This
is an appeal against the decision of the learned magistrate in terms of which
the respondent was granted custody of his two minor children following the
breakdown of the parties' unregistered customary union sometime in May of 2009.
The
breakdown of their marriage had resulted in the respondent moving out of the
matrimonial home in Queensdale, Harare.The appellant remained behind and the
respondent continued to pay rentals for his wife and children as well as
maintaining them. The couple had been blessed with twin boys who were seven
years old at the time of the parties' separation. Sometime after the
separation, the respondent says he got a request from his wife's landlady, one
Mrs Chideme, who insisted that the respondent moves the appellant from her
house as she alleged that the appellant was turning her lodgings into a
brothel. According to Mrs Chideme, the appellant was bringing different
boyfriends to the house, having drinking escapades and sometimes leaving the
young twin boys unattended with nobody to cook for them. The respondent said he
had tried to talk to the appellant into apologizing to Mrs Chideme but the
appellant would not have anything of it. He says the appellant proceeded to
dump the children at the respondent's uncle's place in Caledon at around 6am
only to return at 8pm. She had not left anything for the children to eat. On
getting to know the circumstances of his children, the respondent took care of
them and proceeded to apply for their custody at the Magistrates Court. The appellant
also applied for the custody of her children at the same court. The two
applications were consolidated and the matter was heard. After consideration of
all the issues raised by the parties, the court granted the respondent custody
of the children.
It
is that order that the appellant is seeking to be set aside.
The
appellant's grounds of appeal are that the court a quo had erred in not taking
into consideration the fact that the twin children were of tender age and that
it was in the best interest of the children that their custody be awarded to
the appellant. The appellant had also stated that the learned trial magistrate
had erred by not taking into consideration the fact that she had always been
staying with the children even after the respondent had abandoned the family in
April 2009. She further alleged that the respondent was of a violent character
and had on many occasions conducted himself violently in the presence of the
children and that she was under a protection order granted by the Magistrates
Court.
In
her reasons for judgment, the learned trial magistrate thoroughly considered
all the issues which were raised during the trial. She clearly formulated the
view that by abandoning the children for the whole day, and without any food,
was an abuse of the minor children. The learned magistrate correctly found that
the appellant's conduct was not in the best interest of the children. The court
a quo further found the appellant's conduct on the day in question to be akin
to what the appellant in Makamure v Makamure HH143-86 did by dumping a child at
the airport at which the respondent in that case was to arrive in a short
period from overseas. SANDURA JA refused a request by the appellant for the
return of the child.
It
seems to me that the court a quo did not err in any manner.
The
court considered all the issues which both parties raised during the trial and
correctly arrived at the decision it did. For example, the court considered the
affidavit deposed to by Mrs. Chideme, the landlord at the house where the
family was evicted from after the departure of the respondent. After carefully
considering the said evidence as contained in the affidavit of Mrs. Chideme,
the court correctly concluded that the appellant was not a proper and fit
person to be custodian of her two minor children. Mrs. Chideme had narrated
occasions when the respondent turned her one-roomed quarters into a brothel. She
mentioned many incidents when the respondent attended musical shows at night
and later brought men who would share her bed with her and the children. She
named some of the boyfriends by name. On one occasion, Mrs. Chideme found a man
naked in the respondent's bed sharing the bed with the children whilst the
respondent was having a bath. She later saw the children sharing the remains
from a Pilsner beer bottle. She also reported of occasions when the children
were left alone unattended for more than a day without food. Mrs. Chideme's
affidavit left an impression of an irresponsible and non-caring mother who is
not a fit and proper person to be custodian of the children. This is the same
impression the court a quo held.
There
was no err or misdirection on the part of the court a quo. The appeal therefore cannot succeed.
It is accordingly ordered that the appeal be and
is hereby dismissed.
