Cause of Action re: Suits or Proceedings Involving Persons Under Disability, Minors and the Presumption of Doli Incapax

HH05-09 : MARION LYNDA RALPH vs CHRISTIAN VAN VUUREN
Ruled By: KUDYA J

H R HAHLO, in the South African Law of Husband and Wife, 5th edition …, 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…, 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.”...,.

Counsel for the applicant contended that section 4(1) of the Guardianship of Minors Act [Chapter 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 HH292-86…,. 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…, 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.”

HH113-10 : KUDZANAYI KATSANDE vs RAZMOND KATSANDE (as executor Estate Norman Katsande) and WILFRED MAGWAZA and MASTER OF THE HIGH COURT N.O and CHITUNGWIZA MUNICIPALITY
Ruled By: CHITAKUNYE J

The applicant is one of the two surviving children of the late Norman Katsande and a beneficiary to his estate. He also purported to be acting on behalf of the other surviving child of the late Norman Katsande, namely, Milenda Tinashe Katsande who is still a minor.

HH79-11 : RUDO ELIZABETH SIMANGO (nee MAKONI) vs PAUL SIMANGO
Ruled By: CHITAKUNYE J

The applicant is married to Nathan Simango in terms of the Marriages Act [Chapter 5:11]. The marriage still subsists. Their marriage was blessed with one child. The respondent is a blood brother to Nathan Simango.It is common cause that the applicant and Nathan Simango moved to the United States of America about 9 years ago. ...

It is common cause that the applicant and Nathan Simango moved to the United States of America about 9 years ago. Both were apparently employed. Nathan Simango lost his employment and in the year 2008 he fell ill. He was alleged to be suffering from Alzheimer. As a result, he sometimes had certain limitations in understanding and was no longer in full control of his mental faculties. It appeared not disputed that as a result of the illness he would at times wander away from home. The applicant did not deny that due to the illness she took Nathan Simango to his other brother, Simon Simango, who is also in the United States of America. Thereafter, in February 2010, the applicant came with Nathan Simango to Zimbabwe. On her return to the United States of America she left Nathan Simango behind - in circumstances the two parties are not agreed. It is nevertheless clear that Nathan Simango was left in the custody of the respondent, Paul Simango. It also did not appear disputed that soon after arriving from the United States of America, in February 2010, Nathan Simango was taken to hospital by the respondent. Due to the state of his illness, Nathan Simango was admitted into hospital. Since then it is Paul Simango who has been responsible for Nathan Simango's medical care.

On 18 November 2010, the applicant returned to Zimbabwe from the United States of America. Since then, she said, she had been trying to take custody of her husband Nathan Simango - to no avail. The respondent, in taking care of Nathan Simango, incurred financial expenses. His efforts to get assistance from rentals from Nathan Simango's house here in Zimbabwe, which is rented out by the applicant's sister, met some resistance. Though the house is said to be rented out at a sum of 1,000= United States dollars per month, he was only given 300= United States dollars by the applicant's sister after a struggle. He had to seek legal assistance to wretch out another 3 x 300= United States dollars payments after that. So for about 8 months only 1,200= United States dollars was given to Paul Simango to assist in Nathan Simango's medical needs out of a total of $8,000= rentals received by the applicant's sister.

Nathan Simango, as the registered owner of the property, no longer had the mental capacity to administer his property so as to get funds for his own medical needs. His mental condition, even as he left the United States of America for Zimbabwe, was documented. Here in Zimbabwe it is not disputed that he has not recovered his mental faculties to be able to administer his property.

As a result of these difficulties, Paul Simango applied to this court for appointment as curator bonis. That application was granted on 8 October 2010.

A curator bonis is appointed by the court to assist someone who has full capacity to act but who, for some reason or another, such as physical or mental disability, is unable to administer his property. The rights and obligations of curators are mutatis mutandis the same as those of guardians except that they only relate to the property of the person under curatorship and not to his person. A curator bonis is expected to take custody and control of the property of the person under curatorship.

In a bid to take control of the rented house, as curator bonis, the respondent sought to evict tenants in the house as they were not accounting to him or to Nathan Simango for monthly rentals, which rentals he badly needed to assist in attending to Nathan Simango's medical needs.

The application for the eviction of the applicant's sister, Eleanor Mudede, and all those claiming occupation through her was set down for the 12^th November 2010 in the Magistrates' Court, Harare. It is then that apparently the applicant arrived on 18 November 2010 and sought to reassert her rights over Nathan Simango, as her husband.

In this urgent chamber application, the applicant sought an interim relief that -

1. The respondent releases forthwith Nathan Simango into the custody of the applicant together with Nathan Simango's personal belongings, identity, travel documents and return tickets.

2. That in the event of the respondent failing to fulfill (i) that the Zimbabwe Republic Police be granted authority to take Nathan Simango from the respondent's custody into the custody of the applicant.

3. The costs be costs in the cause.

The application was opposed by the respondent.

The respondent's opposition was premised on the fact that Nathan Simango is still unwell, not able to speak and undergoing therapy. He felt that the applicant should let Nathan Simango recover. He also alluded to the fact that he fears for Nathan Simango's health as the applicant does not appear to have made any arrangements for her to adequately provide for Nathan Simango.

In paragraph 36 of his opposing affidavit, the respondent succinctly put it thus:-

“My request is that let the doctors finish the therapy and that Nathan recovers to such an extent that he can make decisions for himself. Applicant is not saying that she has returned to settle in Zimbabwe permanently. I believe it is in the best interest of Nathan that applicant and I do not fight but try to sit down and find the best way to assist each other so that Nathan recovers. Applicant can see Nathan anytime that she wants. But Nathan has to continue going for therapy and undergoing treatment. He needs a nurse.”

The issue one may pause is whether Nathan Simango should be released into the custody of his wife, who has only come on a temporal visit and has to rush back to the United States of America to attend to the couple's child.

In determining this issue, it is important to realize that Nathan Simango's medical state at the time he was brought by the applicant in February 2010, as described by the respondent, has not been challenged or rebutted in any way. The medical reports filed of record by both parties, and also at my instance, clearly show that Nathan Simango is still in need of proper medical attention.

Whilst a marriage institution has to be preserved, one cannot lose sight of what is in the best interest of a seriously ill spouse. The applicant did not seriously deny that at the time she brought Nathan Simango; he weighed about 30 kilograms and was seriously ill such that he was immediately admitted into hospital. At the time she left he was still in hospital. She also did not deny that as a result of the respondent's care and dedication to Nathan Simango's health needs, Nathan Simango has now gained weight to about 67kgs.

The various medical expenses incurred by the respondent were not denied by the applicant. She also did not deny that the respondent faced numerous hurdles in trying to access money for rentals from their matrimonial home. As a result of the applicant's sister's refusal with the rentals, the respondent used his own resources to have Nathan Simango receive medical treatment. To crown it all, the applicant did not deny that Nathan Simango's state of ill-health was such that he could not administer his estate on his own.

Clearly, therefore, the appointment of someone to administer his estate cannot be faltered.

On the applicant's part, I did not hear her to say that since leaving Nathan Simango behind in February 2010, she ever sent any money for his medication. All she seemed to say was that her efforts to talk to Nathan Simango over the phone were being blocked. But, one would ask: how could she even demand such when Nathan Simango was not able to speak? Throughout her application, and even from submissions made in chambers, I did not hear the applicant to say she had, in any way, made medical treatment for Nathan Simango a priority in the use of rentals from their matrimonial house. If anything, she did not deny that only $1,200= (USD) from at least $8,000= (USD) realized from rentals went towards Nathan Simango's medical bills; yet Paul Simango expended over $9,000= (USD) of his own money in that regard. That $1,200= (USD) which went towards Nathan Simango's treatment was not given to Paul Simango voluntarily; he had to fight for it through legal steps….,.

It is my view that the respondent, in opposing the application, raised valid concerns about the applicant's ability to provide proper medical care for Nathan Simango. The life that Nathan Simango is fighting for is only lived once. As a concerned wife, the applicant should surely indicate what measures she has put in place. For instance, she could not be forthcoming on how long she intended to remain in Zimbabwe in light of the fact that she said their minor child she had left in the United States of America also needed her. Her assertion that she would make alternative arrangements was not convincing at all. Her suggestion that her ability to take care of Nathan Simango here and in the United States of America should not be questioned is not borne out by the medical reports and bills she tendered. Those reports show that in the United States of America doctors were merely examining Nathan Simango and no treatment had commenced for all that time Nathan Simango was unwell in the United States of America. The bills show that the applicant was having difficulties in paying for the medicals. For instance, to show that she took Nathan Simango for medical attention she referred to annexure D1 and D2 to her founding affidavit. Annexure D1 shows that Nathan Simango was attended to by a doctor on 29 May 2009 and a bill of $72=50 (USD) was raised. As at 30 June 2010, the applicant had not yet paid that bill. Annexure D2 confirms that it was only on 13 July 2010 that the applicant paid that debt incurred on 29 May 2009. If it took her over a year to pay a medical bill of 72=50 United States dollars only, surely the respondent is justified to be concerned about the applicant's ability to meet Nathan Simango's medical costs. It may be, as stated by Paul Simango, that she had no medical insurance. It is the lack of medical insurance that she had herself used as an excuse for not having attended to Nathan Simango when she brought him to Zimbabwe in February 2010.

HH48-13 : MELINA MATSHIYA (In her capacity as Executrix testamentary for Estate late ETTORE FUMIA) vs GEORGE FUMIA and ELLEN FUMIA and FALCON HAULIERS (PRIVATE) LIMITED
Ruled By: MAWADZE J

The state of health of the late Ettore Pietro Fumia, at the time the court application in HC6280/11 was made, has not been disputed. In fact, the respondents, in their opposing affidavits, do not put in issue this fact other than saying they are unable to comment on that fact. Despite the strained relations between ...

The state of health of the late Ettore Pietro Fumia, at the time the court application in HC6280/11 was made, has not been disputed.

In fact, the respondents, in their opposing affidavits, do not put in issue this fact other than saying they are unable to comment on that fact. Despite the strained relations between the late Ettore Pietro Fumia and the respondents I do not believe that the respondents would not have known the late Ettore Pietro Fumia's state of health. The evidence on record clearly shows that the late Ettore Pietro Fumia, at the material time, was indisposed. In fact, some of the medical reports were attached by the respondents in their application in case number HC6280/11. The evidence on record shows that the late Ettore Pietro Fumia was suffering from prostate cancer and dementia. The description of the late Ettore Pietro Fumia's state of health by Isabel Fumia, in the founding affidavit, is uncontroverted. The diagnosis of his condition was terminal. The late Ettore Pietro Fumia had now a very poor memory and would need assistance for all decisions as he was unable to take care of himself. At the time the application was made he was under twenty-four hour nurse care, he could no longer feed or bath himself, he was permanently on a catheter and diaper. In fact, Isabel Fumia's evidence is that the late Ettore Pietro Fumia was no longer able to recognise his wife and kids due to poor memory and confusion. I therefore have no doubt that the late Ettore Pietro Fumia had lost control of his mental faculties and was physically incapacitated due to illness. Indeed, this explains why, on 6 October 2011, albeit after the granting of default judgment, Isabel Fumia was appointed the late Ettore Pietro Fumia's curator ad litem. The late Ettore Pietro Fumia, due to this illness, passed on on 13 August 2012. In fact, the late Ettore Pietro Fumia's relocation to Botswana in June 2009, as per Isabel Fumia's evidence, was greatly influenced or necessitated by the late Ettore Pietro Fumia's health that was deteriorating. He was in need of medical care which, at that time, was increasingly difficult to access in Zimbabwe due to the economic meltdown.

The state of health of the late Ettore Pietro Fumia, at the relevant time, clearly shows that he was indisposed and could not have been able to appreciate the proceedings instituted against him. From the evidence on record this was brought to the attention of the respondents who agreed to suspend the proceedings for a specific time pending the appointment of a curator ad litem in terms of Rule 249 of the High Court Rules. For some strange reasons, the respondents believed that Isabel Fumia, as the wife of the late Ettore Pietro Fumia had the legal duty to have herself appointed the late Ettore Pietro Fumia's curator and litem and defend the action instituted by the respondents. One would want to believe that once the respondents were advised about the late Ettore Pietro Fumia's incapacity, or alleged incapacity, as per Rule 249(1)(a) it was incumbent upon the respondents, who had commenced proceedings, to have a curator ad litem for the late Ettore Pietro Fumia appointed in order for them to properly execute the court application in HC6280/11. Instead, after the expiry of the period, the respondents had unilaterally imposed against Isabel Fumia they nonetheless proceeded to set the matter down as unopposed matter oblivious to the provisions of Rule 249.

To my mind this is good and sufficient cause to set aside the default judgment.

HH194-14 : GILBERT CHINYA HUNGWE vs HANDINA FAITH HUNGWE
Ruled By: MAWADZE J

The second point in limine taken by the respondent is that the applicant failed to comply with the peremptory provisions of Rule 249 of the High Court Rules 1971 which provides for the appointment of a curator ad litem before an application of this nature can be made. Counsel for the respondent submitted that such non-compliance ...

The second point in limine taken by the respondent is that the applicant failed to comply with the peremptory provisions of Rule 249 of the High Court Rules 1971 which provides for the appointment of a curator ad litem before an application of this nature can be made.

Counsel for the respondent submitted that such non-compliance is fatal to the application.

The relevant provision, Rule 249(1) of the High Court Rules 1971, provides as follows;

“249 Application involving persons under disability or minors

(1) In the case of any application in connection with -

(a) …,.

(b) A minor;

a chamber application annexing the written consent of the person proposed to be so appointed, shall first be made for the appointment of curator ad litem.”

It is common cause that the provisions of Rule 249(1) of the High court Rules, 1971 are mandatory. It is also not in issue that in this application two minor children are involved. I, however, do not share the view that this is an application involving minor children. This application is two-pronged.

The first aspect relates to variation of a maintenance order in respect of one of the minor children. It is clear to my mind that Rule 249(1)(b) of the High court Rules, 1971 is irrelevant to such application as a curator ad litem is not useful in resolving this dispute as the court simply considers whether there are changed circumstances to warrant variation of the maintenance order. It is also important to note that such an application, in the circumstances of this case, is made in terms of section 9 of the Matrimonial Causes Act [Chapter 5:13] which gives an appropriate court, on good cause shown, the power to vary maintenance orders made in respect of section 7(1)(b) of the Matrimonial Causes Act [Chapter 5:13]. It is my considered view that the provisions of Rule 249(1)(b) of the High court Rules, 1971 are irrelevant in that regard.

The second aspect of this application relates to variation of an existing custody order in relation to one of the minor children. While I agree that an appointment of a curator ad litem may be necessary in assisting the court to fully appreciate the circumstances of the minor child – the best interests principle, I do not believe that non compliance with Rule 249(1)(b) of the High court Rules, 1971 is fatal to such an application. This is so because all what the applicant has to show, or prove, is that it is in the best interests of the minor child to vary the existing custody order. Further, in an appropriate case, where the rights and interests of children are at stake, this court may dispose of such a requirement as provided for in Rule 4C of the Rules.

The point in limine lacks merit and is therefore dismissed.

HH199-14 : TENILLE WHITBY vs MARCEL WHITBY and THE IMMIGRATION OFFICER and EVANS SIZIBA
Ruled By: MATANDA-MOYO J

On 8 February 2014, I dismissed the applicant's application as not urgent. I found that the urgency was self–created. I, however, realized that the interests of a minor child was at stake and decided to bring sanity to the matter by giving effect to JUSTICE GUVAVA J's …, order as follows; a) That the physical ...

HB191-11 : BENJAMIN SIBINDI vs NKOSILATHI MXOTSHWA and SAZINI MXOTSHWA and MNCEDISI MXOTSHWA and PHATHISANI MXOTSHWA and THABO MXOTSHWA and CITY OF BULAWAYO
Ruled By: KAMOCHA J

Secondly, the respondents pleaded in bar that the fourth and fifth respondents, who were minors, could not be sued unless assisted by a guardian. It is not disputed that the two minors were sued in their individual capacities unassisted by a guardian. Consequently, the claim against them is void and a nullity.

HHH570-14 : LESIUS MUGUMIRE vs THE STATE
Ruled By: HUNGWE J and MANGOTA J

Children who are between 7 and 14 years of age are presumed to be doli incapax. BURCHELL and HUNT discuss this presumption in their South African Criminal Law and Procedure, Volume1. The learned authors state…, that: “A child who has completed the seventh but not the fourteenth year is…, presumed to be doli incapax; but ...

“A child who has completed the seventh but not the fourteenth year is…, presumed to be doli incapax; but in the case of such a child, the presumption may be rebutted, either by direct or indirect evidence. The onus rests on the prosecution and may be discharged by proving that at the time of commission the accused knew his act was wrongful. In other words, a child between the ages of 7 and 14 is exempt from liability unless it is proved, not only that he did the actus reus with mens rea, but also that he had criminal capacity in the sense that he knew his act was wrongful…,.”…,.

