Rodney Ndangariro Dangarembizi v Melisa Hunda

### Preamble
1
HH 447-18
HC 10336/13
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RODNEY NDANGARIRO DANGAREMBIZI

versus

MELISA HUNDA

HIGH COURT OF ZIMBABWE

HUNGWE J

HARARE, 9 June 2014, 7 July 2014 & 25 July 2018

Opposed application

T Sibanda, for the applicant

Ms S Njerere with Ms Nyamayi, for the respondent

HUNGWE J:	The matter before this court is an application for custody of two minor children.

On 9 January 2014, the return day of the rule nisi, the parties agreed to the further extension of the rule as well as to the consolidation of other matters between the parties. Consequently, the following order was granted:

Parties be and are hereby ordered to file a joint consent to the application for rescission in the Children’s Court case number CC 803/13 on or before 13 January 2014.

Respondent be and is hereby ordered to file her opposing papers regarding the application for custody under CC803/13 on or before 23 January 2014.

Applicant in CC803/13 be and is hereby ordered to file his answering affidavit on or before 30 January 2014.

Applicant in the present matter, HC 10336/13, be and is hereby directed to address correspondence to Justice for Children Trust on or before 10 January 2014. Justice for Children Trust be directed thereby to prepare a report on the welfare of the children subject of the application for custody in CC 803/13 which report shall be filed with the Registrar of this Court on or before 30 January 2014.

The Clerk of Court, Magistrates’ Court, Harare, be and is hereby directed to forward the record in CC 803/13 to the Registrar of the High Court upon the parties having filed their heads of argument on or before 27 February 2014.

Applicant be and is hereby directed to file his heads of argument, if so advised, in respect of the consolidated matters on or before 13 February 2014.

Respondent be and is hereby directed to file her heads of argument on or before 27 February 2014.

Background to the application

The applicant and respondent conducted a relationship. As a result, two children were born. The applicant avers that he was customarily married to the respondent, who is his common law wife’s sister. Pursuant to their customary law marriage, he had secured for his young family a house in a low density suburb in Harare, a short distance from where he lived with his other family. The respondent disputes that she was his customary law wife. She avers that he bought the house so that she together with the children, enjoy a comfortable standard of living. It was a settlement to which she had agreed when it was clear that he would not formalise their marriage. She states that during the subsistence of their relationship as lovers, he had subjected her to abuse and that he was a control freak. Consequently, she decided to leave the home

The respondent, together with her two minor children, left the home on 14 November 2013. The reason she gives for leaving home is that she feared for her life and the interests of her children. She alleges that the applicant subjected her to domestic violence by over an extended period. On 19 November 2013 applicant applied for the custody of the two minor children under case number CC 803/13. He obtained judgment in default on 29 November 2013. On 2 December 2013 the respondent filed an urgent ex parte application. She obtained a rule nisi staying the custody order. However before the rule nisi was granted, the minor children were taken away from her. On the same day applicant filed an urgent application for the stay of the rule nisi under the present papers. He also lodge an application for review seeking the setting aside of the rule nisi on the basis that the audi alteram partem rule had been flouted. He then sought rescission of that order. I directed that the parties appear before me. When parties then appeared before me, I granted the above order by consent. As will be apparent the order consolidated all the matters pending between the parties.

At the hearing of the matter, the applicant gave evidence. He called Dr Gona, Dr Chidziva one Theresa Mutsonziwa, Sergeant Mangoma and Ms Muengwa who prepared the Justice for Children Trust report. The respondent gave evidence and called Livonia Chitibura and Ms Ruvangu.

The applicant’s evidence amounted to this. In 2012, he obtained an order granting him custody of the child Ryan, upon application in the Children’s Court. Apparently, he abandoned the order when he reconciled with the respondent. She had then moved into a more auspicious accommodation, which he bought for his son, Ryan. Within no time, respondent resumed her wayward habit of taking religious sojourns into the wild with the now two children. He searched everywhere for the mother and children without success. When he eventually learnt that the respondent had sought shelter in a safe house, he filed another court application in the Children’s Court. In default of appearance by the respondent, applicant obtained the order he sought. The officers who had granted her safety and assisted her in filing for a protection order fiercely resisted his attempts to execute the order. They feared for respondent’s safety. When he managed to get compliance with that order of custody, she made an application ex parte seeking the stay of the order. She obtained judgment in her favour. He then filed the present papers on an urgent basis and simultaneously made application for review of the orders granted in respondent’s favour in the court a quo.

