Judgment record
Leonard Sibanda v The Master of the High Court (as guardian of minor child K.N)
HH 207-18HH 207-182018
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HH 207-18
HC 9245/17
LEONARD SIBANDA
In his application to be appointed guardian of a minor child K.N
HIGH COURT OF ZIMBABWE
CHIRAWU-MUGOMBA J
HARARE, 10 and 11 April 2018
Family law -Chamber application for guardianship
CHIRAWU-MUGOMBA J: This matter was placed before me in chambers. The
applicant seeks an order that he be awarded guardianship of his almost seventeen year old
grandchild K. N born on the 4th of November 2001. The applicant averred that the minor child
was born to his daughter Joyce Sibanda and one Tavengwa Ngwenya. At the time of the
application, Joyce Sibanda had passed away and the whereabouts of the child’s father were
unknown though he was rumoured to be in South Africa. The applicant’s case was based on
the fact that he has stayed with the child since birth and the father of the child has not
contributed anything to the upkeep of the child. Even after the death of his daughter, the
applicant avers that he has continued to look after the child and he has become the de facto
custodian and guardian. He believes that he is a fit and proper person to be appointed
guardian of the minor child.
The applicant properly brought the matter to the High Court based on the fact that one
parent of the child is still alive. This is due to the provisions of ss 9(1) (2) of the Children’s
Act [Chapter 5:08] which read:
“9 (1) Without prejudice to the rights, powers and privileges of the High Court as upper
guardian of minor children, and the Master in terms of section 74 of the Administration of
Estates Act [Chapter 6:01], the children’s court may, on application in terms of this section,
appoint a fit and proper person to be the guardian of a minor who has no natural guardian or
tutor testamentary.
(2) Where a minor has no natural guardian or tutor testamentary—
(a) a relative or person having the care and custody of the minor; or
(b) a probation officer;
may apply to the children’s court by way of an application lodged with the
clerk of that court for the appointment of a person as guardian of the minor,
and such application may propose the appointment of a specified person as
the guardian.”
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The relief sought by the applicant is however misguided as he seeks to be awarded
guardianship. Section 9 of the Children’s Act (supra) refers to appointment both in the sub
heading and in the text.
The concepts of guardianship and custody are often used interchangeably even though
they do not have the same meaning. In Ralph v Vuuren 1KUDYA J with reference to case and
other authority made the distinction between custody and guardianship as follows:
“In my view, the application betrayed a failure by the applicant to appreciate the fine
distinction between custody and guardianship. Had she done so, her application would have
been structured differently. It is necessary that I set out what the two concepts entail.
Textbook writers have attempted to define both concepts. HR Hahlo in the South African Law
of Husband and Wife 5th ed at 394 wrote:
‘Custody is but one incident or sector of natural guardianship. Where as happens in
most cases, custody is awarded to the mother and no order is made as to guardianship,
the father is left with guardianship minus custody. The mother as the custodian parent
is entitled to have the child with her, to control its daily life, to decide all questions
relating to its education, training, religious upbringing and to determine what homes
or houses the child may or may not enter and with whom it may or may not associate.
In cases of urgency she can supply the necessary consent to a surgical operation on
the child.’”
See also Boberg in The Law of Persons and Family 2nd ed at p 661-664.
VAN HEERDEN J in Governing Body, Gene Louw Primary School v Roodtman 2004
(1) SA 45 (C) at 51H- 52B set out the rights and duties of the custodian parent in terms
similar to those outlined above by Hahlo in these terms:
“At common law a parent (or other person) who has the custody of a minor child is entrusted
with the care of the child's person and the decision-making power in respect of the child's
day-to-day life, upbringing and education. A useful description of the position of the
custodian parent is given by GUBBAY J in Matthee v MacGregor Auld and Anor 1981 (4) SA
637 (Z) at 640D - F:
'(T)he custodian parent has, therefore, the right and duty to regulate the life of the
child; to choose and establish his residence (Landmann v Mienie 1944 OPD 59 at 65);
to resolve with whom he should be allowed to associate (Wolfson v Wolfson 1962 (1)
SA 34 (SR) at 37C - H); to direct the lines on which his secular education should
proceed (Simleit v Cunliffe 1940 TPD 67 at 76; Scott v Scott 1946 WLD 399 at 401),
including the choice of the school (Martin v Mason 1949 (1) PH B9 (N)); to devise
upon his religious instruction (Ryan v Ryan 1963 R & N 356 (SR) at 368A); to
determine what medical advice, supervision or assistance should be sought in the
event of his becoming ill or sustaining an injury (Oosthuizen v Rix 1948 (2) PH B65
(W); Custner v Hughes 1970 (3) SA 622 (W) at 625B). The . . . non-custodian has no
right of interference in these matters.'”