The question which begs the answer in the circumstances of the present case is whether, or not, at 13 years of age, the appellant knew that his act, if such had been proved, was wrongful.

Evidence which is filed of record showed that the State did not rebut the presumption which operates in the appellant's favour. All what the State did was to endeavour to establish what it said the appellant did and nothing more.

The State jumped the gun, as it were, when it conducted itself as it did. The court does not know, at this stage, whether or not the appellant knew that his action, if such was proved, was wrongful. The appellant's gravamen of appeal rests on this matter more than on any other matter(s). He referred the court to such pertinent case authorities as S v F 1988 (1) ZLR 327 (HC) and S v Chabata 1980 ZLR 376 where the conviction of each accused person was quashed and the sentence which had been imposed was set aside on the basis that the requisite inquiry had not been conducted to establish that the accused knew that his act was wrongful when he allegedly committed the offence.

During the appeal, the court drew the respondent's attention to the observed anomaly and the respondent conceded that the conviction of the appellant cannot stand. The respondent's concession was properly made in the circumstances of the present case. What the State did was not only wrongful but it was also unjust and prejudicial to the interests of the appellant. It is on the basis of the abovementioned matter, therefore, that the court remains of the view that the conviction and sentence of the appellant cannot be allowed to stand.

The court has considered all the circumstances of this appeal. It is satisfied that the appellant was wrongly convicted and sentenced. It is, in the result, ordered as follows:

1. That the appeal be and is hereby upheld;

2. That the conviction is quashed and the sentence set aside;

3. That the appellant be and is hereby found not guilty and is acquitted of the charge.

HH35-16 : SHINGISAI MARYLN NYAMUKUSA vs GILBERT KARENGA MASWERA
Ruled By: UCHENA J

The defendant counter claimed for the plaintiff's eviction from the Mandara property. In view of my finding that the plaintiff has no justifiable claim to the Mandara property, he could have easily justified her eviction. The issue of eviction is however not just between him and her but involves the welfare of their children over ...

HB84-16 : PHILANI GAMA N.O. vs LUNGISANI MPOFU and PATRICIA PHIRI and MBALI NGWENYA and THE ADDITIONAL ASSISTANT MASTER N.O. and THE ASSISTANT MASTER, HIGH COURT OF ZIMBABWE, BULAWAYO N.O.
Ruled By: MATHONSI J

One Qhelani Moyo has stepped in as legal guardian of that minor child to assist her in this litigation.

HH198-16 : TANIA ROCHE (as Curator Bonis of Anita Bruk-Jackson) vs IAN MIDDLETON (as Testamentary Executor to Estate Late Chester Bruk-Jackson) and THE MASTER OF THE HIGH COURT
Ruled By: CHITAKUNYE J

The applicant is a daughter to Anita June Bruk-Jackson. On 8 April 2013, the applicant was appointed the curator bonis of Anita June Bruk-Jackson as the said Anita was bedridden and mentally incapacitated….,. Section 85 of the Mental Health Act [Chapter 15:12] states that: “Until the appointment of a curator in terms of section eighty-six to care for and ...

HH517-15 : CHEN WANG vs JOSEPH MANDIZHA and TAWANDA MAVHUNGA and TAFADZWA MAVHUNGA and DARNEL ENTERPRISES (PRIVATE) LIMITED
Ruled By: MUREMBA J

Rule 249 deals with applications involving minors and persons under disability.

SC10-20 : ZIMBABWE SCHOOL EXAMINATIONS COUNCIL vs VICTOR MUKOMEKA (on behalf of a minor Charmaine Mukomeka) and CHINGASIYENI GOVHATI (on behalf of a minor Anesu Govhati)
Ruled By: PATEL JA, BHUNU JA and BERE JA

This is an appeal against the judgment of the High Court setting aside the decision of the appellant, made on 8 February 2018, ordering the rewrite of an English language examination at Ordinary Level taken by candidates in November 2017....,.The respondents are the respective guardians of two school children who ...

HH124-18 : MIKE VELAH and ALBERT NYAMURONDA and JOSEPH PEDZAYI and BRENDA HATINAHAMA vs THE MINISTER OF PRIMARY & SECONDARY EDUCATION and ZIMBABWE SCHOOL EXAMINATIONS COUNCIL
Ruled By: ZHOU J

The four applicants are parents of minor children who wrote Ordinary Level examinations in November 2017.

HB119-10 : NYARADZAI KAZUVA vs GILBERT DUBE
Ruled By: CHEDA J and MATHONSI J

The respondent in this matter issued summons out of the Magistrates Court of Bulawayo on the 14th August 2008. In that summons he claimed a “sharing of property” and “custody of children”.

At the same time, the respondent filed an affidavit, sworn to by himself, in which he alleged that he had been customarily married to the appellant in 1995 which union still subsisted and that there were three minor children born of the union, namely, Perfect Dube, born on 2nd April 1996, Prince Dube, born on 3 January 2000, and Priscilla Dube, born on 19 August 2004.

In that affidavit, the respondent persisted in his claim for custody of the children and a division of the property between himself and the appellant.

On the 6th May 2008, he filed an additional affidavit in which he sought to amend his papers by withdrawing House No.15913 Nkulumane 12, Bulawayo from the list of the property to be shared alleging that it belonged to his employer, Delta Beverages (Pvt) Ltd.

The appellant did not file any notice of appearance to defend, neither did she file a plea or notice of opposition.

The matter was set down for hearing on the 12th May 2008 on which date some kind of a trial commenced with the appellant in attendance.

The appellant verbally told the court that she was opposed to the claim made by the Respondent and both parties gave evidence before the Magistrate.

During the trial, the respondent told the Court that he was claiming the “matrimonial house” because he acquired it with the assistance of his employer who provided a loan for the construction of a two-roomed house. The house was completed in 1997 at which point he and the respondent moved in and although he produced Deed of Transfer No.629/02 with no mortgage bond registered on it, showing that the house is in his name, the respondent maintained that the house belonged to his employer.

The appellant also testified in Court to the effect that herself and the respondent acquired the house together after which they agreed that she should go and work in Botswana to raise money to improve the house as the respondent's income was too meagre for them to develop the house. With the extra income she got from Botswana, they managed to add six (6) more rooms to the house which now proudly stands as an eight (8) roomed house.

The appellant maintained that she wanted to remain in that house with the children and should be awarded custody of the said children.

The court allowed the two elder children to testify and both of them unequivocally told the court that they preferred staying with their mother. In fact, Perfect Dube said he preferred staying with his mother because his father “does not buy vegetables”; and, although Prince Dube insisted he wanted to live with his mother he did not give reasons for that.

In its judgment, the court a quo concluded that as the parties were living together as husband and wife both contributed to the extension of the house, and, for that reason, the appellant was entitled to a share of the house.

As there appeared to be no dispute on the sharing of the movable assets, the court a quo awarded the stove, two (2) blankets, colour television, double bed, and sofas to the respondent. The appellant was awarded another stove, kitchen utensils, three (3) blankets, mosquito net, display, radio, curtains, and a room divider.

The house was shared at the ratio of 80% to the respondent and 20% to the appellant with the respondent being allowed to buy out the appellant in order to retain the house.

The respondent was awarded custody of two (2) of the children, namely, Perfect and Prince - despite their avowed preference to be with their mother; while the youngest child, a girl, was awarded to the appellant.

Unhappy with that decision, the appellant appealed to this Court on the grounds, inter alia, that the division of the assets was not equitable and that she is the better custodian parent.

At the hearing of the appeal, the appellant, who appeared in person, exhorted us to overturn the decision of the court a quo and award her a 50% share of the house and custody of all the children together with maintenance especially as the respondent has now remarried and is unable to look after the children properly in those circumstances.

This matter presents some difficulty.

The first problem arises from the fact that the matter appears to be a hybrid of trial action and application procedure. The respondent issued a summons commencing action which was supported by affidavit. This was an unacceptable mixture of procedure which was not picked by both the Clerk of Court and the trial magistrate.

Without following the Rules relating to the filing of pleadings and the holding of a pre-trial conference before a trial could be conducted, the magistrate proceeded to trial and heard viva voce evidence from the parties while also accepting affidavits filed by the respondent. As stated in Mandava v Chasweka HH42-08 (as yet unreported)…,;

“All Magistrates' Courts in this country are formal courts whose proceedings are governed by a set of rules and established procedures.

It is trite that the pre-setting of rules of procedure is, to date, the widely accepted manner of avoiding arbitrariness and ensuring fairness in the airing of disputes by litigants. Rules of Court are framed for a purpose and any procedure done outside the Rules is susceptible of being set aside as being unprocedural.”

It is clearly incompetent for the Magistrates' Court to invent a new procedure of dealing with disputes which procedure is not provided for in the Rules of the Court and is a mixture of summons action and application procedure.

That procedure simply does not exist.

The two procedures are mutually exclusive and cannot be employed at the same time to resolve the same dispute. See Mandava v Chasweka HH42-08.

The second problem arising from this matter relates to the choice of law that was applied by the court a quo.

The respondent approached the court seeking a division of property and custody of the children. It is common cause that the parties did not have a registered marriage and that theirs was an unregistered customary law union of 15 years.

Unregistered customary law unions are still not recognised marriages in our law.

For that reason, the provisions of section 7 of the Matrimonial Causes Act [Chapter 5:13] do not apply to them.

Section 11(b)(iv) of the Magistrates Court Act [Chapter 7:10], which accords jurisdiction to the Magistrates' Court to adjudicate over divorce cases of persons married in terms of the Customary Marriages Act [Chapter 5:07], equally has no application to unregistered customary unions. See Feremba v Matika HH33-07…, where MAKARAU JP…, stated:

“The court has jurisdiction to apply customary law and can apply such law to the distribution of the assets of the parties who were in such a union. If however the court, for some legitimate reason, is not applying customary law then two further issues arise. Firstly, for it to have jurisdiction, then the value of the assets to be distributed has to be ascertained for the ordinary monetary jurisdiction of the Magistrates' Court will apply. Secondly, for a claim based on common law, a recognised cause of action must be pleaded.”

The existence of an unregistered customary law union does not, standing on its own, clothe the Magistrates' Court with jurisdiction to distribute the property of the parties because that arrangement is not a marriage for purposes of section 7 of the Matrimonial Causes Act [Chapter 5:13].

While the courts have, for some time now, been advocating for legislative intervention in protecting women who find themselves in unregistered customary unions and would have contributed towards the acquisition of the estate of such unions, see Jengwa v Jengwa 1999 (2) ZLR 121 (H) and Mtuda v Ndudzo 2000 (1) ZLR 710 (H), the law has not changed as to allow Magistrates' Court to distribute the estates of parties to an unregistered customary union in terms of the Matrimonial Causes Act [Chapter 5:13].

The import of those decisions is that the courts stand ready to come to the aid of women in such situations and will generally accept well-founded claims for a share of the estate where a proper and recognisable cause of action has been pleaded and established.

The common law principles that can be relied upon to found a claim for a distribution of the property acquired during the subsistence of an unregistered customary law union include joint ownership or partnership, unjust enrichment and/or equity.

Counsel for the respondent conceded that the trial magistrate in this matter appears to have fallen into error by applying the principles set out in section 7 of the Matrimonial Causes Act, to divide the house in the manner that she did. In doing so, she also failed to advert to the choice of law provisions set out in section 3 of the Customary Law and Local Courts Act [Chapter 7:05] and was not alive to the monetary jurisdictional limit which clearly placed the “matrimonial house” outside her jurisdiction.

This Court has stated, time without number, that the Magistrates' Court should always be careful not to fall into these errors when dealing with the estates of unregistered unions. See Mandava v Chasweka HH42-08…, where MAKARAU JP…, said:-

“It is still part of our law that unregistered customary unions are not marriages for the purposes of the Matrimonial Causes Act [Chapter 5:13]. Consequently, parties to such unions cannot be divorced by the courts and their joint estate cannot be distributed in terms of the divorce (laws) of this country. Trial Magistrates who deal with the estates of parties to an unregistered customary union tend to fall into three errors;

(i) Firstly, they tend to proceed to deal with unregistered unions as if they are registered;

(ii) Secondly, they fail to advert to the choice of law provisions of our law; and

(iii) Finally, they tend to forget their monetary jurisdictional limits when distributing joint estates at General Law.”

This is exactly what the trial magistrate in casu did as a result of which the proceedings cannot be allowed to stand and the matter will have to be remitted to allow that court to comply with both the Rules relating to trial procedure and the law on such estates.

It remains for us to deal with the issue of custody of the minor children of the parties.

The trial magistrate allowed the two elder children to testify and they made it clear that they preferred to stay with their mother. She ignored their wishes and awarded their custody to the respondent. She awarded custody of the last born to the appellant.

What she has achieved, therefore, is not only to foist the two boys on their father against their will but also to divide the children and split them into two groups.

It is always undesirable to separate siblings who are growing up together only to please the selfish interests of their parents. This Court, as upper guardian of minor children, cannot allow this to happen. The children should be allowed to remain together as this is in their interest.

Pending the trial de novo, to determine the best custodian parent, all the three children should be given to their mother.

As the legal issues arising out of this appeal are of paramount importance, as is the interests of the children, counsel must be appointed to represent the appellant at the trial pro deo in terms of Order 5 Rule 3 of the Magistrates Court (Civil) Rules, 1980.

In the circumstances, I make the following order; that

1. The appeal is allowed.

2. The matter is hereby remitted to the Magistrates' Court for a trial de novo before a different magistrate.

3. The parties are required to file pleadings in terms of the Rules and hold a pre-trial conference before the trial.

4. The Assistant Registrar of this Court shall appoint a pro deo counsel to represent the appellant at the trial.

5. Pending the trial de novo custody of the minor children of the marriage, namely, Perfect Dube, born on 2 April 1996, Prince Dube, born on 3 January 2000, and Priscilla Dube, born on 19 August 2004 be and is hereby awarded to the appellant and the respondent is directed to provide adequate maintenance for the said minor children.

6. Each party shall bear its own costs.

Appealed
SC74-20 : SHAILLON CHISWA vs CAR RENTAL SERVICES PL t/a AVIS RENT A CAR and BERNARD CHISWA
Ruled By: GARWE JA, MAVANGIRA JA and MAKONI JA

This is an appeal against the whole judgment of the High Court handed down on 24 September 2018 wherein it granted the first respondent's claim against the appellant.BACKGROUND FACTSThe following facts are common cause;The second respondent, Bernard Chiswa (“Bernard”), entered into a car hire agreement with the first respondent, Car ...

View Appeal
HH563-18 : CAR RENTAL SERVICES (PVT) LTD T/A AVIS RENT A CAR vs BERNARD CHISWA and SHAILLON CHISWA
Ruled By: MUZOFA J

The plaintiff issued summons against the defendants claiming payment of US$13,868=90 for car rental charges due to the plaintiff and interest thereon at the rate of 3.5% from 1 April 2016 to date of full payment.The undisputed facts are that the first defendant entered into a car hire agreement with ...

SC84-20 : TIZAI CHISWANDA (in his capacity as father and guardian of CHIDOCHASHE CHISWANDA) vs OK ZIMBABWE LIMITED
Ruled By: GARWE JA, GOWORA JA and BERE JA

When this matter was called, counsel for the appellant applied to amend the grounds of appeal.Counsel for the respondent was not averse to the application. The matter was stood down to allow counsel to confer on the proposed amendments. When the matter resumed the parties indicated that they had agreed ...

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

This is an appeal against the judgment of the High Court dismissing an application by the appellants for a declaratory order and consequential relief pertaining to various fundamental rights, in particular, the right of children to shelter.The application was dismissed with no order as to costs.The first appellant is an ...

HH333-13 : GIVEMORE SAMBADZI and SALATIEL NHUBU vs REGISTRAR OF DEEDS
Ruled By: BHUNU J

The facts that gave rise to this dispute are as follows:

In January 2010, the first applicant, Givemore Sambadzi, purchased certain immovable property known as Stand 2048 Chadcombe Township of Stand 1257 Chadcombe Township from one Charity Nyarai Mupaya and a Deed of Transfer was made in his favour.

In November 2010, the first applicant then entered into an agreement of sale with the second applicant, Salatiel Nhubu, regarding this property.

However, he could not effect transfer to the second applicant as by then XN caveats had been placed on the property by one McDonald Freeman Tsambwa, who had also instituted proceedings with this court on the basis that the said property belonged to his two minor children Chido Jacquline Tsambwa, born 24 July 1998, and Chikomborero Ronald Ralph Tsambwa, born 23 August 2002, and had in fact been fraudulently sold by his wife Charity Nyarai Mupaya.

