Jovita Sanyangowe v Elvis Chalimba

### Preamble
1
HH 203-2012
HC 3455/12
JOVITA SANYANGOWE
versus
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JOVITA SANYANGOWE
versus
ELVIS CHALIMBA

HIGH COURT OF ZIMBABWE
MAWADZE J
HARARE 30 MARCH, 2 APRIL, 4 APRIL AND 3 MAY 2012

Urgent Chamber Application

D. Mandaza for the applicant
S. Njere for the respondent

MAWADZE J: This is an urgent chamber application in which the applicant seeks a declaratur couched in the following terms:-

IT IS ORDERED THAT:

1. “According to Zimbabwe law, the applicant Jovita Sanyangowe is the sole guardian and custodian of the two minor children namely, TINASHE CONSTANCE CHALIMBA (FEMALE) (born on 17th August 1996) and ANESU ESTHER CHALIMBA (FEMALE) (born on 29 July 1999)
2. Being possessed of the full parental powers over the said minors, including the power of representation, choice of residence, and the right to have the minor children reside with her, the applicant has authority to remove the said minor children to and from Zimbabwe as she deems fit.
3. No order as to costs.”

This matter was allocated to me on 28 March 2012 late in the day and I set the matter down for hearing on 30 March 2012. The applicant in her founding affidavit paragraphs 4.2 and 4.3 had requested that I proceed to grant the order sought without hearing the respondent. The reasons given for this rather unusual approach were that the respondent if notified of the matter would cause un due delays thus jeopardizing the relief sought and that there was a risk of peverse conduct by respondent who would hide or remove the two minor children from Zimbabwe. I was not persuaded by the reasons hence I directed that the respondent should be served with both the application and the notice of setdown. My decision was informed by basically two reasons. The respondent has an interest in this matter as the natural father of the two minor children. Secondly this matter involves the best interests of the minor children irrespective of the fact that were born out of wedlock. The respondent was then served with the notice of setdown and I only managed to hear the parties on 4 April 2012 which was a day before end of the first term.

The parties in this matter have been engaged in bruising and unending legal battles involving these two minor children from 2000 to date. These legal battles have been fought in the magistrate’s court, the High Court and the Supreme Court. The differences between the parties seem unresolved as each party has approached the courts for one relief or another. In order to put the application into proper context I shall proceed first to give a brief background of the facts giving rise to this application.

The applicant is the natural mother of the two minor children and the respondent the natural father. Both minor children were born out of wedlock. The parties have haggled as to whether a customary law union existed between them the relevant time or that they simply cohabited. In my view this issue is not relevant in relation to the legal status of the minor children and the rights of the parties in relation to those minor children. What is not in issue is that the parties stayed together in or about May 1996 resulting in the birth of the two minor children, the first child was born on 17 August 1996 and the second child on 29 July 1999. The parties then separated around August 2000 and the applicant took custody of the of the minor children and stayed with the children in Zimbabwe from 2000 to 2002. During this period the applicant approached the magistrates court in case No JC 587/00 seeking *inter alia* custody of the two minor children, contributory maintenance and other ancillary relief. An order was granted by consent on 9 May 2001 awarding custody of the minor children to the applicant, payment of contributory maintenance by respondent and access rights by the non custodial parent among other issues. It would appear the parties were harassing and assaulting each other hence both parties were interdicted from such conduct.

After staying with the two minor children from 2000 to 2002 the applicant in December 2002 decided to surrender custody of the two minor children to the respondent. The conditions for this arrangement remain unclear. Apparently the applicant wanted to relocate from Zimbabwe to New Zealand. The respondent took custody of the two minor children from December 2002 to 2004 and for that period the respondent claims he was unaware of the applicant’s whereabouts. The applicant only returned about 3 years later in 2005 from New Zealand and indicated her intention to apply for visas for the minor children and the respondent said he was opposed to this as he did not know what the applicant was doing in New Zealand. The applicant then returned to New Zealand in 2005 leaving the minor children in respondent’s custody. In December 2005 the respondent’s employers transferred him to South Africa and he advised the applicant and took the minor children with him.

