Sibonginkosi Ndlovu (Gwanda J/C 6 of 2004; HC 2248 of 2004) [2004] ZWBHC 116 (8 September 2004)

Judgment No. HB 116/2004 Case No. HC 2248/04 Gwanda J/C No. 6/04 EXPARTE: SIBONGINKOSI NDLOVU (Appointment as guardian) IN THE HIGH COURT OF ZIMBABWE NDOU J BULAWAYO 9 SEPTEMBER 2004 Juvenile Court NDOU J: This matter was referred to me for automatic review in terms of section (9)(6) of the Guardianship of Minors Act [Chapter 5:08]. Briefly, the applicant applied that he be appointed guardian of his sibling Zibusiso with full powers of guardianship over the said minor. The application was necessitated by the death of their parents. The application was made in terms of section 9 of the Act. In the application the applicant state, inter alia, “The problem is that we have got no money for advertising. We cannot afford to raise the money for the expenses as in our account there is little money. So we need your assistance.” Without making reference to this request it seems the learned Provincial Magistrate agreed because he dispensed with the requirement of publication as provided for in section 9(3). The question is whether he was correct in doing so in the face of the applicant’s plea of poverty. The subsection states- (a) “(3) Upon receipt of an application in terms of subsection (2) the clerk of the juvenile court shall, notwithstanding subsection (5) of section (5) of the Children’s Protection and Adoption Act [Chapter 5:06], publish in the Gazette and in the area where the minor resides a notice which – calls upon any person who has an interest in the matter to appear before the juvenile court on a date to be specified in the notice, which shall be not less than seven days and not more than thirty days after publication of the notice; and specifies the name of the person, if any, proposed for appointment as a guardian.” (emphasis added) (b) HB 116/04 It is now trite that the categorisation of enactment as peremptory or directory with the consequent strict approach that if it be the former it must be obeyed or fulfilled exactly, while if it be the latter substantial obedience or fulfilment will suffice no longer finds favour. The criterion is not the quality of the command but the intention of the legislature, which can only be derived from the words of the enactment, its general plan and objects – Sterling Products International Ltd v Zulu 1988(2) ZLR 293 (SC) at 301B; Lion Match Co Ltd v Wessels 1946 OPD 376 at 380; Swift Transport Services (Pvt) Ltd v Pittman NO & Ors 1975(2) RLR 226 (GD) at 228C-229C; 1976 (1) SA 827 at 828 and Ex parte Ndlovu 1981 ZLR 216 (GD) at 217F-G. The object of subsection (3) supra, is fundamental to the policy of the Act and non-compliance with it defeats or frustrates the object. The publication is a mechanism to prevent appointment of a guardian to the detriment of the minor. Appointment of guardianship is a major change in the status of a minor and the intention of the legislature is to make sure that it is done in the best interest of the minor. Usually proceedings involving minors are done in camera but this is one exception where the name of the minor and the applying “guardian” are publicised. The juvenile court derives its powers from the Act. It is a creature of statute with no inherent jurisdiction. It has no power to dispense with the provisions of section 9(3), supra. The application should have been advertised. I also sympathise with the poor people who have to bear enormous advertising costs for such applications. A lot of scarce resources are being expended on advertising instead of going to the needy children who have lost their guardians. In most cases such advertising costs extinguish the entire estate. The relevant authorities are urged to look into this issue as a matter of urgency. HB 116/04 In light of the above I set aside the order of the juvenile court and remit matter to the juvenile court Gwanda to comply with the provisions of section 9(3) of the Act. Chiweshe J ……………………………. I agree