McDonald Tsambwa filed his principal application in Case No. HC461/11, in January 2011, to which the first applicant in this case filed his notice of opposition which was answered by McDonald Tsambwa.

Heads of argument were filed by the first applicant in that matter (as respondent) but it appears, thereafter, despite correspondence, McDonald Tsambwa did nothing to pursue his matter to finality.

It was on this basis that a Chamber Application was brought dismissing his case for want of prosecution.

This dismissal was the basis upon which the applicants in this case brought an unopposed application, through their lawyer, to get the respondent in this present matter, the Registrar of Deeds, to effect transfer to the second applicant.

In response to various correspondence written by the applicants lawyers, Messrs P Chiutsi, seeking transfer, the respondent wrote, on 7 March 2012, stating that certain discrepancies had been noted in the sale of the property in question to the first applicant which warranted cancellation of the Deed of Transfer 1559/2010.

These were to the effect that transfer from minors, Chido Jacquline Tsambwa and Chikomborero Ronald Ralph Tsambwa, required the Master's consent and that this had not been obtained.

Moreover, Charity Mupaya, who had appointed Wesley Thabang Khanda as conveyancer, did not appear anywhere in the previous Deed DT.8339/2007.

He also noted that the extending Deed made reference to one Lloyd Mudiwa Kativu instead of the two children.

Furthermore, the Zimra certificate was for transfer Kativu to Tsambwa which meant no capital gains certificate was issued for the transfer.

A discrepancy in the rates certificate was also observed.

The Deeds office had indicated that the matter was under investigation as the transaction appeared not to have been properly done.

The applicants, through their lawyer, sought an order, through an unopposed application, for transfer of the property to the second applicant in line with the agreement of sale entered into by the parties.

The first applicant challenged the respondent's refusal on the basis that it is the respondent and the seller who can explain the alleged discrepancies as he was merely an innocent purchaser.

They filed an unopposed application which was set down for hearing on the 4th of April 2012 whereby the Court directed that a copy of the chamber application for want of prosecution be attached. The matter was then postponed to 02 May where I raised the following queries:

(1) The property was originally in the names of the two minor children, Chido and Chikomborero Tsambwa born in 1998 and 2002 respectively.

(2) The property was transferred from them in contravention of the law in that there was no involvement of the Master or authorisation of the Court as required by the law.

If so, then, the purported transfer from the two minor children was fraudulent, and, to that extent, a nullity and of no force and effect at law. What this means is that whoever purchased the property might have acquired defective title incapable of transmission to any other person.

(3) The purported previous transfer is fraught with other irregularities for want of compliance with statutory requirements regarding payment of capital gains tax and rates. This again points to fraud which vitiates the validity of the transfer.

(4) The caveats in question were placed pending police investigations. There is no proof that the investigations have been completed.

The Master of the High Court was accordingly directed:

(1) To appoint a curator bonis for the two minor children, Chido and Chikomborerero Tsambwa, and to render a report to the Court.

(2) To report this matter to the Anti-Corruption Commission which shall communicate its findings to the Master of the High Court.

(3) In the meantime, the caveats in question to remain in force.

The applicants' lawyers attempted to circumvent this order by filing yet another chamber application challenging this order and seeking upliftment of the caveats and seeking an order that the property be registered by the respondent into the names of the second applicant in line with the dismissal of the case for want of prosecution.

The reports requested by the Court, in its order of 2 May 2012, have been compiled and are on record, thereby enabling a finalisation of the matter.

Rule 249(1)(a) and (b) of the High Court Rules 1971, as amended, which sets out the requirements, is to the following effect:

“Rule 249 Applications involving persons under disability or minors

(1) In the case of any application in connection with -

(a) The estate of a person alleged to be prodigal or under any disability, mental or otherwise, or

(b) A minor;

A chamber application, annexing the written consent of the person to be so appointed shall first be made for the appointment of a curator ad litem.”

Section 91 of the Administration of Estates Act states as follows as regards alienation of immovable property by a tutor or curator:

“91 Prohibition of alienation of immovable property by tutor or curator

No tutor, either testamentary or dative, and no curator, either nominate or dative, or curator bonis shall sell, alienate, or mortgage any immovable property belonging to any minor or forming part of any estate under the guardianship of tutor or curator, unless the High Court or any judge therefor has authorised such sale, alienation, or mortgage or unless the person by whom any such tutor testamentary or curator nominate has been appointed has directed such sale, alienation, or mortgage to be made.”

The reasons that the law requires the appointment of a curator ad litem are well known in terms of their origins in common law.

The presumption is that a person who is a minor is generally, barring exceptions, not competent to manage his or her own affairs. While such a minor may have parents who would ordinarily have rights above those of everyone else with respect to their off spring (save for the Court as upper guardian), parents cannot be so appointed in such matters involving property belonging to their offspring because of conflict of interest. Indeed, parents may have interests that are at variance with those of the minor child.

This is the basis for the law's requirement that a disinterested party be appointed.

Once appointed, certain expectations are placed on a curator ad litem. In terms of Rule 249(3), after he (or she) has conducted the necessary investigations, he or she is required to prepare a written report which shall be filed with the Registrar and a copy served on the applicant and all other interested parties.

In this particular case, none of the law's provisions were followed.

The necessary information that the curator ad litem would have gathered and placed before the Court in order for it to determine whether it would have been in the best interests of the minor children, Chipo and Zvikomborero, to have their property sold, did not happen because no one was appointed to represent their interests.

If a curator ad litem had been appointed, as required by the law, then, given their fiduciary nature, which requires them to deal with the property with the same caution as if they were dealing with their own, they would have been able to investigate all facts and gather the necessary explanations which they would have placed in their report for the Court to make its decision regarding the sale of the property.

Questions and anomalies would have been brought to the fore.

The Masters Report, dated 8 May 2013, confirms that Rule 249(1)(a) and (b) of the High Court Rules, which spells out the procedures to be adopted, was not followed. The report rightly emphasizes that any sale which violates this Rule is fraught with irregularities and is deemed invalid.

There is, in essence, no sale in the first place.

This correct statement of the legal position by the Master, that where a sale takes place without following the necessary procedures then the sale is invalid, has consistent and unwavering support in our law for an obvious commonsensical reason besides the law itself.

In light of the Courts' role, as upper guardian of all minors, it cannot and should not sanction illegalities which deprive minors of their rights in property.

In Nemuseso v Mashita HH122-09…, in a case of similar ilk, with respect to depriving minors of their property through unauthorised sale, save that it involved a deceased estate, GUVAVA J cited the case of Schiourt v Minister of Justice 1926 AD 99…, where INNES CJ held:

“It is a fundamental principle of our law that a thing done contrary to the prohibition of the law is void and of no effect. So that what is done contrary to the prohibition of the law is not only of no effect must be regarded as never having been done and that whether the law giver has expressly so decreed or not; the mere prohibition operates to nullify the act.”

Also cited by JUSTICE GUVAVA were LORD DENNING's words best described as clarifying what constitutes a nullity for would be doubters, as stated in Macfoy v United Africa Co Ltd [1961] 3 All ER 1169 (PC) and reiterated with approval by SANDURA J…, in the case of Mugwebie v Seed Co Ltd and Anor 2000 (1) ZLR 93:

“If an act is void then it is, at law, a nullity. It is not only bad but incurably bad. There is no need for an order of court to set it aside. It is automatically null and void without further ado, though it is sometimes convenient to have the court declare it to be so: and every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”

In Katsande v Katsande HH113-10, again a case where there was a similar non-observance of requisite formalities in the sale of property belonging to minors, CHITAKUNYE J also stated that where an act is a nullity, the innocence or otherwise of the third party is of no assistance at all. He cited MAKARAU JP in the case of Katirawu v Katirawu and 3 Ors HH58-07…, where MAKARAU JP…, reiterated that the rights the second respondent in that case believed to have purchased, were tainted with the same illegality and amounted to nought. As she stated, it was as if there was never a sale.

In this case, the first applicant, Givemore Musambadzi's purchase of the property, under circumstances which did not observe the law regarding minors' property, rendered the sale void from the beginning and it matters not that it was not his fault as he alleged.

His recourse is against the person who sold the property to him, that is Charity Mupaya only and not McDonald Tsambwa.

The parties are married according to [Chapter 5:11], and, according to section 3 of the Guardianship of Minors Act, though a husband acts in consultation with his wife, he is ultimately the guardian of the children (granted the new Constitution lays the foundation for challenging inequality, but, it was not then in force).

He was not involved in the defective sale and was in fact instrumental in bringing to light the procedural and fraudulent shortcomings of her actions that had taken place without his knowledge.

The Court Order of 2 May 2012 required that the matter be referred to the Anti-Corruption Commission for investigation.

On 13 November 2012, the Anti Corruption Commission advised, in writing, that it had come to their attention, when they were about to investigate the matter as ordered, that the ZRP Commercial Crimes Unit had since completed investigations in the same case and were holding the docket pending set down. (Harare CR1089/07/10 and CCU DR30/6/10). They were therefore holding off investigations whilst awaiting the outcome of the CCU case for the avoidance of duplication.

The police correspondence to the Anti-Corruption Commission, dated 23 October 2012, reveals that there was indeed a case to answer. Four accused persons were arrested and the docket was referred to court for the public prosecutors opinion; the public prosecutor's advice was that the docket will be successfully prosecuted upon the arrest of the core accused person, Mildred Roki Chikuriwo; the second accused person, who was Tsitsi Nyamupanda, had died in South Africa and the other three are locatable, namely, Michael Limosa Welsy, Thabang Khanda, and Euphrasia Mupedzisi; the core accused, Mildred Roki Chikuriwo, is believed to be staying in the United Kingdom.

Justice for Children was appointed as curator bonis for the two minor children, Chido and Chikomborero Tsambwa, when it became apparent to the Court that the procedures for the appointment of a curator ad litem had not been followed and their interests may have been compromised.

Mr Caleb Mutandwa, a registered legal practitioner offering voluntary services to Justice for Children, who acted as curator bonis, raised serious concerns regarding the sale of the property to the first applicant in his report filed on 29 April 2013.

The report of the curator bonis in this case is vital in a number of respects.

He was the one appointed and requested to investigate what transpired on behalf of the minor children on behalf of the court. As a curator bonis, the expectation was that he would, on behalf of the minor children, carry out this investigation with the rigour and urgency attendant upon his fiduary role.

I am satisfied, judging from the thoroughness of his report in unpacking the Deed of Transfer, that he has put in his report the relevant facts that relate to the minor children's interests that aid this Court in arriving at decision in concluding this matter.

Indeed, from the factual content of his Report, which suggest chicanery gone awry, can be gleaned the very essence of the reasons why the law so stringently requires the appointment of a curator ad litem to represent the interests of minor children.

Under Part C of his report, in paragraph 14, he reveals the following anomaly regarding the Deed of Transfer from which the first applicant drew his purported ownership:

“The Deed of Transfer No.1559, from which Givemore Sambadzi derives his alleged ownership, has a fatal error which he admitted but sought to impute on the conveyancer. It is common cause and indeed accepted by Givemore Sambadzi that immediately before he acquired ownership of the immovable property in dispute, it was registered in the names of Chido Jacqueline Tsambwa, born on 24 July 1998, and Chikomborero Ronald Ralph Tsambwa, born on 23rd August 2002, under Deed of Transfer Number 8339/2007. Deed of Transfer 1559/2010 however provide in the Extension Clause that:

As will more fully appear upon reference to Deed of Transfer No.6255/98 dated 1 July 1998…, and to the subsequent Deed of Transfer, the last of which was made in favour of Lloyd Madiwa Kativu and Mellody Kativu on 31 December 2007 (registered 8339/2007).”

As he rightly concludes:

“There was an attempt to disguise what appears to be fraudulent dispossession of the minor children of their immovable property. The last Deed of Transfer Number, 8339/2007, is misrepresented as having been made in favour of Lloyd Madiwa Kativu and Mellody Kativu yet it was held by minor children who had acquired title from the Kativus. Lloyd Kativhu and Mellody Kativu held ownership in the property under Deed of Transfer Number 6255/1998.”

In paragraph 15 of his report, Mr Mutandwa, as curator bonis, reveals somemore evidence illustrative of the fact that the sale was about as far away as the sun in having the minors interests at heart. According to his report:

“Section 11 of the Deeds Registries Act [Chapter 20:05] provides that;

'Transfer of land and cession of real rights therein shall follow the sequence of successive transaction in pursuance of which they are made…,. It shall not be lawful to depart from any such sequence in recording in any Deeds Registry any change in the ownership in such land or real rights…,.'

The Deed of Transfer Number 1559/2010, from which Givemore Sambadzi derives alleged ownership, omitted the children's names and included the names of Lloyd Madiwa Kativu and Mellody Kativu. This clearly violates these peremptory provisions of the law.

This could have been deliberately done to ensure that the Registrar of Deeds would not require High Court authority to alienate the minor children's property.

Indeed, Givemore Sambadzi alludes to the possibility that the whole transaction was shrouded in some fraudulent scheme which this honourable court cannot just ignore.

Givemore Sambadzi was advised of all these anomalies by the Registrar of Deeds in a letter dated 7 March 2012 which he attached to his application in HC2868/12. His only response was to blame the conveyancer and the Registrar of Deeds. This however does not justify depriving the minor children of their property.”

He concludes his report with the recommendation, that, notwithstanding the dismissal of McDonald Tsambwa's case, HC416/11, for want of prosecution, in line with the fact that the Court, as upper guardian of all minor children, cannot turn a blind yet when children are being deprived of their rights and recommends that the Deed of Transfer to Givemore Sambadzi should be cancelled and that the Registrar of Deeds should restore the Deed of Transfer Number 8339/2007 in favour of Chido Jacqueline Tsambwa and Ronald Ralph Tsambwa.

I have already dealt with the issue of the invalidity of the sale for failure to adhere to the requisite of the law on the sale of property regarding minors as well as the law's position on these matters.

The curator bonis's Report sheds further light by contextualising that invalidity in light of the facts.

It is reprehensible that adults should endeavour to fraudulently deprive minors of their rights. For that reason alone, costs at a higher scale are warranted.

It is therefore ordered that:

(a) Deed of Transfer No.559/2010, in favour of Givemore Sambadzi, is cancelled.

(b) The Registrar of Deeds restores Deed of Transfer Number 8339/2007 in favour of CHIDO JACQUELINE TSAMBWA born on the 24th of July 1998 and CHIKOMBORERO RONALD RALPH TSAMBWA born on 23rd August 2002.

(c) The applicants to meet costs of suit at the legal practitioner client scale.

HH366-18 : ALAIN GRANT vs TIRINGEI JEFTA and THE MASTER OF THE HIGH COURT and NELLIE TIYAGO (in her capacity as curator ad litem)
Ruled By: CHIRAWU-MUGOMBA J

“The paradox…, is that even when children are construed as rights holders, it is difficult for them to assert their rights. The reasons are practical, political, and legal. Young children are completely and unavoidably dependant on those who have power over their lives (O' Donovan: 1983).”

I was reminded of this quote in this matter that came before me as an opposed application, misleadingly headed “court application for custody” when it was, as a matter of fact, an application for variation of custody.

Nonetheless, I adopted a robust view and heard the matter on the merits given the fact that it involves minor children.

The fact that children are powerless is the more reason why this court, as the upper guardian of all minor children, must stand as the last bastion in defence of the rights of children.

On 22 June 2017, this court granted a decree of divorce between the applicant and the first respondent. In that order, custody of three minor children, namely, MJ (born 12 August 2002); SJ (born 12 August 2007) and JEG (born 3 March 2011) was awarded to the first respondent with the applicant being awarded access.

In terms of the consent paper, the applicant is to be wholly responsible for the educational costs of all three minor children until such a time that each child attains his/her first degree or becomes self-supporting - whichever is sooner.

It is pertinent to note, that, of the three children, only one, namely, JEG is the biological child of the applicant and the first respondent. The other two are the biological children of the first respondent.

There is no explanation of why the two are included in the custody order given the fact that the applicant did not formally adopt the children as his own but this may have been based on the provisions of section 83 of the Children's Act [Chapter 5:06] which places liability on a step-parent to maintain a step-child.

On 24 October 2017, the third respondent was appointed curator ad litem of the three minor children.

Almost three months after this appointment, the applicant filed what he termed an application for custody of the minor children.

In his draft order, he sought to be awarded custody of all the three minor children with the first respondent exercising access.

In his affidavit, the applicant averred, that, on 21 September 2017, the first respondent “surrendered” custody of the three minor children to him as she could not cope with the day to day financial needs and care of the children.

He also averred, that, the first respondent was living in a two-roomed house and that she had no motor vehicle.

On the other hand, the applicant's stance was that he was able to provide better accommodation for the children and also ensure that they would be taken to school. MJ was actually at boarding school whilst the other two attend school in Harare.