Either party led evidence, not only to buttress their respective cases against each other but also to cast aspersions on the opposing evidence. What is clear, though, is that the parties have enjoyed periods of love and affection during which the two children were born. In equal measure, they have also endured tempestuous times when the respondent appeared to be on the receiving end of his violent behaviour. I say this because applicant took respondent as his wife by customarily paying lobola. She disputes that she was ever customarily married to her. She describes the incident when the payment of lobola as having occurred against her will. She, at the same time, confirms that he paid a divorce token at her aunt’s residence in Chitungwiza. Such a token could only have been payable as a recognition of a prior customary law union.

However, in the view that I take of this matter, it matters not whether the parties were at one point married customarily or not. It matters not whether the applicant committed bigamy when he contracted and later dissolved his marriage to the respondent. It is not important how he treated her or how she behaved towards him. These are matters to do with their relationship rather than the children. That is not the issue before the court. The court is required to decide whether applicant has made a case for the grant of an order in his favour and against the respondent. Put differently, the court must decide what an appropriate order for the custody of the two minor children should be.

Questions of the custody and guardianship of minors are admittedly complex ones. The legislature has attempted to provide what should guide the courts by enacting such laws as the Maintenance Act, [Chapter 5:09]; the Guardianship of Minors Act, [Chapter 5:08]; the Children’s Act [Chapter 5:06] and the Child Abduction Act, [Chapter 5:05]. These statutes do recognise the different status to which a law can ascribe as status to a child. The courts have also interpreted their understanding of how the common law, customary law as well as statutory law applies in different situations which children might find themselves in.

The respondent submits that being an unmarried mother she therefore is the sole guardian of her minor children unless proved an unfit. Since the applicant has failed to demonstrate that the respondent is unfit, she therefore is entitled custody.

This court, in such cases as D v M 1986(1) ZLR 158 has expressed itself on the subject. It stated that there is no inherent right of access or custody for a father of a minor illegitimate child, but the father, in the same way as other third parties, has a right to claim and will be granted these if he can satisfy the court that it is in the best interest of the child. The court went on to point out that, the onus is on the applicant to satisfy the court on the matter and usually the court will not intervene unless there is come very strong ground compelling it to do so. The philosophical underpinning for this common law approach appears in Boberg’s The Law of Persons and the Family where, @ p333-346, where the learned author states:

“Whereas the parental power over a legitimate child rests in his father, in the case of an illegitimate child it is his mother who, unless she herself is a minor, has the right of guardianship and custody over him and whose surname and domicile he assumes. The father’s only right over the child is one of reasonable access. Where it is in the child’s interest, however, the court may deprive the mother of guardianship or custody, transferring these rights to the father, or even conferring them on a third party.”

The same approach is accepted by another writer, Spiro’s The Law of Parent and Child 3rd ed @ pp 425 – 426 where the following passage appears:

“It is against this background that the question must be approached whether the natural father may apply for access or even custody. Some of the cases deal with the locus standi (in judicio) or otherwise of the natural father. But this is, with respect, not the real question. The natural father has clearly locus standi in judicio if he is the respondent or if he has a right to apply for access or custody. In these matters there is, it is considered, only one question, viz, what is in the best interest of the minor illegitimate child? If it is in the minor illegitimate minor child that the natural father should have access, such access should be granted to him. If the interests of the minor illegitimate child so demand, custody, if not even guardianship may be awarded to the natural father.” (emphasis added).

Progressively this thread runs through the cases that followed D v M (supra). Thus, under the common law, a father had guardianship of his minor children and was prima facie entitled to their custody. The guilt or innocence of the parties to a divorce was also a relevant factor, where it was not clear what was best for the children. Over the years, though, this situation appears to have eroded, and the interests of the child were regarded as the paramount consideration. The legislature intervened, in the form of the Guardianship of Minors Act [Chapter 34]. The effect of that Act is that, on separation, the father's superior rights have been completely altered: the wife exercises, subject to the provisions of the Act, sole custody of the minor children of the marriage. This custody may only be temporary, as the father can apply for and obtain an order under the Act regulating the custody of the children. Until he brings such an application and can show (the onus being on him) that it would be in the best interests of the children that he should have custody, the mother is entitled to custody. That entitlement is not defeated, delayed or postponed by any de facto custody the father may have exercised before he brings his application. (per Adam J in Mutetwa v Mutetwa 1993 (1) ZLR 176 (SC)).

