;

(c) The ability of the parent to communicate with the child and the parent's insight into, understanding of and sensitivity to the child's feelings;

(d) The capacity and disposition of the parent to give the child the guidance which he requires;

(e) The ability of the parent to provide for the basic physical needs of the child, the so-called 'creature comforts', such as food, clothing, housing and other material needs – generally speaking, the provision of economic security;

(f) The ability of the parent to provide for the educational well-being and security of the child, both religious and secular;

(g) The ability of the parent to provide for the child's emotional, psychological, cultural and environmental development;

(h) The mental and physical health and moral fitness of the parent;

(i) The stability or otherwise of the child's existing environment, having regard to the desirability of maintaining the status quo;

(j) The desirability or otherwise of keeping siblings together;

(k) The child's preference, if the Court is satisfied that in the particular circumstances the child's preference should be taken into consideration;

(l) The desirability or otherwise of applying the doctrine of same sex matching….,; and

(m) Any other factor which is relevant to the particular case which the Court is concerned.”

In this case, the circumstances of the parties do not show any marked element warranting the denial of custody to either parent. For instance, in their pleadings neither alluded to any harmful practices or conduct by the other that would be detrimental to the children. The plaintiff's claim for custody is based on being the mother and so being a better custodian parent. The defendant, on the other hand, contended that the plaintiff is a lazy bone and so cannot look after the children.

It is worth to note that both claimed maintenance from the other in the event they are granted custody. That aspect confirms that both accept their incapability to look after the children on their own without economic support from the other. It also confirms that both appreciate that the non-custodian parent is financially able to contribute towards the needs of the children.

An analysis of the testimony by the two parties shows that each was intent on portraying the other as unsuitable but without much substance. For instance, the defendant alleged the plaintiff was lazy and neglected the children to an extent that one of their sons died due to illness. There was nothing to show that the child died as a result of neglect. If anything, both parties agreed that when they realized the child was unwell they took the child to some prayer meeting for faith healing. It was only after realizing that the child's illness was worsening that they took the child to hospital. The decision to take the child for faith healing was not the plaintiff's alone, if anything, it appeared to be in keeping with the defendant's belief.

There was also the complaint by the defendant that the plaintiff weaned their children too early and sent the children to sleep with the maid at too young an age. The plaintiff argued that it was, in fact, the defendant who caused her to wean early and to let the children sleep with the maid, because he demanded to have quality time with her. That demand for quality time necessitated early weaning and separation from the children at an early age. I did not hear the defendant to deny that he indeed demanded such quality time. Now that their union is on the rocks he cannot use compliance with his demand as a sign that the plaintiff did not love the children.

The defendant contended that he loved his children and as proof he would take the children for football matches. The plaintiff, on the other hand, left the children with the maid as she frequented music shows by Oliver Mtukudzi. As far as the defendant is concerned, the plaintiff's pursuit of her recreational/leisure interests is a sign of lack of love for the children but his own pursuit of his leisure interests is a sign of love for the children. It is my view that such attitude is not appropriate. Each was pursuing their interests but did not ignore the children.

It is an accepted fact that the parties employed a capable domestic maid who took care of the children to their satisfaction. The engagement of the maid was done by the plaintiff.

It was also accepted that during the subsistence of their union the plaintiff was, for some periods, employed and so would not be home all the time. The engagement of a domestic maid should thus not be taken as a sign of laziness or lack of love for the children. In the same vein, it may be argued that the defendant's employment or engagements kept him away from the family on numerous occasions. That is not a sign of lack of love for the children.

The defendant's reasons for objecting to the plaintiff being granted custody, and for him to be granted custody, is best summarized in his answer when asked by his legal practitioner why he should be granted custody and not the plaintiff. His reply was to the effect that:

“I prefer that custody be to me because they must not be affected by the differences between me and my wife. They did not do anything wrong and they must not suffer. We have been together for ten years and the reason we parted is that I have been insisting she should do duties of a mother. Four times before the plaintiff has told me she is not able to do what I wanted her to do. Therefore she is going to her parents' home.”

When further asked why he should be granted custody he proceeded to say that;-

“Everything that was done for the children was done by maids and not by my wife. The wife did not attend to the children when they soiled themselves or needed to change clothes.”

On the other hand, when the maid was asked if she was made to do work that was not within her job description she clearly indicated that all that she did was what she expected to do as a maid of immense experience. She was not asked to do work that was outside her job description as a maid.

It would appear the defendant had his own personal standards and those are the standards the plaintiff did not satisfy him in.

It is accepted that one of the children is about four years old. It is preferable that children of tender age remain with their biological mother as they still require the motherly love and attention. The defendant did not, with conviction, state what he has put in place to cater for such a child in the absence of the plaintiff. The defendant's assertion that he has taken on a new wife is not good enough as that new wife, or better, another partner, is of unknown character to the children. The defendant has simply taken a gamble and brought in another woman in his life. There was no assessment of that woman's ability to take care of the children as her own. The defendant's assertion that when this new partner came she was liked by the children was countered by the plaintiff. No independent evidence was led on how the children viewed the coming into their home of a new 'mother'.

I am of the view that it is in the best interests of the children that they be kept together and in the custody of their mother. It is also imperative that the defendant be granted generous rights of access such that the children are not unduly denied of parental love and guidance from both parents.

Accordingly it is hereby ordered that:

1. Custody of the minor children of the union, namely- Panashe Nkosi (born 26 February 1999), Jabulani Nkosi (Jnr) (born 14 May 2005) and Tumelang Nkosi (born 23 December 2007) be and is hereby awarded to the plaintiff.

2. The defendant shall have rights of access to the minor children as follows-

(i) On each and every alternate weekend;

(ii) On each and every alternate school holiday for the duration of that holiday;

(iii) On special family or religious occasions with the plaintiff's consent.

The parties further agreed that the defendant should have custody of the minor children….,.

1. …,.

2. Custody of the minor children Eugene Chikonye (born 14 September 1996) and Ashley Chikonye (born 24 February 2006) is awarded to the defendant.

The plaintiff in this matter issued summons out of this court claiming a decree of divorce, custody of the minor children of the marriage, and other ancillary relief.

Four issues were referred to trial in terms of a joint pre-trial conference minute filed by the parties on 27 November 2008. The issues were agreed to as follows:

1. Whether the marriage has irretrievably broken down.

2. Who amongst the parties should have custody of the minor children and who should have reasonable access to them?

3. In what way and/or in what sum should the non-custodial parent contribute towards the minor children's maintenance?

4. What constitutes the parties' marital estate and how should it be distributed between the parties upon divorce?

At the commencement of the trial, the defendant conceded that the marriage had irretrievably broken down.

Therefore, the only issues that remained for determination by the court related to the custody and maintenance of the minor children and division of the property.

The plaintiff testified that he married the defendant on 2 May 1987. The marriage between them has irretrievably broken down as they have lived apart from 2002 when the defendant went to work in the United Kingdom. He is of the view that the marriage can no longer be resuscitated.

Three children were born out of the marriage. The eldest is a major and is living with the defendant and studying at a University in the United Kingdom. The two minors live with the plaintiff in Zimbabwe where they attend school, save for a brief period in 2004 when they relocated to the United Kingdom but had to come back when the defendant fell ill....,.

He testified that he has looked after the children since his wife left for the United Kingdom. At the time, the youngest child was 2 years and eight months old. He is now at Hartman House where he is doing Grade Seven. He would pay for them to fly to the United Kingdom to visit their mother during the holidays.

In 2004, it was agreed that the children should go to the United Kingdom to live with their mother. Unfortunately, after they had been there for about a year the defendant fell seriously ill and they had to return to Zimbabwe. When the youngest child returned from the United Kingdom his school work was below average but he started picking up again and he has greatly improved his grades. He stated that he was not happy with the educational standards in the United Kingdom and the issues of juvenile delinquency. He stated that he should retain custody of the minor children....,.

