Dorothy Musonza v Master of the High Court

### Preamble
HH 89-07
HC 5054/06
DOROTHY MUSONZA
versus
MASTER OF THE HIGH COURT
---------


==============================

DOROTHY MUSONZA
versus
MASTER OF THE HIGH COURT

HIGH COURT OF ZIMBABWE
GUVAVA J
HARARE, 5 April, 30 October and 20 December 2007

FAMILY LAW COURT

Unopposed Application

Mr Vuta, for the applicant

GUVAVA J: This application raises a question which has presented itself in a number of matters in recent months. It raises the issue of guardianship rights and the circumstances under which a parent may be divested of such rights.

FACTS

The applicant in this matter is a nurse by profession and like a number of Zimbabweans in the medical profession she is living and working in the United Kingdom. She states in her founding affidavit that she seeks an order granting her guardianship of her sister’s minor child B, (born 26 September 1998). B’s mother passed away on 11 June 2006. Maxwell Makaripe who is B’s father is still alive. He is a police officer based at Banket Police Station. He has guardianship and custody rights over his daughter. He filed an affidavit in support of the application asking this court to divest him of his rights of guardianship and awarding these to the applicant. He has not stated in his affidavit why he would wish to divest himself of the guardianship to his child. The applicant however states that she would like to go and live with the minor child in the United Kingdom where she works.

THE LAW

The law relating to rights of parents as guardians of children finds its origins in the Roman Law of *patria potestas*, which was an absolute right of control. This law is no longer in force and what has remained of it is the principle that the parents are the *legitimi tutores* of their children, in other words guardians by operation of law. (See E. Spiro “Law of Parent and Child” 4th edition at p 47) It is now settled that parental power consists of duties and rights which parents have in respect to their minor children. According to Grotius, children are from birth subject to the guardianship of their father (parent). In *Van Rooyen v Werner* (1892) 9 SC 425 the father or parent of a child is described as the natural guardian of his legitimate children until they attain the age of majority. Parents acquire parental power over a legitimate child at the time of its birth. It is considered by a number of authorities that the natural guardianship of parents is identical with parental power and I will therefore use the terms interchangeably. This power cannot be waived or abandoned in favor of someone else as this is considered to be contrary to public policy. Spiro states that the purpose of having a public policy which is against transfer or delegation of parental power in favor of another is basically to protect the child from abuse. He argues that this can occur should the parental power fall into the wrong hands. In this respect it is only allowed in very limited circumstances and normally, only after a full enquiry has been conducted so as to safeguard the interests of the minor child concerned.

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, *legimmatio 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 a grant by a sovereign or a court 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 person.

The facts before me do not show that this application would fall under any one of these categories. The applicant has not sought to legally adopt the minor child nor has the court granted the minor child majority status. The applicant cannot claim under the second category which deals with children born out of wedlock.

Intervention by the legislature, through the Guardianship of Minors Act [*Cap 5:08*], whilst imposing on the father the duty to consult with the mother on questions on guardianship of their minor child and setting out the powers of this court relating to custody and guardianship of a minor where the parents are no longer living together, has not in my view altered the common law position especially relating to transfer of guardianship. The Act provides primarily for the situation where a minor has no natural guardian or tutor testamentary and sets out a procedure to allow a third party to be appointed as guardian in their stead. It should be noted that the procedure outlined in s 9 of that Act specifically requires that an inquiry be conducted to determine who should be appointed as guardian. In the case of *In re Gonyora* 2001 (2) ZLR 573 it was held that in making the appointment of guardianship the court must consider the minor child’s best interests. Although in this case the court was dealing with a child whose parents were deceased the same principles must be taken into account even in a case such as this where one of the parents is still alive.

The High Court, as upper guardian of all minor children, has in some instances intervened especially in circumstances where a minor child would effectively be without a guardian. In the case of *Ex Parte Sakota* 1964 (3) SA 8 the court appointed the applicant in that case guardian of the minor children of his brother. The children’s father had been convicted in the High Court of Yugoslavia of killing his wife, the children’s mother, and sentenced to 20 years imprisonment. The court had also made an order divesting him of natural guardianship over his children. The court in South Africa, applying Roman Dutch law, held that a court may deprive a natural guardian of his rights and since the children now had no natural guardian, it was desirable that a guardian be appointed in South Africa where the children were residing.

The courts have also divested a parent of guardianship in cases where it has been established that to retain guardianship in the parent would pose a danger to the child. This point was emphasized in the case of *Van der Westhuizen v van Wyk* 1952 (2) SA 119 when it was held that a court cannot intervene with the guardianship rights of a parent unless there is danger to the child. It seems to me therefore, that the power to divest a parent of guardianship is a common law power which is exercisable only when there is danger to the minor child.

The inquiry into guardianship, like that of custody, cannot in my view, be one sided. In other words it is not only an inquiry into the advantages that will accrue to the child if its guardianship is granted to the applicant but also an inquiry into why the respondent must be divested of his guardianship. Thus in my view, an inquiry seeking to divest one parent of guardianship in favor of another or of a third party must involve not only an inquiry into why and how the respondent parent must be divested of guardianship but also why the applicant is deemed suitable to be able to discharge those legal obligations that are imposed on natural guardians by law. An inquiry into guardianship is an inquiry into the suitability of a parent to discharge the legal obligations imposed by law on the guardian of a minor child. These issues relate to controlling his estate and assisting them in litigation among other duties. It is not an inquiry into issues like where the child will live or how and where it will be educated as those inquiries relate to issues of custody.

In my view the present application does not fall under any of the criteria discussed above. The minor child’s father is alive and is gainfully employed in the police force. There has been no submission made that the parent is incapable of looking after the child or that the child is in any danger. In my view therefore, there is no basis in this case, for the father to seek to be relieved of his obligations. More importantly no investigation has been conducted as to the suitability or otherwise of the applicant to be a guardian of the minor child and for the court to satisfy itself that it is in the child’s best interest for the applicant to be appointed as guardian.

For these reasons the application is dismissed with no order as to costs.

Wabatagore & Company, applicant’s legal practitioners
--- END OCR FALLBACK ---