In April 2008 the applicant visited the respondent in South Africa from New Zealand and indicated she wanted to take the children with her to New Zealand. The parties could not agree which prompted the applicant to approach the South Africa High Court for leave to remove the children to New Zealand. The matter was not concluded probably due to lack of prosecution of the matter. The two minor children remained in the respondent’s custody and the respondent relocated to Zimbabwe with the two minor children in 2007.

In 2009 the applicant instituted proceedings in this Court in Case No. HH142/09 for guardianship of the two minor children. It would also appear the applicant wanted to take the two minor children with her to New Zealand. MUSAKWA J who dealt with the matter did find that the applicant was by law the guardian of the two minor children and declined to grant the declaratur.


The respondent approached to the Supreme Court and the applicant also cross appealed. The Supreme Court in Case No. SC298/09 on 31 August 2010 granted the following order:-

“IT IS ORDERED THAT:-

1. The appeal be and is hereby dismissed with costs.
2. The cross appeal be and is hereby allowed with no order as to costs.
3. The order granted by the Court aquo be and is hereby altered so as to read as follows:-

a) The application for appointment of the applicant as the legal guardian of the two minor children, Tinashe Constance Chalimba and Anesu Esther Chalimba, is dismissed with costs.
b) The applicant, Jovita Sanyangowe, is hereby declared the legal guardian of Tinashe Constance Chalimba born on 17 August 1996 and Anesu Esther Chalimba born on 29 July 1999.”

The two minor children remained in respondent’s custody and in August 2010 the applicant returned to Zimbabwe. The respondent alleges the applicant took custody of the minor children ostensibly for the holidays and was to return them to the respondent in September 2010 before the schools opened. The respondent said he agreed and the applicant obtained passports for the two minor children and took them to South Africa. According to the respondent the applicant did not bring the minor children back to Zimbabwe when the schools opened in September 2010 but left them in Roodenpoort in South Africa with a distant relative as the applicant returned to New Zealand. The two minor children were in South Africa from September 2010 to December 2010 and not attending school. The respondent alleges the applicant was unwilling to disclose the whereabouts of the of the minor children. The respondent said the applicant returned to South Africa in December 2010 and took the minor children to Bulawayo Zimbabwe and left them in custody of her sister’s friend and she returned to New Zealand. The respondent said he was not aware as to where the minor children were from September 2010 to about May 2011.

According to the respondent and as per Annexures D and E to respondent’s opposing affidavit in May 2011 the younger child Anesu Esther stealthly telephoned the respondent indicating that they were at a house in Bulawayo and not attending school and she wanted the respondent to take custody of the minor children. The respondent through the help of the police located the house where the minor children were in Bulawayo and took custody of them in May 2011. When the applicant learnt about that she returned to Zimbabwe from New Zealand and sought to regain custody of the minor children through contempt of court proceedings as she alleged the respondent was not abiding by the Court order granted by the same Court in 2001. On 18 July 2011 the magistrate’s Court dismissed the application and did find among other things that the respondent was not in contempt of the court as the minor children had refused to go with the applicant. The applicant alleges she has since filed an application for review of these proceedings with the High Court. Meanwhile the respondent approached the magistrate court seeking variation of the custody granted to applicant in JC 587/00 on 9 May 2011, and the application was dismissed in July 2011. The respondent has since appealed against that order in case No. Civ 357/11 and the appeal is still pending. It would appear however the minor children remained in the respondent’s custody.

In October 2011 the applicant approached this court on an urgent basis in Case No. HC 696/11 seeking a provisional order for custody and other relief pending the determination of the appeal filed by the respondent. The provisional order was granted by GUVAVA J which provisional order I confirmed in default on 1 December 2011. The order is as follows:-

“IT IS ORDERED THAT;

1. Pending the determination of the respondent’s appeal under Case No. Civ A 351/11 for variation of custody the applicant shall continue to have custody of the two minor children namely Tinashe Constance Chalimba (born on 17 August 1996) and Anesu Esther Chalimba (born on 29 July 1999)

2. As the applicant is the lawful Guardian and Custodian of the aforesaid minor children, the respondent shall surrender their passports within forty-eight hours of the granting of the order, to the Registrar of this Honourable Court.