The plaintiff admitted that he had been involved in an adulterous relationship but said it was now over. When it was put to him that his youngest child had written a wish list in his school book and wished his parents could get back together, and his father stop cheating on his mother, he stated that he knew nothing about it. He nevertheless denied that this made him an unfit parent to have custody of the children....,.

The plaintiff, in my view, was not an honest witness. He tried to paint the defendant as an uncaring mother who did nothing for the well-being of the family, and, yet, documentary proof produced by the defendant showed that she would bring home substantial sums of money. He also tried to portray the defendant as someone who just abandoned the family when the youngest child was still a baby, and, yet, it was apparent from all the evidence before me that the parties had agreed to the arrangement on the understanding that it was for the best interest of the family....,.

The defendant testified that she was residing with her mother in Kambuzuma during her stay in Zimbabwe. She was agreed that the marriage between her and the plaintiff had broken down as they have not lived together as husband and wife since 2006.

She has three children with the plaintiff. The eldest son is at university in England and lives with her. She testified that she loved her children and wanted custody of the two minors.

She left for London when her youngest son was 2 years and 8 months old. She had agreed with her husband, the plaintiff, that they wanted a better life for their family. She could not go with the children because she was going to look for employment. When she had settled down the children did follow her but she unfortunately fell ill and they had to return a year later.

She produced, as an exhibit, an exercise book that belonged to her youngest son. She stated that her son gave her the book when he came to visit her for Christmas in December 2006. At page 11 of the book he had written what he called "My Christmas Wish". In the story, he stated that he wished that his mother and father would get back together and his father would stop cheating on his mother. She stated that the story showed that the child was not happy with his father.

The defendant testified that although she was not employed she had permanent residence in the United Kingdom and had secured a Council flat where she could live with the minor children. She produced the lease agreement as proof of residence and medical aid cards in the children's names for their treatment in England. She also opened bank accounts for the children and stated that a social worker was assisting in securing a place for school for the youngest child. She also told the court that the plaintiff was employed by Air Zimbabwe until 2009 when he was retrenched. He was however given a package which allows him, and his family, to continue to fly all on the airline for free. The children have therefore been flying to and from the United Kingdom at no cost....,.

I found the defendant to be a good witness who was fair and gave credit where it was due. She conceded that the plaintiff had done a great job of looking after their children in her absence. She seemed to me to be a loving and caring mother to whom fate had unfortunately dealt a nasty blow. Had she not fallen ill, in 2004, she could have been with all her children now....,.

MEETING WITH MINOR CHILDREN

I had an opportunity to meet with the two minor children of this union.

It was clear that the children were well adjusted and well looked after. They were well-mannered and articulate. Whilst I cannot disclose what we discussed during the meeting it was apparent to me that the children love both their parents very much and if they had a choice in the matter would want their parents to remain together.

Dalton, who was about to turn 18 in a couple of months, oozed with confidence and showed that he was ready to go to university. The same could not be said of the younger child who seemed a bit more withdrawn.

CUSTODY..., OF THE MINOR CHILDREN

The issue of custody was relevant only as far as the youngest child was concerned. Dalton, at the time of the hearing, was doing his upper 6th Form and was looking forward to going to university. He turned eighteen (18) on 13 August 2010. The question of his custody was never in issue during the trial as it was accepted that he would turn 18 during the course of the year, and, thereafter, decide where he wanted to go and live and study.

Both parents want custody of Alistair the youngest child.

It is trite that in any case where the court is asked to determine the issue of custody the court is enjoined to consider the best interests of the child. In the case of Zvorwadza v Zvorwadza 1996 (1) ZLR 404 it was held that the court must take into account the following factors in determining the best interests of the children;

(i) Age;

(ii) Health;

(iii) Educational and religious needs;

(iv) Social and financial position of each parent;

(v) Sex of the child; and

(vi) Parents' character and past behavior towards the children.

I will take these factors into consideration in determining this case.

Alistair is only 13 years old. He has just completed his Grade Seven and is going to high school. He has lived with his father all his life. He is doing well at school and will probably get a place for Form 1 at St Georges College. He is a young boy going into puberty. He needs the support and guidance of his father but he also needs the love and nurturing of his mother.

An examination of Alistair's notebook, which was produced as exhibit 11, shows that he is a lovely young boy who loves both his parents. The book shows that his father is loving and caring and has done everything in his power to ensure that his children have the best in life. He looked after Alistair when he was a baby and made all the arrangements for the children to visit their mother during school holidays.

Whilst the plaintiff stated, in his evidence, that the defendant had abandoned the family, it is apparent that the decision for her to go and look for employment in the United Kingdom was a family decision, and, for a while, things had worked out as planned.

There can, however, be no doubt that Alistair misses the love and care of his mother. It was argued, by the plaintiff, that she would not be a good custodian of the minor child because she is of ill-health and she is not employed. The defendant struck me as a responsible person who has the best interests of her children at heart. She told the court that she is well on the road to recovery and hopes to be back at work soon. She has secured accommodation for herself and the child in the United Kingdom and has also secured permanent residence status for them.

The defendant submitted that the plaintiff had been involved in adulterous relationships. She argued that, on this basis, the plaintiff should be denied custody.

It was apparent from the excerpt that Alistair wrote in his exercise book, in November 2006, that he knew that his father was cheating on his mother. It must have affected him quite badly for him to have expressed it in the manner he did in his school book. The adultery itself is not denied and was explained by the plaintiff as the fact that he is a man of the flesh. This will obviously continue to adversely affect him well into his adult life.

Having considered the above factors, I am of the view that the best interests of Alister, at this time, would be best served by awarding his custody to his mother.

The circumstances of their family life have changed. His older brother, who has always been there with him, will be leaving for university. It was the defendant's evidence while she is still not back at work she was recovering and hoped to start work soon. To sustain herself, she was on Government benefits which will be sufficient to look after her and the minor child.

I am satisfied that she had made all the necessary arrangements for the accommodation and schooling for the minor child....,.

1....,. 

2. Custody of the minor child, Alistair Tinotenda Masawi (born 28 November 1997), is hereby awarded to the defendant.

3....,. 

4. The plaintiff is awarded reasonable access to the minor child in consultation with the defendant.

On the trial date, the issue of custody and access by the non-custodian parent had been resolved. The parties confirmed that they had agreed that custody be awarded to the plaintiff with the defendant being granted reasonable rights of access on agreed terms….,.

1. …,.

2. Custody of the minor child, Kundai Nesbert Kanoyangwa (born 20 June 1997), is hereby awarded to the plaintiff.

The plaintiff claimed custody of the two minor children with the defendant being granted reasonable rights of access.

The defendant…., asked to be awarded custody of the two minor children with the plaintiff being awarded access to the minor children every alternate weekend, and every half of the school holidays. If granted custody he would not seek an order for maintenance.

Custody

The next issue pertains to custody of the two minor children of the marriage. The elder child is a boy aged 14 years old and the other is a girl aged 5 years old.

The plaintiff's evidence was to the effect that she is the more suitable parent to have custody of the children. She has more time for the children than the defendant. The defendant initially asked for custody of both children. Later, he opted for custody of the boy with the plaintiff retaining custody of the girl. His argument was to the effect that the boy, at his age, needed to learn from the father and be guided by his father. As a disciplinarian he feels he is better suited to instill the requisite discipline in the child especially at his age. He contended that the plaintiff has no time to inculcate appropriate discipline to the children as she travels a lot on business.

In ascertaining which parent to award custody, the court must be guided by what is in the best interests of the child.

See Nugent v Nugent 1978 (2) SA 690…., and Jeche v Mahovo 1989 (1) ZLR 364 (S).

In so far as custody for the girl child is no longer in issue, a question to be asked pertains to whether there is any good reason why the children should be separated.

