Civil
Appeal
MAWADZE
J:
This
is an appeal against the judgment of the Harare Magistrates Court
delivered on 17 February 2010 in which the court a
quo
granted the following order:-
“Custody
of the two minor children is hereby awarded to the respondent with
the appellant having reasonably access”.
The
facts giving rise to this appeal can be summarised as follows:-
The
appellant and the respondent entered into an unregistered customary
law union sometime in 2001 and two children namely Blessed Muzengi
(born on 14 September 2001) and Gracious Muzengi (born on 1 June
2006) were born out of the union. The appellant apparently fell ill
sometime in 2009 and she had to go to her parents' home for
treatment which culminated in the separation between the parties and
consequently the dissolution of the union. At that relevant time the
two minor children remained in the respondent's custody on account
of the appellant's ill health. It would appear from the facts that
before the parties separated the appellant had obtained a Maintenance
Order in respect of the two minor children.
When
the appellant had recovered she apparently failed to obtain custody
of the two minor children and proceeded on 28 January 2010 to file an
application for custody of the two minor children with the
Magistrates Court. In her affidavit in support of the application for
custody the appellant stated that it is in the best interest of the
children that she be awarded custody and briefly gave the following
reasons;
(i)
That the two minor children are of tender age (then 11 years and 4
years respectively) and as such need the care of their mother.
(ii)
That the appellant had the means to contribute to the welfare of the
two minor children as she is now engaged in horticulture business in
Shamva and is able to provide to a great extent for the daily upkeep
of the minor children.
(iii)
That the respondent is not a suitable parent to have custody of the
minor children as he has no time for the children and has neglected
the children and had taken the eldest child to his parents in rural
Chivhu.
(iv)
That the two minor children have a right to a family and hence should
not be separated from each other.
The
record of proceedings reflects that the respondent did not file any
opposing affidavit although during the brief hearing in the court a
quo
the respondent seemed to make reference to “his papers filed of
record”. However on the hearing date on 11 February 2010 the
respondent opposed the application by the appellant and gave the
following reasons:-
(a)
That the parties separated due to irreconcilable differences and the
appellant left the children in his custody.
(b)
That when the appellant recuperated she asked for the children on 14
December 2009 and that the children were to be returned to him after
the new year since he had paid some cattle to the appellant's
parents as “chiredzwa”.
(c)
That he subsequently reached an agreement with the appellant that the
appellant would have custody of the younger child but the appellant
later reneged on this promise as she also wanted custody of the elder
child which prompted the respondent to take the elder child to his
parent's rural home in Chivhu.
(d)
That the elder child has always been staying with the respondent's
parents in rural Chivhu since the time he was weaned and that he is
more close to the respondent's mother than the biological mother
the appellant.
(e)
That the appellant is not a suitable parent to look after the
children as she has in the past misused the money paid by the
respondent as maintenance for the children, has failed to ensure that
the children attend school at all material times and at one point
assaulted one of the minor children.
The
appellant in response vehemently denied that she ever agreed to
surrender custody of the minor children to the respondent and that
the arrangements made were temporary as the appellant was unwell.
The
appellant said the elder child was to attend school in Harare and not
to be taken to rural Chivhu where the respondent's parents are
supposed to take care of the child. The appellant denied assaulting
any of the minor children and instead said it is the respondent who
assaulted the child and boasting that he could do as he pleases since
the child was his.
It
was after hearing the brief oral submissions outlined above from the
parties that the court a
quo
without giving reasons granted the order referred to supra.
On
25 March 2010 the appellant asked for the reasons for the ruling made
on 17 February 2010 to enable the appellant to pursue the matter on
appeal. The trial magistrate responded on 29 March 2010 and gave the
following reasons for the order granted on 17 February 2010:
“After
having considered submissions made by both sides, the court is of the
view that it will be in the best interests of the children for
custody to be awarded to the respondent”.
Dissatisfied
with the reasons given by the court a
quo
the appellant caused a notice of appeal to be filed with this court
on 29 March 2010 on the following grounds of appeal:-
“GROUND
OF APPEAL
1.