The other reasons advanced by the applicant for custody were that the first respondent associates with persons of questionable character who smoke marijuana and one of them tried to entice MJ into sending him indecent pictures of herself; that she had expressed intentions to go and set up business in Mt Darwin; that she has not visited the children and hence has no love and affection for the children.

In response, the first respondent stated that she was opposed to the order being sought.

She explained the circumstances leading to her moving from an expensive house to a cheaper house. She stated that she went to Mt Darwin to explore business ventures so that she could supplement her income. She also expressed disquiet over the fact that her own brother, who stays with the minor children and the applicant, had previously allegedly molested MJ.

She averred that she will be able to transport the two minor children to and from school with the assistance of a taxi driver; that she has since stopped all relationships, including reporting one of her ex-boyfriends who attempted to solicit indecent pictures from M.J to the police.

The third respondent, in her capacity as a curator ad litem, prepared a report in which she stated that the first respondent was agreeable to the applicant having custody of the minor children except that she insisted that her brother moves away from the applicant's home and that one of the minor children, SJ, expressed that he wanted to stay with the first respondent.

The third respondent concluded, that, it is in the best interests of the minor children that custody be awarded to the applicant.

I took issue with this conclusion as it showed bias since the task of a curator ad litem is to assist the court in coming up with a decision relating to what is in the best interests of a child.

The report must be a dispassionate assessment and not a conclusion - see Mukundu v Chigumadzi HH818-15.

The best interests is a legal question which only the court, as upper guardian of all minor children, can determine after considering all the facts - including the report by a curator ad litem.

I also noted that the report contradicted the first respondent's own assertion that she was opposed to the relief sought.

The report of the third respondent was not helpful as it was contradictory in paragraph three, where, after concluding that the applicant has a strong bond with the minor children, it went on to state, in respect of the first respondent, that “she has proved that she had capacity to take care of them.”

Acting in terms of Rule 276, I interviewed all the minor children in chambers - in the presence of the third respondent.

The children indicated that the applicant, who is French, spends considerable time away from home in France on business. During that time, they are left in the company of a maid and the first respondent's brother. They indicated that the applicant provides for their daily needs such as food and transport to and from school. They indicated, that, at the first respondent's place of abode, they sometimes do not have adequate food and that there is 'nothing' much to do since she does not own a television set and that there is no DSTV.

The children seemed to be caught between love for the first respondent and some confusion as what is going on in their young lives and that is why the quote by O' Donovan becomes relevant.

MJ attends a standard boarding school in Chegutu. She stated that she does not have a strong relationship with her uncle but she was only told that he once molested her whilst she was still very young but that she has no memory of this alleged incident.

On probing how she feels over the fact that she stays with the applicant, who is not her biological father but a former step-father, she expressed reservations about the situation.

MJ struck me as a teenager who is fast approaching that age where she is on a path of self-discovery. She hopes to become a pilot one day.

SJ attends a Government school in Harare. SJ struck me as a young boy who is not too confident with himself and seems to be going along with the tide. He enjoys sport, especially rugby, but he did indicate that he once hurt his arm whilst playing rugby. His hand is not as it should be to the naked eye.

This fact was not mentioned in the applicant's founding affidavit and the curator's report.

SJ hopes to become a lawyer one day.

I noted that SJs school uniform was not as clean as is to be expected. His blazer showed signs of being worn out.

On the other hand, JEG was impeccably dressed. The private school that he attends does not require students to wear uniform. JEG stated that he is sometimes disciplined by both the applicant and the first respondent.

He struck me as a child who is perhaps given more by the applicant. At the age of seven, he possesses a cellphone and other creature comforts. He also struck me as a child who still needs his mother's care in his formative age.

As observed earlier, the application was brought as a fresh application for custody when it is actually an application for variation of custody.

What then is the duty of this court in cases of variation of custody?

This question was answered aptly by RUMPFF JA in Shawzin v Lawfer 1968 (4) SA 657 (AD)…, in which the learned judge commented as follows:

“In my view of the circumstances of this case, I think it necessary to make a few comments on the duty of a court, sitting as upper guardian of minor children, when it has to resolve a dispute concerning custody.

To the court, as upper guardian, the problem of custody is a somewhat singular subject, in which there is substantially one norm to be applied, namely, the predominant interests of the child.

The singularity of the subject is evidenced by a number of features.

An order of the court, as to custody and access, may, at any time, be varied by the court for good cause.

An agreement relating to custody may be made an order of the court if the court is satisfied that what has been agreed upon is in the best interests of the children, but, such order also can be varied by the court for good cause.

Also, from the procedural point of view, an application to vary an agreement is different from the ordinary application, in that the court need not consider itself bound by the contention of the parties and may, in suitable cases, notwithstanding the fact that the onus is on the applicant to show good cause, depart from the usual procedure and act mero motu in calling evidence - irrespective of the wishes of the parties.

In the result, it could be said, that, while, in form, there is an application for variation of the order of court, in substance. there is an investigation by the court, acting as upper guardian; cf Kotze v Grove 1959 (2) SA 213 (0) at p215. Also, on appeal, the court may, in an exceptional case, take cognisance of facts which are, by consent, admitted or which are unquestionable; see Goodrich v Botha and Others 1954 (2) SA 540 (AD) at p546.”

Sections 19(1) and 81(2) of the 2013 Constitution reinforce the paramouncy of the best interests of the child standard.

The test for variation of custody was well set out in Domboka v Madhamu HH179-04…,by MAKARAU J…, as follows;

“It appears to me, that, while the accepted position is that a parent seeking variation of the custody order has to show, on a balance of probabilities, that it is in the best interest of the children that the existing order be varied, in cases where the variation is sought on the basis of changed circumstances, the onus is to be discharged in a two-prong attack.

In my view, such a parent must show that it is not in the best interest of the children that they remain in the custody of the custodian parent, and, further, that it is the best interest of the children that custody is awarded to them.

It is insufficient, in my view, to merely show a change of circumstances for the worse on the part of the custodian parent.

It is not difficult to envisage a situation where, although the circumstances of the custodian parent have deteriorated from the date of the granting of the order, the court still finds that it is in the best interests of the children that they remain in the custody of the parent whose fortunes are waning.

It is the role of the court to interrogate the circumstances of both parents to establish where the best interests of the minor children lie.”

In the same case, MAKARAU J also had occasion to deal with a case in which the custodian parent had temporarily given custody to a third party (the grandparent) and she stated as follows…,:

“The fact that the respondent has given up custody of the minor children is not, however, the end of the matter.

The applicant has approached this court for an order of custody in his favour on the incorrect premise that once it is shown that the respondent has given up custody, then, he is entitled to be granted custody of the children.

The role of this court, in matters relating to the custody of minor children, is more responsible than the applicant would want it to be. This court does not sit to determine who, between the two feuding parents, is to be awarded custody of the children of the failed union.

The best interests of the parents do not enter the fray.

(See Routledge v Heinz 1988 (1) ZLR 252 where MUCHECHETERE J (as he then was) refused to vary access rights granted the applicant who had moved from Bulawayo where the children lived with their father, to Victoria Falls, a distance that she found inconvenient and expensive to travel).”

In this present case, what is to be considered is this - what has changed between the awarding of custody to the first respondent to the present day to warrant varying the custody order.

In June 2017, the applicant was very much well aware of the fact that the first respondent would require support so that she could exercise her rights of custody and that is why, in the consent order, she was awarded the sum of $800 as spousal support and the applicant also undertook to pay all educational costs of the three children until they each attain their first degree or become self-supporting whichever happens sooner.

The applicant approached the court on the mistaken belief that the 'surrender' of the children to him by the first respondent gave him a right to the minor children.

The alleged 'affidavit' of surrendering the minor children to the applicant, by the first respondent, is fraught with inconsistencies.

In paragraph three, it is stated as follows:

“It has been agreed between Alain (the applicant) and I that I had (sic) over custody of the children to him and he will retain custody of the child (yet there are three children and it is not clear which child is being referred to) until March 2017 (which date had already passed since the affidavit was signed on 21 September 2017) after which custody will be restored to me.”

There is no explanation as to why, by March 2018 (which is presumably the date of returning custody), the children had still not been returned to the first respondent by the applicant.

He took it upon himself to even 'invite' the first respondent to birthday parties of both MJ and JEG.

The first respondent's explanation was that when she attempted to take the children back, they refused on the orders of the applicant.

As a matter of fact, even at the date of the hearing, the children were still in the custody of the applicant.

I queried the applicant's legal practitioner as to whether or not her client was not coming to court with dirty hands and seek to rubber stamp his act of failing to hand back the children to the first respondent.

I however allowed her, in consideration of the fact that this case involved minor children, to present her client's case.

I also allowed the unsworn statement of the first respondent due to the same considerations and also that she was a self-actor.

A pertinent issue to note is that the applicant is not the biological father of SJ and MJ.

In terms of section 83 of the Children's Act [Chapter 5:06], the liability of a step–parent to maintain a step-child ceases in the event of divorce or judicial separation and there is no order of maintenance made in favour of the step-child.

Granted, in the consent paper there is an order relating to educational welfare of the step-children but it can never be in the best interests of the two minor children to be separated from their biological mother.

The position of the applicant is akin to that of a third party and it is only in the rarest of circumstances that custody is awarded to a third party.

I am mindful of the fact that section 80(2) of the Constitution gives women and men the same rights regarding custody, but, it could not have been the intention of the legislature to equate the rights of a biological mother with those of a former step father.

This section can only apply in relation to JEG, the biological son of the applicant and the first respondent.

In any event, the applicant's allegations against the first respondent mostly amount to a matter of flexing the purse - that he has more in terms of resources than the first respondent.

If he is so concerned with the welfare of the children, he should ensure that they are adequately provided for.

He boldly declared, in paragraph 14 of his founding affidavit, that, he has the financial means to take care of the minor children.

I note, that, in the consent order, there is no provision for monetary maintenance for the minor children, but, that does not take away the legal obligation of the applicant to maintain the minor children in addition to the payment of all educational costs.

The first respondent is equally under such an obligation and the law relating to maintenance makes it clear that each party must contribute according to their own means - see Dawson v Ushamba HH335-14.

The first respondent cannot be faulted for travelling to Mt Darwin to scout for business opportunities.

Given the fact that the applicant travels to France many times a year, and sometimes for months on end, as confirmed by the minor children when I interviewed them, it cannot be said that a maid and the first respondent's brother can temporarily replace the first respondent as custodians of the minor children.

The minor children also stated, that, the applicant is in a relationship with another woman who often puts up at the applicant's place. This means that M.J and SJ are also often exposed to two adults who are not their biological parents.

JEG is also often exposed to a woman who is not his biological mother during the periods when the applicant is away on his frequent travels to France.

JEG is still a young boy aged seven and he clearly requires to be with his mother, the first respondent. Although I am aware that some jurisdictions have moved from the tender years doctrine to the primary caretaker test, in our jurisdiction, it is still recognised, that, in general, custody of a young child should be with the mother - see Goba v Muradzikwa 1992 (1) ZLR 212 (SC) in which GUBBAY CJ had this to say…,:

“I need only refer to the sagacious words of BROOME J (as he then was) in the celebrated case of Dunsterville v Dunsterville 1946 NPD 594 at 597:

'…, it is often said, that, the best person to look after young children is their mother. So far as mere physical well-being is concerned, I do not think this is a matter of any importance. Few mothers are capable of attending to the bodily needs of their offspring as efficiently as an institution-trained nurse.

But, that is not the end of the matter.

Experience goes to show, that, a child needs both a father and a mother, and that, if he grows up without either, he will, to some extent, be psychologically handicapped. But, the maternal link is forged earlier in the child's life than the paternal, and, if not forged early, may never be forged at all.

The psychological need of a father, on the other hand, only arises later.

It seems to me, that, if the father is awarded the custody of these young children they will, in all probability, notwithstanding the loving care which they will undoubtedly receive from their paternal grandmother, grow up as motherless children, with all the attendant psychological disadvantages.

If, on the other hand, the mother is awarded their custody, at any rate during their years of infancy, they will not necessarily grow up as fatherless children, for the relationship between a father and his young children is never one of continuous intimacy, but is necessarily intermittent.

The children will realise that they have a father, notwithstanding that they do not see him every day: and when they reach the age at which a father becomes an important factor in their lives, there will be nothing to hinder the forging of the paternal link.'”

This is always in the context of the best interests of the child standard as each case is considered on its own merits.

I am not persuaded that it will be in the best interests of the children if the custody is to be varied in favour of the applicant. The applicant has failed to show any substantial changed circumstances that would warrant variation of custody.

In the result, and for the reasons stated above, it is ordered as follows:

(a) The application be and is hereby dismissed with costs.

(b) The applicant is ordered to forthwith return the minor children to the custody of the first respondent, and, in the event that he fails to do so within seven days of being served with a copy of this order, the Sheriff of the High Court be and is hereby empowered to remove the minor children from the custody of the applicant and restore custody to the first respondent.

HH818-15 : NAOMI MUKUNDU vs LAWRENCE CHIGUMADZI and TAKUNDA GUMBO and THE MASTER OF THE HIGH COURT
Ruled By: UCHENA J

The applicant is the maternal grandmother of the two minor children, Laura Edna Chigumadzi born on 4 August 1999 and Lawrence Takudzwa Chigumadzi born on 28 September 2000, for whom she sought an order granting her their custody and guardianship.

The first respondent is the biological father of the minor children. He however has not been involved in their life since his separation from their late mother in 2005. He lives in the United Kingdom with his wife and child from a subsequent marriage.

The applicant filed an urgent application on 27 July 2015. The urgency was based on her urgent need to have authority to apply for a passport for Laura who has to urgently travel to Ghana to take up a scholarship at SOS-HERMANN GMEINER INTERNATIONAL COLLEGE.

I heard the application on 29 July 2015 and granted it on the following terms;

1. The applicant, Naomi Mukundu, be and is hereby appointed the legal guardian and custodian of the minor children, Laura Edna Chigumadzi (born 4th August 1999) and Lawrence Takudzwa Chigumadzi (born 28 September 2000).

2. There shall be no order as to costs.

I indicated that my reasons for judgment would follow. These are they.

The Facts

The applicant is the two minor children's maternal grand-mother. She is the mother of the minors late mother, Elizabeth Lorraine Mukundu, who died on 13 July 2010. Elizabeth Lorraine Mukundu was initially married to the respondent in terms of an unregistered customary law union which they upgraded into a civil marriage in 2005.

Shortly thereafter, the respondent left her and the children, presumably for the UK where he now stays.

Sometime in 2005, Elizabeth and her children were brought to the applicant by her husband's relatives after she had had a miscarriage. Elizabeth and her children later went to stay at the first respondent's homestead in Murehwa. The first respondent neglected them and gave them no support till the children stopped going to school.

Towards the end of 2008, Elizabeth, who was now sick and unable to look after the children, came back to stay with the applicant. The applicant looked after her and the children till she died in 2010.

The first respondent did not come back to attend his wife's funeral, nor did he render any assistance towards her funeral's expenses.

The applicant continued to look after the children to this date.

She arranged for the children to go back to school. She sought and obtained SOS's assistance in the payment of their fees.

In paragraph 8 of her founding affidavit, the applicant described the first respondent's only contact with the children as follows:

“The 1st respondent would call the children once a year and promise to send them clothes or toys and they would never come. 1st respondent sent Laura an amount of US42 twice on her birthday after the death of her mother and has send nothing to Lawrence. He also send a bag of clothes. In 2013 or thereabouts he sent a runner to buy second hand bicycles for the children but the bicycles were rusty and old so we could only take one.”

The above, while establishing that the first respondent has not completely forgotten his children, does not show that he has their best interest at heart.

Counsel for the applicant submitted, that, the applicant has always been there for the children, and is suitable for appointment as their custodian and guardian.

She further submitted, that, the applicant has demonstrated that she has the minor children's best interests at heart, as demonstrated by her caring for their welfare and putting them back in school.

Her submissions are supported by common cause evidence.

The applicant stays with the two minor children and has, for years, been taking care of them. In spite of her limited means, she put them back in school and sought, on their behalf, SOS's help in paying their school fees. This shows genuine love and care for her daughter's children.

The first respondent's counsel orally submitted, that, his client is opposed to Laura going to Ghana to pursue her education under the scholarship she has been awarded. He submitted, that, the first respondent wants her to continue with her education in Zimbabwe and is able to fund her education.

The disposition of a litigant is judged from his conduct, as demonstrated by what he has done or not done and not by what he promises to do in the future.

The first respondent has, in the past, neglected his children to the extent of their having to drop out of school until the applicant had to seek SOS's intervention. He neglected them and their mother to the extent of denying them education, health care services, nutrition, and shelter. He left them in that condition until the applicant came to their rescue.

He therefore has demonstrated his attitude towards his children.

He has, contrary to the provisions of section 81(1)(f) of the Constitution, exposed them to lack of education, shelter, and nutrition.

