International Law re: Children's Rights

HH20-09 : SHERRIE HARRIS vs MARK HARRIS
Ruled By: MUSAKWA J

The Child Abduction Act [Chapter 5:05] gives effect to the Convention on the Civil Aspects of International Child Abduction. The Convention is incorporated as a schedule to the Child Abduction Act.

HH29-09 : FIDELIS CHIRAMBA and OTHERS vs MINISTER OF HOME AFFAIRS N.O. and COMMISSIONER GENERAL OF POLICE and OFFICER COMMANDING CID HOMICIDE, Chief Supt MAKEDENGE and DETECTIVE CONSTABLE MUUYA
Ruled By: HUNGWE J

It hardly needs me to point out that being a signatory to the Convention on the Rights of the Child; the Republic of Zimbabwe must be seen, through the acts of its public officials, to be protective of the rights of the child....,.Article 16 of the Convention on the Rights ...

HH549-15 : ELSIE BHILA vs THE MASTER OF HIGH COURT and FREDDY CHMBARI NO and RATIDZO BHILA and KELVIN BHILA and KWATINI BHILA
Ruled By: MWAYERA J

The Constitutional provisions outlawing discrimination on the basis of being born out of wedlock find support in international conventions and, indeed, reflect progressive development of the law in response to social and cultural development. Children's rights, as outlined in the Convention on Rights of the Child Articles and The African Charter on the Rights and Welfare of ...

HB81-10 : TRISTAN JOHN PEACOCK vs ANTOINETTE MAREE STEYN
Ruled By: MATHONSI J

This is an application in terms of the Hague Convention on the Civil Aspects of International Child Abduction. That Convention is applicable to Zimbabwe by virtue of the Child Abduction Act [Chapter 5:05].

HHH47-16 : THE STATE vs SHEPHERD BANDA and EVERTON CHAKAMOGA
Ruled By: CHAREWA J and TSANGA J

Zimbabwe is part of the international consensus that effective and full protection must be accorded to children to ensure their health, education and consequent full realisation of their potential as participants in socio-economic and political development. In that regard, regionally, Zimbabwe is signatory to the African Charter on the Rights and Welfare of the Child, ...

In that regard, regionally, Zimbabwe is signatory to the African Charter on the Rights and Welfare of the Child, which defines anyone under 18 as a child. The preamble, in paragraph 4, notes that children require special safeguards and care on account of their physical and mental immaturity. Paragraph 6 reinforces the need for legal protection…, of children to ensure particular care with regard to their health, physical, mental, moral and social development. Article 4 echoes our Constitution in directing that in all processes, it is the best interests of children that are paramount. Articles 11, 14 and 16 emphasize children's rights to education to promote development of a child's personality, talents and mental and physical abilities to the fullest potential; the child's right to physical, mental and spiritual health; and protection against sexual abuse. Article 21 goes to the extent of requiring member States to pass legislation specifying the minimum age of marriage as 18 in order to enhance the protection of children.

Further, Zimbabwe has, for decades, had a Commissioner sitting as a member of the African Committee of Experts on the Rights and Welfare of the Child, set up to ensure the promotion and protection of children's rights on the continent. In addition, the current African Union Ambassador against Child Marriages is Zimbabwean. Zimbabwe currently holds the Chairmanship of the African Union, with the mandate to ensure meaningful compliance with African Union legal frameworks, and, in so far as these cases are concerned, the effective implementation of the African protective framework for children.

On the wider international platform, Zimbabwe has ratified the Convention on the Rights of the Child, thus subjecting itself to the rigours of regular examination and review of its child protection record by the United Nations Committee on the Rights of the Child. The review process focuses, among other issues, on the prevalence of sexual exploitation and abuse of children and forced or early marriages of young girls.

Increasingly, in various regional and international judicial colloquia (see the report of First Summit of Presidents and Chief Justices of Constitutional, Regional and Supreme Court Justices 5-14 November 2012 held in Mexico City, Mexico,( website of the National Supreme Court of Justice of Mexico) and reports of the Continental Judicial Dialogues for African Judiciaries, Arusha 2013 and 2015 (website of the African Court on Human and Peoples' Rights)), it has been recognised that domestic judicial officers must, when dealing with cases which impact on the human rights of children in particular, take cognisance of best practices and standards elsewhere including international standards set by regional and international treaties and conventions to which their country is party.