3. The respondent shall pay the costs of this application.”

The respondent indicated that he has since applied to this court for rescission of this order and said the matter is also pending. Again it would appear the minor children remained in the respondent’s custody. Reference was also made to urgent chamber application made by the respondent in Case No. HC 228/11 which was dismissed by PATEL J in which the respondent is said to have sought an interdict to prevent the applicant from taking the children to New Zealand. This was before the applicant made an urgent chamber application in HC 6962/11 in which the provisional order was granted on 22 July 2011 and confirmed by this court on 20 December 2011. As already said the minor children still remained in the respondent’s custody. The applicant on 27 March 2012 then filed this urgent application, the subject matter of the judgment seeking the order referred to supra.

I now to proceed to deal with the merits of this application.

URGENCY

The question of what constitutes urgency in cases of the nature in our law is clear. See Kuvarega v Registrar & Anor 1998 (1) ZLR 188. In the case of Madzivanzira & 2 others v Dexprint Investments (Pvt) Ltd & Anor HH 145/2005 at pp2-3 NDOU J made reference for remarks by PARADZA J in the case of Dexprint Investments (Pvt) Ltd v Ace Property Investment Company HH 120/2002 in outlining what constitutes urgency as follows:-

“For a court to deal with a matter on an urgent basis it must be satisfied of a number of important aspects. The court has laid down the guidelines to be followed. If by its nature the circumstances are such that the matter cannot wait in the sense that if not dealt with immediately irreparable prejudice will result, the court can be inclined to deal with that on an urgent basis. Further, it must also be clear that the applicant did on his own part treat the matter as urgent. In other words if the applicant does not act immediately and awaits doomsday to arise and does not give a reasonable explanation for that delay in taking action, he cannot expect to convince the court that the matter is indeed on that warrants to be dealt with on an urgent basis.”

See also the remarks on the same issue by KUDYA J in Gifford v Muzire & Anors 2007 (2) ZLR 131, (H) at 134 H- 135A.

The basis for this application is captured in paragraph 9 of the applicant’s founding affidavit in which the applicant states;


“9. It has always been my intention for my daughters to live with me in New Zealand where I am currently based. I submitted an application to the New Zealand Immigration for my daughters to be granted residence. The application has been deferred up to around 26th March 2012, pending my submission of evidence of my right to remove my minor daughters from Zimbabwe even though I did submit a copy of the Supreme Court order which declares me the Guardian of my minor daughters. It appears the law in New Zealand on children born out of wedlock is different from that pertaining in Zimbabwe. It seems authorities want proof that I have the right to remove my daughters from Zimbabwe hence this application.

Accordingly I submit this Chamber Application which will declare that I have the right to remove my said minor daughters out of Zimbabwe.”

I am not satisfied that the applicant has shown that his matter should be treated as urgent. To start with the certificate of urgency which gave the 26th March 2012 deadline has been overtaken by the events. The applicant filed this application with the court on 27 March 2012 well after the said deadline. Attempts were made in oral submissions by Ms Mandaza that the deadline had been extended to about 30 April 2012. No explanation is given as to why such vital information is not in the founding affidavit.

The applicant did not attach any proof of the application made to the New Zealand immigration for residence. Again an attempt to explain this was made by Ms Mandaza during the hearing by alleging that the application was made electronically hence no documentary proof was filed timeously. I am not sure how the applicant intended to convince this court that such an application has been filed without providing such proof.

The applicant did not even state as to when that application was made and the period within which it should be heard. The alleged response from the New Zealand immigration authorities is not even attached as proof of what exactly was required from the applicant by the New Zealand Immigration authorities. From the history of the matter the applicant was awarded custody of the minor children some 11 years ago in 2001 and that order is still valid. There is no explanation as to why the applicant from the time she went to New Zealand she did not make the application for residence. The applicant has a duty to be candid with this court so as to take the court into her confidence. The impression I get from the applicant’s founding affidavit which is devoid of material averments is that this is the sort of urgency which is self created and stems from a deliberate or careless abstention from taking action at the time the need to so act arose. On that account alone I am inclined to dismiss this application as not urgent.

I am alive to the fact that this is a matter which involves the interests of minor children and as the upper guardian of the minor children I directed the parties to also address me on the merits of this matter. I am not satisfied that the applicant has shown that she is entitled to the relief sought. I arrived at that conclusion at the basis of a number of reasons.