When they came back from his homestead in Murehwa they were not going to school and had been starving, as their mother was sick and could no longer fend for them as the first respondent had abandoned them. The first respondent now opposes his daughter's chance to get sound education.

He clearly does not have her best interest at heart.

The court as the upper guardian of all minors cannot be swayed by the whims of a parent who has for years displayed that he does not care about the welfare of his children.

Off Record Submissions

During his submissions, counsel for the first respondent said he would, off the record, not oppose the applicant's application as he had been touched by the curator's detailed report on what the children had gone through as a result of the neglect at the hands of their father.

I, unfortunately for him, recorded that submission, as a court of record, cannot go off record.

This demonstrates, that, the first respondent's neglect of his children is apparent and cannot be disputed.

A legal practitioner has a duty to the court and to his client. If he says something against his client to the court, the court is entitled to take it seriously as he knows his client's case better than anybody else in the proceedings.

The request to make off the record submissions is unlawful and un-procedural. It however cannot prevent the court from using what the legal practitioner said.

When I pointed out that I could not go off record, counsel for the first respondent, to his credit, maintained that he could personally not oppose the order sought as it is in the minor children's best interest.

His view confirms the curators view, and my finding, that the order sought is in the children's best interest.

Curator Ad Litem's Report

Through a prior application, Mr Takunda Emmanuel Gumbo was appointed curator ad litem for the minor children. He, in that capacity, investigated the circumstances of the minor children to establish what would be in their best interest. His report is part of the record.

He conducted a thorough investigation by interviewing the applicant, the children, Mrs Nyika of SOS Children's Village Association, the first respondent's sisters, which established the following;

1. That, the first respondent abandoned the children and their late mother.

2. That, the first respondent did not pay school fees for his children, resulting in the applicant having to apply to SOS Children's Home Association for assistance with the payment of the minor children's school fees. That organisation pays half of the children's fees while the applicant pays the other half.

3. That, the applicant has been the de facto parent who has been there for the children since their mother died.

4. That, the urgency of this application arose from the need for the applicant to apply, urgently, for Laura's passport to enable her to travel to Ghana to take up a scholarship awarded to her by SOS-Hermann Gmeiner International College, an organisation associated to SOS, which has been paying her fees, for the 2015 academic year starting on 7 July 2015, but had been extended to the end of July 2015 because of her circumstances.

5. That, the scholarship is in the best interest of Laura as it opens doors for an unlimited funding of her education at prestigious Universities, and assures her of a proper grounding towards a prosperous future.

The curator's report is supported by indepth interviews and a dispassionate assessment of the information gathered. It is a good guide towards a determination which takes into consideration the best interest of the minors.

The Best Interest of the Minor Children

It is trite, that, any determination which affects the rights of a child should be guided by the child's best interests.

Our case law states that position clearly. The principle is applied in many nations of the world.

Article 3 of the United Nations Convention on the Rights of a Child and Article 4 of the African Charter on the Rights of and Welfare of a Child, which are identical, provide for the rights of a child as follows;

“In all actions concerning the child, undertaken by any person or authority, the best interests of the child shall be the primary consideration.”

The position has been reinforced by section 81(2) of the Constitution of Zimbabwe Amendment (No.20) Act 2013. Section 81(2) provides as follows;

“(2) A child's best interests are paramount in every matter concerning the child.”

I will therefore concentrate on the best interests of the minor children and not be detained by the feelings and protestations of the applicant and the first respondent.

I will however consider their suitability in advancing the best interests of the minor children.

This Court, as upper guardian of all minors, has a duty to adequately protect the rights of a child. In appropriate cases, the court may have to protect the children from harmful conduct by the child's own biological parent.

Section 81(3) of the Constitution provides as follows;

“(3) Children are entitled to adequate protection by the courts, in particular by the High Court as their upper guardian.”…,.

This case is therefore not a contest between the applicant's and the first respondent's rights over the minor children. It is about the best interests of the children, which, in terms of section 81(2) of the Constitution, are paramount.

Section 81(1) of the Constitution spells out the rights of a child, which throws light on what the court should consider in upholding the best interests of a child. It provides 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) To be given a name and family name;

(c) In the case of a child who is —

(i) Born in Zimbabwe; or

(ii) Born outside Zimbabwe and is a Zimbabwean citizen by descent; to the prompt provision of a birth certificate;

(d) To family or parental care, or to appropriate care when removed from the family environment;

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

(f) To education, health care services, nutrition, and shelter;

(g) Not to be recruited into a militia force or take part in armed conflict or hostilities;

(h) Not to be compelled to take part in any political activity; and

(i) Not to be detained except as a measure of last resort, and, if detained —

(ii) To be detained for the shortest appropriate period;

(iii) To be kept separately from detained persons over the age of eighteen years; and

(iv) To be treated in a manner, and kept in conditions, that take account of the child's age.”

Section 81(1)(d) to (f) of the Constitution entitles every child to family or parental care or to appropriate care when removed from the family environment; to be protected from economic and sexual exploitation, from child labour, and from maltreatment, neglect, or any form of abuse; and to education, health care services, nutrition, and shelter.

These rights should be assessed in order to determine whether it would be appropriate to grant custody and guardianship to the applicant.

Ordinarily, custody and guardianship should be reserved for a child's biological parents.

Section 81(1)(d) of the Constitution however envisages circumstances which may lead to a child being removed from the family environment.

The facts of this case, where a father has neglected his children to the extent of dropping out of school and their being educated by SOS and the applicant, justifies the removal of the children from the custody and guardianship of the biological parent to that of the maternal grandmother who has consistently been there for them and took care of their best interests. She is the one who has been providing care, shelter, education, and nutrition, since their mother came back to the applicant with them in 2008.

Disposition

It is common cause that half of the minor children's fees is being paid by SOS at the instance of the applicant who sought assistance from them due to the difficulties she was facing in educating them after the death of their mother. The elder child, Laura, has now secured a scholarship to study at SOS Hermann Gmeiner International College in Ghana. According to the curator, Mr Gumbo, who investigated the circumstances of the minor children and filed his report, the programme of study is in the best interest of the minor child.

I therefore was satisfied, that, the applicant should be granted custody and guardianship of the minor children who she has been looking after since their mother brought them to her in 2008. It is in their best interest that their custody and guardianship be granted to the applicant.

These, therefore, are the reasons why I granted the minor children's custody and guardianship to the applicant.

View Appeal
SC130-21 : PHILIPPA COUMBIS vs RONALD COUMBIS and DOVES FUNERAL ASSURANCE (PVT) LTD
Ruled By: GARWE JA, GOWORA JA and UCHENA JA

Section 81(2) of the Constitution..., provides, that, in every matter concerning a child, it is the child's best interests that are paramount and that minor children are entitled to protection of the courts, particularly by the High Court as the upper guardian of the rights of children.

Section 81(2) and (3) of the Constitution reads:

“(2) A child's best interests are paramount in every matter concerning the child.

(3) Children are entitled to adequate protection by the courts, in particular, by the High Court as their upper guardian.”

This position was aptly illustrated in Mackintosh (Nee Parkinson) v Mackintosh SC37-18…, where this court held that:

“A court, such as the court a quo, must always keep in mind that the interests of the minor children are always paramount. In considering those interests, the court should not allow itself to be misled by the appearances that the parties give. It must, in addition to any evidence given, be guided by its own experiences and sense of what is fair….,.”

CRETNEY SM on Principles of Family Law, (Third Edition, Sweet & Maxwell, London, 1979) cited with approval in Mackintosh (Nee Parkinson) v Mackintosh SC37-18 …, states…, that:

“It has traditionally been stressed, that, the law is not that the welfare of the child is the sole consideration. There may, for instance, be cases where the public interest overrides the welfare of a particular child. But, the requirement to treat the child's welfare as the 'first and paramount' consideration means 'more than that [it] is to be treated as the top item in a list of items relevant to the matter in question. [The words] connote a process whereby, when all the relevant facts, relationships, claims, and wishes of parents, risks, choices, and other circumstances are taken into account and weighed, the course to be followed will be that which is most in the interests of the child's welfare as that term has now to be understood. That is the first consideration because it is of first importance and the paramount consideration because it rules upon or determines the course to be followed.”

HH974-15 : GUGULETHU HURASHA vs CENTRAL AFRICAN BUILDING SOCIETY and FIRST CAPITAL PLUS and ITAYI MUNYEZA and SHERIFF OF ZIMBABWE and MASTER OF THE HIGH COURT
Ruled By: NDEWERE J

The applicant and the third respondent divorced on 16 January 2014 in Case No. HC7328/13.

In terms of a consent paper concluded on 14 November 2013, which became part of the divorce order of 16 January 2014, the applicant and the third respondent agreed to give their matrimonial home, Stand No.17074 Giraffe Crescent, Borrowdale West, Harare to their two minor children in equal shares.

Paragraph E.5 of the Consent Paper stated as follows:

“E. Division of Matrimonial Property

5. Stand No.17074 Giraffe Crescent, Borrowdale West, Harare shall be awarded to the two minor children in equal shares. The property shall be transferred and registered in the said minor children's names within one year of the order. The parties shall sign all relevant papers to effect transfer to the minor children, failing which, the Sheriff Harare shall sign all such papers as if it were the plaintiff and defendant. The plaintiff shall pay the cost of the transfer. In addition, the defendant shall exercise the rights (usufruct) of use and occupation until she dies or remarries whichever occurs sooner.”

Stand No.17074 Giraffe Crescent was not transferred and registered in the children's names within one year, contrary to what was ordered by the court.

The court was not told of any steps which were taken by the applicant and the third respondent towards complying with the Divorce Order.

It also appears, that, the Sheriff, who was supposed to sign all the papers, for purposes of transfer and registration, if the applicant and the third respondent failed to do so, was never approached.

The property thus remained in the third respondent's name, in contravention of the divorce order.

It is common cause, that, in August, 2015, the above property was attached by the first respondent in order to satisfy a debt by the second respondent where the third respondent had signed as surety.

The applicant says she became aware of the attachment on 21 August 2015. On 2 September 2015 the applicant filed an urgent chamber application for stay of execution of the writ of attachment.

There was a delay of more than 10 days from the date of the attachment to the date of filing of the urgent application. That delay is not explained, contrary to case authorities which indicate that any delay in approaching the court urgently should be explained since an applicant in an urgent application should herself treat the matter urgently.

The first respondent opposed the urgent application.

It said the applicant had no locus standi; that she should have instituted interpleader proceedings; and that the application is not urgent.

The other respondents did not file any opposing papers.

In my view, the applicant has locus standi, both as co-guardian of the minor children affected and in her own right as a person with an interest in the property attached since she was granted life usufruct of the property if she did not re-marry.

The interest of the minor children and her own are sufficient to give her locus standi in this matter.

In addition, the applicant could not have instituted inter pleader proceedings because inter-pleader proceedings apply where the contention by the claimant is that of ownership.

In interpleader proceedings, the judgement creditor will have attached property owned by another person.

In the present case, the property attached is owned by the third respondent and even the applicant concedes, in her founding affidavit, that there is nothing wrong with the attachment.

As regards urgency, I have already criticised the applicant for not explaining her delay in approaching the court after the attachment.

In addition to that, the first respondent argued, that, the applicant was aware that the first respondent was searching for assets to attach for the same debt as far back as December 2014 because the first respondent once attached her movables but released them after she proved that the goods were hers and not the second respondent's.

The first respondent submitted, that, her cry now was a matter of self-created urgency.

There is merit in the first respondent's argument on the lack of urgency of the application. However, in view of the minor children who have an interest in this matter, I have decided to exercise my discretion in favour of the applicant and treat the application as urgent.

I will therefore proceed to consider the merits of the application.

The court order of 16 January 2014 said Stand 17074 Giraffe Crescent was to be transferred and registered in the minor children's names within one year of the divorce order….,.

This time limit was put to protect the interests of the minor children by ensuring a speedy transfer and registration into their names.

This was not done, and, as stated previously, no explanation is given as to why that was not done.

There is just a bald statement by the applicant, which was not supported by a supporting affidavit from the third respondent, that the third respondent did not have the money to process the transfer.

The attachment was done more than one and a half years after the divorce order.

Why then should the first respondent be prejudiced when it is the applicant and the third respondent who failed to protect their minor children's rights by complying with the terms of the divorce order to transfer and register the house into the children's names within a year of the divorce order?

The adage “the law helps the vigilant and not the sluggard” enunciated in Ndebele v Ncube 1992 (1) ZLR 288…, is applicable in this instance.

The applicant and the third respondent were not vigilant in safeguarding the minor children's interests.

Secondly, as indicated by the first respondent, the applicant was aware of the debt and the search for assets as far back as December 2014, yet, she still did not make effort to ensure registration of the house into the children's names.

What further compounds the matter for the applicant is that the relief she is seeking sounds permanent in nature.

It is not a stay pending some other application or action to be taken but a permanent stay of execution.

Her affidavit, in paragraph 18.3, also suggests that the second and third respondents have no financial means to clear the debt.

All these factors militate against the granting of the application.

Granting the application will mean that the first respondent cannot recover his debt from the second and the third respondent forever, when he has a court order entitling him to do so, and this court has no power to stop a creditor with a valid court order from recovering his debt.

In any event, the property is also mortgaged to another creditor so the rights of the children remain exposed even if the application were to be granted.

As correctly conceded by the applicant, in paragraph 19.1 of her founding affidavit, the attachment cannot be faulted since the property still belongs to the third respondent.

While the court sympathizes with the minor children in this case, the court has no legal basis to stay execution of the attached property.

The application is therefore dismissed with costs.

SC131-21 : CHANTELLE MUTESWA vs FRANK BUYANGA SADIQI
Ruled By: UCHENA JA, CHITAKUNYE JA and KUDYA JA

This is an appeal against the judgment of the High Court dated 18 March 2020 in which it granted to the respondent joint custody and joint guardianship of the minor child.

In the same order, the court a quo, thereafter, ordered that an investigation be conducted by the Department of Social Welfare into how the parents were to exercise joint custody and joint guardianship.

The appellant appealed to this Court and has argued that joint custody and joint guardianship is not in the best interests of the minor.

Counsel for the appellant conceded, that, the court a quo's decision on the applicability of the common law, as enunciated in the court a quo's paragraph 1 of this order, is correct.

That paragraph reads as follows:

“The common law rule that gives the mother of a child born out of wedlock sole guardianship and sole custody and denies the natural father of such a child parental power is inconsistent with sections 56(1), 56(3), 81(1)(a) of the Constitution of Zimbabwe 2013 and is invalid.“

The appellant took issue with the granting of the joint custody and joint guardianship of the minor child before an inquiry into what would be in the best interests of the child had been made.

Counsel for the appellant submitted, that, the best interests of the minor child should have been inquired into before granting joint custody and joint guardianship.

In response, counsel for the respondent, by reference to the chicken and egg conundrum, argued that while investigation was essential, the court a quo correctly granted joint custody and joint guardianship and thereafter ordered that an investigation be conducted.

In our view, the welfare of the minor child is delicate and important. It should not be prematurely exposed to unverified parental circumstances.

It is therefore our view, that, the court a quo should not have determined the issue of joint custody and joint guardianship before the investigations it ordered in paragraph 4 had been done. In the result:

1. The appeal partially succeeds.

2. The court a quo's order in paragraph 1 is upheld.

3. The court a quo's order in paragraphs 2, 3 and 4 are hereby set aside.

4. The matter is hereby remitted to the court a quo for it to determine the issue of joint custody and joint guardianship after an inquiry as to whether or not joint custody and joint guardianship, in the circumstances of the parties, is in the best interest of the child.

5. In the case of a finding that it is in the best interest of the child, how joint custody and joint guardianship should be exercised without jeopardizing the best interest of the child.

6. Each party shall bear its own costs.

SC132-21 : FRANK BUYANGA SADIQI vs CHANTELLE MUTESWA and OTHERS
Ruled By: UCHENA JA

On 16 June 2021, I partly heard the applicant's chamber application for condonation and reinstatement of an appeal in terms of Rule 70(2) of the Supreme Court Rules 2018.

On 11 May 2020, the applicant filed a notice of appeal, but failed to inspect the record within the time prescribed by the Rules. By letter dated 13 April 2021, the Registrar advised the applicant's legal practitioners that the appeal had been deemed abandoned.

It is that appeal the applicant wants to be reinstated.

At the hearing of the application, counsel for the first respondent raised a point in limine.

He submitted, that, the applicant should not be granted audience by the court because he is in contempt of court orders.

He submitted, that, the applicant snatched the minor child from the first respondent at a shopping centre in Waterfalls, Harare and took him out of Zimbabwe through an un-designated exit point. He further submitted, that, the first respondent has not seen the child since that incident.

Counsel for the applicant submitted, that, the applicant should be heard as it is his constitutional right to have access to the courts.