The defendant's contention for seeking custody of the boy child is primarily because he feels the plaintiff is not a disciplinarian and so the boy, at his age, needs to stay with a disciplinarian. It is common cause that the parties have been living under the same roof enjoying the same access to the children. They both have had the same opportunity to discipline the children yet from his own words he has not been effective in disciplining the children. If anything, his own evidence shows that it is plaintiff who has been more involved with issues pertaining to the children. In as far as opportunity to inculcate discipline in the boy is concerned, I do not think the defendant will not have such opportunity. This is so because from the defendant's own submissions both parents will virtually have the same periods of access to the boy. For instance, the parties agreed that the boy should continue attending boarding school and so most of the time he will be at school. The parties agreed that the non-custodian parent should enjoy access to the boy every alternate weekend and for half the school holiday. The other half he will be with the custodian parent. The defendant's claim for custody was not based on any other rights of a custodian parent.

After all has been said, I am of the view that the plaintiff has not been shown to be an unsuitable parent to have custody of the boy as well. It has not been shown that granting custody to the plaintiff will not be in the best interest of the boy child.

The plaintiff also prayed that custody of their minor child be awarded to the defendant whilst he is granted reasonable rights of access...,.

As the issues of custody, access and maintenance were not an issue in these proceedings I will make an order as prayed by the plaintiff….,.

1. …,.

2. Custody of the minor child, Shallom Murisa (born 28 April 2005), is hereby awarded to the defendant.

The children, who were very young at the inception of the proceedings, have now grown. Carlene is now a major whilst Shane is now about 17 years old.

1. …,.

2. …,.

3. …,.

4. …,.

5. …,.

6. …,.

7. The plaintiff is hereby awarded custody of the minor child, Shayne Sydney Dicks born on 3 December 1993.

With regards to the minor children, the plaintiff stated that he has been looking after the children on his own since the defendant left in 2008. He stated that he was also responsible for the children when the defendant was still staying with him. The eldest child was now at a boarding school. In 2009, the defendant left the country and went to Botswana and returned in 2010. She left the youngest child, who was in her custody, in the rural areas with her parents. The plaintiff states that the last child is now different from her siblings because she has not had access to good schools. It was his prayer that he be awarded custody of all four children whilst the defendant has access on alternative weekends and school holidays.

The defendant testified that she wanted custody of the all the children.

She stated that in 2008 she approached the Zimbabwe Women Lawyers Association with a view to getting custody of the children. After discussions with the plaintiff they agreed on her getting access to the three minor children who had remained with the plaintiff. She told the court that she should get custody of the children as they are neglected by the plaintiff. When they visit her they always come with old clothes. At times, the children also pass by her house when they come from school looking for food as they will be hungry. She, however, said sometimes she is not at home as she is in the business of buying and selling goods. She confirmed that the children attend school in town except for Melanie who is now at boarding school and the youngest, who is in her custody, who attends crèche in the area. The defendant stated that Denise attends a local crèche because although the plaintiff had offered to pay for the crèche fees he had stated that the defendant would have to meet the transport costs. As she didn't have the money the child ended up attending a local crèche. The defendant stated that if she was awarded custody of the children she would grant the plaintiff access on alternative weekends and school holidays.

CUSTODY OF THE MINOR CHILDREN

In making an award for custody upon divorce the court must be guided by the best interests of the minor children. This power is granted to the court in terms of section 10(1) of the Matrimonial Causes Act [Chapter 5:13]. The provision mandates the court to conduct an inquiry and commit children of the marriage into the custody of the parent best suited to have such custody.

The Supreme Court, in the case of Hackim v Hackim 1988 (2) ZLR 61, defined what is meant by the term best interest of the child. In determining what is the best interest of a minor the court is enjoined to consider all the circumstances and every aspect of the child's upbringing; that is age, sex, health, education, religious needs, social and financial position of each parent and his and her character, temperament and behaviour towards the minor child. (See also Chitongo v Chitongo 2000 (1) ZLR 76).

It is not in dispute that the defendant has not had custody of three elder of the children since she left the matrimonial home in 2008. From that period to date the plaintiff has had custody of the three eldest children whilst the defendant has had the custody of the youngest child. The plaintiff has thus effectively looked after these children for over four years without the assistance of the defendant. The eldest child now attends boarding school whilst the other two are day scholars. From the evidence led it was not in dispute that they attend good schools and appear to be doing well in school. The youngest child, who has been in the custody of the defendant, appears not to have fared as well as the older siblings. The child was primarily in the custody of the grandparents in the rural areas whilst the defendant was in Botswana.

The question which presents itself is whether it is in the best interest of these children to be removed from the plaintiff and given to the defendant.

Whist this court accepts the version by the defendant that she was evicted from the family home by the plaintiff without the children she has not done anything to try and secure the custody of the three eldest children. In terms of section 5 of the Guardianship of Minors Act she could have approached any court for their custody as the law recognizes that the mother is the best parent to have custody of the children upon separation. In her evidence it has remained largely unclear why she decided to leave them in the custody of the plaintiff.

In my view, this was based on an acceptance by the defendant that the plaintiff was a good father and was looking after the children well. I did not believe the defendant when she stated that she did not seek custody because she did not have the resources to look after the children because if she had claimed custody at that point the Zimbabwe Women Lawyers Association would have advised her of her right to claim maintenance.

In the case of Mutetwa v Mutetwa 1993 (1) ZLR 176 (SC) it was held that a father can only get custody of children if he can show that that it would be in the best interest of the children that he should have custody. In examining the best interest of the minor children in this matter I am inclined to find that custody should be awarded to the plaintiff. He has shown that he has the best interest of the children at heart. He has given them a stable home and a good education in the best schools within his means. I have not seen the same commitment from the defendant.

The defendant stated in her evidence that she is a cross-border trader and travels out of the country from time to time to order goods for resale. The problem that arises when she is away will, in my view, continue to present itself because the children are day scholars and will need to attend school on a daily basis. The defendant stated that if she was awarded custody of the children they would go to school by bus. The plaintiff, on the other hand, does not travel and drives the children to school when he goes to work in the mornings. Whilst there is nothing wrong in children going to school by bus it is patently obvious that they would be more comfortable if they were driven to school.

In my view, the best interest of the children would be secured by placing them in the custody of the plaintiff and granting the defendant access to the children during weekends and school holidays. The children will go to school in relative comfort without the stress of waking up very early in order to be certain of getting a bus to school. In this way, the children will continue to get the best of care from both parents as the defendant can arrange her business trips in such a way that she is available when the children come to be with her. Melanie, who is now an adolescent, will also have an opportunity to get guidance and counsel from the defendant during school holidays when she is not at school. The youngest child will also grow up with her siblings and avoid separating them from each other. I will, in the order that I make award the defendant generous access since they reside in Chitungwiza so that she can have a close relationship with her children….,.

1. …,.

2. Custody of the minor children, Melanie Munashe Tangirai (born 18 February 1999, Malvin Tinashe Tangirai (born 24 January 2003), Cerese Vongaishe Tangirai (born 20 March 2004) and Denise Tangirai (born 2 March 2007) is hereby awarded to the plaintiff.

The plaintiff sought that custody of the minor child be awarded to the defendant with him enjoying reasonable rights of access.

The defendant had no quarrels with being granted custody of the minor child with the plaintiff enjoying rights of access….,.

1. …,.

The only issue which was referred for determination at trial is on which of the parties should be awarded custody of the two minor children, the nature of access rights to be accorded to the non-custodian parent and the quantum of maintenance to be paid for each of the minor children if custody is awarded to the plaintiff.

During the trial, both parties remained adamant that each of them is the best custodian parent….,.

As of now, in 2011, Nyasha is in Form 3 and about 15 years old. Hillary is about 13 years old and in Grade 7 at Lonchinvar Primary School in Harare. Nyasha attends school at Glen View 2 High School in Harare. It is common cause that the parties have been living apart for the past 5 years and that for all that period the defendant had, and still has, custody of the two minor children. The plaintiff has moved out of the matrimonial house and stays at her late parent's house in Bulawayo. The defendant is now staying with another woman with whom he now has a child. The defendant stays with the two minor children at the matrimonial house in Budiriro, Harare. Initially, soon after separation, the plaintiff was denied access to the minor children but this was rectified after the intervention of both counsel and the court at pre-trial conference stage on or about December 2009 or January 2010.