In our jurisdiction, therefore, judicial officers must, in the discharge of their mandate, take into account the norms and standards that Zimbabwe has subscribed to in the treaties and conventions it has ratified.

View Appeal
HH467-16 : ALBAN GERALD BOWERS vs SHARIFFA PRESIOUS BOWERS
Ruled By: CHITAKUNYE J

Article 4(2) of the African Charter on the Rights and Welfare of the Child, which Zimbabwe ratified and is an active participant in the enforcement of its principles, states that:- “In all judicial or administrative proceedings affecting a child who is capable of communicating his/her own views, an opportunity shall be provided for the views of the ...

Appealed
SC37-18 : TRACEY LEIGH MACKINTOSH (NEE PARKINSON) vs ANTONY WILLIAM MACKINTOSH
Ruled By: GARWE JA, GUVAVA JA and UCHENA JA

In the UNHCR Guidelines on Determining The Best Interests of the Child, May 2008, the UN High Commissioner for Refugees states:- “The term 'best interests' broadly describes the well-being of a child. Such well-being is determined by a variety of individual circumstances, such as the age, the level of maturity of the child, the presence or absence of ...

Appealed
HHH718-14 : THE STATE vs WILLARD CHOKURAMBA
Ruled By: MAWADZE J and MUREMBA J

Internationally, corporal punishment is regarded as violence against children and as a breach of fundamental human rights. It is considered inhuman and degrading as it violates children's physical integrity and demonstrates disrespect for human dignity and undermines the self-esteem of children. It is said to treat children as half-human beings thereby breaching the principle of equal ...

There are regional and international conventions which protect these rights and the right to freedom from torture, inhuman and degrading punishment. Zimbabwe has ratified and acceded to some of them. It ratified the Convention on the Rights of the Child on 11 September 1990 and the African Charter on Human and Peoples' Rights (ACHPR) on 30 May 1986. It acceded to the International Covenant on Civil and Political Rights (ICCPR) on 13 May 1991 and to the African Charter on the Rights and Welfare of the Child on 19 January 1995.

Under the African Charter on Human and Peoples' Rights, under Article 3 -

“1. Every individual shall be equal before the law.

2. Every individual shall be entitled to equal protection of the law.”

Under Article 5 -

“Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.”

Under The International Covenant on Civil and Political Rights, under Article 7 -

“No one shall be subjected to torture or to cruel, inhuman or degrading treatment and punishment.”

Under Article 4(2), even in times of public emergency, no derogation from Article 7 may be made. Under Article 26 -

“All persons are equal before the law and are entitled, without any discrimination, to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

Under The Convention on the Rights of the Child, the following provisions are relevant;

“Article 1

For the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.

Article 2

1. States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.

2. States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child's parents, legal guardians, or family members.

Article 37

States Parties shall ensure that:

(a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age.”

Under the African Charter on the Rights and Welfare of the Child the following are the relevant provisions;

“Article 1: Obligation of States Parties

1. Member States of the Organization of African Unity Parties to the present Charter shall recognize the rights, freedoms and duties enshrined in this Charter and shall undertake to the necessary steps, in accordance with their Constitutional processes and with the provisions of the present Charter, to adopt such legislative or other measures as may be necessary to give effect to the provisions of this Charter.

2. Nothing in this Charter shall affect any provisions that are more conductive to the realization of the rights and welfare of the child contained in the law of a State Party or in any other international Convention or agreement in force in that State.

3. Any custom, tradition, cultural or religious practice that is inconsistent with the rights, duties and obligations contained in the present Charter shall, to the extent of such inconsistency, be discouraged.

Article 2: Definition of a Child

For the purposes of this Charter, a child means every human being below the age of 18 years.

Article 3: Non-Discrimination

Every child shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in this Charter irrespective of the child's or his/her parents' or legal guardians' race, ethnic group, colour, sex, language, religion, political or other opinion, national and social origin, fortune, birth or other status.

Article 16: Protection Against Child Abuse and Torture

1. States Parties to the present Charter shall take specific legislative, administrative, social and educational measures to protect the child from all forms of torture, inhuman or degrading treatment and especially physical or mental injury or abuse, neglect or maltreatment including sexual abuse, while in the care of the child.

2. Protective measures under this Article shall include effective procedures for the establishment of special monitoring units to provide necessary support for the child and for those who have the care of the child, as well as other forms of prevention and for identification, reporting, referral, investigation, treatment, and follow-up of instances of child abuse and neglect.