He initially could not say where the child was, but, eventually, conceded that he had been taken out of the court's jurisdiction and was staying in South Africa with the applicant.

Counsel for the third to sixth respondents (Commissioner General of Police, Registrar General, Chief Immigration Officer and Minister of Justice, Legal & Parliamentary Affairs) though having indicated that her clients will abide by the decision of the court, as an officer of the court, advised the court that the applicant is on the wanted list of Interpol and is a fugitive from justice.

On the welfare and best interest of the minor child, counsel for the applicant submitted, that, the child was in good health and could be shown to the court virtually.

Counsel for the first respondent submitted, that, it was not in the best interest of the child for him to be snatched away from his mother and be kept away from her for 15 months. He submitted, that, the child should be brought back to the court's jurisdiction. He submitted that it was the duty of the courts to protect minor children.

After hearing the parties, I gave an ex-tempore ruling, partly upholding the first respondent's point in limine and postponed the hearing of the application until the applicant brings back the minor child to the court's jurisdiction and present him to the court.

This morning, the Registrar brought to my attention the Constitutional Court's order to the effect that she should have ensured that my judgment was made available to the parties by 22 September 2021. She failed to bring the order to me before 22 September 2021.

My reasons for partly upholding the first respondent's preliminary point are as follows:

The rights of children should not be trampled upon by their parents. The rights of parents to exercise guardianship and access to their children must be exercised without adversely affecting the rights of the children.

In this case, it was clear to me, that, while the applicant was entitled to have guardianship and access to his son he had to do so lawfully, and, if hindered, by resorting to the courts to enforce his rights.

Snatching the child and fleeing the jurisdiction of the court with him through undesignated exit points, is, in my view, not in the best interest of the child.

I appreciate that the High Court had granted the parties joint custody and guardianship.

Those rights should be exercised in terms of the law and in a manner which ensures that the child is not exposed to illegalities.

The child should also be accessed by both parents to enable it to bond with both parents.

The snatching away of the child, and keeping him away from his mother for 15 months, is not in the best interest of the child, and is not consistent with the exercise of joint custody and guardianship.

I did not think it prudent to completely deny the applicant audience because it is in the best interest of the child that his parents issues over him be resolved by the courts.

It is for that reason that I thought it prudent that the child be brought back to the court's jurisdiction for him to be protected by the courts, according to the law, while his parents issues are being dealt with by the courts.

These are the reasons why I partly upheld the first respondent's point in limine.

HB40-15 : BONGANI NDLOVU (as Executor Dative, Estate Late Kenneth Sithole) vs HOWARD SITHOLE and MELODY SITHOLE
Ruled By: MUTEMA J

Kenneth Sithole died at Bulawayo on 6 February 2013. During his lifetime, he purchased, from Rebecca Howes, a piece of land, being Stand 15 Rangemore Township 3 of Lot G of Upper Rangemore, also known as Plot 15 Gramps Way, Rangemore (hereinafter referred to as the Plot).

Kenneth Sithole's widow, one Monica Sithole, with whom he contracted a civil marriage, is the only surviving spouse with whom he had one issue, Nozipho Sithole, now aged six years.

Kenneth Sithole also left other children, of whom the respondents herein are some of them, from his previous marriage.

All those children were majors at the time of his death.

Prior to his death, Kenneth Sithole, his widow, and the minor child lived on the Plot and none of the respondents lived there.

Following his death, the respondents and their families forced their way onto the Plot and despoiled the widow and the minor child of it.

This was before the applicant was appointed executor of the estate.

After the applicant was appointed executor, on 15 October 2013, the Assistant Master of this Court and himself advised the respondents to move out of the Plot so as to facilitate the smooth administration of the estate.

That advice fell on deaf ears.

The respondents remained put disrupting the administration of the estate. The surviving spouse has not been allowed back and the tenants on the Plot have been forced to run away therefrom.

Due to respondents unlawful conduct alluded to supra, which conduct the applicant deems interferes with the fulfillment of his functions of administering and winding up the estate, the applicant filed this application seeking eviction of the respondents and all those claiming occupation of the Plot through them, an interdict that the respondents be ordered not to set foot on the Plot, and costs of suit.

The application is opposed by both respondents who are brother and sister respectively.

In their imagined understanding of the applicable law to the dispute, I am constrained to quote in extenso the respondents supposed opposing affidavit which goes as follows:

“NOTICE OF OPPOSITION OF THE DRAFT ORDER (undated)

We Respondents above, do hereby oppose the Draft Order Application as follows:

1. That the Draft Order by the Executor is baseless and without the Court Order to support it.

2. That according to the local custom, it would be illegal to evict the rightful heirs to the estate of their late father and mother.

3. That we have the most valid title to the land after the death of our parents since we also contributed financially to pay for it before Applicant came to stay with the late or after our mother died.

4. We pray that the Master of the High Court could look into the Administration of this estate.

5. The executor to this estate was biased and took sides with the original applicant. Instead, he disregarded his duty to settle this estate the right way within the law of intestate succession.

6. At the time of marriage, the late was critically ill raising suspicion of marriage of convenience.

7. We therefore pray to the Master of the High Court to appoint another executor who will be able to settle this issue with justice.

8. We also pray that the Honourable Court throw out Applicant's Application and then consider the Administration of this Estate in accordance with the laws and custom of the land and also grant us ownership of this estate.”

The document is signed by both respondents and a Commissioner of Oaths, one P. Ndlovu.

It is crystal clear from a reading of the purported opposing affidavit that the respondents, in their layperson's understanding of the general law of intestate succession, have no clue as to how it operates.

Such an estate is supposed to be administered in terms of the relevant provisions of the Deceased Estates Succession Act [Chapter 6:02] as read with the Administration of Estates Act [Chapter 6:01] and not according to custom.

They did not advert to the real issues raised by the applicant in their opposing papers.

They did not deny that Monica Sithole is the sole surviving spouse of the late Kenneth Sithole.

They did not deny that the widow and the minor child lived at the Plot with the deceased at the time of his death.

They also did not deny that themselves and all those claiming occupation of the Plot through them were not living at the Plot at the time Kenneth Sithole passed on.

Further, they both did not deny forcing the widow from the Plot and that they are obstructing the executor from fulfilling his duties of winding up the estate by forcibly and arbitrarily occupying the Plot.

In his oral submissions at the hearing of the application, the first respondent made a bare denial of the allegation simply alleging that the application is based on fabrication and that he never threw out his step-mother from the Plot.

I am not convinced that his denials are well founded.

If he did not throw out his step-mother from the Plot, she would not have left and I do not believe that the applicant would have launched this application.

As regards the allegation that he is frustrating the applicant in his duties to administer the estate, the first respondent said:

“It is not very true that we are impending the work of the executor.”

The ordinary grammatical meaning of this statement is clearly that there is some impediment.

He is not supposed to engender any amount of impediment to the applicant - however slight.

If account is had to the tone of the opposing “affidavit” it is not difficult to infer that both respondents are entirely inimical to the widow benefitting from the estate and also to the applicant administering this estate.

It therefore must be true that they did and continue to do what the applicant alleges.

The second respondent, in her oral submissions, was more comical.

She said she went to stay at the Plot at the invitation of the widow and when the latter told both of them to leave, they left, and, as it is, the applicant is executing his duties “nicely.”

Nothing can be further from the truth.

If that were so, I do not think that the applicant would have approached this court seeking the relief alluded to above. Also, the widow would not have left the Plot.

In view of the foregoing, I have no difficulty finding that the applicant has made a good case for the relief sought.

In the result, it is ordered as follows:

1. The respondents and all those claiming occupation through them be and are hereby ordered to vacate Plot 15, Gramps Way, forthwith failing which the Sheriff or his lawful deputy is authorized to evict them.

2. The respondents be and are hereby interdicted from setting foot on the Plot.

3. The respondents shall pay the costs of suit jointly and severally the one paying the other to be absolved.

HH670-15 : THE SHERIFF OF THE HIGH COURT vs NOMVUYO MADZIRO and ANESUISHE MADZIRO and RUVARASHE MADZIRO and CBZ BANK LIMITED
Ruled By: MATANDA-MOYO J

The judgment creditor obtained judgment in its favour against Walter Madziro in HC2110/12, for payment of the sum of $86,965=36 with interest thereon at the rate of 36% per annum from 7 February 2012.

Subsequent to that order, the judgement creditor directed the applicant to attach and take into execution the judgment debtor's immovable property, being Stand 13594 Salisbury Township of Salisbury Township held by the judgement debtor under Deed of Transfer number 503/2002. The property is also known as Number 28 MacGowan Road, Belvedere, Harare.

The applicant attached the above property, and, subsequent to such attachment, the claimant has laid a claim against the said property on the basis, that, such property was awarded to her and her children by this court at the time of her divorce to the judgment debtor.

It is common cause, that, during the divorce proceedings, the claimants were awarded the property in question, HC3431B/11 refers. Paragraph 4 of the consent paper, which forms part of the order, read:

“4. The immovable property known as Number 28 MacGowan Road, Belvedere, Harare shall be transferred to and registered in the names of the defendant (1st claimant herein) and the two minor children of the marriage, namely, Anesuishe and Ruvarashe Madziro. Transfer shall be conducted within 6 months of the divorce order and the plaintiff (judgment debtor herein) shall meet the costs of the transfer.”

To date, the property is still in the judgment debtor's name and no reasons were advanced for that position.

The question to be decided by this court is whether the claimants have managed to prove that the property belongs to them and falls outside the property which can be sold into execution to settle the judgment debtor's obligations.

Counsel for the judgment creditor argued, that, ownership of immovable property is determined in terms of the Deeds Registries Act [Chapter 20:05]. Section 14 thereof provides, that, ownership of land may be conveyed from one person to another “only by means of a deed of transfer executed or attested by a registrar.”

Counsel argued, that, at the time of attachment, the claimants had not taken ownership of the property, and, therefore, such ownership has never been taken by the claimants. He argued, therefore, that, the applicants have failed to show that they own the property in question.

It is trite, that, in terms of the Deeds Registries Act, the owner of an immovable property is the registered owner.

In Takafuma v Takafuma 1994 (2) ZLR 103 (S)…, the court said:

“The registration of rights in immovable property, in terms of the Deeds Registries Act [Chapter 139], is not a mere matter of form. Nor is it simply a device to confound creditors or tax authorities. It is a matter of substance. It conveys real rights upon those in whose name the property is registered. See the definition of 'real rights' in section 2 of the Act. The real right of ownership, or jus in re propria, is the 'sum total of all the possible rights in a thing:' see Willie's Principles of South African Law, 8ed, p255.”

No doubt, the property attached by the applicant, in terms of the laws of this country, is the judgment debtor's property. Walter Madziro is the owner of the property so attached.

This brings me to the claimants rights in the said property.

The claimants have rights in the property conferred by this Honourable Court. The court, in granting those rights, was aware that ownership would only pass upon transfer of property to the claimants.

The parties were also aware of the fact hence the inclusion of paragraph 4 of the consent order requiring the claimants to take transfer within 6 months of the order.

That has not happened.

The claimants have failed to comply with the court order they seek to rely upon. No explanation has been given for such failure to comply with the court order.

Failure to take transfer means, that, the judgment debtor remains the owner of the said property.

It is only the transfer of ownership of such property to the new owner that brings about an end to the legal basis of the judgment debtor's right to the use and ownership thereof.

I am of the view, that, the court order granted the claimants the right to transfer of property. Such right was not exercised by the claimants. Such right remained a personal right which would convert to a real right upon registration.

When a court order provides a time limit within which to do something, I am of the view, that, such time limits ought to be followed. Failure to comply with such time limits lead to lapsing of the rights conferred therein.

The law helps those who are awake and not the sluggard; lex subvernit vigilantibus nom dormientibus.

The claimant sought to claim ownership of immovable property based on an order of this court - which order she has not complied with.

If such application was made within the six (6) months provided for in the court order, I was going to be persuaded that the claimants have discharged the onus on them of proving ownership of the attached immovable property.

I am of the view, that, without registration in title, the claimants cannot succeed in proving that they own the said property. Such onus of proving ownership rested with the claimants: see Bruce NO v Josiah Parkes & Sons (Rhodesia) Ltd & Anor 1972 (1) 68 (R).

It is trite, that, a claimant must show proof of ownership in order to succeed in inter-pleader proceedings. The claimants have failed to discharge such onus.

In the result, I order as follows:

1. The claimants claim to Stand 13594 Salisbury Township of Salisbury Township lands measuring 1543 square metres in extent and held under Deed of Transfer Number 503/2002, dated 6 February 2002, also known as Number 28 MacGowan Road, Belvedere, Harare placed under attachment in execution of judgment HC2110/12 is hereby dismissed.

2. Stand 13594 Salisbury Township of Salisbury Township lands measuring 1543 square metres in extent and held under Deed of Transfer Number 503/2002, also known as Number 28 MacGowen Road, Belvedere, Harare as set out in the Notice of Attachment of Immovable Property, dated 19 November 2014, issued by the applicant, is declared executable.

3. The claimant to pay the costs of the judgment creditor and the applicant.

HH24-19 : MOHAMMED ISMAIL (as the guardian of X - a minor) vs SAINT JOHNS COLLEGE and CAVALIERE COORRADO TRINCI N.O. and STEVE MARTIN N.O. and MINISTRY OF PRIMARY AND SECONDARY EDUCATION
Ruled By: CHITAKUNYE J

This is a chamber application brought on a certificate of urgency. The provisional order the applicant seeks was couched as follows:“FINAL ORDER1. That, the conduct of the 1st, 2nd and 3rd respondents consisting of ordering X, a minor enrolled as an Upper Six student at the 1st Respondent, to shave ...

This is a chamber application brought on a certificate of urgency. The provisional order the applicant seeks was couched as follows:

“FINAL ORDER

1. That, the conduct of the 1st, 2nd and 3rd respondents consisting of ordering X, a minor enrolled as an Upper Six student at the 1st Respondent, to shave his beard as a pre-condition to the continuation of his studies at the 1st Respondent, be and is hereby declared null and void and of no force or effect as an infringement of his right to freedom of religion protected by section 60 of the constitution of Zimbabwe.

2. That, the conduct of the 1st, 2nd and 3rd respondents consisting of ordering X, a minor enrolled as an Upper Six student at the 1st respondent, to shave his beard as a pre-condition to the continuation of his studies at the 1st respondent, be and is hereby declared null and void and of no force or effect as an infringement of his right not to be discriminated against on account of religion, such right being protected by section 56 of the Constitution of Zimbabwe.

3. That, the minor, X, be and is hereby allowed to remain a student of the 1st respondent while at the same time keeping his beard in accordance with the Islamic religion.

4. The respondents who oppose this order shall pay the costs of this application on a legal practitioner and client scale.

INTERIM RELIEF:

Pending determination of this matter, the Applicant is granted the following relief:

It is ordered that:

1. That, the 1st, 2nd, and 3rd respondents be and are hereby interdicted from barring X from entering the premises of the 1st respondent for purposes of continuing with his Upper Sixth Form studies notwithstanding the fact that the aforesaid Yusuf Ismail is not shaving his beard.

2. That, the 1st, 2nd and 3rd respondents be and are hereby interdicted from insisting, directly or indirectly, that X shaves his beard as a pre-condition to him continuing with his Upper Sixth Form studies at the 1st respondent.

3. That, the respondents who oppose this order shall pay the costs of this application on a legal practitioner and client scale.”

The basic facts leading to this application were that:

The applicant enrolled his son, X (hereinafter referred to as the minor), at St Johns College in 2013. At the time of enrolment, the applicant signed a contractual document 'Acceptance of Entry' in which were stated the conditions for the acceptance of the minor at St. Johns College. Amongst the terms and conditions that the applicant unequivocally accepted were clauses 2 and 3 which stated that:

“2. That, the student will be bound by all rules and requirements as laid down by the college from time to time in both academic and extra-curricular activities.

3. That, in particular, the student will be bound by the St. Johns College Code of Conduct as amended from time to time.”

The Code of Conduct stipulated the conduct that was expected from all the students without discrimination.

The particular aspect that led to this case pertains to the requirement that all students be cleanly shaven.

At the time of enrolling at the college, the minor had not yet developed a beard. However, towards the end of 2018, he developed a beard.

It is common cause, as between the parties, that, in terms of the Code of Conduct, the minor was expected to shave the beard.

In recognition of this regulation, and as the minor had already been advised to be cleanly shaven in terms of the regulation if he was to continue at the school, on the 1st of October 2018 the applicant wrote a letter to first respondent requesting that the minor be allowed to grow his beard. That letter stated, inter alia, that:

“This letter serves as a humble request to allow my son, X (L6S), to keep his beard. It is imperative that he does not shave his beard for religious purposes. X leads congregational prayers at the mosque, and, it is not permissible for those who lead the prayer to remove their beards.”

