Family Law Court-Unopposed Application
KUDYA J: The applicant
seeks appointment as the sole guardian of the minor child Roxanne
Chantal Van Vuuren, born 1 December 1994. She is the mother of the
child. Her marriage to the girl's father was terminated by consent
by order of this Court on 7 August 2002 in case number HC2367/2002.
The order adopted the detailed consent paper that was executed by the
applicant and her former husband in Harare and Johannesburg,
respectively.
This Court assumed jurisdiction
on the basis of the additional grounds found in section 3(1)(c) of
the Matrimonial Causes Act [Cap
5:13].
Apparently, as appears in his
affidavit of waiver that was executed in Johannesburg, he was not
domiciled in Zimbabwe, a country he had left in 1998. She was, inter
alia, awarded custody
of the minor child.
She launched the present application on 1 April 2008. She provided
the address of service of the respondent as 127 Enterprise Road,
Highlands in Harare. On 23 June 2008, she obtained an order to serve
the application by edictal citation once in the Herald newspaper and
in the Government Gazette, which she duly did in both medium on 14
November 2008.
Paragraphs 11 and 13 of her founding affidavit are the mainstay of
her application. I reproduce them hereunder:
“11. It has become necessary
that I apply for the minor child's passport and get her a visa so
that she can pursue her education outside Zimbabwe and have the
benefit of better educational facilities. However, to be able to
apply for the minor child's passport and visa, respondent will be
required to sign the application forms. This has proved to be
extremely difficult, as I do not have any contact or communication
with him. Without the respondent's signature, the immigration
authorities demand that I furnish them with legal documentation to
prove that I am the minor child's guardian, or to get the
respondent to sign up the documents.
13. I submit that it is in the best interest of the minor child if
sole guardianship is awarded to me in that:
13.1. it will be easy to obtain her student permit in the United
Kingdom where she can have access to better living and educational
facilities and conditions.
13.2 it will remove the barrier of having to trace the respondent's
whereabouts so as to make joint decisions regarding the child, a
situation that is not expedient in cases of emergency or ordinary
course of the child's livelihood. In any event, respondent having
deserted the matrimonial home and having shown no indication of
seeking to re-establish any connection with the minor child there is
doubt that the respondent will be agreeable to make joint decisions
with me.
13.3 the respondent has not involved himself in any way, in any
decisions regarding the up bringing or nurturing of the child and has
no contact with the child or myself.
13.4 notwithstanding the existence of a court order for maintenance
respondent never paid maintenance for the
minor child.
13.5. At this age, the child cannot identify her father let alone
identify with him.
13.6 respondent has elected to
abandon his right of guardianship over the child.”
As framed by the applicant, these two paragraphs seek to cast the
burden of proof on the respondent by blaming him for failing to
firstly, communicate with her and secondly, exercise his guardianship
role.
It also emerges from the other clauses in her founding affidavit that
she remarried on 8 March 2003. Further, that the respondent also
remarried. Her founding affidavit is silent on the steps that she
took to notify the respondent of the need for him to exercise his
role as a guardian.
In my view, the application betrayed a failure by the applicant to
appreciate the fine distinction between custody and guardianship. Had
she done so, her application would have been structured differently.
It is necessary that I set out what the two concepts entail.
Textbook writers have attempted
to define both concepts. HR Hahlo in the South
African Law of Husband and Wife
5th
edition at 394 wrote:
“Custody is but one incident or
sector of natural guardianship. Where as happens in most cases,
custody is awarded to the mother and no order is made as to
guardianship, the father is left with guardianship minus custody. The
mother as the custodian parent is entitled to have the child with
her, to control its daily life, to decide all questions relating to
its education, training, religious upbringing and to determine what
homes or houses the child may or may not enter and with whom it may
or may not associate. In cases of urgency she can supply the
necessary consent to a surgical operation on the child.”
See also Boberg in The
Law of Persons and Family
2nd
edition at p 661-664.