The magistrate erred and misdirected herself by mero
motu
awarding the custody of the two minor children to the respondent when
there was no application by the respondent placed before the court as
for the Guardianship of Minors Act [Cap
5:08]
section 5(3)(b) for custody of the two minor children.
2.
The magistrate further erred and misdirected herself by denying the
appellant the natural mother of the minor children custody when there
were no special and/or extenuating circumstances placed before the
court or proved by the respondent which warranted the appellant being
denied her inherent right to custody of the two minor children moreso
considering their tender age and need for motherly love, care and
attention”.
I
now turn to the merits of this matter.
There
are a number of irregularities in this matter.
The
court a
quo
despite the request by the appellant did not give meaningful and well
reasoned basis for granting custody of the two minor children to the
respondent. The reasons for judgment are bereft of any reasoning
process for arriving at the decision made.
From
the facts of the matter which I summarised at length it is clear that
there were serious disputes of facts between the parties which could
not be resolved on the mere word of one party against the other. It
is clear from the record that the parties did not give any evidence,
that is, sworn testimony for the court to properly asses the facts in
dispute. It would also appear that the record of proceedings is
incomplete as the respondent's “papers filed of record” are not
in the record.
The
court a
quo fell
into error by failing to identify properly the issue before the court
in relation to the provisions of the Guardianship of Minors Act [Cap
5:08]
with specific reference to section 5 which deals with the special
provisions relating to custody of minors.
It
is common cause that the two minor children in this case were born
out of wedlock.
The
position of the law in relation to the rights of the parents in
respect of guardianship and custody is very clear. The mother of a
child born out of wedlock has the sole rights of custody and
guardianship. See D
v
M
1986 (1) ZLR 188 (H); Cruth
v
Manuel
1999
(1) ZLR 7 (S); Katedza
v
Chunga
2003 (1) ZLR 470 (H).
In
terms of section 5(3)(b) of the Guardianship of Minors Act [Cap
5:08]
the court may grant custody of minor children born out of wedlock to
the father upon such an application.
It
casu
the respondent did not make such an application for custody before
the court a
quo
but merely alleged that he had de
facto
custody of one of the minor children. In fact even in his submissions
before this court on appeal the respondent was clear that he only had
custody of one minor child Blessed and that the appellant had custody
of the younger child Gracious. It therefore boggles the mind why the
court a
quo
granted custody of the two minor children to the respondent in the
absence of such an application by the respondent.
This
constitutes a misdirection.
As
already stated the court a
quo
failed to state reasons as to why it would be in the best interests
of the minor children to deprive the appellant of custody of minor
children born out wedlock and award such custody to the respondent.
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 at 204-05; Makuni
v
Makuni
2001
(1) ZLR 189 (H) at 192; Galante
v Galante
(3) 2002 (2) ZLR 408 (H); Jere
v
Chitsunge
2003 (1) ZLR 116 (H) at 118 C-E.
The
respondent did not make an application for custody of the minor
children but was awarded custody. The reason or reasons for this are
not given. Both parties submitted before the court a
quo that
they were suitable parents to be awarded custody of the minor
children without giving any further details in that regard. No
submissions were made by the parties on the suitability or otherwise
of the appellant as a parent for her to be deprived of custody of the
minor children. No submissions were made that the best interests of
the minor children will be best served if the custody of the children
was awarded to the respondent, albeit without even making such an
application.
The
reasoning process to show how the trial magistrate arrived at the
decision made is none existent and not supported by the submissions
made by the parties. It is a decision arrived at out of the blues
with no basis or rationality at all.
In
terms of section 5(11) of the Guardianship of Minors Act [Cap
5:08]
this court has wide discretionary powers on appeal to confirm, vary,
set aside decision appealed against or grant any other appropriate
order.
This
court is of the view that it has not been shown why the appellant
should be deprived of custody of the two minor children. The decision
to award custody of the minor children to the respondent is not
supported by the law or the facts.
Accordingly
for the above reasons the following order is made:-
1.
The appeal is allowed.
2.
The order of the court a
quo
is hereby set aside.
3.
Custody of the two minor children namely Blessed Muzengi (born on 14
September 2001) and Gracious Muzengi (born on 1 June 2006) is hereby
awarded to the appellant.
4.
There shall be no order as to costs.
CHITAKUNYE
J: agrees
