Charity Shiridzinodya v Samuel Samanyanga

HH 68 -2011
                                                                                           CIV 390/09
                                                                                           APP 211/09

CHARITY SHIRIDZINODYA
versus
SAMUEL SAMANYANGA


HIGH COURT OF ZIMBABWE
KARWI & UCHENA JJ
HARARE, 26 November 2009


Civil Appeal

M. Magaya,for appellant
T. Mutero, for respondent

       KARWI J; This is an appeal against the decision of the learned Magistrate in terms of
which 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 respondent moving out of the matrimonial home in Queensdale, Harare. Appellant
remained behind and 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 separation, respondent says he got a request from
his wife’s landlady, one Mrs Chideme who insisted that 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.
Respondent said he had tried to talk to appellant into apologizing to Mrs Chideme but appellant
would not have anything of it. He says the appellant proceeded to dump the children at
respondent’s uncle’s place in Caledon at around 6 am only to return at 8 pm. She had not left
anything for the children to eat. On getting to know the circumstances of his children, respondent
took care of them and proceeded to apply for their custody at the Magistrates Court. 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.
       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 if
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HH 68-2011
CIV 390/09
APP 211/09

the children that their custody be awarded to appellant. 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 HH 143/86 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 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. He 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.
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                                                               HH 68 -2011
                                                                CIV 390/09
                                                                APP 211/09



Legal Aid Directorate, appellant’s legal practitioners
Justice for Children Trust, respondent’s legal practitioners