VAN HEERDEN J in Governing
Body, Gene Louw Primary School v Roodtman
2004 (1) SA 45 (C) at 51H-52B set out the rights and duties of the
custodian parent in terms similar to those outlined above by Hahlo in
these terms:
“At common law a parent (or
other person) who has the custody of a minor child is entrusted with
the care of the child's person and the decision-making power in
respect of the child's day-to-day life, upbringing and education. A
useful description of the position of the custodian parent is given
by Gubbay J in Matthee
v MacGregor Auld and Another
1981 (4) SA 637 (Z) at 640D - F:
'(T)he custodian parent has,
therefore, the right and duty to regulate the life of the child; to
choose and establish his residence (Landmann
v Mienie 1944 OPD 59
at 65); to resolve with whom he should be allowed to associate
(Wolfson v Wolfson
1962 (1) SA 34 (SR) at 37C - H); to direct the lines on which his
secular education should proceed (Simleit
v Cunliffe 1940 TPD 67
at 76; Scott
v Scott
1946 WLD 399 at 401), including the choice of the school (Martin
v Mason
1949 (1) PH B9 (N)); to devise upon his religious instruction (Ryan
v Ryan
1963 R & N 356
(SR) at 368A); to determine what medical advice, supervision or
assistance should be sought in the event of his becoming ill or
sustaining an injury (Oosthuizen
v Rix 1948 (2) PH B65
(W); Custner v Hughes
1970 (3) SA 622 (W) at 625B).
The . . . non-custodian has no right of interference in these
matters.'”
Hahlo, supra,
at page388-9 further states that:
“At common law, guardianship in
its widest sense includes custody, and embraces the care and control
of the minor's person as well as the administration of his property
and business affairs. Where custody and guardianship are separated,
the custodian parent has the care and control of the minor's
person, while the guardian parent administers his property and
business affairs ('guardianship' in the narrower sense).”
The learned author proceeds to define guardianship in the narrower
sense at page 395 in these terms:
“By virtue of his guardianship,
it is the father's right and duty to take charge of and administer
the property of the minor; invest his moneys; pay his debts; and
contract on his behalf in business matters. In legal proceedings the
minor must be represented or assisted by the father, unless the
mother obtains leave from the court to bring or defend an action on
the minor's behalf. The right to alter the child's name, too,
vests in the guardian and not in the custodian spouse.
For marriage, the minor requires the consent of both parents, unless
one of them has been awarded the sole guardianship of the minor, in
which case that parent's consent is necessary and sufficient. For
an antenuptial contract, the consent of the father as guardian is
necessary and sufficient, unless he has been deprived of the
guardianship of the minor, or his parental powers have been
overridden.”
The factors that the applicant used in her founding affidavit to
portray the respondent as a disinterested parent all fall in the
category of those that are exercisable by a custodian parent. She was
awarded custody and she alone has the legal obligation to exercise
those rights. She cannot use the non-interference of the respondent
in the exercise of her rights as demonstrative of his ineligibility
as a guardian.
It seems to me that she bears the
onus of proving on a balance of probabilities that the respondent as
the guardian has refused to perform the functions of guardianship or
has, in his role as a guardian, been irresponsible and neglectful of
the child's interests. See Ryan
v Ryan, supra, at p
367E and Ncube in Family
Law in Zimbabwe at
115.
Mr. Mutasa,
for the applicant, submitted written heads at my instance.
He contended that the section
4(1) of the Guardianship of Minors Act [Cap
5:08] enjoins the High
Court as the upper guardian of all minors to wrestle guardianship
from the father and grant it to the mother where the mother has
proved that he has refused or discarded the duties of guardianship.
He correctly submitted that it
was not the duty of the Court, in these circumstances, to protect a
'natural' or 'God given' right of guardianship vested in the
father. His submission resonates with the sentiments expressed by
GIBSON J in Pinto v
Benjamin HH292/1986 at
p3 of the cyclostyled judgment. The learned judge stated as follows:
“Under the Guardianship of
Minors Act, Cap 34, unlike the common law, the father and mother have
equal standing, and either is eligible on merits to be considered for
guardianship of minor children of the parties. Under this statute the
primary consideration to be borne in mind in determining the issues
by the court is what is in the best interests of the minor; the pater
familias no longer has
that easy ascendancy over the mother, to be displaced only where
there is good reason, such as refusal or neglect. This list is not
exhaustive.
It is clear from various past authorities that what is in the best
interests of a minor can be arrived at after looking at a wide
variety of factors, such as the sex, age, and health of the minor
child. Apart from that the ability of either parent to safeguard the
moral well-being and financial needs of the child must bear a
decisive influence on the entitlement of either parent.”
