MUSAKWA J: The applicant
is seeking an order that she be appointed the legal guardian of
Tinashe Esther Chalimba, born on 17 August, 1996 and Anesu Esther
Chalimba, born on 29 July, 1999, plus costs of suit.
In her founding affidavit the applicant states that she cohabited
with the respondent from 1995. As a result of such cohabitation she
gave birth to Tinashe Constance Chalimba on 17 August, 1996 and Anesu
Esther Chalimba on 29 July, 1999. Due to the violent nature of the
respondent the two separated. The applicant obtained an order for the
custody of the minor children in the Magistrates court. She also
sought a binding over order against the respondent in the Magistrates
court. In addition she filed two applications for maintenance for the
minor children.
In 2003 the applicant secured employment in New Zealand. With her
mother having passed away she had no alternative but to leave the
children with the respondent. She intended to collect the children
later.
In 2005 she informed the respondent on the need for the children to
join her but he refused. Later she learnt that the respondent had
taken the children to South Africa. She subsequently visited them and
she was allowed limited access to them.
In 2007 she established that the children were back in Zimbabwe and
attending school in Rusape where she visited them. She concludes by
stating that since she was never married to the respondent she is the
legal guardian of the children. She then prays for an order in terms
of the draft.
In his opposing affidavit the respondent states that the South
African High Court ruled that the children should stay with him, with
the applicant having access. He contends that the applicant applied
for custody of the children in the local courts but she did not
prosecute the matter to finality. He also contends that he never
agreed that the children would return to the applicant. He was never
told that the applicant intended to leave the country. There was no
communication from the applicant between January 2003 and June 2005.
The applicant is said to have filed an application for custody of the
children in the South African High Court and the matter had not yet
been determined at the time of filing of the opposing affidavit.
Mr Machiridza
submitted that it is trite that an unregistered customary law union
does not bestow guardianship on the father. He prayed for the order
sought despite the issue taken up by Mr Uriri
regarding the
propriety of such an order. It was further his submission that
nothing turns on the criticism aimed at the draft order as it seeks
to confirm the legal position that the applicant is the legal
guardian of the children. He also urged the court to dispose of the
matter notwithstanding that there is pending litigation between the
parties in the South African courts.
On the other hand Mr Uriri
submitted that the present proceedings are substantially similar to
the matter that was pending before the South African courts. He thus
urged this court to exercise its discretion by declining to determine
the present matter as the applicant has not finalized the matter that
is before the South African courts. It was his submission that as a
matter of public policy a litigant should not hop from one court to
the other without good cause. In truth and substance the present
application is said to be exactly the same as the one pending before
the South African courts, so Mr Uriri
further argued.
On the merits Mr Uriri
submitted that it is incompetent to grant the order sought. This is
because the law recognizes two types of orders. There is what is
termed a constitutive order which confers rights to one party and
imposes obligations on the other party. The other order is
declaratory as it does not confer rights but states what the position
of the law is regarding a particular issue.
Mr Uriri
further submitted that a litigant's case stands or falls on its
founding affidavit. Thus the founding affidavit sets out the
applicant's cause of action. If it is accepted that the father of
children born out of wedlock has no rights regarding those children
then that can only be the subject of a declaratory order as opposed
to a constitutive one.
Mr Uriri
further pointed out paragraph 31 of the applicant's founding
affidavit in which she seeks to be appointed guardian of her
children. If that is the case she does not require such an
appointment as she is the natural guardian by operation of law.
Mr Uriri
also submitted that the court must endeavor to look at the substance
of the application as opposed to its form. In his view the substance
of the present application is captured in paragraphs 13 to 28 of the
founding affidavit. In essence the applicant is said to be seeking
custody under the guise of an application for an order for
guardianship. This according to Mr Uriri,
is evidenced by what is contained in the founding affidavit.
Finally, Mr Uriri
submitted that the
case of Katedza v
Chunga 2003 (1) ZLR
470 (H) in which SMITH J granted a declaratory order in favour of the
applicant to the effect that she was the guardian of her child was
wrongly decided.
