Siduna and Another v Tanyanyiwa and Another (749 of 2022) [2022] ZWHHC 749 (25 October 2022)

1 HH 749-22 HC 6925/22 WILLIE MUSARAVA SIDUNA and RUMBIDZAI CHIKAKA versus MARIA TANYANYIWA and MASTER OF THE HIGH COURT (N. O.) HIGH COURT OF ZIMBABWE MUSITHU J HARARE, 18, 19, 20 & 25 October 2022 Urgent Chamber Application-Guardianship Miss N Masango, for the applicants MUSITHU J: This application is one for the appointment of the first applicant herein as legal guardian and sole custodian of a minor child, S (born 18 May 2008) (the minor child). The first and second applicants are husband and wife. Their marriage was solemnized under the Marriage Act1 on 25 August 2012. At the time of their marriage, the second applicant was already mother to the minor child, born out of wedlock. The whereabouts of the biological father are unknown. The first respondent is the first applicant’s biological mother, while the second respondent is an officer of this court. He was cited for administrative reasons and for purposes of complying with certain provisions of the law in applications of this nature. Following his marriage to the second applicant in 2012, the first applicant claims that he became known and naturalized as the minor child’s father with the full support of the second applicant. From birth, the minor child was jointly raised by the second applicant and his maternal grandmother, the first respondent herein. Sometime at the beginning of the year 2020, the applicant secured employment in Botswana and he relocated to that country together with the 1 [Chapter 5.11] HH 749-22 HC 6925/22 second applicant and the minor child. The first applicant was issued with a work permit on 30 June 2022. The permit expires on 28 February 2023. The second applicant automatically qualified for a spousal permit by virtue of her marriage to the first applicant. The minor child could only enter that country on a temporary visitor’s permit. He could not be issued with a resident permit or ride on the first applicant’s work permit because he is not the biological son of the first applicant. In paragraph 18 of the founding affidavit, the first applicant asserts that the minor child was issued with a temporary permit which expired on 5 September 2022. In paragraph 22 of the same affidavit, the first applicant entreated the court to hear the matter on an urgent basis rather than as a normal application “because the minor child’s temporary permit is due to expire in a few days’ time and he will be required to leave Botswana and not only be abruptly severed from his only biological parent but also from his known family”. The first applicant claimed that he could not legally exercise the rights of a biological father on the minor. It was for that reason that the applicants approached this court for an order appointing the first applicant as guardian and sole custodian of the minor child. Once that order is granted, the Botswana authorities would be amenable to issuing the minor child with a resident permit riding on the first applicant’s work permit. On 26 August 2022, the first respondent was appointed the Curator Ad Litem for the minor child by an order of this court under HC 5478/22. She prepared the Curator Ad Litem’s report in terms of r 61(4) of the High Court Rules, 2021. That report was filed with this court on 13 September 2021. This application was filed on 14 October 2022, and was placed before me on 17 October 2022. I set it down for hearing on 18 October 2022. The cover page of the application states that it is an “Urgent Chamber Application for Guardianship in terms RULE 60(1), and 61(2) (b) as read together with 61(4) of the HIGH COURT RULES, 2021 And SECTION 4(b) OF THE GURADIANSHIP OF MINORS ACT [Chapter 5:08].” That averment is also repeated in paragraph 8 of the first applicant’s founding affidavit. On the first day of the hearing, I raised some queries with Ms Masango appearing for the applicants. Firstly it was about the law in terms of which the application was made. Section 4(b) of the Guardianship of Minors Act does not provide for this kind of application by a non-biological parent of a child. Secondly, it was about the propriety of the report by the Curator Ad Litem, it having been prepared by an interested party to the proceedings. In the first applicant’s own words, HH 749-22 HC 6925/22 it was the first respondent who raised the minor child jointly with the second applicant. The third issue was the urgency of the matter. In one instance, the first applicant said the minor child’s temporary visitor’s permit had expired on 5 September 2022. In the other instance he was saying it was due to expire in a few days’ time. The temporary permit attached to the first applicant’s affidavit was issued on 11 July 2022, with an expiry date of 10 August 2022. It is not clear from the papers whether the permit was subsequently extended to 5 September 2022. Ms Masango submitted that the erroneous citation of the law was irrelevant. The court had to consider what was in the best interests of the minor child. In casu, the best interests of the minor child demanded that the order sought be granted since both applicants were already staying with the minor child. The High Court had already granted similar orders in the past so there was nothing new here. She requested time to bring the authorities to my attention. She also submitted that the matter was urgent for the simple reason that the minor child was now staying in Botswana illegally since his temporary permit had expired. No meaningful submissions were made regarding the competency of the first respondent to be appointed a Curator Ad Litem as well as to prepare the curator’s report. I postponed the matter to 19 October 2022 to allow Ms Masango to furnish me with the authorities that supported the application. I also brought to her attention the judgment in Kutsanzira v Master of the High Court2, and asked her to familiarise herself with that authority so that we could have a meaningful engagement when the hearing resumed. Before the resumption of the hearing, the Ms Masango furnished me with this court’s judgment in the case of Dandarembizi v Hunda3. At the hearing it became apparent that she had not read the Kutsanzira case when I asked her to distinguish that case and the present matter, and why I should depart from that authority. She apologized for having downloaded and read the wrong judgment altogether. That notwithstanding, she insisted that the court was at large to depart from that judgment and consider the application on the basis of the best interests of the minor child. I postponed the matter yet again to 20 October 2022 to give