GIBSON J did not in her judgment
identify the various past authorities. She may have had in mind the
sentiments of SQUIRES J in Van
Rensburg v Van Rensburg
GS 177/1981 at page 2-3 of the cyclostyled judgment where it is
stated thus:
“Now, although the Guardianship
of Minors Act provides that the best interests of a minor is the
primary consideration in awarding guardianship of a child to one or
other of divorced parents, and although the wife and mother now
occupies a position of equality in such choices as distinct from the
common law, in practice the courts are still reluctant to appoint a
mother as the guardian of a minor to the complete exclusion of the
father unless there are some good grounds for so doing. The reason
for this, it would seem, is that since guardianship imposes duties as
much as, or even more than, it confers rights, it is normally not in
the best interests of a minor child to deprive the father of
guardianship unless he refuses to perform the function of a guardian
or is sufficiently irresponsible or neglectful of the child's
interest as to amount to such a refusal; or is physically so far from
the child as to be unable to do so, or some circumstances of a
similar nature and effect can be identified.”
A full reading of the Pinto
case, however, shows
that GIBSON J was influenced by the fact that Mr. Benjamin was an
incorrigible criminal who relished going in and out of prison and who
was serving a three year prison sentence. He had had no contact with
the children since his divorce from their mother in 1981, had not
exercised his right of access, nor paid maintenance despite her best
endeavours to obtain his cooperation in these respects. His
explanations were dismissed and it was held that he was both
irresponsible and thoroughly neglectful of his duty. It seemed to me
that the factors that were listed by GIBSON J fall into the realm of
custody rather than guardianship in the narrower sense. To the extent
that she was influenced by these custodian factors in her decision to
grant Mrs. Pinto sole guardianship of the parties' three minor
children, I would respectful disagree with her decision.
In the Van
Rensburg case, supra,
despite the fact that
the father had refused to sign documents that would enable the minor
to obtain a passport and had an erratic record of maintenance
payments, SQUIRES J declined to award sole guardianship to the
mother. Rather, he extended her custodian powers to cover those
specific areas that the father had refused or neglected to exercise
guardianship.
Both the Pinto
and van Rensburg cases,
supra, are
distinguishable to the present case in one major respect, that is,
that the respondents opposed the application.
Again, in the van
Rensburg case the
mother had made a diligent search for the father. In the present
matter, the respondent did not oppose the application. He was not
personally served with the application which was served by edictal
citation through a local newspaper and the Government Gazette. It was
not clear to me why the applicant chose to do this when the divorce
proceedings showed that the respondent was domiciled outside Zimbabwe
since 1998 and lived in Johannesburg. No diligent search for him was
ever conducted by the applicant. Mr. Mutasa
intimated from the bar that he had been instructed by the applicant
that the respondent had at the time the application was instituted
been residing at a house in Harare.
In my view, even if that
instruction was correct, the applicant did not aver what steps she
took to bring to the respondent's attention her decision to remove
the child from Zimbabwe to the United Kingdom that appears to have
triggered the need for her to obtain a passport some six years after
the divorce. She did not state what measures she took to either trace
his whereabouts or to enforce the Maintenance Order. She appeared to
have been content with his alleged disinterest in the affairs of his
child.
I found her affidavit lacking in candor. In one vein she appeared to
be ignorant of the happenings in the respondent's life since his
desertion and in another she was aware that he had remarried just as
she had done. I had the distinct impression that she was snatching at
sole guardianship.
It was clear from her affidavit that the respondent had not refused
to exercise any of his powers of guardianship. The factor which
necessitated the application arose from the applicant's unilateral
decision to remove the child from Zimbabwe, which decision she did
not communicate to the respondent. When he allegedly came to
Zimbabwe, she did not advise him of her intentions. It does not
appear to me that he was aware that there was a need for him to
exercise his guardianship powers. He is not aware of the application.
I do not know whether the allegations of neglect in the general
custodian welfare of the child are true. Because he has not had
notice of the application, I cannot hold that he has deliberately
refused to come to court.
It appears to me that the applicant is snatching at sole
guardianship.
In these circumstances, it would be remiss of me to exercise my
discretion in depriving him of guardianship. The applicant has failed
to discharge the onus on her to show that he has been neglectful of
his duties as a guardian in the narrower sense.
Accordingly, her application for sole guardianship is dismissed with
no order as to costs.
Costa and Madzonga, applicant's legal practitioners