The plaintiff is unemployed although she said she is a qualified pre-school teacher and that she has done a course in cookery. However, since her separation from the defendant she has been engaged in cross border trading to South Africa in order to survive and she is still engaged in that activity. She indicated that she was willing to abandon the cross border trading business if she is awarded custody of the two minor children. Instead, she would look for another job in Zimbabwe to fend for the children…,.

In her evidence, the plaintiff stated that as the biological mother of the children she loves the children and should be awarded custody. She, however, conceded that the defendant loves the children too but she suspects that the children are being ill-treated by the defendant's new wife - although she was unable to substantiate those allegations. The plaintiff conceded that if she is awarded custody the children would need to relocate to Bulawayo and secure places in different schools. She also admitted that the children would have to learn a new language, Sindebele, which may adversely affect the children's performance in school. Under cross examination, the plaintiff conceded that she has no means to look after the children on her own. She was also unable to explain how the children are ill-treated by the stepmother who was a former housemaid for the defendant.

The defendant submitted that he is a better custodian parent. The defendant indicates that the plaintiff, even before their separation in 2005, did not show much interest in the welfare of the children as she would spend long periods of time in South Africa. Prior to their separation, he said the plaintiff was imprisoned in South Africa and he had to pay a fine for her to secure her freedom. He said he then advised the plaintiff not to engage in the cross border trade business but in 2005 the plaintiff deserted the matrimonial home and was away for eight months and was again imprisoned in South Africa.

All this was not refuted by the plaintiff.

It is the defendant's view that the plaintiff should not be awarded custody of the minor children since she is a cross border trader and would leave the children on their own while in South Africa. In fact, the plaintiff conceded that she, at times, secures piece jobs in South Africa to raise cash hence would have to work illegally in South Africa for a couple of months. Due to the nature of her cross border business, the plaintiff conceded that even after being allowed access to the minor children she has been able to visit the children only three times in ten months while she was coming to attend to this matter at court. It is the defendant's contention that he has a stable job, a conducive environment for the proper upbringing of the children and the means to fend for the children's needs. The defendant refuted suggestions that his new wife ill-treats the children and maintains that he is very close to the children whom he drives to school every day.….,.

It is trite law that in dealing with the question of custody of minor children the court should be guided by the best interests of the children. In the case of Makuni v Makuni 2001 (1) ZLR 189 (H)…, GOWORA J had this to say -

“In approaching a problem of this nature, the court is, of course, primarily concerned with the welfare of the children; that is the paramount consideration. Just as in custody cases, so also in dispute arising out of custody orders, the welfare of the children is the predominant consideration which should weigh with the court. (Shazin v Laufer 1968 (4) SA 657 at 662 G-H).”

A similar view was expressed by SMITH J in Galante v Galante (3) 2002 (2) ZLR 408 (H) in which the learned judge cited the celebrated case of McCall v McCall 1994 (3) SA 201…,. In Galante v Galante (3) 2002 (2) ZLR 408 (H) SMITH J considered what constitutes the best interest of a child and the learned judge, quoting McCall v McCall 1994 (3) SA 201, had this to say…,-

“In determining what is in the best interest of the child the court must decide which of the parents is better able to provide and ensure his physical, moral, emotional and spiritual welfare. This can be assessed by reference to certain factors or criteria which are set out hereunder not in order of importance and also bearing in mind there is a measure of unavoidable overlapping and that some of the listed criteria may differ only to nuance. The criteria are the following:

(a) The love, affection or other emotional ties which exist between parent and child and the parent's compatibility with the child;

(b) The capabilities, character and temperament of the parent and the impact thereof on the children's needs and desires;

(c) The ability of the parent to communicate with the child and the parent's insight into, understanding, and sensitivity to the child's feelings;

(d) The capacity and disposition of the parent to give the child guidance he requires;

(e) The ability of the parent to provide for the basic physical needs of the child, the so called “creature of comfort”, such as food, clothing, housing and other material needs – generally speaking, the provision of economic security;

(f) The ability of the parent to provide for the educational well-being and security of the child both religious and secular;

(g) The ability for the parent to provide for the child's emotional, psychological, cultural and environmental development;

(h) The mental, and physical health and moral fitness of the parent;

(i) The stability or otherwise of the child's existing environment having regard to the desirability of maintaining the status a quo;

(j) The desirability or otherwise of keeping siblings together;

(k) The child's preference, if the court is satisfied that, in the particular circumstances, the child's preference should be taken into consideration;

(l) The desirability or otherwise of applying the doctrine of same sex matching, particularly here, whether a boy of 12.., should be placed in the custody of his father; and

(m) Any other factor which is relevant to the particular case with which the court is concerned.”

In my view, useful guidance can also be placed on the provisions of the CHILDREN'S ACT OF SOUTH AFRICAN 2005 section 7(1)(a)-(n) which also defines the…, best interest of the child by providing for specific bench marks the court should take into account.

In the case of Jere v Chitsunge 2003 (1) ZLR 116 (H) CHEDA J.., summarized, in a very brief and succinct form, some of the factors which constitutes the best interests of the child.

I now proceed to apply the principles of the law set out above to the facts of this case.

There are a number of factors which militate against awarding custody of the minor children to the plaintiff. The two minor children, who are both male, are aged 15 years and 13 years respectively. They have been in the custody of the defendant for the past 5 years (since they were 10 years and 8 years respectively). It is, therefore, clear that the children have been in the custody of the defendant for a long time. The question which arises, therefore, is whether, at this point, it is in the best interest of the children to remove them from the defendant's custody.

I find no compelling reason to do so.

Both children are staying in a stable environment with the defendant in Budiriro and are attending school. If custody was to be awarded to the plaintiff this would entail a number of challenges for the children. To begin with, the plaintiff has no means to meaningfully fend for the children. An order of contributory maintenance against the defendant may not be adequate in view of the defendant's salary. The children would have to relocate from Harare to Bulawayo and start life in a completely new environment. They may well have to learn a new language, Sindebele, at a stage they are in, Grade 7 and Form 3 respectively. The plaintiff was non-committal as to the type of schools she would enrol the children.

The nature of the plaintiff's business of cross border trading, in my view, would adversely affect the children. In the absence of the plaintiff, who spends so many months in South Africa, the children would be virtually alone. The plaintiff may not have the capacity to employ a maid. The business the plaintiff engages in South Africa is risky as she has been imprisoned twice in South Africa. If the plaintiff abandons the cross border trading business she has no meaningful means to fall back on for survival save for a maintenance order the court would have awarded against the defendant, which, on its own, is wholly inadequate. In my view, the risk of ill-treatment of the children by the defendant's new wife is very minimal and remains an unsubstantiated allegation. This court accepts, generally, that the plaintiff, being the biological mother of the children, would invariably love the children more than the stepmother. However, that factor, alone, may not be enough to tilt the balance in favour of the plaintiff.

It is therefore my considered view that it is in the best interest of the minor children to award custody to the defendant….,. The plaintiff should be allowed reasonable access to the children during the first 3 weeks of each school holiday and on any other special occasions as the parties many agree from time to time….,.

1. ..,.

2. Custody of the two minor children, Nyasha Chipofya (born on 12 March 1996) and Hillary Chipofya (born on 25 October 1998), is hereby awarded to the defendant.

3. The plaintiff is hereby granted reasonable access rights to the minor children which shall be exercised as follows:

(i) She shall have the minor children for the first three weeks of every school holiday.

(ii) She shall have the minor children on any other special occasions as the parties may agree from time to time.

Custody of the  Minor Children

The issue of custody of the two minor children, both female, Sifiso Dube, born on 19 September 1995 (now about 16 years old), and Stabile Dube, born on 7 December 1999 (now about 10 years old), remained very contentious during the trial. The elder child attends Roosevert Girls High School in Harare and stays with the plaintiff's sister in Eastlea during school terms. She only stays with the parents during school holidays. The younger child, still at primary school, stays with the parents. Each party is claiming custody of the two minor children.

It is trite law that in dealing with the question of custody of minor children the court should solely be guided by the best interests of the children. See Makuni v Makuni 2001 (1) ZLR 189 (H)…,.; Galante v Galante (3) 2002 (2) ZLR 408 (H)…,.