Article 17: Administration of Juvenile Justice

1. Every child accused or found guilty of having infringed penal law shall have the right to special treatment in a manner consistent with the child's sense of dignity and worth and which reinforces the child's respect for human rights and fundamental freedoms of others.

2. State Parties to the present Charter shall in particular:

(a) Ensure that no child who is detained or imprisoned or otherwise deprived of his/her liberty is subjected to torture, inhuman or degrading treatment or punishment.”

By becoming a State Party to the above-mentioned conventions, Zimbabwe indicated its consent to be bound by these conventions. As such, it has international legal obligations to respect, protect and fulfil human rights for everyone within its jurisdiction. As a State Party, it is duty-bound to enact the necessary legislation to give domestic effect to them. It is evident from Part 3 of Chapter 4 of the new Constitution that Zimbabwe has endeavoured to fulfil its international legal obligation in protecting the rights of the children. Section 81 thereof elaborates on the rights of children. Of significance are sections 81(1)(a) and 81(1)(e) which make it clear that children are not half-human beings as they ought to be treated equally as adults and protected from all forms of abuse including violence. They read as follows:

“81(1) Every child, that is to say every boy and girl under the age of eighteen years, has the right -

(a) To equal treatment before the law, including the right to be heard;

(b)….,.

(c)….,.

(d)….,.

(e) To be protected from economic and sexual exploitation, from child labour, and from maltreatment, neglect or any form of abuse.”…,.

This elaboration of the children's rights, in conformity with the regional and international conventions that Zimbabwe has ratified, demonstrates that the new Constitution does not allow for the imposition of corporal punishment anymore.

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CC10-19 : THE STATE vs WILLARD CHOKURAMBA (JUSTICE FOR CHILDREN'S TRUST INTERVENING AS AMICUS CURIAE and ZIMBABWE LAWYERS FOR HUMAN RIGHTS INTERVENING AS AMICUS CURIAE)
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, HLATSHWAYO JCC, MAVANGIRA JCC, BHUNU JCC, UCHENA JCC and MAKONI AJCC

The United Nations Convention on the Rights of the Child (1989) (“the CRC”) emphasizes inherent dignity in a number of places. Significantly, Article 37(a) lays down the right of the child not to be subjected to cruel, inhuman or degrading treatment or punishment. This provision is designed to protect both the inherent dignity and the physical and ...

This provision is designed to protect both the inherent dignity and the physical and mental integrity of the child. Article 37(c) requires States Parties to treat children convicted of offences “with humanity and respect for the inherent dignity of the human person.”

The Committee on the Rights of the Child, in General Comment No.8, recognises the right of every person to respect by others for his or her inherent dignity and physical integrity and equal protection of the law. In paragraph 16, the General Comment states that:

“The dignity of each and every individual is the fundamental guiding principle of international human rights law.”…,.

In Tyrer v United Kingdom [1978] EHRR 1, Tyrer, aged fifteen years, and a resident of the Isle of Man, pleaded guilty, on 7 March 1972, before the local Juvenile Court, to unlawful assault occasioning actual bodily harm to a senior pupil at his school. He was sentenced to three strokes of the birch in accordance with relevant legislation. He appealed against the sentence to the High Court of Justice of the Isle of Man. His appeal was dismissed on 28 April 1972. He was birched later in the afternoon of the same day. He was made to take down his trousers and underpants and bend over a table. He was held by two policemen whilst a third administered the punishment, pieces of the birch breaking at the first stroke. The birching raised, but did not cut, Tyrer's skin and he was sore for about ten days.

An application was lodged with the Commission, complaining that the judicial corporal punishment suffered constituted a breach of Article 3 of the European Convention on Human Rights (ECHR). In its Report, the Commission expressed the opinion that judicial corporal punishment, being degrading, violated Article 3 of the European Convention on Human Rights (ECHR) and that, consequently, its infliction upon Tyrer was unconstitutional.

The European Court of Human Rights decided that the punishment violated Article 3 of the European Convention on Human Rights (ECHR) because the very nature of judicial corporal punishment is that it involves one human being inflicting physical violence on another human being. Furthermore, the European Court of Human Rights deemed it to be institutionalised violence, that is, violence permitted by the law, ordered by the judicial authorities of the State and carried out by the police authorities of the State. It went on to hold that the institutionalized character of the violence was further compounded by the whole aura of official procedure attending the punishment and by the fact that those inflicting it were total strangers to the offender.

