MAKARAU JP: The parties are parents to three minor
children, two daughters and a son. They were divorced by an order of this court
under case no HC 9397/05. In terms of
the order of this court divorcing the parties, matters relating to the custody,
access to and maintenance of the minor children were to be governed by the
provisions of a consent paper entered into by the parties prior to the granting
of the divorce. In terms of the consent paper, custody was awarded to the
respondent.
In
April 2006, the appellant approached the Juvenile Court for an order varying
the custody order in relation to the two daughters only. In the application,
the appellant acknowledged that the order of this court granted custody of the
minor children to the respondent in terms of a consent paper jointly filed by
the parties. She specifically requested the juvenile court to vary the terms of
that consent paper on the basis that it is in the best interest of the minor
children that there be such a variation.
She further alleged that there had been a change in the circumstances of the
parties warranting the variation sought. She also explained in detail the
reasons why she consented to the respondent having custody of the minor
children after this court had initially given her interim custody, pending the
determination of the divorce proceedings. She pleaded lack of accommodation, an
insufficient income and the toll that the legal battle was taking on her as
reasons why she consented to the respondent having custody of the minor
children.
The
application for variation was duly set down for hearing before the juvenile
court. On the appointed day, the respondent's legal practitioner was late in
arriving at court. The application was
dealt with as an unopposed application and a default judgment was entered for
the appellant. The respondent then filed
an application seeking the setting aside of the default judgment. The matter
was argued before the trial court which dismissed the application for variation
of the custody order and granted the application for rescission of judgment, in
that order as the appeal record indicates.
In
my view, it is pertinent at this stage that I remark in passing on the
procedure adopted by the trial court in this matter. The record indicates that
what was before the trial court was an application for rescission of default
judgment. She proceeded to determine the merits of the application for
variation although the respondent had not filed a substantive opposing
affidavit to that application. She then
gave her reasons for dismissing the application first before she gave her
reasons for granting the application for rescission of judgment all in one
breath.
I
hasten to observe that no prejudice was occasioned by the order in which the
trial court dealt with the matter and that no issue has been raised by either
party in this regard. I simply point it out for the benefit of the trial court
and to remark that while expediency and speed in the resolution of disputes is
to be encouraged and commended, where trial courts use their discretion to
depart from the rules of the court, such departure must be recorded and the
reasons for so departing must be stated for the benefit of the appeal court.
Where the consent of both parties has been obtained for such departure, it must
also be recorded not only to prevent either of the parties from taking that
departure as a ground of appeal or review but as an indication that the trial
court is aware of the issues before it and has deliberately decided to take a
shorter and more robust approach to the resolution of the dispute.
The
appellant was dissatisfied with the judgment of the court. She noted an appeal
to this court. In the notice of appeal, she argued in the main that the trial
court erred in finding that it was in the best interests of the minor children
that their custody be awarded to the respondent and in failing to find that her
circumstances had changed such that it was now in the best interests of the two
girls that their custody be awarded to her. Like the trial magistrate, the
appellant also dealt with the application for rescission of default judgment
last. In the final paragraph of her notice of appeal, she attacked the granting
of the application for rescission of judgment by arguing that the court erred
in holding that the respondent was not in willful default when the default
judgment was granted against him.
At
the hearing of the matter in the trial court, the issue of the jurisdiction of
that court to vary an order of this court was not raised either by the court
mero motu or by the legal practitioner representing the respondent then. The
point would have remained unearthed were it not for the professionalism of Advocate Fitches who, in line with his
duty to cite adverse authority (a rare occurrence in our courts and so rare an
occurrence that GILLESPIE J likened it to hen's teeth),
conceded that the determination by the trial court on both applications were a
nullity as the approach to the Juvenile Court to vary an order of this court
was incompetent and did not bring about anything of value.
In
this regard, Advocate Fitches cited
the case Raath v Carikas 1996 (1) SA
756 (W), where the court relied on the ordinary rule of law that an order made
by a court can (except only by way of appeal or review in a higher court) not
be varied except by the court itself.
In
my view, the issue takes on a broader jurisprudential dimension as it deals
with the relationship between two courts both having jurisdiction over the same
matter, the situation that obtains between the High Court and the Juvenile
Court and other lower courts. The point was made with much clarity and
simplicity by McNALLY J (as he then was) in Kunz
v Pretorius 1982 (2) ZLR 24 (HC) where after making reference to Raath v Carikas (supra), he opined at
page 27 A that:
"It seems to me that the question here
is not which Court is the senior, but which course is more conducive to
stability of administration. It is clearly undesirable that I should interfere
with an order made by the Juvenile Court. Indeed, since I have no power to
intervene by way of appeal, and since I have already confirmed the order by way
of review, it would be quite wrong in my view for this Court now to make an
order in conflict with the existing order of the Juvenile Court."