In the case of Jere v Chitsunge 2003 (1) ZLR 116 (4)…, CHEDA J summed up what, in my view, are some of the most pertinent factors which constitute the best interest of the child. The learned Judge has this to say in Jere v Chitsunge 2003 (1) ZLR 116 (4)….,:-

“The interest of the child means, therefore, that the interests of the parents are secondary. The common practice is that, if all else is equal, especially if the child is young, the mother is likely to be given custody. The following, in my view, is what the court should take into consideration in determining the interest of the child. The list is not exhaustive;

1. The fitness or otherwise of the custodian parent.

2. The age of the child.

3. The sex of the child.

4. The length of the time the child has lived with either party or her relative.

5. The degree of emotional stress which the child will suffer in the event of the child being separated from either parent.

6. Any risk of ill treatment by either party or member of his or her household.”

The plaintiff is not formally employed. He engages in informal trading, selling computer hardware or being contracted by travel agencies. According to the plaintiff, he realises an income of about US$150= per month although his expenses far exceeds this projected income. I got the impression that whilst the plaintiff sought to downplay the extent of his income the defendant seemed to exaggerate the plaintiff's means. It has not been disputed that the plaintiff shoulders the burden of the family expenses which include, inter alia, school fees for the children, food, water and electricity bills, transport and other needs. The parties stay in a house with two rooms which belongs to the plaintiff's relative and they do not pay any rentals save for water and electricity bills.

The defendant, on other hand, is employed as a general hand or cleaner earning a salary of US$100= per month, an income she also uses to complement the plaintiff in meeting the family needs. It is clear that once a decree of divorce is granted the defendant would have to look for alternative accommodation for herself (and the children if she is awarded custody).

I am not persuaded by the plaintiff's evidence that he should be awarded custody of the minor children on account of his higher educational qualifications compared to the defendant whom he said is unable to assist the children with homework. The same goes for the argument that the plaintiff has accommodation in which to stay with the minor children. I do not believe these are factors which impinge on the defendant's suitability as a custodian parent nor would they tilt the scales in favour of the plaintiff.

The plaintiff indicated that he is willing to pay school fees for the children and meet all their educational requirements. He urged the court not to place undue regard to the sex of the children because he has a maid who can look after both children very well at home while he would be at work. In addition, the plaintiff stated that the eldest child stays with his sister in Eastlea most of the time, that is during school term and that his sister is of impeccable character hence a good role model for the child. My understanding of the plaintiff's evidence in this regard is that he is a suitable parent to be awarded custody of the two minor children - not necessarily because he can look after the children better but he has other people who can do that for him.

The plaintiff went at length in his evidence to outline various reasons why custody of the children should not be awarded to the defendant. I am not persuaded by most of the reasons given as the basis for the allegations made was never factually proved. I shall simply highlight and comment on some of the issues raised by the plaintiff.

(a) That the defendant spends long periods of time away from home and would either be in her native country Zambia or in South Africa. An example was given that the defendant left for Zambia in August 2009 and only returned six months later in February 2010. This was described by the plaintiff as the normal pattern of the defendant's conduct and that the defendant would lie that she would be attending funerals.

I am satisfied with the defendant's explanation that she had last visited her native country in 1994 hence when she attended a funeral in August 2009 her stay was prolonged as she had to meet other relatives. She challenged the plaintiff to cite any other incidents and none were cited. In fact, the defendant's evidence that she only visited her sister in South Africa once to collect money for the benefit of the family was not controverted. There is therefore no evidence to suggest that the defendant is an uncaring parent who frequently abandons the family and children for no good cause.

(b) That the defendant has suicidal tendencies hence unfit to be awarded custody of the children. The plaintiff said whenever they quarrel she threatens to hang herself and that at one point she asked the younger daughter to give her water in order for her to take an overdose of malaria tablets.

All this was disputed by the defendant. In fact, under cross examination, the defendant conceded that the defendant's emotional behaviour is consistent with the trauma arising from the difficult marriage relationship the parties have endured for a long time rather than it being an inherent weakness in the defendant's character.

(c) That the defendant is foul-mouthed and not a good parent as vulgar language is an inseparable part of her vocabulary, even in the presence of the children, and that she is of violent disposition as at one time she threatened to scald the plaintiff with boiling cooking oil.

Again, under cross examination, the plaintiff conceded that the defendant does not use foul language in relation to the children and that the defendant argues or quarrels with the plaintiff not the children. I find this to be merely the consequences of a strained marriage relationship rather than proof of the defendant's character.

(d) That generally the defendant is dishonest and that as proof she always hides important family documents like children's birth certificates, the plaintiff's driver's licence and at one time the family satellite dish later recovered from the defendant's friend.

In fact, the plaintiff said they also stay with a stepson, the defendant's child, but that he is not at school as the defendant has not cared to ensure that he attends school. Even if I was to assume that such incidents happened (the defendant disputes this), I am still not satisfied that it can be the basis to find that the defendant is unsuitable parent to be awarded custody.

(e) That the defendant's moral conduct is improper as she committed adultery.

I have already dealt sufficiently with this allegation which I find to be baseless hence no probative value should be placed upon it.

During cross examination, the plaintiff was asked this pertinent question by the defendant's counsel:

“Q. Does she love the children?

A. Yes.”

All in all, the plaintiff conceded that the defendant loves the children and that she is a hardworking woman and that she does not abuse the children.

I am satisfied that both the plaintiff and the defendant are responsible parents. I am, however, inclined to grant custody of the minor children to the defendant mainly on account of the sex of the children and their respective ages and stage of development. It is not a principle of law that a girl child should be placed in the custody of the mother. See Goto v Goto 200 (1) ZLR 275 (H); Hackim v Hackim 1988 (2) ZLR 61 (S) and Goba v Muradzikwa 1992 (1) ZLR 212 (S)…,.

As already explained, the proper approach for the court is whether the plaintiff, being the father, is better than the defendant, being the mother, in the care and upbringing of their two daughters. In other words; who best caters for the interests of the two daughters? Each case, therefore, should be judged on its own merits bearing in mind that it is the best interests of the child which are paramount, predominant and the sole consideration. The parents' interests are secondary.

In casu, I am satisfied that the interests of the two female children are better served in the custody of their mother. The defendant loves the children and no adverse findings have been made against her in relation to all relevant factors. The youngest child needs constant motherly care and the adult is going through the process of adolescence which needs proper nurturing and guidance. It is on that basis that I am of the view that, on a balance of probabilities, the best interests of the two girl children are better served by awarding custody to their mother, the defendant, rather than the father, the plaintiff.

Access Rights

From the evidence led, both parties accept that the non-custodian parent should have reasonable access to the children. The nature and extent of such access is a matter of this court's discretion. After resolving the issue of custody in favour of the defendant, the only issue is what access rights should be awarded to the plaintiff. I am inclined to ensure that the bond between the children and the plaintiff remain strong. In that regard, I believe it is fair and just to allow the plaintiff access to the children one weekend per month and during each alternate school holiday….,.

1. …,.

2. The custody of the two minor children, Sifiso Dube (born on 19 September 1995) and Stabile Dube (born on 7 December 1999) be and is hereby awarded to the defendant.

3. The plaintiff be and is hereby granted reasonable access rights to the two minor children which shall be exercised as follows:

(i) He shall have the two minor children one weekend per month and during each alternate school holiday.

(ii) He shall have the children on any other special occasions as the parties may agree from time to time.

(iii) The access shall be exercised in consultation with the defendant.

1. …,.

2. That custody of the minor children, Gracious Mauro born on 8^th February 2001 and Ngonidzashe Mauro born on 30^th June 2006, be awarded to the plaintiff.

On the 16^th October 2012, the applicant, Senzeni Moyo, applied for guardianship of two minor children, namely, Martin Gugulethu Hamandishe (Date of Birth 3^rd February 1995) and Jacqueline Nkosinothando Hamandishe (Date of Birth 2^nd February 1998) at the Juvenile Court, Bulawayo. The application was granted on the 14^th November 2012 by the Juvenile Court. It was then forwarded to me for confirmation of the proceedings as per the usual procedure.

