UCHENA
J: 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 application cites her as the applicant. No
respondent was cited though Samatha's father's identity is revealed in the
applicant's founding affidavit.
In
her affidavit the applicant says, she stays with Samatha, because her father
has remarried. There was therefore a respondent who should have been given
notice of the application. The application was heard in spite of the
applicant's failure to give notice to the child's father. According to Chipo
Ndoro's supporting affidavit, Samatha's father left the country. That does not
justify his not being given notice of an application which affects his
guardianship of Samatha.
The
juvenile court granted the application. The record of proceedings was forwarded
to this court for automatic review in terms of s 9(6) of the Guardianship of
Minors Act, [Cap 5;08], herein after
referred to as the Act. Section 9(6) of the Act provides as follows;
“(6) Whenever the
children's court appoints a person as guardian in terms of subsection (4), the
clerk of the children's court shall, within seven days thereof, submit the
record of the proceedings in the matter to the registrar of the High Court, who
shall lay the record before a judge in chambers.”
The record landed on my desk. I
asked the Magistrate to comment on why the minor child's father was not given
notice of the application. The magistrate conceded the error.
The minor's father was entitled
to notice because after his separation with the applicant, he in terms of s 3
of the Act, retained guardianship of Samatha. Section 3 of the Act 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.”
This means during the
subsistence of the marriage, and after divorce or separation but before the
High Court or a judge, has granted the sole guardianship to either of them, the
father remains the minor's guardian. The applicant's application sought to take
that guardianship from him. Doing so without notifying him offends against the audi alteram partem rule.
The Juvenile Court made a more
serious error, when it heard the applicant's application, when it had no
jurisdiction to hear such an application. In terms of s 9(1) and (2) of the
Act, the children's court can only hear applications, for guardianship by
relatives, other persons having care and custody of the minor, or a probation
officer. It can only hear such an application if the minor has no natural
guardian or tutor testamentary. Subss 9(1) and (2) provides 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 s 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.
(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.”
This means the juvenile court
can only exercise jurisdiction and appoint a guardian for a minor child if that
child has no natural guardian. In this case the applicant is the minor child's
natural mother and therefore the child's natural guardian. Applications to the
juvenile court, in terms of s 9(2) (a) and (b), can only be made by a relative
or person having the care and custody of the minor, or by a probation officer. It
can not be made by the minor's natural guardian, because what qualifies such an
application is the absence of a natural guardian or tutor testamentary. This is
confirmed by s 3 of the Act which provides that;
“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;”
(emphasis added)
This means guardianship
disputes between the minor's natural parents are determined by the High Court
or a judge of the High Court. The juvenile court did not therefore have
jurisdiction to hear the applicant's application.
The applicant should have
applied for guardianship to the High Court in terms of s 4(1) of the Act.
Section 4 (1) 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 predecease 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.”
This means no other court has
jurisdiction to determine the issue of guardianship where one of the minor's
natural parents is alive. The juvenile court's jurisdiction is limited to
circumstances where the minor has no natural guardian or tutor testamentary.
The juvenile court's decision is therefore null and void.
It is set aside.
UCHENA J: …………………