Hahlo, supra, at page388-9 further states that:
1
2009(1)ZLR 51(H)
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“At common law, guardianship in its widest sense includes custody, and embraces
the care and control of the minor’s person as well as the administration of his
property and business affairs. Where custody and guardianship are separated, the
custodian parent has the care and control of the minor’s person, while the guardian
parent administers his property and business affairs (‘guardianship’ in the narrower
sense).”
The learned author proceeds to define guardianship in the narrower sense at p 395 in
these terms:
“By virtue of his guardianship, it is the father’s right and duty to take charge of and
administer the property of the minor; invest his moneys; pay his debts; and contract on his
behalf in business matters. In legal proceedings the minor must be represented or assisted by
the father, unless the mother obtains leave from the court to bring or defend an action on the
minor’s behalf. The right to alter the child’s name, too, vests in the guardian and not in the
custodian spouse.
For marriage, the minor requires the consent of both parents, unless one of them has been
awarded the sole guardianship of the minor, in which case that parent’s consent is necessary
and sufficient. For an antenuptial contract, the consent of the father as guardian is necessary
and sufficient, unless he has been deprived of the guardianship of the minor, or his parental
powers have been overridden.”
The consolidated South Africans Children’s Act2 sets out what a guardian is expected to do as
follows:3
“(3) Subject to subsections (4) and (5), a parent or other person who acts as
guardian of a child must—
(a) administer and safeguard the child’s property and property interests;
(b) assist or represent the child in administrative, contractual and other legal
matters; or
(c) give or refuse any consent required by law in respect of the child,
including—
(i) consent to the child’s marriage;4
(ii) consent to the child’s adoption;
(iii) consent to the child’s departure or removal from the Republic;
(iv) consent to the child’s application for a passport; 5 and
(v) consent to the alienation or encumbrance of any immovable property
of the child.”
The 2013 Constitution provides that a child’s best interests are paramount in every
matter concerning the child and children are entitled to adequate protection by the courts, in
2
Number 38/2005 as amended
3
In section 18(3).
4
Child marriage is outlawed in Zimbabwe. See Mudzuru and anor v. Minister of Justice, Legal and
Parliamentary Affairs and others CCZ 12/15
5
In Dongo vs. The Registrar-General and Anor SC 6/10, it was held that the acquisition of a
passport is not a juristic act.
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particular by the High Court as their upper guardian. 6 This in essence means that even in
applications for guardianship, the best interests of the child are paramount. This is in keeping
with the tenets of the Convention on the Rights of the Child which places the rights of
children at the centre. This finds resonance in the various theories on the rights of the child
such as the enjoyment theory, the will theory of rights and Rawl’s theory of justice among
others.
The Constitution has also clothed parents and guardians with wide powers under the
broad right of freedom of conscience as follows:
“Parents and guardians of minor children have the right to determine, in accordance with their
beliefs, the moral and religious upbringing of their children, provided that they do not
prejudice the rights to which the children are entitled under this Constitution including their
rights to education, health safety and welfare.”7
Our courts have relied on the best interests test as set out in McCall v McCall 8 as
follows:
“(a) the love, affection and other emotional ties which exist between parent and
child and the parent's compatibility with the child;
(b) the capabilities, character and temperament of the parent and the impact
thereof on the child's needs and desires;
(c) the ability of the parent to communicate with the child and the parent's
insight into, understanding of and sensitivity to the child's feelings.
(d) The capacity and disposition of the parent to give the child the guidance
which he requires;
(e) the ability of the parent to provide for the basic physical needs of the child,
the so-called 'creature comforts', such as food, clothing, housing and the
other material needs - generally speaking, the provision of economic
security;
(f) the ability of the parent to provide for the educational well-being and
security of the child, both religious and secular;
(g) the ability of the parent to provide for the child's emotional, psychological,
cultural and environmental development;
6
Section 81(2) and (3).
7
Section 60(3).
8
1994(3) SA 201 at 204-5. See also Chipofya v.Chipofya HH-100-11 and Galante v. Galante
2002(2)ZLR 408(H)
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(h) the mental and physical health and moral fitness of the parent;
(i) the stability or otherwise of the child's existing environment, having regard
to the desirability of maintaining the status quo;
(j) the desirability or otherwise of keeping siblings together;
(k) the child's preference, if the Court is satisfied that in the particular
circumstances the child's preference should be taken into consideration;
(l) the desirability or otherwise of applying the doctrine of same sex matching,
particularly here, whether a boy of 12 should be placed in the custody of his
father; and
(m) any other factor which is relevant to the particular case with which the
Court is concerned.”