The background and genesis of this application is that the applicant is a State Registered Nurse residing in the United Kingdom and employed as such. The minor children are her deceased's sister and brother-in-law respectively. Upon the death of their parents, these minor children were being looked after by their maternal grandmother, Ellie Moyo, who is a retired nurse here in Zimbabwe.

The applicant now applies for their guardianship on the basis that she is a nurse in the United Kingdom and that she has been financially supporting them.

It is trite law that the High Court is an undisputed upper guardian of all minors in Zimbabwe. For that reason, the law empowers this Court/Judge to carefully consider all factors where a minor child or children's custody or guardianship is an issue. The court should be slow in acceding to applications to remove children from its jurisdiction. On that score, it should, in my view, do so only when it is in the interest of the said children that they be removed to a new environment. See Chamberlain v De La Mare CA 1983 FLR 434; and Au v Au CA [1979] Fam Law 116 and IN RE: Edith Hleziphi Maphosa. In that regard, regard any person who desires to assume guardianship should be of both financial and social good standing to an extent of being unimpeachable. See Re Thain v Taylor [1926] Ch 676…,.

An applicant who seeks to be awarded guardianship of a minor child must not only prove her relationship with the minor, and some consent from other relatives, but, must submit, among other requirements, depending on the circumstances;

(1) Sufficient proof of her right of stay in the foreign country;

(2) Proof of financial support or regular income;

(3) Proof of suitable accommodation; and

(4) In case of a child of school-going age, proof of adequate arrangements for the child.

The list is inexhaustive. In all this, the court will always bear in mind the need for the safety and comfort of the children in the host country. See IN RE: (an Infant) 1981 (2) SA 330 (2). The fact that the adoptive parent is in the diaspora is not enough legal reason to shepherd a minor child or children to a foreign land. In my view, if our courts fail to be stringent in their determination of such applications they may easily find themselves unconsciously assisting or abetting child trafficking. The court a quo granted its order without sight of proof of the applicant's socio-economic standing. There is a possibility of an error in its conclusion.

For the above reason, the following order is made:

Order

(1) The order granted by the Juvenile Court on the 14^th November 2012 at Bulawayo Magistrates Court be and is hereby set aside; and

(2) The matter is referred back for a further inquiry in line with the principles laid down in this judgment.

The parties have not been living together as husband and wife from the year 2000 to date i.e. about eleven years. The minor children are currently living with the plaintiff and the parties agreed that it is in their best interest that the status quo is retained….,.

1. …,.

2. ….,.

3. …,.

4. The plaintiff is awarded custody of the minor children, Mitch Nyandoro, a boy born 5 January 1994 and Webster T. Nyandoro, a boy born 21 November 1996, with the defendant afforded reasonable access to the said children.

All these matters were dealt with in terms of the Children's Act [Chapter 5:06] although the learned magistrate who dealt with the matters mistakenly believed that he did so in terms of the then Children's Protection and Adoption Act of 1972. This is the same Act which was renamed the Children's Act in 2001 with amendments being done to the provisions of the old Act.

The query raised by my brother MUSAKWA J was as follows in respect of In re: Enia Sithole:

“This is another delayed review having been occasioned by the late submissions of the record of proceedings.

Section 19(1)(a) of the Children's Act enjoins a Children's Court to hold an inquiry in respect of a child brought before it. Apart from a letter from SOS Children's Village Zimbabwe and on order in terms of the Children's Act, there is nothing to show what inquiry was conducted by the magistrate. The matter is remitted to the relevant magistrate to conduct an inquiry as required by the Act.”

In respect of Margret Chikombingo, the same query, that there was no record of the inquiry held before the magistrate, was raised.

Lastly, in respect of all the other matters, MAKARAU J…, raised the following issues;

“1. These matters were handled by the same magistrate.

2. There is no record of inquiry held by the magistrate.

3. Please ask him to explain.”

The trial magistrate who handled these matters responded to the queries raised in all these matters in one minute, dated 16 August 2006, as follows;

“In this matter, the probation officer presented the court with reports which the court went through. Having satisfied myself with the contents of the report, I did not feel it necessary to call him or other persons.

I based my decisions on the provisions of s5(1) and (2) of the Children's Protection and Adoption Act. In subs 2 it is stated that – 

'(2) The officer presiding over a juvenile court may, in his discretion, permit evidence to be given to the court by way of affidavit or report.'

The report of the probation officer form part of the records. From the contents of the reports I did not feel that it was necessary for any other person to appear before the court. I thus made the order that I made.”

It is clear that the learned magistrate who handled these matters misdirected himself and that even after the omissions he made were raised by all three judges he seemed unwilling to accept that he erred. Before demonstrating this fact, let me briefly summarise the facts of each case and the contents of each record.

1. In re: Panashe Gireya John

The juvenile was born on 3 October 2004. Both parents of the juvenile died when the juvenile was just 6 months old. The juvenile was left in the custody of a 64 year old uncle who was unable to take care of the child and decided to send the child to Howard Mission Hospital. The officials at the hospital decided to put the juvenile at Montgomery Heights as no relative was willing to take care of the juvenile. All this is outlined in the Probation Officer's report filed of record. The Probation Officer, on that basis, made an application to the Children's Court to have the juvenile placed at Montgomery Heights Christian Centre on 5 April 2006. Attached to that application was a letter of proof of vacancy from the institution confirming the institution's willingness to accept the juvenile. The order was granted on 6 April 2006 placing the juvenile at Montgomery Heights Christian Centre.

The record of proceedings in this matter consists of the Probation Officer's report, the confirmation letter and the order granted by the magistrate only.

2. In re: Mike Kanzimbe

At the time the order was made, the juvenile was 11 years old. The facts of the matter are that the mother of the child was unknown and the father died in 2004. The juvenile had nowhere to go and decided to board a bus in Matepatepa area. The conductor of the bus took him to Bindura Police Station who brought the plight of the juvenile to the Social Welfare Department who in turn took the juvenile to Ponesai Vanhu Junior School being a place of safety. An application was then made in terms of the Children's Act to have the juvenile declared a child in need of care and placed at Ponesai Vanhu Junior School. The order was granted on 5 January 2006.

In this record, there are no notes from the presiding magistrate except the Probation Officer's report and the order granted.

3. In re: Letwin Dube (aged 9 years); Trinity Dube (aged 15 years); Edwin Dube (aged 5 years)

Although there are three separate records for these three juveniles their circumstances are the same as they are siblings hence I have decided to deal with them at the same time. The Probation Officer's report in respect of each of the juveniles reflects the following;

The parents for the juvenile are either deceased or unknown as they could not be traced. All what is known is that the mother died in 2004 at Maizelands Farm and that she had no relatives as she was just a migrant worker. An employee at the farm took care of the siblings, Trinity a girl aged 15 years, Philip, a boy, deaf and dumb, aged 6 years, Edwin, a boy, aged 5 years and Letwin, a girl, aged 9 years. The owner of the farm, a Mr Nel, on a voluntary basis, provided food and clothing from 2004 but was later unable to help in 2006. The Social Welfare Department was alerted of the need to institutionalise the juveniles hence the application to the Children's Court. The order placing the three juveniles at SOS Village was made on 27 April 2006. However, the record shows that besides the Probation Officer's report and a copy of the order, as per Form 8, no other notes were recorded by the court which means no inquiry was held.

4. In re: Jasper Hutu aged 6 months (Born on 19 July 2005)

The mother of the juvenile died when the juvenile was 4 months old and was left in the custody of the father. The father is alive. He had no experience to look after the child and approached the Social Welfare Department who decided to remove the juvenile from the father's custody and place it in the children's home where the needs of the child's social needs would be met as the child would be in a family environment with other children and receiving motherly care and love. On the basis of the report, the Probation Officer made an application to have the child declared to be a child in need of care and to be placed in an institution. The order to that effect was granted on 20 January 2006.