Although Tyrer did not suffer any severe or long-lasting physical injury, the European Court of Human Rights held that the punishment amounted to a degrading punishment within the meaning of Article 3 of the European Convention on Human Rights (ECHR). The European Court of Human Rights based its decision on the objective assessment of the corporal punishment inflicted on Tyrer in the light of the effect it had on his dignity as a human being and on his physical integrity.

The European Court of Human Rights held that the punishment of Tyrer, whereby he was treated as an object in the power of the authorities, constituted an assault on precisely that which it is one of the main purposes of Article 3 of the European Convention on Human Rights to protect, namely, a person's inherent dignity and physical integrity….,.

Article 3.1 of the United Nations Convention on the Rights of the Child (1989) (CRC) is to the effect that in all actions concerning children, the best interests of the child shall be a primary consideration….,.

See also Article 4(1) of the African Charter on the Rights and Welfare of the Child (ACRWC)….,.

There must be demonstration of the fact that children's interests have been explored and taken into account, as a primary consideration, in the choice and assessment of appropriate sentences for or dispositions of juvenile offenders. See “Implementation Handbook for the Convention on the Rights of the Child” New York, UNICEF, 1998.

SC94-20 : ZIMBABWE HOMELESS PEOPLE'S FEDERATION and OTHERS vs MINISTER OF LOCAL GOVERNMENT AND NATIONAL HOUSING and ZVIMBA RURAL DISTRICT COUNCIL and LEENGATE PL and MINISTER OF LANDS
Ruled By: PATEL JA, MAVANGIRA JA and MATHONSI JA

In the sphere of international law, there are two key instruments that enshrine the rights of children and the concept of their best interests. The first is the United Nations Convention on the Rights of the Child (1989). The second is the African Charter on the Rights and Welfare of the Child (1990).

Article 3(1) of the United Nations Convention on the Rights of the Child (1989) stipulates that “the best interests of the child shall be a primary consideration” in all actions concerning children. By virtue of Article 3(2), “State Parties undertake to ensure the child such protection and care as is necessary for his or her wellbeing”, taking into account the rights and duties of parents and legal guardians, “and, to this end, shall take appropriate legislative and administrative measures.”

These provisions are mirrored and re-affirmed in Article 4 of the African Charter on the Rights and Welfare of the Child (1990).

With respect to the role of parents, Article 27(2) of the United Nations Convention on the Rights of the Child (1989) recognises that parents “have the primary responsibility to secure, within their abilities and financial capabilities, the conditions of living necessary for the child's development.” Nevertheless, in terms of Article 27(3), States Parties are also enjoined “in accordance with national conditions, and within their means” to “take appropriate measures to assist parents” and “in case of need, provide material assistance and support programmes, particularly with regard to nutrition, clothing, and housing.”

To similar effect, Article 20 of the African Charter on the Rights and Welfare of the Child (1990) places the primary obligation to implement children's rights on parents, but, also obligates the State to assist parents in that endeavour, with particular reference to nutrition and housing.

Both the United Nations Convention on the Rights of the Child (1989) and the African Charter on the Rights and Welfare of the Child (1990) have been ratified by Zimbabwe, the former on 11 September 1990 and the latter on 19 January 1995. Consequently, by dint of section 46(1)(c) of the Constitution, it is incumbent upon our courts to take them into account in interpreting the Declaration of Rights entrenched in Chapter 4 of the Constitution.

This is reinforced by section 327(6) of the Constitution which dictates the adoption of any reasonable interpretation of domestic legislation that is consistent with any treaty or convention which is binding on Zimbabwe in preference to any alternative interpretation that is inconsistent with that treaty or convention.

CC20-20 : MATHEW SOGOLANI vs MINISTER OF PRIMARY AND SECONDARY EDUCATION and HEADMASTER, MASHAMBANHAKA SECONDARY SCHOOL and HEADMASTER, CHIZUNGU PRIMARY SCHOOL and ATTORNEY-GENERAL OF ZIMBABWE
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, GUVAVA JCC, MAVANGIRA JCC, BHUNU JCC and UCHENA JCC

Article 18(1) of the Convention on the Rights of the Child (1990) requires parents and guardians to have the best interests of the child as their basic concern when discharging the primary responsibility of the upbringing and development of the child.

SC80-21 : ALLEN GESSEN vs PRISCILLA CHIGARIRO
Ruled By: MATHONSI JA

This is an application for condonation of the late noting of an appeal and the extension of time within which to appeal against a judgement of the High Court handed down on 1 October 2020.The applicant's initial appeal, filed timeously, was struck off the roll on 1 April 2021 for ...