The learned judge went on to remark that a
similar view had been taken by VAN DEN HEEVER, J, in Walkinshaw v Walkinshaw, 1971 (1) SA 148 (NC) and that he found the
approach to be both sensible and practical.
It
would appear to me that this court has over the years adopted the approach that
where there is an existing order by a court of competent jurisdiction, another
court cannot make an order competing with or overriding it even if the court
making the original order is inferior to the High Court. By the same token, and in reverse order, the
position in my view is that where there is an order of this court regulating
custody of minor children, the lower court cannot make an order seeking to
compete or vary such order. The issue is not that the Juvenile Courtt is an
inferior court, but as pointed out by McNALLY J (as he then was) the courts
have to adopt a sensible and practical approach to the matter and avoid dealing
with orders that are properly before another court of competent jurisdiction
save as is provided for under the
procedure of review.
I am much persuaded by the reasoning that
having made the original order of custody with the unstated but undisputable
condition that such is subject to variation on changed circumstances, this
court was seized with the custody issue and in the circumstances, the juvenile
court could not exercise its parallel jurisdiction in the matter at first
instance nor could it purport to vary the order in a matter before this court.
Thus,
applying the general rule in Raath v
Carikas (supra) and the approach adopted by this court over the years, the
Juvenile Court had no jurisdiction to vary the order of this court as it
purported to do and the resultant judgment and ruling were a nullity. The
natural consequence of so ruling is that there was no appeal before us.
In
a bid to save the day for the appellant, Advocate
Fitches urged us to use our role as upper guardian of all minors to refer
the matter to oral evidence.
Two
issues immediately present themselves in the wake of this submission. The first
one is that, having ruled that there is no appeal before us as the judgment and
ruling appealed against were a nullity, we should immediately rise as there is
no issue properly before us. To refer the matter to oral evidence in the same
breath or to give any other directions in the matter will be to negate what we
have just ourselves said. We cannot give directions in a non-matter.
It
my view, the role of the court as upper guardian is to be used to protect the
best interests of minor children. It is not a principle that can be used to
grant validity to invalid proceedings all in the name of protecting the best
interests of minor children.
Advocate Fitches referred us to the
unreported judgment of the Supreme Court in Reith
v Antao SC 212/91 where the Supreme Court used its role as upper guardian
of minor children to examine the issue of access to the minor child by the
non-custodian parent by making reference to events that had occurred after the
granting of the original order. As such the court looked at the original order
as if it had been varied by the interim order that was to hold until the
determination of the appeal. It was in that regard that the learned judge
justified the approach of the court by making reference to its role as the
upper guardian of minor children and by invoking its powers to "take any other course that which may lead
to the just and inexpensive settlement of the case."
In my view, the approach by the Supreme Court
in the Reith case was to use its role
and other powers not to deal with a matter that was improperly before it but to
expeditiously deal with the real issues in an appeal properly before the court.
On that basis, I would distinguish the judgment.
It
is my further view that to purport to give directions in this matter may have
the adverse effect of delaying the proper ventilation of issues in the matter
while the parties argue over procedure. No averment has been made in any of the
papers filed of record that there is immediate danger to the life or morals of
the children such that the immediate intervention of the court becomes
imperative. To the extent that one can refer to custody matters as ordinary,
this appears to me to be an ordinary application for variation of a custody
order made some three years ago.
The
second issue that arises is to which court will we refer the matter for oral
evidence? Sitting as an appeal court, it is most unusual that we would then sit
as a court of first instance to hear evidence in the matter. While two judges
of this court may sit as a court of first instance, it is unnecessary that we
do so in this matter as the matter is not properly before us and in any event, the
appellant can bring a properly framed application for variation of the custody
order in this court at any time.
In
view of the fact that the appeal has turned on a point that was raised by
appellant's counsel and in which a concession was properly made, we shall not
make an order of costs in favour of the respondent.
In the result, we make the following order:
1.
The appeal is dismissed
2.
Each party shall bear its own costs.
MAVANGIRA J
agrees.
TK Hove and Partners, appellant's legal
practitioners.
Mhiribidi, Ngarava
and Moyo, respondent's legal practitioners.