This record of proceedings contains the Probation Officer's report and the court order on Form 8. There is no affidavit from the father and neither was the father heard during the inquiry.

5. In re: Margaret Chikombingo (born 7 October 1995 – 10 years)

The background facts are that the juvenile was staying with a step-brother and his wife at a farm in Concession. The brother is called Jeremiah. He was employed at this farm. This brother raped the complainant and was subsequently convicted and incarcerated. The juvenile had to leave the farm and a step sister, one Mary, in Glendale, who is a commercial sex worker, took care of the juvenile. The juvenile was exposed to immoral behaviour by  the step-sister who brought many boyfriends home to spend the nights in a single room with the juvenile also present. Members of the Glendale Child Welfare Forum notified the Probation Officer of the juvenile's plight and authorities at SOS Children's Village in Bindura agreed to take the juvenile into their custody. An application to that effect was made and granted. This order, however, expired on 18 March 2003 and the current application is for the renewal of the order as the juvenile is still in need of care because no relative was willing or capable of looking after the juvenile. The order reviewing the previous order was granted on 25 February 2005.

In this record of proceedings, there is only the Probation Officer's report and the court order. There is no confirmation letter from SOS Children's Village in Bindura. A copy of the expired order is not attached.

6. In re: Enia Sithole

The facts of this matter are not explained as there is no Probation Officer's Report. The record only contains Form 8 which is this court order placing the juvenile at Shearly Cripps Children's Home, dated 23 February 2005, and a letter from Shearly Cripps Children's Home to the Department of Social Welfare, Glendale, dated 10 April 2001, confirming that the juvenile was placed at that institution in 2000 and that there was need for the Department of Social Welfare to regularise this position urgently by obtaining a court order to that effect. This probably triggered the order granted by the court on 23 February 2005. The circumstances of the juvenile however remain unknown.

It is common cause that applications of this nature are brought to the Children's Court in terms of section 18 of the Children's Act [Chapter 5:06]. In terms of section 19(1)(a) of the Children's Act [Chapter 5:06], the Children's Court, in dealing with such an application, is enjoined to hold an inquiry in respect of the child or juvenile brought before it. This inquiry is important to verify the facts upon which the application is premised. It is also to assist the Children's Court to establish whether the child is in need of care as is defined in the Children's Act [Chapter 5:06]. The inquiry also assists the court to exercise any of the powers vested in the Children's Court in terms of section 20 of the Children's Act [Chapter 5:06]. It is therefore as a result of such an inquiry that the Children's Court may decide on the proper option to take in terms of section 20 of the Children's Act [Chapter 5:06].

It is common cause that the Children's Court is a court of record. This means that all proceedings in this court should be recorded. The inquiry held should be recorded. The inquiry may entail the hearing of viva voce evidence or may be based on affidavits and reports admitted in court as exhibits during the inquiry. The record of proceedings should reflect all this. It is therefore disingenuous for the trial magistrate in this case to argue that since there was no viva voce evidence led there was no need to keep a record of proceedings showing the nature of the inquiry held. The Children's Court has a duty to keep a full legible record of proceedings in all matters dealt with. In addition to that there should be brief reasons explaining the decision made by the Children's Court. The Children's Court should explain the brief circumstances of the child, the nature of the evidence relied upon, findings made on why the child is in need of care and the basis of the particular order granted in terms of section 20 of the Children's Act [Chapter 5:06]. This entails the confirmation of the requisite vacancy at the relevant institution.

In terms of section 27 of the Children's Act [Chapter 5:06], after the holding of the inquiry and the granting of the order, the Children's Court is enjoined, within seven (7) days to submit the record of proceedings to the High Court for review. Such a review can only be meaningful where a proper record of proceedings has been kept.

In the case of In re: Gonyora 2001 (2) ZLR 573 (H) it was pointed out that the record of proceedings of a Children's Court which is submitted for review (whether in terms of the Guardianship of Minors Act [Chapter 5:08] or the Children's Act [Chapter 5:06] must include reasons for the court's decision. The reason for this is clear. This court cannot carry out its review powers to determine whether the proceedings were in accordance with real and substantial justice where there is no record of proceedings and no written reasons for the decision made. In the absence of a proper inquiry, the record of proceedings, and reasons for the order made, this court is hamstrung in deciding whether the Children's Court has taken into consideration the principles that bear on the child's best interests.

It is clear that in all these eight (8) matters dealt with by the magistrate there are no records of proceedings. There is no evidence on record that an inquiry, as envisaged in terms of section 19(1) of the Children's Act [Chapter 5:06] was held before the relevant orders were granted in terms of section 20 of the Children's Act [Chapter 5:06]. This constitutes a misdirection; see In re: Gonyora 2001 (2) ZLR 573 (H)…,.

It is not helpful for the magistrate to allege that an inquiry was held without such evidence in the form of a record of proceedings. Such a purported inquiry, which remains stored in the mind of the magistrate, falls far short of what is required in terms of section 19(1) of the Children's Act [Chapter 5:06]. In the absence of the reasons for decisions made in all eight (8) matters it is difficult to assess, on review, if the proceedings were in accordance with justice.

Turning to the cross appeal, it was contended that the court a quo erred and misdirected itself in awarding custody of the minor child, A Junior Denhere, a male child born 13 November 1999, to the appellant.

At the time of the divorce, the child was just shy of fifteen years of age. The relationship between the mother and the child was, to say the least, strained. The mother readily conceded the poor relations between her and the child but was of the view that if she got custody she would be able to retrieve and mend the relationship.

The court a quo was not convinced that it would be in the interests of the child for him to be reunited with his mother. The court said:

“It is also not in dispute that since July 2013 the relations between A and his mother have been painted bad. This bad relationship was confirmed by the plaintiff in court, and, as a concerned mother, she was tearful and shuddered to recall what her son had said to her showing the bad relations. The defendant confirmed the relation was not good. In as much as the court apportions the sour relations to the influence by the defendant given that he took the child under the pretext of holiday but never returned the child, it is a fact that A Junior and the mother no longer enjoy cordial mother-son relations. Harm has been done in so far as the relations have been tainted. It is, however, my considered view that given what the mother and father said, A would require time to heal and mend the relations. It would not be necessary at this stage to disrupt the child's school which was disrupted by the defendant when he transferred the child to learn in Kenya. To cause A Junior to transfer again and come to Zimbabwe would not be in the best interests of the welfare of the child. He is approaching majority and I am sure with proper guidance he will learn to appreciate what a mother and father mean to him.

The child's educational, social and moral fabric would be negatively affected by changing his environment at this stage.”

In determining the issue of the custody involving a minor child, a court is enjoined to consider the best interests of the child.

It seems to me that the court a quo took into account the relationship that a mother has with a child and how precious such a relationship is. The court also took into account the sour relations that have developed between the mother and A, and how it came about. The court also considered the importance of allowing the relationship between the mother and the son to mend. Also of consideration by the court was the desirability of keeping siblings together unless the circumstances demand otherwise.

However, it is settled law that the best interests of a minor child are the paramount consideration in issues surrounding the welfare of minor children. What constitutes the best interests of a minor child is dependent on the facts and the surrounding circumstances thereto.

In this instance, the child is at school in Kenya. He has been there for some time and has now established roots in that country. He is learning in accordance with the Kenyan educational system. He has friends and a social network in that country. Even if this court were to accept the need for the relationship of the mother and the child to be mended, it would not be in his interests to be uprooted and brought to Zimbabwe. It would disrupt his entire life, education and social life. I do not believe that such a course of action would be of benefit to the family as a whole, or, most importantly, the child himself.

In my view, the court a quo was correct in the manner it exercised its discretion, both as regards the distribution of the matrimonial assets and the question of custody of the minor child.

The applicant withdrew her application in respect of the older of the two children who are the subject of the application. It was conceded that Rutendo Belinda Jembere, born on 28 June 1996, was above eighteen (18) years of age and had attained majority status to whom issues of custody do not apply.

The applicant prayed that custody of Briana Ruvimbo Jembere, born on 8 October 1997, be granted to her in terms of the interim draft order.