The defense of lis
alibi pendens was
raised for the first time in the respondent's heads of argument as
it had not been raised as a point in limine.
The authorities cited in the
respondent's heads of argument are quite clear on the requirements
for such a defence. As was stated by McNALLY JA in the case of Mhungu
v
Mtindi 1986 (2) ZLR
171 (S) at p 172:
“The defense raised by this
allegation is the defense of lis
pendens,
sometimes known as lis
alibi pendens.
Herbstein and van Winsen in the Civil
Practice of the Superior
Courts in South Africa
3rd
ed. at pp 269 et seq say, at pp 269-270:
'if an action is already
pending between the parties and the plaintiff therein brings another
action against the same defendant on the same cause of action and in
respect of the same subject matter, whether in the same or different
court, it is open to such defendant to take the objection of lis
pendens,
that is, another action respecting the identical subject matter has
already been instituted, whereupon the court, in its discretion, may
stay the second action pending the decision in the first action'.”
As stated in the above-cited case the court has discretion to stay
the second matter pending a decision on the first one.
The application pending before the South African court is for an
order of custody of the minor children. In the present matter the
applicant is seeking to be appointed guardian of her own children.
Mr Uriri
urged this court to consider the substance of the present application
as opposed to its form and make a finding that it is essentially a
custody claim. Once I make such a finding I should then use my
discretion to decline to determine the matter on the merits pending
the decision on the application filed in South Africa.
I do not think that for purposes
of determining whether a matter qualifies as lis
alibi pendens one is
required to look at the substance of each application as opposed to
its form. I think it should suffice to consider whether the causes of
action are the same.
In the two matters the causes of
action are different and as a result the defense of lis
alibi pendens does not
apply.
As regards the merits of the
application I agree with Mr Uriri's
submission that the substance of the applicant's founding affidavit
deals with her quest to have custody of the minor children.
It is quite clear that the applicant relinquished custody of the
children to the respondent and wants it restored. But she is seeking
that in an indirect manner. If she was awarded custody by the
Magistrates court it is not clear why she is not seeking the
appropriate relief if such order has been violated.
There is no doubt that the mother
of a child born out of wedlock has sole rights of custody and
guardianship. In this respect see such authorities as D
v
M 1986 (1) ZLR 188
(HC), Katedza v
Chunga supra
and Paul Cruth v
Michele Thora Manuel
1999 (1) ZLR 7 (S).
However, in my view this is not the real issue between the parties as
can be noted from the papers. The crux of the applicant's founding
affidavit is that she wants the children to join her in New Zealand
but the respondent has refused to release the children.
I do not agree with Mr Uriri's
submission that the case of Katedza
v
Chunga supra was
wrongly decided. I am mindful that that was an unopposed application
but in my view it sets out the law clearly.
In that case the applicant and first respondent stayed in an
unregistered customary law union for three years which resulted in
the birth of a son. The applicant had the child's surname changed
to hers by notarial deed. Thereafter her legal practitioners sought
the issuance of a new birth certificate by the Registrar-General who
declined on the basis that the consent of the father of the child was
required. Despite the applicant's legal practitioners pointing out
that the father's consent was not a requirement as the child was
born out of wedlock, the Registrar-General maintained his objection.
It was also pointed to the applicant's legal practitioners that the
child's father was opposed to the issuance of a new birth
certificate without his consent and that he was prepared to fight the
issue in the courts.
Neither the father of the child nor the Registrar opposed the
application.
In Katedza's
case supra
the applicant sought a declaratory order to the effect that she was
the guardian of her child and for an order that the Registrar-General
issue the child with a new birth certificate in the applicant's
name.
Contrast that with the relief being sought in the present
application.
The applicant cannot be appointed guardian of her children when the
law already bestows her with such a right. There is no allegation
that such rights have been violated. In short, the relief sought is
not supported by the facts disclosed in the founding affidavit.
Therefore, the application is
dismissed with costs.
Muzangaza, Mandaza & Tomana, applicant's legal
practitioners
Honey & Blancenberg, respondent's legal practitioners
