Folinda Reward Sinyonde v Douglas Anderson

### Preamble
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HCC 10/25
HCCCF 144/24
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FOLINDA REWARD SINYONDE

Versus

DOUGLAS ANDERSON

HIGH COURT OF ZIMBABWE

MUZOFA J

CHINHOYI,20 February 2025

Chamber application for custody

MUZOFA J: This chamber application for custody is captioned court application for custody, yet by its tone it is a Chamber Application. Diligence in preparation of pleadings is important, it cannot be overemphasized.

The applicant is a mother to a minor child ‘X’. She seeks sole custody of the minor child. When the application was placed before me, I raised a query why the applicant did not comply with rule 61 (2) of the High Court Rules, 2021, since this application relates to a minor.

The response was nonchalant I quote it verbatim;

“We acknowledge receipt of your letter of 11th of December 2024.I wish to respond thereto as follows;

Rule 61 (1) relates to Deceased Estates, persons under a disability, minors etc with particular reference to the appointment of a curator ad litem. In casu the parents of the minor child are both alive and we are not seeking the appointment of a curator ad litem. Accordingly, therefore Rule 61 (2) of the High Court Rules 2021 does not apply.

Out application is in full compliance with compliance with Rule 60 and on Form No 23 since we had to serve the application on the respondent.

….”

The response is a self-explanatory concession of a critical misunderstanding of the Rules. Obviously, the essence of such an application was missed. Rule 61 deals with applications in respect of persons under a legal disability it is very clear and needs no recourse to canons of interpretation. It provides;

“1. ……

2. In the case of an application in connection with….

b) a minor

a chamber application, annexing the written consent of the person proposed to be appointed, shall first be made for the appointment of a curator ad litem.”

It is incomprehensible that the applicant selectively relied on r61 (1) and ignored ss (2) therefore which deals with any application involving a minor. This is an application for appointment of the applicant as the sole custodian of a minor. It falls within the ambit of R61(2).

A curator ad litem is appointed in legal proceedings to represent the best interests of a person who lacks the mental capacity to make decisions for himself or herself. A minor child is incapable of making decisions, he or she is legally incapacitated by virtue of age.

In terms of s81 (2) & (3) of the Constitution, “a child’s best interests are paramount in every matter concerning the child”.

And

3. Children are entitled to adequate protection by the courts, in particular by the High Court as their upper guardian”

Thus, in every application that concerns a minor child, the best interests of the child are the determinant factor. see Fortune v Fortune 1955(3) SA 348(A); Jeche v Mahovo 1989(1) ZLR 364(S); Short v Naisby 1953(3) SA 572(D); September v Karrien 1959 (3) SA 687 (C); W v W 1981 ZLR 243; Maluwana v Maluwana HH-155-01 and De Montille v De Montille HB-6-03.

In the case of Ncube v Siansole and Another HB 119-24 the court dealt with an application for custody of a minor child. The court noted that the concept of the best interest of the child embodies both the substantive and procedural right. The procedural component of the right includes the child’s right to be heard and to have their view considered whenever their best interest are at stake. Rule 61(2) of the High Court Rule, 2021 crucially governs the process.

The report prepared in terms of Rule 61(4) of the High Court Rules is not merely a matter of form, but of substance. The curator’s role is to protect the interests of the minor child, not its wishes nor the wishes of the natural guardian nor the applicant. Rule 61(4) of the High Court Rules, 2021 says the Curator must conduct an investigation, this means he or she must conduct a thorough investigation into the affairs and welfare of the minor child. See Siduna and Another v Tanyanyiwa and Another HH7459/22.

Whether the other parent consents or not to such an application a curator ad litem must be appointed to represent the interests of the minor child. In deserving cases, the court can resort to interviewing the minor child/children.  It is therefore a misguided to imagine that an application for custody can be made without complying with Rule 61 (2) of the Rules.

In this case the application was accompanied by the applicant and the respondent’s affidavits the curator’s report is not attached. Section 61 (2) and (3) is couched in the mandatory. No application shall be made and even granted without compliance. On the basis that this application concerns the welfare and best interest of the child, I cannot dismiss this application.

Accordingly, the application is struck off.

No order as to costs.

Murambasvina Legal Practice, applicant’s legal practitioners