The nature of the order sought by the applicant is a final order in the form of a declaratur without first seeking interim relief. The applicant proffers no explanation as to why a final order should be granted on an urgent basis. The applicant does not state as to whether she would suffer irreparable harm and the nature of such harm if the matter is not heard on urgent basis.

It is common cause that the applicant is the sole guardian of the two minor children. The Supreme Court order is clear in that regard. It is also not in issue that the applicant was awarded custody of the two minor children away back as 9 May 2001. There is therefore no basis for this court to grant the order sought in paragraph 1 of the draft order. It is therefore clear that this application is motivated by the desire by the applicant to take the minor children with her to New Zealand as is captured in paragraph 2 of the draft order.

At the centre of the dispute between the parties are the two minor children. The question which this court has to answer is whether it is in the best interests of the minor children to grant the order sought by the applicant in paragraphs 2 of the draft order. Article 1 of the United Nations Convention on the Rights of the Child and Article 4 of the African Charter on the Rights and Welfare of the Child emphasises the need to protect and respect the rights of children and that the primary consideration by all institutions dealing with children whether in public or in private is the concept of the best interests of the child. Although both the United Nations Convention and The African Charter do not define this concept our courts have on a number of occasions clearly explained what constitutes the best interests of the child See McCall v McCall 1994 (3) SA 201 at 204-5, Makuni v Makuni 2001(1) ZLR 189 (H) at 192 A, Galante v Galante (3) 2002 (2) ZLR 408 (H) Jere v Chitsunge 2003 (1) ZLR 116 (H) at 118 C-E.

The applicant provides no explanation as to why she has not been able to exercise her rights granted to her by the various court orders I referred to in dealing with the history of the matter. All Ms Mandaza could say in her submissions was that the respondent has been in contempt of all these orders and the applicant has done all in her powers to enforce the various orders. I am not persuaded by this submission in view of the fact that the applicant at her convenience has allowed those minor children to remain in the respondent’s custody. In fact since 2002 the applicant has only had custody of these minor children for about 9 months from September 2010 to May 2011. The two minor children has been in respondent’s de facto custody now for 10 years, that is from the time they were 6 years and 3 years respectively and they are now 16 years and 13 years respectively.. The elder child is now in form 4 at High Achivers Coach in Borrowdale, Harare and the other in Form 1 at Eaglesvale in Harare. Despite the non disclosure of all the relevant information by the applicant and also that respondent has de facto custody, the court has still to be satisfied that it is in the best interests of the minor children to grant the order sought.

In terms of R249 (1) (b) of the Rules of the High Court of Zimbabwe 1971 the applicant should have ensured that a curator ad litem is appointed. The applicant gives no explanation for non compliance with this rule. I say so because in essence this is an application for possible removal of the children from Zimbabwe to New Zealand at any given time. A curator ad litem would greatly assist the court in arriving at informed decision as regards the rights, wishes and interests of the minor children. As at now this court is not even aware as to what the applicant is doing in New Zealand and how she proposes to ensure the minor children’s education is not disrupted and that it is the best interests of the minor children to uproot them from Zimbabwe and move them to another country at this stage of their lives. One may even be inclined to interview the minor children in view of their ages and the findings made by the magistrates court. All these issues cannot be dealt with in the context of this application.

As already said the respondent has an interest in the matter. He is the natural father of the children. He has had de facto custody of the children for 10 years and has lodged an appeal relevant to the custody of the minor children which is pending. The respondent has visitation rights granted by the magistrates Court and all these issues should be properly considered. Allegations of abandonment have been made by the respondent against the applicant.

All in all I am therefore not satisfied that the applicant has made a case to be granted the order sought, albeit a declaratur. I am not satisfied that it is in the best interests of the minor children to grant the order sought. While I remain of the strong view that the matter is not urgent I am also of the view that the applicant has not shown that it is in the best interests of the minor children to grant the order sought in paragraph 2 of the draft order. There are material facts in this case which the applicant did not disclose. There is no explanation as to why the minor children have remained in the respondent’s custody for ten years. A proper inquiry would have to be made to consider the merits of removing the children from Zimbabwe. The disputes of facts need to be properly ventilated and resolved.

Accordingly the application is dismissed with costs.

Muzangaza, Mandaza & Tomana, applicant’s legal practitioners
Honey & Blackenberg, respondent’s legal practitioners
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