In my view, the applicant has not placed enough information to warrant this court to
make a finding that it will be in the best interests of the child if he (the applicant) is appointed
guardian. This is in view of the somewhat onerous requirements placed on a guardian. The
applicant stated that he was appointed executor to his late daughter’s estate in October 2016.
He has not taken the court into his confidence regarding the status of the estate administration
and more poignantly the inventory in the estate. If the child is the only child of the late Joyce
Sibanda, it follows that he is legally entitled to the bulk of the assets (if any) left by his late
mother. An executor is expected to wind up an estate within a period of six months and the
applicant has not proffered an explanation as to why the estate has not been wound up. If the
applicant is appointed a guardian, the court needs to be satisfied that the child’s interests in
relation to his inheritance are protected. In this regard, I fully associate myself with the
caution sounded by the late MUTEMA J that:
“Experience has taught us that orphaned minor children must by all means be protected
against the vagaries and avarice of certain members of society, relatives or not, hence the
need for magistrates in enquires of this nature to think outside the box and make exhaustive
enquiries in the interests of the innocent children who might end up destitute on the streets as
a result of inadequate fact finding.”9
Although this was in relation to an automatic review of the decision of the Magistrate
Court in terms of s 9(6) of the Guardianship of Minors Act (supra), the caution applies with
equal force in matters brought before this court.
9
In Re Gonyora HB-11-15
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In Saungweme v The Master of the High Court 10with reference to an application for
guardianship by a third party, TSANGA J stated as follows:
“It concerns me that this court is being asked to make such a vital decision concerning a
child’s life with the scantiest of information. There are no details as to where the child goes to
school and not a scintilla of evidence of the challenges that have actually been encountered
relating to the child’s education, to support this application that guardianship needs to be
vested in the applicant due to difficulties in reaching the father. ……….Applications such as
this must of necessity capture in some measure of detail lived realities that give rise to the
application”.
The child is a single orphan and he needs to be protected by this court as his upper
guardian. Whilst not suggesting that the applicant is not a suitable guardian, the court needs
to be cautious. There is no supporting affidavit from anyone else attached to the application
to enable the court to make an informed decision. Given the scant information in the
applicant’s affidavit, one would expect that there is other evidence to support the application.
As suggested by Hlalo (supra), guardianship in its widest sense also includes aspects of
custody. The applicant has not shown how he relates to the child on a day to day basis. If the
applicant is appointed as the guardian, he will be entitled to exercise the rights set out in s
60(3) of the Constitution. He has not shown in his affidavit how he intends to exercise those
rights if appointed.
No details have been submitted as to the efforts that have been made to look for the
child’s natural father except for a mere averment by the applicant. The onus is heavier in
circumstances were one of the natural parents is still alive and that is why such applications
are made to this court as the upper guardian of all minor children. A mere averment that the
child’s father is believed to be in South Africa is not a good ground for appointing the
applicant as the guardian.
The applicant referred to the concept of “fit and proper person” and rightly so as s 9
of the Guardianship of Minors Act (supra) specifically refers to it. The court has not yet
dealt with this concept in the context of an application for guardianship. However, it has been
defined or interpreted in other contexts such as in the appointment of judicial officers.
GUBBAY CJ (as he then was) stated the following with regard to the meaning of fit and proper
person:
“Construed in context, the words “a fit and proper person” allude, in my view, to the personal
qualities of an applicant – that he is a person of honesty and reliability .11
10
HH-799-16
11
In re Chikweche 1995 (1) ZLR 253 (S) also reported in 1995 (4) SA 284(25) at 291H-J
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Although this was in the context of an application for registration as a legal
practitioner, the interpretation equally applies to applications of this nature. MADONDO J,
went on to add the concept of integrity to the definition of a fit and proper person. 12 Apart
from his mere say-so, the applicant has not shown in what way he is a fit and proper person.
Given the fact that a guardian has vast powers which include performing juristic acts on
behalf of a child, honesty, reliability and integrity are key in considering whether to appoint a
person as guardian.
In the circumstances, it would be remiss of me to appoint the applicant as guardian
especially when the views of the child have not been solicited and the only evidence before
the court is the affidavit of the applicant.
Accordingly, the chamber application is dismissed with no order as to costs.
Garabga, Ncube and Partners, applicant’s legal practitioners
12
In Kwazulu Natal Law Society vs. Singh Case no 1526/2010