This is an application for condonation of the late noting of an appeal and the extension of time within which to appeal against a judgement of the High Court handed down on 1 October 2020.

The applicant's initial appeal, filed timeously, was struck off the roll on 1 April 2021 for the reason that the Notice of Appeal was fatally defective.

FACTUAL BACKGROUND

The applicant is a citizen of the United States of America (USA) even though he was born in Russia. The respondent is a Zimbabwean citizen. The two met in 2011 in Harare, Zimbabwe and commenced having a relationship which is said to have been upgraded to a customary marriage by reason that the applicant paid the bride price for the respondent.

They never registered a legal marriage.

The parties association was blessed with a boy child, called Orrin, who was born on 23 July 2013.

During the period extending from 2015 to 2019, the applicant secured employment in Russia, and, as such, became resident in that country. In 2016, the respondent and the boy child, Orrin, followed the applicant to Russia where the family took up residence.

It was during the period of their temporary residence in Russia that the couple decided to have a second child. Owing to some health challenges, the respondent could no longer carry the pregnancy. They decided to have the child through surrogacy and found a surrogate mother with whom a Surrogacy Agreement was entered into.

It was signed by the applicant, the respondent, and the surrogate mother on 2 March 2018.

The Surrogacy Agreement stated, in pertinent part:

“We undertake to assume the equal rights and obligations of parents with respect to the children, born by 'surrogate mother' after embryo transfer to the uterine cavity of 'surrogate mother', in terms of their upbringing, as defined by the Russian legislation on family and marriage.”

In pursuance of that agreement, the surrogate mother carried the pregnancy for the parties and gave birth to the girl child, Elizabeth, now at the centre of the dispute, on 15 November 2018.

Unfortunately, the parties relationship hit turbulence, and, a short while after the birth of the child, they commenced living apart.

Although the surrogate mother had given her consent for them to register the child as their own, as genetic parents, the Khamovhichesky Department of the Civil Registry of Moscow refused their application to register the child as they were not married.

Acting together, they instituted a lawsuit against the Registry Office for their recognition as the parents of Elizabeth.

On 27 September 2019, the Meshchansky District Court of Moscow allowed the State registration of the child and for the respondent to be registered as its mother. The applicant was not so lucky. His application for registration as the father was rejected because, by then, he had had his employment in Russia terminated and had relocated to the United States of America.

In doing so, the applicant took the boy child, Orrin, with him.

Although there is no convergence between the parties as to what their intentions were, the applicant says he relocated to the United States of America with the respondent's consent, while the respondent's position is that the applicant abducted Orrin and deserted her and Elizabeth.

It is however not in dispute that the respondent and Elizabeth were left stranded in Russia. They had been in that country on the applicant's expired VISA.

The respondent and Elizabeth ended up living at the Zimbabwean embassy while processing documents to move to Zimbabwe. In due course, the duo found their way to Zimbabwe, in November 2019, where they have remained to this date.

The applicant was aggrieved.

He brought an application to the High Court in terms of the Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention). The Hague Convention has been domesticated in Zimbabwe and bears the force of law by virtue of section 3 of the Child Abduction Act [Chapter 5:05].

The basis of the applicant's case was that the removal of the child from Russia, and its retention in Zimbabwe, are unlawful.

The applicant sought a declaratory order to that effect. Consequent to that, the applicant sought an order that the child be removed from Zimbabwe and sent to Boston in the United States of America or to Russia for a determination of the parties parental rights in those jurisdictions.

According to the applicant, Russia was the child's habitual residence. He asserted that the child had been in that country awaiting the processing of documentation which would have enabled it to migrate to the United States of America with the respondent in terms of their agreement.

The respondent opposed the application.

According to her, the parties had agreed to return to Zimbabwe and settle here. She stated that an email she had written to the applicant's lawyer, insinuating the existence of an agreement with the applicant for their relocation to the United States of America, had been written under duress. The respondent asserted full parental rights over the child to the exclusion of the applicant as her rights had been settled by the court in Russia. According to her, the child was lawfully retained as a Zimbabwean.

The High Court dealt with a number of approaches in seeking to determine the child's habitual residence for purposes of the Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention).