1. A decree of divorce be and is hereby granted.

2. The defendant is hereby awarded custody of the three minor children namely I, O and V.

3….,.

4....,.

In his grounds of appeal, the appellant attacked the magistrate's decision on custody on the following grounds;

1. The misquoting of the Guardianship of Minors Act.

2. The mis-application of precedents in the cases of Mutetwa v Mutetwa 1993 (1) ZLR 176 (H) and Sakupwanya v Sakupwanya SC180-88.

3. That she erred in holding that there is a legal principle against the separation of siblings when granting custody.

4. That she erred by not finding that the respondent was irresponsible and neglected her duty to care for the children.

5. That she erred by not finding that the children's negative attitude towards him were due to the respondent denying him access to them.

6. That she misdirected herself by finding that the respondent's trip to Botswana was a result of the appellant's failure to adequately provide for the family….,.

Guardianship of Minors Act

The appellant's criticism is based on the magistrate having, in her judgment, referred to the Guardianship of Minors Act as the Guardianship and Minors Act which he correctly said does not exist. The magistrate was obviously referring to the Guardianship of Minors Act [[Chapter 5:08]] which is an Act of Parliament and is relevant to the determination of custody issues. Nothing turns on the mere mis-naming of a statute which exists and is applicable to the issue to be determined.

Mutetwa v Mutetwa 1993 (1) ZLR 176 (H) and Sakupwanya v Sakupwanya SC180-88

The magistrate's reference to the case of Mutetwa v Mutetwa 1993 (1) ZLR 176 (H) is on page 38 of the record where she said;

“The same case also stated that were the father of the children makes an application for custody the onus is on him to show that it is in the best interest of the children that custody be awarded to him.”

This is a correct statement of our law for which the finding of the magistrate need not be criticised. It is trite that the best interests of the minor children is the determining factor in custody disputes.

In respect of the case of Sakupwanya v Sakupwanya SC180-88, the magistrate…, commented on what the Supreme Court said about the circumstances when a mother can be denied custody, and the circumstances of each party, and came to the conclusion that the respondent was a suitable custodian and would best serve the interests of the children. The appellant sought to discredit the respondent because of the affairs she admitted. The magistrate was aware of that hence her relying on MANYARARA JA's decision that;

“Custody will only be granted to the father when the mother's character had been rendered so undesirable to leave the children in her care.”

The magistrate considered the appellant's own misdemeanours and came to the conclusion that the children's best interests will be served by granting custody to the respondent. She had, over and above assessing the suitability of the parents, interviewed the children who preferred to be in their mother's custody. I find no fault in the magistrate's decision.

Separation of siblings

The appellant criticised the magistrate's comment…, where she said;

“Whilst plaintiff was not claiming custody of the youngest child who is 2 months of age it is important that I take this child into consideration as granting custody of his siblings to the plaintiff would amount to separating the children which would not be in their best interest.”

The magistrate, as is clear from the above quotation, considered the best interests of the children which she was entitled to do. While separation of siblings is not absolutely prohibited it is not desirable where it can be avoided. In the present case, I agree with the magistrate that it would not be in the best interests of the children, two of whom told the magistrate that they preferred to be in the custody of their mother. It is, in fact, desirable that siblings stay together if separating them can be avoided. In my view, separation can be considered if it is for the benefit of one or more of the children. A child's separation from siblings so that he may pursue his education, which is only possible while he is in the custody of the other parent, would be a good example. See the case of Mpofu v Mpofu 2005 (2) ZLR 228 (H)…,..

In this case, the two months old child cannot be separated from the mother and there are no beneficial interests to the other children which justifies the separation of the children. I am therefore satisfied that the magistrate did not misdirect herself on this aspect.

Respondent's irresponsibility

The appellant submitted that the respondent should not have been granted custody of the children because she is not a responsible parent as demonstrated by her extra marital affairs and going to Botswana leaving the children without anyone to look after them.

The respondent submitted that she left the children in the care of the appellant and her niece who was a Form 3 student.

The magistrate…, found that the respondent left the children under the care of her niece and was therefore not irresponsible. She also took into consideration the respondent's extra marital affairs and balanced them with the appellant's own misdemeanours. She interviewed the children who indicated their preferred custodian. The children explained to her the reasons for their preferring the respondent. I am satisfied that the magistrate properly assessed the issue of custody. The fact that the respondent had extra-marital affairs during the marriage does not make her an unsuitable custodian. The letter of confession by Samuel clearly indicates that they went to far away locations from Zengeza to have sex in Machipisa, Highfield. They both contributed towards booking fees, indicating a consciousness to avoid being exposed to the appellant and the children. See page 97 of the record. The alleged telephone exposure of the boyfriend to Onai was not proved on a balance of probabilities and can thus not be used against the respondent.

It must also be stated that custody is not only granted to saints. It can be granted to a parent with a bad history provided the granting of custody to such a parent serves the best interests of the children. A distinction should be made between being a bad spouse and being a bad parent.

In this case, the two older children preferred to be in the custody of the respondent who they said was always there for them. The alleged abandonment of the children by the respondent when she went to Botswana was not accepted by the court a quo. It found that she went to Botswana so that she could fend for the children, leaving the children under the care of her niece and the appellant.

The children's negative attitude

The appellant submitted that the negative attitude against him by the two children who were interviewed by the court a quo was due to the respondent denying him access. The respondent denied that she denies him access to their children.

A reading of the children's interview does not support the appellant's allegation. On page 91 of the record, Onai said she wants to be in the custody of her mother because “as our mother is always there for us, provides for us, does homework with us, plays with us.” She, on the same page, said her relationship with her father is average. She said she does not want to be in his custody because “he assaults my mother; it offends me. He, however, caters for our needs.” She gave a balanced reasonable background from which she chose who will be a better custodian.

Malvick was also interviewed, and he, on page 92 of the record, said he would want to be in the custody of his mother as “she is always there for us.” He, on page 93, said he does not want to be in the custody of the appellant because “he assaults our mother and is strict on us.” The magistrate recorded that Malvick became “uneasy, looking down and about to cry” when she asked him why he does not want to be in the custody of the appellant.

The children's interviews do not show that the children's attitude was due to his not being given access to them. They simply do not like his violent and strict behaviour. There is therefore no merit in this ground of appeal.

Trip to Botswana

The appellant submitted that the court a quo misdirected itself by finding that the respondent's trip to Botswana was a result of the appellant's failure to adequately provide for the family. The respondent said she went to Botswana while seven (7) months pregnant because the appellant did not want her to have other children after Onai, and, as a result, she had to personably look after the newly born child. The appellant confirmed that he did not like the respondent's failure to exercise birth control. On page 80 of the record, the appellant put it to the respondent;

“Correct, when I told you not to have children it was in the best interests of children?”

Faced with this admission, the trial court cannot be criticised for concluding that the respondent went to Botswana to raise money for the child she was about to give birth to as the appellant did not want her to have that child, and would, as he had done previous, not buy things for children conceived against his will.

The matter was brought for review by the trial magistrate who presided over an application for guardianship involving two minors.

The biological mother of the two minors testified in the proceedings agreeing to have guardianship rights passed on to the grandmother of the children. The trial magistrate, with hindsight, realized that he had presided over the matter in error. He hence referred the record of proceeding for revocation of the proceeding by a review judge as he had no power to deal with cases where a parent is still alive.

Section 9(1) of the Guardianship of Minors Act [Chapter 5:08] reads:-

“Without prejudice to the rights, powers and privileges of the High Court as upper guardian of minor children, and the Master, in terms of section 74 of the Administration of Estates Act [Cap 6:01], the Children's Court may, on application in terms of this section, appoint a fit and proper person to be the guardian of a minor who has no natural guardian or tutor testamentary.”

It is clear, as correctly observed by the trial magistrate, that magistrates are precluded from dealing with an application for guardianship where one of the biological parents is available. The proceedings conducted by the magistrate therefore have no legal basis on which to stand.

Accordingly, the proceedings are a nullity and are hereby set aside.