her one last chance to read the Kutsanzira judgment and address me on the points of law raised therein. Before the resumption of the hearing, I received in chambers, a lengthy letter which cited provisions of the Constitution of Zimbabwe as well as a list of case law authority by this court on the subject of guardianship.4 2 2012 (2) ZLR 91 (H) 91 at p 92 3 HH 447/18 4 Mukundu v Chigumadzi & Ors 2015 (2) ZLR 332 (HH); W v X HB 5/19 HH 749-22 HC 6925/22 The law applicable in applications of this nature I will start with an analysis of the law in terms of which this application was initiated. Rule 60(1) applies to the form in which chamber applications that are being made on notice should be submitted. Rule 61(2)(b) provides that in an application involving the affairs of a minor, a chamber application shall first be made for the appointment of a curator ad litem. To that chamber application shall be annexed the written consent of the person proposed to be appointed for that role. Rule 61(3) requires such chamber application to be served on the Master of the High Court who shall in turn make a written report to the Judge. Rule 61(4) states that: “(4) After the appointment of a curator ad litem following a chamber application in terms of subrule (1), a copy of the substantive application shall be served on him or her and, after he or she has conducted such investigation as may be necessary, he or she shall prepare a written report which shall be filed with the registrar and a copy served on the applicant and all other interested parties.” (Underlining for emphasis).” From a reading of the above rule, a person who is appointed Curator ad Litem must conduct an investigation into the affairs and welfare of the minor child. The question that immediately arises in the circumstances of the present case is whether an interested party such as the first respondent herein can conduct such investigation as may be necessary into the affairs and wellbeing of the minor child. In my view, a person who conducts such investigation must, as a matter of principle be totally independent and divorced from the matter which is the subject of the investigation. In simple terms, an objective and impartial investigation cannot be conducted by a person who is party of the matter under investigation. The first respondent is the minor child’s maternal grandmother. She is the biological mother of the first respondent. She is also an in-law to the first applicant. She is also the one that raised the second applicant and played a significant part in the upbringing of the minor child. That makes her part of the family that is under investigation in the course of determining the suitability of the first applicant to be appointed the guardian and sole custodian of the minor child. The court expects results from an investigation that was carried out independently by a party with no personal interest in the affairs of the minor child, the first applicant as well as the second applicant. It is critical that the investigation be carried out by an impartial party primarily because the circumstances of the child’s biological father are unknown. An independent Curator ad Litem would have interviewed the first respondent to determine what exactly happened to the minor child’s biological father. She would definitely be in a position to provide that intelligence by virtue HH 749-22 HC 6925/22 of her position as one of the key actors in the whole puzzle surrounding the upbringing of the minor child. Her appointment as Curator ad Litem was certainly not in the best interests of the minor child. That makes her report impeachable since it is not a product of an impartial investigation contrary to the provisions of the law. Section 4 of the Guardianship of Minors Act states as follows: 4 Guardianship and custody of minors (1) The High Court or a judge thereof may— (a) on the application of either parent of a minor in proceedings for divorce or judicial separation in which an order for divorce or judicial separation is granted; or (b) on the application of either parent of a minor whose parents are divorced or are living apart; if it is proved that it would be in the interests of the minor to do so, grant to either parent the sole guardianship, which shall include the power to consent to a marriage, or sole custody of the minor, or order that on the predecease of the parent named in the order, a person other than the survivor shall be the guardian of the minor, to the exclusion of the survivor or otherwise. My interpretation of the above provision is that it is intended to cater for those scenarios where an application for guardianship or custody is made by one of the spouses who is divorced or has since separated from the other spouse. It does not cover the present scenario which involves a step father. The application would certainly have been competent and within the ambit of the law had it been the second applicant seeking the relief sought herein. One wonders why the second applicant was even cited as a co-applicant when the relief sought concerns the first applicant. I read the judgments that were brought to my attention by the applicants counsel, and I found them distinguishable from the present case. The Dangarembizi v Hunda judgment was a custody dispute between the parties who were married customarily. In awarding custody to the mother of the two minor children at the centre of the dispute, the court underscored the need to consider what was in the best interests of the minor children. It awarded custody to the biological mother who had always been staying with the minor children. In Mukundu v Chigumadzi & Ors5, the maternal grandmother of two minor children approached this court for an order granting her their custody and guardianship. The children’s biological mother died after separating from their father who had since emigrated to the United Kingdom. At the time of her death, the children’s biological mother was also staying with the maternal grandmother. The children’s biological father opposed the appointment of the grandmother as the legal guardian and custodian of the minor children. In appointing the maternal 5 HH 818/15 HH 749-22 HC 6925/22 grandmother as the legal guardian and custodian of the children, the court considered that the children’s father had not been involved in their life ever since he separated from their mother and emigrated to the United Kingdom. At some point the children actually dropped out of school because the grandmother could not afford their fees. She however toiled and managed to get them back in school. The court also considered a comprehensive report that was prepared