It concluded, that, while the issue of the intention of the parties was key in determining habitual residence, the child's parents never formed an intention to settle in Russia. They travelled there for work only and for that reason Russia was not the child's habitual residence. It could not be returned to that country.

By the same token, the High Court found, that, it could not order that the child be returned to the United States of America given that doing so would not be in line with the Hague Convention's purpose of restoring the status quo ante.

Finding the Hague Convention inapplicable, the High Court dismissed the application.

The applicant was dissatisfied.

On 9 October 2020, well within the time allowed by the rules of court, the applicant filed an appeal to this Court. The appeal was defective in that the relief sought therein was incompetent. At the hearing, the appeal suffered the fate of all defective appeals. It was struck off the roll.

THE APPLICATION

The appeal, having been struck off the roll, the applicant has filed the present application for condonation of the late filing of an appeal and the extension of time within which to appeal. The application before me was filed on 9 April 2021 – just eight (8) days after the initial appeal was struck off.

Clearly, there was no material delay in seeking condonation.

The applicant's explanation for failure to comply with the Rules is, that, right up to the date of the hearing of the appeal, he was labouring under the mistaken belief that he had filed a valid appeal. The explanation is actually given by the applicant's legal practitioner who takes ownership of the defective prayer in the initial appeal.

On the prospects of success on appeal, the point is made, on behalf of the applicant, that, the High Court was wrong in dismissing the application on the basis that shared parental intent could not give rise to an application under the Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention). The applicant would also want to contest the High Court's finding that Russia was not the child's habitual residence.

The respondent opposes the application.

In doing so, the respondent asserts, that, the intended appeal enjoys no prospects of success because the applicant had sought the return of the child to Russia. That country could not possibly be said to be the child's habitual residence in the circumstances of the case. Accordingly, the High Court's decision cannot be assailed.

In the respondent's view, the applicant ought to have appealed against the judgment of the court of Moscow which gave her sole parental rights over the child. She denies unlawfully retaining the child in Zimbabwe....,.

THE LAW

What the court has regards to in an application for condonation is now settled. The court has a discretion, which is exercised judicially, in considering an application of this nature. Relevant factors in this regard are;

(i) The degree of non-compliance with the Rules of court;

(ii) The explanation for the failure to comply;

(iii) The prospects of success on appeal;

(iv) The importance of the case;

(v) The interest of the respondent in the finality of the judgment;

(vi) The convenience to the court; and

(vii) The avoidance of unnecessary delays in the administration of justice.

See Maheya v Independent African Church 2007 (2) ZLR 319 (S)…,.

It is also settled that these factors have to be considered in conjunction with one another as they tend to be complimentary.

While it is true that consideration of the factors generally boils down to having regard to the explanation given by the applicant for condonation for delay and the prospects of success on appeal, the lack of a satisfactory explanation for the delay may be complemented by good prospects of success on appeal: see Khumalo v Mandeya and Another 2008 (2) ZLR 203 (S).

APPLICATION TO THE FACTS

The judgment sought to be appealed against was handed down on 1 October 2020. The applicant's putative appeal, under case number SC421/20, was struck off the roll on 1 April 2021. There was no delay in filing this application after the striking off of the appeal.

The applicant's failure to comply has been explained as the oversight of his legal practitioner who drafted a defective Notice of Appeal.

I accept, that, this Court has stated, in the past, that, there is a limit beyond which a litigant cannot escape the consequences of his or her legal practitioner's dilatoriness or lack of diligence: see Musemburi and Another v Tshuma 2013 (1) ZLR 526 (S)…,.

I take the view, however, that this is not a case in which the legal practitioner's lack of diligence should be visited upon the applicant. This is so mainly for two reasons:

(i) The first one is that the infraction by the legal practitioner only related to the crafting of the prayer in the notice of appeal. It is a fault that cannot be said to be gross.

(ii) The second is that I hold the view that the issues raised by the proposed appeal are arguable. They deserve the attention of the full Bench of the Appeal Court, if for no other reason but that the Supreme Court has not authoritatively pronounced itself on them.

I can only refer to the manner in which the court a quo dealt with the issue of the agreement of the parties in coming to a conclusion that the Hague Convention's application was not triggered.

For a matter to fall under the Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention), its Article 3 must be satisfied. It provides:

“The removal or the retention of a child is to be considered wrongful where -

(a) It is in breach of rights of custody attributed to a person, an institution, or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention;

(b) At the time of removal or retention, those rights were actually exercised, either jointly or alone, or would have been exercised but for the removal or retention.