After acknowledging the valuable role played by the Regulations, in moulding boys into responsible men, the applicant proceeded to say:

“Allowing Yusuf to keep his beard will permit him to practice his faith without it interrupting his education.”

On the 3rd of October, the first respondent responded to the request with a clear NO in, inter alia, these words:

“Please note, that, we no longer grant exemptions to these requests under any circumstances, and, hence, your appeal for X to keep facial hair on religious grounds is denied. He has to shave and follow our regulations to the letter as outlined in the code of conduct.”

Despite what should have been a clear response, on the 28th of December 2018, the applicant, through his legal practitioner, wrote to the first respondent inquiring if the first respondent would carry out what he termed its threat to bar the minor from attending school if he did not shave his beard.

That letter did not yield a positive response as the first respondent indicated it was yet to refer the applicant's letter to its legal practitioners for a response as the college had been closed as from 14 December and had just opened and so was yet to consult its legal practitioners.

As the 2019 first school term drew closer, the applicant paid school fees for the minor but the school would not allow the minor to attend school without complying with the requirement to be cleanly shaven.

As a consequence, the applicant launched this application.

It is pertinent to note, that, the fact that the applicant and the minor are Muslims is common cause. In this application, the applicant emphasised the fact, that, there is a family tradition in their family to be an Imam. In this regard, the minor is studying to be an Imam hence he is now leading a congregation in prayers. It is in that respect that he said the minor has to strictly adhere to the Islamic requirement for male persons not to shave the beard. The applicant alleged, that, by refusing to allow the minor to attend school without shaving, the school is effectively asking the minor to abandon his religion.

He also alluded to the infringement of the minor's freedom to religion, protected by section 60 of the Constitution, by ordering him to shave his beard before he can be allowed into the school premises.

Other sections he said were infringed include sections 56 and 75 of the Constitution.

The first to third respondents opposed the application....,.

As regards the merits of the application, the respondents contended, that, they were not infringing on the minor's rights. Whilst it was common case that the applicant and the minor are Muslims, it was the applicant who accepted that the minor will comply with the school regulations as stipulated in the Code of Conduct.

As far as the respondents are concerned, they were simply enforcing what the parties had agreed to.

The respondents denied that the minor has been discriminated against on religious ground or at all. All the respondents wanted is for the minor to adhere to school regulations which the applicant had agreed to.

For easy of reference, the sections relied upon in this application state as follows:

“56 Equality and Non-discrimination

(1) All persons are equal before the law and have the right to equal protection and benefit of the law.

(2)…,.

(3) Every person has the right not to be treated in an unfairly discriminatory manner on such grounds as their nationality, race, colour, tribe, place of birth, ethnic or social origin, language, class, religious belief, political affiliation, opinion, custom, culture, sex, gender, marital status, age, pregnancy, disability or economic or social status, or whether they were born in or out of wedlock.

(4) A person is treated in a discriminatory manner for the purpose of subsection (3) if —

(a) They are subjected, directly or indirectly, to a condition, restriction or disability to which other people are not subjected; or

(b) Other people are accorded, directly or indirectly, a privilege or advantage which they are not accorded.

(5) Discrimination on any of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair, reasonable, and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom.

(6)…,.”

“60 Freedom of Conscience

(1) Every person has the right to freedom of conscience, which includes —

(a) Freedom of thought, opinion, religion or belief; and

(b) Freedom to practise and propagate and give expression to their thought, opinion, religion or belief, whether in public or in private and whether alone or together with others.

(2) No person may be compelled to take an oath that is contrary to their religion or belief or to take an oath in a manner that is contrary to their religion or belief.

(3) Parents and guardians of minor children have the right to determine, in accordance with their beliefs, the moral and religious upbringing of their children, provided they do not prejudice the rights to which their children are entitled under this Constitution, including their rights to education, health, safety and welfare.

(4) Any religious community may establish institutions where religious instruction may be given, even if the institution receives a subsidy or other financial assistance from the State.”

“75 Right to Education

(1) Every citizen and permanent resident of Zimbabwe has a right to —

(a) A basic State-funded education, including adult basic education; and

(b) Further education, which the State, through reasonable legislative and other measures, must make progressively available and accessible.

(2) Every person has the right to establish and maintain, at their own expense, independent educational institutions of reasonable standards, provided they do not discriminate on any ground prohibited by this Constitution.

(3) A law may provide for the registration of educational institutions referred to in subsection (2) and for the closing of any such institutions that do not meet reasonable standards prescribed for registration.

(4) The State must take reasonable legislative and other measures, within the limits of the resources available to it, to achieve the progressive realisation of the right set out in subsection (1).”

Another section of importance in this regard is section 86 of the Constitution which permits the limitation of fundamental rights in these terms:

“(1) The fundamental rights and freedoms set out in this Chapter must be exercised reasonably and with due regard for the rights and freedoms of other persons.

(2) The fundamental rights and freedoms set out in this Chapter may be limited only in terms of a law of general application and to the extent that the limitation is fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom, taking into account all relevant factors, including —

(a) The nature of the right or freedom concerned;

(b) The purpose of the limitation, in particular, whether it is necessary in the interests of defence, public safety, public order, public morality, public health, regional or town planning or the general public interest;

(c) The nature and extent of the limitation;

(d) The need to ensure that the enjoyment of rights and freedoms by any person does not prejudice the rights and freedoms of others;

(e) The relationship between the limitation and its purpose, in particular, whether it imposes greater restrictions on the right or freedom concerned than are necessary to achieve its purpose; and

(f) Whether there are any less restrictive means of achieving the purpose of the limitation.

(3) No law may limit the following rights enshrined in this Chapter, and no person may violate them —

(a) The right to life, except to the extent specified in section 48;

(b) The right to human dignity;

(c) The right not to be tortured or subjected to cruel, inhuman or degrading treatment or punishment;

(d) The right not to be placed in slavery or servitude;

(e) The right to a fair trial;

(f) The right to obtain an order of habeas corpus as provided in section 50(7)(a).”…,.

It is apparent that none of the rights that the applicant alleged would be infringed by the conduct of the respondents falls into the category of inviolable rights enumerated in subsection (3) of section 86 of the Constitution.

Accordingly, in the event that the applicant establishes that the conduct would violate any of the rights, it will be necessary to measure such prima facie violation as against the rights and freedoms of others, in terms of subsection (1), and within the context of the permissible derogations contemplated in subsection (2).

Counsel for both parties referred to the case of Makani & Others v Arundel School & Others 2016 (2) ZLR 157 (S) wherein the above rights were extensively discussed.

In that case, the applicants sought several declarations and consequential relief in respect of alleged violations of their children's constitutional rights.

The applicants had enrolled their children at Arundel School. In enrolling them they agreed that the children will abide by the school's Regulations. The school, being an Anglican school, had its requirements for inculcating value systems in the children. The Regulations were amended making it compulsory for all students to attend chapel prayers in order to reinforce collegiality.

The applicants and their children were practicing Jehovah's Witnesses. Their beliefs are not similar with other Christian denominations.

Upon application to the school for the admission of their children, each of the applicants completed a standard application form in which they indicated that they were Jehovah's Witnesses.

When compulsory chapel attendance was introduced and the children were being compelled to attend against their beliefs, the applicants wrote several letters to the school expressing their complaints. When the school insisted on the children attending Chapel, the applicants approached this court seeking an order for the children to continue attending school without being compelled to attend Chapel pending the determination of their application at the Constitutional Court.

The court considered issues that are also relevant in this matter.

In dealing with the right to education, as enunciated in section 75 of the Constitution, the court alluded to the fact that subsections (1) and (4) thereof pertain to right to education funded and availed by the State. As regards private schools, at page 165H-166B, the court aptly stated that:

“Subsections (2) and (3) of section 75 deal separately with private or independent educational institutions. They permit the establishment of such institutions, subject to such State supervision and control as may be necessary to ensure that they meet prescribed reasonable standards.

The right to establish and maintain an independent institution, guaranteed by subsection (2), must be construed not only in the physical and structural sense but to include as well the establishment and maintenance of educational and ethical standards.

Conversely, the provision does not envisage any right to flout the rules and regulations designed by the institution to safeguard its educational and ethical standards. The only qualification to the rights of an independent institution is that it must not discriminate on any ground prohibited by the Constitution….,.”

What this entails is that a private school is entitled to lay down rules and regulations for the admission of pupils espousing its objectives and ethos as long as those Regulations do not discriminate on any of the grounds prohibited in the Constitution.

In casu, the first respondent is a private/independent educational institution.

In opening its doors to learners, it set its objectives and ethos as stated in its Regulations, including the Code of Conduct. Thus, any learner seeking admission was made aware of the institution's Regulations and had to agree to abide by those Regulations as a pre-condition for admission.

The Code of Conduct was designed to espouse the institution's objectives and ethos thus giving it a unique identity. The Code of Conduct applied to all the learners alike and did not discriminate on any ground. The school, in effect, expected every pupil to maintain the 'St. Johns College' educational and ethical standards as espoused in the Code of Conduct.

Ex- facie, the Code of Conduct does not contravene section 56 of the Constitution as it requires all pupils to abide by the same Regulations in equal measure.

In dealing with a similar provision that required all pupils to attend chapel, PATEL JCC, in Makani & Others v Arundel School & Others 2016 (2) ZLR 157 (S)…, stated that:

“Given that this contractually agreed stipulation is intended to apply to all pupils without distinction, I do not think that it is necessarily discriminatory on the grounds of religion. Every parent who agrees to this condition does so willingly and actively chooses to abide by it implications. Thus, as I have stated earlier, in relation to the right to education, it cannot be said that this mutually agreed condition per se amounts to discriminatory treatment at the point of admission to the school.”

As noted in section 56(4) of the Constitution, what constitutes discrimination would be differentiation in treatment of the pupils.

In casu, the requirement to be cleanly shaven applied to all the pupils and the respondents enforcement of this Regulation was the same in respect of all the pupils.

In their opposition to this application, the respondents have insisted that the applicant's child be treated the same as other pupils. Any differentiation in treatment would bring disharmony within the body of students and would in fact amount to discrimination.

There was thus no discrimination in the way the respondents applied the Code of Conduct or as proscribed by the Constitution.

The other ground argued by the applicant's counsel was that the requirement for the minor to shave infringes on the minor's religious beliefs which is contrary to section 60 of the Constitution on freedom of conscience.

Whilst indeed the insistence on shaving is not in keeping with the minor's religious belief, such a condition was known to the applicant as he signed the contract for the minor's admission to the school.

It is the applicant who, in signing that contract without any reservations, compromised that minor's religious beliefs in order to gain from the educational and ethical standard enjoyed at the first respondent.

The minor can still exercise his freedom of conscience without hindrance as long as he abides by the contractual obligations the applicant accepted in enrolling him at the first respondent.

It is for the applicant and the minor to conform to their contractual obligations and not for the first respondent to be forced to conform to the applicant's beliefs now that the minor is studying to be an Imam.

The applicant must respect the first respondent's rights and interests as an independent institution.

Further, as was held in Makani & Others v Arundel School & Others 2016 (2) ZLR 157 (S)…,:

“The freedom of religion is not inviolable and may be limited in order to respect the rights and freedoms of other persons within the contemplation of section 86(1) of the Constitution of Zimbabwe 2013…,.”

The limitation may be where a person has voluntarily renounced their religious beliefs or if it is reasonable and justifiable in a democratic society.

Freedom of religion must also be exercised reasonably and with regard to the rights of others. As aptly noted by PATEL JCC in Makani & Others v Arundel School & Others 2016 (2) ZLR 157 (S)…,:

“The provision that I deem most apposite to the resolution of this matter, and which I now turn to consider, is section 86(1) of the Constitution. It declares that 'fundamental rights and freedoms…, must be exercised reasonably and with due regard for the rights and freedoms of other persons.'

The analysis of conflicting rights postulated by section 86(1) calls for an essentially unitary approach.

The question whether a given right is being exercised reasonably is inextricably intertwined with the question whether it is being exercised with due regard for the rights and freedoms of others. What is required is the balancing of actually or potentially antagonistic rights, having regard to the nature of those rights, the manner in and the extent to which they impinge upon one another, and the circumstances in which they have been or are to be exercised.”

In casu, on admission of the minor, the applicant agreed to abide by the Regulations of the school - including the Code of Conduct.

The first respondent, as party to that contract, expected the applicant to comply.

The school, as a private educational institution, has a right to the observance of its institutional objectives and ethos. As long as those objectives and ethos do not discriminate on any ground stated in the Constitution, the first respondent is justified in insisting on the observance of its Regulations.

The principle of mutual respect and tolerance requires that the applicant accommodate the institutional rights and interests of the school in pursuing its perceived objectives, so long as those objectives are not pursued unreasonably, and, equally importantly, so long as they do not radically undermine the religious beliefs and convictions of any of its pupils.

To expect the school to forego its objectives and ethos to accommodate those of its pupils would lead to some form of loss of identity as espoused from the institutions objectives and ethos.

One can imagine a situation where pupils with varying antagonistic or conflicting religious beliefs each wanting to practice their beliefs at the expense of the institutional objectives and ethos. This would make a mockery of the contract the parents of the pupils would have entered to abide by the school Regulations in order to maintain the private school's objectives and ethos.

I am of the view, that, as long as those Regulations do not contravene Constitutional provisions, parties must respect the sanctity of their contract.

Whilst being cognisant of the importance of education and the fact that the minor in question is supposed to enrol for his sixth form, it is my view, that, the predicament he finds himself in could have been avoided by seeking a school whose Regulations permitted or had no issue with the growing of facial hair.

In light of the above, the issue of the nature of relief sought would not make any difference.

Even if the application had been for a declaration against the provisions in the Code of Conduct, that would not have succeeded as I am of the view, that, it is for the pupil to conform to school Regulations and not school Regulations to conform to individual pupils beliefs and standards no matter how dearly one holds to such beliefs.

The respondent asked for costs on the higher scale.

The issue for determination involved the rights of a minor. It is the minor who has been excluded from school because he has grown a beard which he wishes to grow as he is studying towards being an Imam.

I do not perceive any mala fide to warrant costs on a higher scale.

The school had, on past occasions, granted some pupils exemption, so, the applicant may have thought it reasonable to insist on such as well. In any case, as the case involved a minor child's rights even an award of costs may not be justified.

The need to pronounce on the minor's rights in this regard was necessary and this should act as a guide to parents and guardians alike to enrol children at institutions that accord with their religious beliefs. Where this is not feasible, then, obtain written exemption from certain rules or regulations at the time of enrolment as part of the contract.

Accordingly, the application be and is hereby dismissed with no order as to costs.