by the Curator ad Litem. Having considered the circumstances of the case and the Curator ad Litem’s report, the court determined that it was in the best interests of the minor children that the maternal grandmother be awarded and guardianship and custody rights. It appears the court determined the application in terms of s 81(1)(2) and (3) of the Constitution of Zimbabwe. The W v X6 case considered the issue of the custody and guardianship of the minor children in the context of a divorce between the biological parents. The court analysed the welfare principle in considering the question of the best interests of the minor children. The welfare principle provides that the interests of the minor child take precedent over those of the parents. The court also considered Article 3 of the United Nations Convention on the rights of the child and Article 4 of the African Charter on the Rights of and Welfare of a Child which are identical and provide that; “In all actions concerning the child undertaken by any person or authority the best interests of the child shall be the primary consideration”. The court also considered the s 81(2) of the Constitution of Zimbabwe which provides that “A child’s best interests are paramount in every matter concerning the child.”7 What constitutes the best interests of the minor child is by no means exhaustive, and each case must at the end of the day be determined on the basis of the circumstances peculiar to that case.8 It is for that reason that the report of the Curator ad Litem becomes critical.9 In the Kutsanzira v Master of High Court case, the court declined an application for the appointment of the minor child’s aunt as the guardian of the minor child. The biological mother was unemployed and could not fend for the child. The biological father was serving a lengthy prison term. He was however supportive of the idea and had deposed to an affidavit to that effect. The two biological 6 HB 05/19 7 See p4 of the judgment by TAKUVA J 8 See also the case of Mcall v Mcall 1994 (3) SA 201, which highlights some of the factors that courts must consider in determining the meaning of best interests of the minor child. 9 See also In Re ALICE MAENZANISE (For her appointment as the legal guardian of P. A. N a minor) HH 39/20 HH 749-22 HC 6925/22 parents had therefore agreed to divest themselves of the parental rights to the minor child so that these could be conferred upon the aunt. Although what was before the court was an application for the appointment of a Curator ad Litem, the court had no difficulties considering the merits of the main matter, which was concerned with the appointment of the guardian. In its analysis of the law, the court made the following pertinent observations: “Under the common law there are basically three categories which are recognized by law whereby guardianship or parental power may be lawfully transferred. These are adoption, legitimatio per subsequens matrimonium (which means that children whose parents marry after their birth become legitimated as a result of the subsequent marriage of their parents) and venia aetatis (which means grant by a sovereign or the courts of the status of majority to a minor). It seems to me therefore that guardianship cannot merely be transferred from one person to another if it does not fall under any of these categories. The willingness of the parents to give away their guardianship does not appear to have any significance in the ultimate decision by the court of whether or not to grant the guardianship of the minor child to another.” Though the Kutsanzira case was determined before the advent of the 2013 Constitution the principles espoused therein still hold true to this date. The court did relate to the best interests of the minor child in the judgment. In dismissing the application, the court urged the applicant therein to approach the Children’s Court to pursue an adoption order. It was in view of the dictum in the Kutsanzira case that I asked counsel to explain why this application should be treated differently from that case since the circumstances were almost similar. She maintained her position that in view of the aforementioned authorities and the Constitution of Zimbabwe the court should determine the matter on the basis that it was in the best interests of the minor child that guardianship and sole custody be awarded to the first applicant. I am convinced that the court must not turn a blind eye to the best interests of the minor child in determining applications of this nature. Section 19(1) of the Constitution imposes an obligation on the State to adopt policies and measures to ensure that in matters relating to children, the best interests of the children concerned are paramount. Section 81(3) of the Constitution states that children are entitled to adequate protection by the courts, in particular by the High Court as their upper guardian. These are principles that this court must of course relate to in any matter that involves minor children. In my view, that does not mean that the court must then ignore evident defects that afflict a matter that is before the court. The court cannot just grant an order for the sake of expedience, when the matter before it is bereft of a legal foundation. HH 749-22 HC 6925/22 Apart from the reservations that I have already expressed with the Curator ad Litem’s report, I have also expressed my misgivings with the law in terms of which this application was made. The law does not support the applicants’ cause. Having placed themselves within a certain provision of the law, the applicants cannot just conveniently wriggle out of that provision by invoking the constitutional provisions and case law authority that speak to the best interests of the minor child. It would have been a different proposition altogether if the applicants had approached the High Court directly as the upper guardian of the minor child. However the application before me does not even allude to that principle. It restricted the applicants to the route that they chose for themselves which unfortunately does not address their cause. During the exchanges between counsel and the court, I enquired why the first applicant should not have simply approached the Children’s Court for an adoption order in terms of the Children’s Act10. Counsel’s response was that in view of the urgency of the matter, that route was not feasible. However, in view of the court’s findings above, the application cannot succeed. Resultantly it is ordered that: The application be and is hereby dismissed with no order as to costs. Antonio & Associates, applicant’s legal practitioners 10 [Chapter 5:06]