The right of custody mentioned in subparagraph (a) above may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.”…,.

In Peacock v Steyn 2010 (1) ZLR 254 (H) the court found that the existence of a custody agreement between the parents of minor children who are not married, regulating their rights of shared custody, triggered the application of the Hague Convention. This is by virtue of Article 3.

In the present case, the Surrogacy Agreement I have referred to above provided some kind of shared custody between the parties.

That, therefore, presents the applicant with an arguable case on appeal.

Apart from that, counsel for the applicant drew attention to an email written by the respondent on 11 November 2019 while she was still in Russia. He submitted that the letter affirms the existence of an agreement between the parties to move the child to the United States of America.

The email was addressed to the respondent's legal practitioner instructing him to relay it to the applicant's legal practitioner for the attention of the applicant. It reads:

“Please be advised that Elizabeth and I are finally ready to travel and are now able to make plans for next steps. As you have previously indicated, you had gone ahead to America and we were to follow so that the children would be together and neither one of us would be deprived of his rights to both children. We will of course need to travel to Zimbabwe first in order to get visas, and, after that, will proceed to America. Please may you send confirmation that this is indeed still the plan as well as confirmation that you will be buying tickets so that we are all reunited. I look forward to receiving your response and finally ending the current separation from Orrin.”

I am aware that there was a suggestion by counsel for the respondent that the email was written under duress - the particulars of which were not clearly articulated.

That is however immaterial for our present purposes. What is important is that the statement by the respondent suggests that an agreement for shared custody may have existed.

If that is the case, the applicant is entitled to argue, on appeal, that, the retention of the child in Zimbabwe, in breach of such agreement, brings the case under the ambit of the Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention).

I am not sitting to determine the appeal, but merely to consider whether it is arguable.

I think it is.

A case has been made for the grant of the indulgence of condonation.

Regarding the issue of costs, counsel for the applicant tendered to pay the respondent's costs regardless of the outcome of the application. This he did upon a realisation that the application was necessitated by the applicant's blameworthiness.

An award of costs will be made by consent.

In the result, it be and is hereby ordered as follows:

1. The application for condonation for non-compliance with Rule 38(1)(a) of the Supreme Court Rules, 2018 be and is hereby granted.

2. The application for extension of time within which to file and serve a notice of appeal against the judgment of the High Court handed down on 1 October 2020 as HH620-20 be and is hereby granted.

3. The applicant shall file his notice of appeal within seven (7) days from the date of this judgment.

4. By consent, the applicant shall bear the costs of this application.

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Zimbabwe

International Law re: Children's Rights

HH20-09 : SHERRIE HARRIS vs MARK HARRIS
Ruled By: MUSAKWA J

HH29-09 : FIDELIS CHIRAMBA and OTHERS vs MINISTER OF HOME AFFAIRS N.O. and COMMISSIONER GENERAL OF POLICE and OFFICER COMMANDING CID HOMICIDE, Chief Supt MAKEDENGE and DETECTIVE CONSTABLE MUUYA
Ruled By: HUNGWE J

HH549-15 : ELSIE BHILA vs THE MASTER OF HIGH COURT and FREDDY CHMBARI NO and RATIDZO BHILA and KELVIN BHILA and KWATINI BHILA
Ruled By: MWAYERA J

HB81-10 : TRISTAN JOHN PEACOCK vs ANTOINETTE MAREE STEYN
Ruled By: MATHONSI J

HHH47-16 : THE STATE vs SHEPHERD BANDA and EVERTON CHAKAMOGA
Ruled By: CHAREWA J and TSANGA J

View Appeal
HH467-16 : ALBAN GERALD BOWERS vs SHARIFFA PRESIOUS BOWERS
Ruled By: CHITAKUNYE J

Appealed
SC37-18 : TRACEY LEIGH MACKINTOSH (NEE PARKINSON) vs ANTONY WILLIAM MACKINTOSH
Ruled By: GARWE JA, GUVAVA JA and UCHENA JA

Appealed
HHH718-14 : THE STATE vs WILLARD CHOKURAMBA
Ruled By: MAWADZE J and MUREMBA J

SC94-20 : ZIMBABWE HOMELESS PEOPLE'S FEDERATION and OTHERS vs MINISTER OF LOCAL GOVERNMENT AND NATIONAL HOUSING and ZVIMBA RURAL DISTRICT COUNCIL and LEENGATE PL and MINISTER OF LANDS
Ruled By: PATEL JA, MAVANGIRA JA and MATHONSI JA