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Law Portal
Zimbabwe

Cause of Action re: Suits or Proceedings Involving Persons Under Disability, Minors and the Presumption of Doli Incapax

HH05-09 : MARION LYNDA RALPH vs CHRISTIAN VAN VUUREN
Ruled By: KUDYA J

HH113-10 : KUDZANAYI KATSANDE vs RAZMOND KATSANDE (as executor Estate Norman Katsande) and WILFRED MAGWAZA and MASTER OF THE HIGH COURT N.O and CHITUNGWIZA MUNICIPALITY
Ruled By: CHITAKUNYE J

HH79-11 : RUDO ELIZABETH SIMANGO (nee MAKONI) vs PAUL SIMANGO
Ruled By: CHITAKUNYE J

HH48-13 : MELINA MATSHIYA (In her capacity as Executrix testamentary for Estate late ETTORE FUMIA) vs GEORGE FUMIA and ELLEN FUMIA and FALCON HAULIERS (PRIVATE) LIMITED
Ruled By: MAWADZE J

HH194-14 : GILBERT CHINYA HUNGWE vs HANDINA FAITH HUNGWE
Ruled By: MAWADZE J

HH199-14 : TENILLE WHITBY vs MARCEL WHITBY and THE IMMIGRATION OFFICER and EVANS SIZIBA
Ruled By: MATANDA-MOYO J

HB191-11 : BENJAMIN SIBINDI vs NKOSILATHI MXOTSHWA and SAZINI MXOTSHWA and MNCEDISI MXOTSHWA and PHATHISANI MXOTSHWA and THABO MXOTSHWA and CITY OF BULAWAYO
Ruled By: KAMOCHA J

HHH570-14 : LESIUS MUGUMIRE vs THE STATE
Ruled By: HUNGWE J and MANGOTA J

HH35-16 : SHINGISAI MARYLN NYAMUKUSA vs GILBERT KARENGA MASWERA
Ruled By: UCHENA J

HB84-16 : PHILANI GAMA N.O. vs LUNGISANI MPOFU and PATRICIA PHIRI and MBALI NGWENYA and THE ADDITIONAL ASSISTANT MASTER N.O. and THE ASSISTANT MASTER, HIGH COURT OF ZIMBABWE, BULAWAYO N.O.
Ruled By: MATHONSI J

HH198-16 : TANIA ROCHE (as Curator Bonis of Anita Bruk-Jackson) vs IAN MIDDLETON (as Testamentary Executor to Estate Late Chester Bruk-Jackson) and THE MASTER OF THE HIGH COURT
Ruled By: CHITAKUNYE J

HH517-15 : CHEN WANG vs JOSEPH MANDIZHA and TAWANDA MAVHUNGA and TAFADZWA MAVHUNGA and DARNEL ENTERPRISES (PRIVATE) LIMITED
Ruled By: MUREMBA J

SC10-20 : ZIMBABWE SCHOOL EXAMINATIONS COUNCIL vs VICTOR MUKOMEKA (on behalf of a minor Charmaine Mukomeka) and CHINGASIYENI GOVHATI (on behalf of a minor Anesu Govhati)
Ruled By: PATEL JA, BHUNU JA and BERE JA

HH124-18 : MIKE VELAH and ALBERT NYAMURONDA and JOSEPH PEDZAYI and BRENDA HATINAHAMA vs THE MINISTER OF PRIMARY & SECONDARY EDUCATION and ZIMBABWE SCHOOL EXAMINATIONS COUNCIL
Ruled By: ZHOU J

HB119-10 : NYARADZAI KAZUVA vs GILBERT DUBE
Ruled By: CHEDA J and MATHONSI J

Appealed
SC74-20 : SHAILLON CHISWA vs CAR RENTAL SERVICES PL t/a AVIS RENT A CAR and BERNARD CHISWA
Ruled By: GARWE JA, MAVANGIRA JA and MAKONI JA

View Appeal
HH563-18 : CAR RENTAL SERVICES (PVT) LTD T/A AVIS RENT A CAR vs BERNARD CHISWA and SHAILLON CHISWA
Ruled By: MUZOFA J

SC84-20 : TIZAI CHISWANDA (in his capacity as father and guardian of CHIDOCHASHE CHISWANDA) vs OK ZIMBABWE LIMITED
Ruled By: GARWE JA, GOWORA JA and BERE JA

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

HH333-13 : GIVEMORE SAMBADZI and SALATIEL NHUBU vs REGISTRAR OF DEEDS
Ruled By: BHUNU J

HH366-18 : ALAIN GRANT vs TIRINGEI JEFTA and THE MASTER OF THE HIGH COURT and NELLIE TIYAGO (in her capacity as curator ad litem)
Ruled By: CHIRAWU-MUGOMBA J

HH818-15 : NAOMI MUKUNDU vs LAWRENCE CHIGUMADZI and TAKUNDA GUMBO and THE MASTER OF THE HIGH COURT
Ruled By: UCHENA J

View Appeal
SC130-21 : PHILIPPA COUMBIS vs RONALD COUMBIS and DOVES FUNERAL ASSURANCE (PVT) LTD
Ruled By: GARWE JA, GOWORA JA and UCHENA JA

HH974-15 : GUGULETHU HURASHA vs CENTRAL AFRICAN BUILDING SOCIETY and FIRST CAPITAL PLUS and ITAYI MUNYEZA and SHERIFF OF ZIMBABWE and MASTER OF THE HIGH COURT
Ruled By: NDEWERE J

SC131-21 : CHANTELLE MUTESWA vs FRANK BUYANGA SADIQI
Ruled By: UCHENA JA, CHITAKUNYE JA and KUDYA JA

SC132-21 : FRANK BUYANGA SADIQI vs CHANTELLE MUTESWA and OTHERS
Ruled By: UCHENA JA

HB40-15 : BONGANI NDLOVU (as Executor Dative, Estate Late Kenneth Sithole) vs HOWARD SITHOLE and MELODY SITHOLE
Ruled By: MUTEMA J

HH670-15 : THE SHERIFF OF THE HIGH COURT vs NOMVUYO MADZIRO and ANESUISHE MADZIRO and RUVARASHE MADZIRO and CBZ BANK LIMITED
Ruled By: MATANDA-MOYO J

HH24-19 : MOHAMMED ISMAIL (as the guardian of X - a minor) vs SAINT JOHNS COLLEGE and CAVALIERE COORRADO TRINCI N.O. and STEVE MARTIN N.O. and MINISTRY OF PRIMARY AND SECONDARY EDUCATION
Ruled By: CHITAKUNYE J

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Law Portal Zimbabwe

Cause of Action re: Suits or Proceedings Involving Persons Under Disability, Minors and the Presumption of Doli Incapax

HH05-09 : MARION LYNDA RALPH vs CHRISTIAN VAN VUUREN Ruled By: KUDYA J

HH113-10 : KUDZANAYI KATSANDE vs RAZMOND KATSANDE (as executor Estate Norman Katsande) and WILFRED MAGWAZA and MASTER OF THE HIGH COURT N.O and CHITUNGWIZA MUNICIPALITY Ruled By: CHITAKUNYE J

HH79-11 : RUDO ELIZABETH SIMANGO (nee MAKONI) vs PAUL SIMANGO Ruled By: CHITAKUNYE J

HH48-13 : MELINA MATSHIYA (In her capacity as Executrix testamentary for Estate late ETTORE FUMIA) vs GEORGE FUMIA and ELLEN FUMIA and FALCON HAULIERS (PRIVATE) LIMITED Ruled By: MAWADZE J

HH194-14 : GILBERT CHINYA HUNGWE vs HANDINA FAITH HUNGWE Ruled By: MAWADZE J

HH199-14 : TENILLE WHITBY vs MARCEL WHITBY and THE IMMIGRATION OFFICER and EVANS SIZIBA Ruled By: MATANDA-MOYO J

HB191-11 : BENJAMIN SIBINDI vs NKOSILATHI MXOTSHWA and SAZINI MXOTSHWA and MNCEDISI MXOTSHWA and PHATHISANI MXOTSHWA and THABO MXOTSHWA and CITY OF BULAWAYO Ruled By: KAMOCHA J

HHH570-14 : LESIUS MUGUMIRE vs THE STATE Ruled By: HUNGWE J and MANGOTA J

HH35-16 : SHINGISAI MARYLN NYAMUKUSA vs GILBERT KARENGA MASWERA Ruled By: UCHENA J

HB84-16 : PHILANI GAMA N.O. vs LUNGISANI MPOFU and PATRICIA PHIRI and MBALI NGWENYA and THE ADDITIONAL ASSISTANT MASTER N.O. and THE ASSISTANT MASTER, HIGH COURT OF ZIMBABWE, BULAWAYO N.O. Ruled By: MATHONSI J

HH198-16 : TANIA ROCHE (as Curator Bonis of Anita Bruk-Jackson) vs IAN MIDDLETON (as Testamentary Executor to Estate Late Chester Bruk-Jackson) and THE MASTER OF THE HIGH COURT Ruled By: CHITAKUNYE J

HH517-15 : CHEN WANG vs JOSEPH MANDIZHA and TAWANDA MAVHUNGA and TAFADZWA MAVHUNGA and DARNEL ENTERPRISES (PRIVATE) LIMITED Ruled By: MUREMBA J

SC10-20 : ZIMBABWE SCHOOL EXAMINATIONS COUNCIL vs VICTOR MUKOMEKA (on behalf of a minor Charmaine Mukomeka) and CHINGASIYENI GOVHATI (on behalf of a minor Anesu Govhati) Ruled By: PATEL JA, BHUNU JA and BERE JA

HH124-18 : MIKE VELAH and ALBERT NYAMURONDA and JOSEPH PEDZAYI and BRENDA HATINAHAMA vs THE MINISTER OF PRIMARY & SECONDARY EDUCATION and ZIMBABWE SCHOOL EXAMINATIONS COUNCIL Ruled By: ZHOU J

HB119-10 : NYARADZAI KAZUVA vs GILBERT DUBE Ruled By: CHEDA J and MATHONSI J

Appealed SC74-20 : SHAILLON CHISWA vs CAR RENTAL SERVICES PL t/a AVIS RENT A CAR and BERNARD CHISWA Ruled By: GARWE JA, MAVANGIRA JA and MAKONI JA

View Appeal HH563-18 : CAR RENTAL SERVICES (PVT) LTD T/A AVIS RENT A CAR vs BERNARD CHISWA and SHAILLON CHISWA Ruled By: MUZOFA J

SC84-20 : TIZAI CHISWANDA (in his capacity as father and guardian of CHIDOCHASHE CHISWANDA) vs OK ZIMBABWE LIMITED Ruled By: GARWE JA, GOWORA JA and BERE JA

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

HH333-13 : GIVEMORE SAMBADZI and SALATIEL NHUBU vs REGISTRAR OF DEEDS Ruled By: BHUNU J

HH366-18 : ALAIN GRANT vs TIRINGEI JEFTA and THE MASTER OF THE HIGH COURT and NELLIE TIYAGO (in her capacity as curator ad litem) Ruled By: CHIRAWU-MUGOMBA J

HH818-15 : NAOMI MUKUNDU vs LAWRENCE CHIGUMADZI and TAKUNDA GUMBO and THE MASTER OF THE HIGH COURT Ruled By: UCHENA J

View Appeal SC130-21 : PHILIPPA COUMBIS vs RONALD COUMBIS and DOVES FUNERAL ASSURANCE (PVT) LTD Ruled By: GARWE JA, GOWORA JA and UCHENA JA

HH974-15 : GUGULETHU HURASHA vs CENTRAL AFRICAN BUILDING SOCIETY and FIRST CAPITAL PLUS and ITAYI MUNYEZA and SHERIFF OF ZIMBABWE and MASTER OF THE HIGH COURT Ruled By: NDEWERE J

SC131-21 : CHANTELLE MUTESWA vs FRANK BUYANGA SADIQI Ruled By: UCHENA JA, CHITAKUNYE JA and KUDYA JA

SC132-21 : FRANK BUYANGA SADIQI vs CHANTELLE MUTESWA and OTHERS Ruled By: UCHENA JA

HB40-15 : BONGANI NDLOVU (as Executor Dative, Estate Late Kenneth Sithole) vs HOWARD SITHOLE and MELODY SITHOLE Ruled By: MUTEMA J

HH670-15 : THE SHERIFF OF THE HIGH COURT vs NOMVUYO MADZIRO and ANESUISHE MADZIRO and RUVARASHE MADZIRO and CBZ BANK LIMITED Ruled By: MATANDA-MOYO J

HH24-19 : MOHAMMED ISMAIL (as the guardian of X - a minor) vs SAINT JOHNS COLLEGE and CAVALIERE COORRADO TRINCI N.O. and STEVE MARTIN N.O. and MINISTRY OF PRIMARY AND SECONDARY EDUCATION Ruled By: CHITAKUNYE J

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Law Portal
Zimbabwe

HH05-09 : MARION LYNDA RALPH vs CHRISTIAN VAN VUUREN
Ruled By: KUDYA J

HH113-10 : KUDZANAYI KATSANDE vs RAZMOND KATSANDE (as executor Estate Norman Katsande) and WILFRED MAGWAZA and MASTER OF THE HIGH COURT N.O and CHITUNGWIZA MUNICIPALITY
Ruled By: CHITAKUNYE J

HH79-11 : RUDO ELIZABETH SIMANGO (nee MAKONI) vs PAUL SIMANGO
Ruled By: CHITAKUNYE J

HH48-13 : MELINA MATSHIYA (In her capacity as Executrix testamentary for Estate late ETTORE FUMIA) vs GEORGE FUMIA and ELLEN FUMIA and FALCON HAULIERS (PRIVATE) LIMITED
Ruled By: MAWADZE J

HH194-14 : GILBERT CHINYA HUNGWE vs HANDINA FAITH HUNGWE
Ruled By: MAWADZE J

HH199-14 : TENILLE WHITBY vs MARCEL WHITBY and THE IMMIGRATION OFFICER and EVANS SIZIBA
Ruled By: MATANDA-MOYO J

HB191-11 : BENJAMIN SIBINDI vs NKOSILATHI MXOTSHWA and SAZINI MXOTSHWA and MNCEDISI MXOTSHWA and PHATHISANI MXOTSHWA and THABO MXOTSHWA and CITY OF BULAWAYO
Ruled By: KAMOCHA J

HHH570-14 : LESIUS MUGUMIRE vs THE STATE
Ruled By: HUNGWE J and MANGOTA J

HH35-16 : SHINGISAI MARYLN NYAMUKUSA vs GILBERT KARENGA MASWERA
Ruled By: UCHENA J

HB84-16 : PHILANI GAMA N.O. vs LUNGISANI MPOFU and PATRICIA PHIRI and MBALI NGWENYA and THE ADDITIONAL ASSISTANT MASTER N.O. and THE ASSISTANT MASTER, HIGH COURT OF ZIMBABWE, BULAWAYO N.O.
Ruled By: MATHONSI J

HH198-16 : TANIA ROCHE (as Curator Bonis of Anita Bruk-Jackson) vs IAN MIDDLETON (as Testamentary Executor to Estate Late Chester Bruk-Jackson) and THE MASTER OF THE HIGH COURT
Ruled By: CHITAKUNYE J

HH517-15 : CHEN WANG vs JOSEPH MANDIZHA and TAWANDA MAVHUNGA and TAFADZWA MAVHUNGA and DARNEL ENTERPRISES (PRIVATE) LIMITED
Ruled By: MUREMBA J

SC10-20 : ZIMBABWE SCHOOL EXAMINATIONS COUNCIL vs VICTOR MUKOMEKA (on behalf of a minor Charmaine Mukomeka) and CHINGASIYENI GOVHATI (on behalf of a minor Anesu Govhati)
Ruled By: PATEL JA, BHUNU JA and BERE JA

HH124-18 : MIKE VELAH and ALBERT NYAMURONDA and JOSEPH PEDZAYI and BRENDA HATINAHAMA vs THE MINISTER OF PRIMARY & SECONDARY EDUCATION and ZIMBABWE SCHOOL EXAMINATIONS COUNCIL
Ruled By: ZHOU J

HB119-10 : NYARADZAI KAZUVA vs GILBERT DUBE
Ruled By: CHEDA J and MATHONSI J

Appealed
SC74-20 : SHAILLON CHISWA vs CAR RENTAL SERVICES PL t/a AVIS RENT A CAR and BERNARD CHISWA
Ruled By: GARWE JA, MAVANGIRA JA and MAKONI JA

View Appeal
HH563-18 : CAR RENTAL SERVICES (PVT) LTD T/A AVIS RENT A CAR vs BERNARD CHISWA and SHAILLON CHISWA
Ruled By: MUZOFA J

SC84-20 : TIZAI CHISWANDA (in his capacity as father and guardian of CHIDOCHASHE CHISWANDA) vs OK ZIMBABWE LIMITED
Ruled By: GARWE JA, GOWORA JA and BERE JA

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

HH333-13 : GIVEMORE SAMBADZI and SALATIEL NHUBU vs REGISTRAR OF DEEDS
Ruled By: BHUNU J

HH366-18 : ALAIN GRANT vs TIRINGEI JEFTA and THE MASTER OF THE HIGH COURT and NELLIE TIYAGO (in her capacity as curator ad litem)
Ruled By: CHIRAWU-MUGOMBA J

HH818-15 : NAOMI MUKUNDU vs LAWRENCE CHIGUMADZI and TAKUNDA GUMBO and THE MASTER OF THE HIGH COURT
Ruled By: UCHENA J

View Appeal
SC130-21 : PHILIPPA COUMBIS vs RONALD COUMBIS and DOVES FUNERAL ASSURANCE (PVT) LTD
Ruled By: GARWE JA, GOWORA JA and UCHENA JA

HH974-15 : GUGULETHU HURASHA vs CENTRAL AFRICAN BUILDING SOCIETY and FIRST CAPITAL PLUS and ITAYI MUNYEZA and SHERIFF OF ZIMBABWE and MASTER OF THE HIGH COURT
Ruled By: NDEWERE J

SC131-21 : CHANTELLE MUTESWA vs FRANK BUYANGA SADIQI
Ruled By: UCHENA JA, CHITAKUNYE JA and KUDYA JA

SC132-21 : FRANK BUYANGA SADIQI vs CHANTELLE MUTESWA and OTHERS
Ruled By: UCHENA JA

HB40-15 : BONGANI NDLOVU (as Executor Dative, Estate Late Kenneth Sithole) vs HOWARD SITHOLE and MELODY SITHOLE
Ruled By: MUTEMA J

HH670-15 : THE SHERIFF OF THE HIGH COURT vs NOMVUYO MADZIRO and ANESUISHE MADZIRO and RUVARASHE MADZIRO and CBZ BANK LIMITED
Ruled By: MATANDA-MOYO J

HH24-19 : MOHAMMED ISMAIL (as the guardian of X - a minor) vs SAINT JOHNS COLLEGE and CAVALIERE COORRADO TRINCI N.O. and STEVE MARTIN N.O. and MINISTRY OF PRIMARY AND SECONDARY EDUCATION
Ruled By: CHITAKUNYE J