Vukani Chris Mhlanga v Patience Utete and The Master of the High Court

### Preamble
1
HB 182/19
HC 1365/19
---------


VUKANI CHRIS MHLANGA

(in  his application for guardianship of

Zoleka Mhlanga a minor)

Versus

PATIENCE UTETE

And

THE MASTER OF THE HIGH COURT

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J

BULAWAYO 26 & 28 NOVEMBER 2019

Opposed Application

B. Masamvu for the applicant

N. Mlala for the 1st respondent

MAKONESE J:	This is an application purportedly made for the guardianship of a minor child in terms of the Guardianship of Minors Act (Chapter 5:08).  The order sought by the applicant is couched in the following terms:

“1.	Applicant be and is hereby granted custody of the minor child, namely Zoleka Mhlanga (a minor born on 9th June 2004)

2.	That 1st respondent be  granted access to the minor child, every alternative school holiday.”

The application is opposed.  The 1st respondent has raised certain preliminary issues which are dispositve of the mater.  I shall consider these issues in turn.

Nature of relief sought

This application appears to be an application for guardianship if one considers the substantive issues raised in the body of the application. However,   the draft order is for an order for custody of the minor child.  It is trite that there is a difference between guardianship and custody.  The application does not make it clear what relief is being sought.  From its inception therefore, this application is fatally defective.  The relief sought in the draft order and the averments in the application are at variance.  On this point alone the application is not properly before this court.

Validity of the applicant’s papers

Section 3 of the High Court (Authentication) of Documents Rules, 1971 provides that:

“any document executed outside Zimbabwe shall be deemed to be sufficiently authenticated for the purpose of production or use in any court or tribunal in Zimbabwe or for the purpose of production or lodging in any public office in Zimbabwe if it is authenticated,

by a notary public, mayor or person holding judicial office.

in the case of countries or territories in which Zimbabwe, has its own diplomatic or consular representative, by the head of a Zimbabwean diplomatic mission, the deputy or acting head of such mission, counsellor, fist, second or third secretary, a counsel- general, consul or vice- consul.”

The applicant deliberately chose not to follow the requirements of the law in the preparation of court documents. The applicant cannot be allowed to hide behind the fact that issues of custody and guardianship cannot be dismissed on technicalities.  Applicant’s founding affidavit does not show where it was executed.  It does not reveal the date the founding affidavit was signed.  The applicant avers that he is a Zimbabwean national resident in the Republic of France.  The papers filed in support of the application are mere photocopies which have not been authenticated by a notary public.  Over and above that, the papers are written in the French language.  The court and the respondents have been put in a situation where it is not possible to understand the contents of these documents.  No attempt was made by the applicant to translate the documents into the English language.

C H Van Zyle in his book, The Notarial Practice in South Africa at page 81 states the following:

“the  object of authentication is to ensure the genuineness of the signatures to the deeds.  Prima facie this authentication is a guarantee that all the required solemnities or requisites of the law in due execution of the deed have been complied with and that the parties therein named have duly signed it in the presence of witnesses and that the notary public in whose presence it was signed was qualified to act as such.”

In section 2.3 of the High Court (Authentication Rules) the word “authentication” in relation to a document is defined to mean, “the verification of any signature therein.”

A signature cannot be said to have been verified if it is not clear whether or not it was signed in the presence of the notary public.

See the remarks of UCHENA JA in the case of Stand Five Four Nought (Pvt) Ltd v Salzman ET CIE SA SC-30-2016

At the hearing of this matter I called the parties’ legal practitioners to chambers and pointed out the defects in the application.  It became apparent that the parties to this litigation were not present at court.  It would have been necessary to ascertain from the applicant whether the allegation that he is an asylum seeker in France is true or not.  The applicant did not attach a copy of his passport to verify whether he has attained citizenship status in France.  In cases of guardianship the court must satisfy itself that if guardianship is granted to an applicant, the minor child’s interests will not be compromised.

For the aforementioned reasons, I declined to hear the matter on the merits and made the following order:

The mater is not properly before the court.

The matter be and is hereby removed from the roll.

No order as to costs.

Mutatu, Masamvu & Da Silva – Gustavo Law Chambers, applicant’s legal practitioners

Mashindi & Associates, c/o Sansole & Senda , 1st respondent’s legal practitioners