SC80-21 : ALLEN GESSEN vs PRISCILLA CHIGARIRO
Ruled By: MATHONSI JA

Categories

Law Portal Zimbabwe

International Law re: Children's Rights

HH20-09 : SHERRIE HARRIS vs MARK HARRIS Ruled By: MUSAKWA J

HH29-09 : FIDELIS CHIRAMBA and OTHERS vs MINISTER OF HOME AFFAIRS N.O. and COMMISSIONER GENERAL OF POLICE and OFFICER COMMANDING CID HOMICIDE, Chief Supt MAKEDENGE and DETECTIVE CONSTABLE MUUYA Ruled By: HUNGWE J

HH549-15 : ELSIE BHILA vs THE MASTER OF HIGH COURT and FREDDY CHMBARI NO and RATIDZO BHILA and KELVIN BHILA and KWATINI BHILA Ruled By: MWAYERA J

HB81-10 : TRISTAN JOHN PEACOCK vs ANTOINETTE MAREE STEYN Ruled By: MATHONSI J

HHH47-16 : THE STATE vs SHEPHERD BANDA and EVERTON CHAKAMOGA Ruled By: CHAREWA J and TSANGA J

View Appeal HH467-16 : ALBAN GERALD BOWERS vs SHARIFFA PRESIOUS BOWERS Ruled By: CHITAKUNYE J

Appealed SC37-18 : TRACEY LEIGH MACKINTOSH (NEE PARKINSON) vs ANTONY WILLIAM MACKINTOSH Ruled By: GARWE JA, GUVAVA JA and UCHENA JA

Appealed HHH718-14 : THE STATE vs WILLARD CHOKURAMBA Ruled By: MAWADZE J and MUREMBA J

SC94-20 : ZIMBABWE HOMELESS PEOPLE'S FEDERATION and OTHERS vs MINISTER OF LOCAL GOVERNMENT AND NATIONAL HOUSING and ZVIMBA RURAL DISTRICT COUNCIL and LEENGATE PL and MINISTER OF LANDS Ruled By: PATEL JA, MAVANGIRA JA and MATHONSI JA

SC80-21 : ALLEN GESSEN vs PRISCILLA CHIGARIRO Ruled By: MATHONSI JA

Categories

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Law Portal
Zimbabwe

HH20-09 : SHERRIE HARRIS vs MARK HARRIS
Ruled By: MUSAKWA J

HH29-09 : FIDELIS CHIRAMBA and OTHERS vs MINISTER OF HOME AFFAIRS N.O. and COMMISSIONER GENERAL OF POLICE and OFFICER COMMANDING CID HOMICIDE, Chief Supt MAKEDENGE and DETECTIVE CONSTABLE MUUYA
Ruled By: HUNGWE J

HH549-15 : ELSIE BHILA vs THE MASTER OF HIGH COURT and FREDDY CHMBARI NO and RATIDZO BHILA and KELVIN BHILA and KWATINI BHILA
Ruled By: MWAYERA J

HB81-10 : TRISTAN JOHN PEACOCK vs ANTOINETTE MAREE STEYN
Ruled By: MATHONSI J

HHH47-16 : THE STATE vs SHEPHERD BANDA and EVERTON CHAKAMOGA
Ruled By: CHAREWA J and TSANGA J

View Appeal
HH467-16 : ALBAN GERALD BOWERS vs SHARIFFA PRESIOUS BOWERS
Ruled By: CHITAKUNYE J

Appealed
SC37-18 : TRACEY LEIGH MACKINTOSH (NEE PARKINSON) vs ANTONY WILLIAM MACKINTOSH
Ruled By: GARWE JA, GUVAVA JA and UCHENA JA

Appealed
HHH718-14 : THE STATE vs WILLARD CHOKURAMBA
Ruled By: MAWADZE J and MUREMBA J

SC94-20 : ZIMBABWE HOMELESS PEOPLE'S FEDERATION and OTHERS vs MINISTER OF LOCAL GOVERNMENT AND NATIONAL HOUSING and ZVIMBA RURAL DISTRICT COUNCIL and LEENGATE PL and MINISTER OF LANDS
Ruled By: PATEL JA, MAVANGIRA JA and MATHONSI JA

SC80-21 : ALLEN GESSEN vs PRISCILLA CHIGARIRO
Ruled By: MATHONSI JA