The Supreme Court in Cruth v Manuel 1999(1) ZLR 7 (S) observed that the father of an illegitimate minor child:

“need not show very strong and compelling grounds, and that all he need show is that, on a balance of probabilities, the child’s best interests would be served by granting him access to the child and that such access would not unduly interfere with the mother’s right of custody.”

(per Sandura JA @ P11).

His Lordship went on:

“That decision was subsequently approved in B v S supra. At 584C-H HOWIE JA had this to say:

“In B v P, however, Kirk-Cohen J (giving the judgment of the Full Bench) pointed out that it emerged quite clearly in what followed immediately upon the quoted passage in Douglas that the court in the latter case had erroneously derived the perceived need for very strong compelling grounds from what was said in Calitz v Calitz 1939 AD 56 at 64.

As observed in B v P at 115H-I, Calitz had nothing to do with a child born out of wedlock. It was concerned with custody by the father of a legitimate child in a situation where the parents were neither divorced nor judicially separated. In Calitz, it was noted that in Scottish law the father of a legitimate child was entitled to custody during the subsistence of the marriage and would only be deprived of it by the court, acting in effect as upper guardian, in exceptional cases where there was clear evidence of danger to the life, health or morals of the child. On the apparent assumption that South African law was substantially the same on this aspect, this court held that, in the absence of such factors in the case before it, the lower court had erred in depriving the father of custody.

After analysing Calitz and reviewing other case law, Kirk-Cohen J concluded (at 117A-C) that, where the court acts as upper guardian, it makes no difference whether the child concerned is legitimate or illegitimate. For that reason, he said, the requirement in Douglas and F v B of very strong compelling grounds was inapplicable. With respect, that conclusion is entirely correct.

It follows that the court a quo erred ... in requiring the appellant to show a very strong and compelling ground why he should have access.”

I find myself in complete agreement with the observations made by the learned Judge of Appeal. There was no basis for extending what was said in Calitz supra, to the issue of access to a child born out of wedlock.

On the respective positions of the father of a legitimate child and the father of a child born out of wedlock, the learned Judge of Appeal had this to say at 582C-F:

“It is true that the father of a legitimate child has a right of access at common law ..., with which right he can confront the mother if she refuses access. But that right will be to no avail if for any reason she persists in her refusal. He will then have to go to court for an order enforcing access. If access is found to be adverse to the child's welfare, he will fail. By comparison, the father of a child born out of wedlock who considers access is in the best interests of the child can confront the mother with the contention that he should, on that ground, be granted access. If she refuses to concede that, he will have to go to court to obtain an order granting him access. As in the other example, he will fail if access is not in the child's best interests. The difference between the respective positions of the two fathers is therefore not one of real substance in practice.”

Once again, I entirely agree with the views expressed by the learned Judge of Appeal.”

Ms Njerere, for the respondent, argued that the decision of this court ought to revolve around whether this court finds that the parties were married under customary law or not. In the event that the court finds that there is no lawful marriage between the parties, whether there is a lawful basis for divesting the respondent of the custody of her minor children or, put in another way, whether it is in the best interest of the children that the applicant be awarded custody of the two minor children. Applicant brought the application on the basis that he married the respondent in terms of an unregistered customary law union. He averred that she had absconded from the matrimonial home and embarked on a religious sojourn into the bush with the children. Such a “gypsies-like lifestyle” was detrimental to the children’s health.  On the other hand, he had a stable home with his other wife, who happens to be the respondent’s biological sister. His other wife was ready to take the children under her care. As such, he averred that it was in the children’s best interest that he be awarded custody of the children.

There is considerable judicial opinion that deciding issues relating to guardianship custody and access based on the birth status of the child belongs to a bygone era. The best interest of the child was the main criterion employed in disputes relating to the custody of children, to the exclusion of any rule of customary law. Therefore, the criterion, irrespective of the type of marriage contracted, and irrespective of whether or not the parents are unmarried, or lobola has been fully provided, applies to all disputes concerning children.

In other words, the application of the ‘best interest’ principle cannot be conveniently excluded on the basis of culture, historical context and/or any matter that may seem justified in the circumstances.

The legal basis for the best interest of the child

There are a number of legal instruments that specifically provide for the best interest of the child as a legal norm. This principle is a well-established principle of the international, regional and national normative framework. The principle is also entrenched and provided for in United Nations human rights legal instruments; in addition, the African Union’s African Charter on Human and Peoples’ Rights (the African Charter) and the African Charter on the Rights and Welfare of the Child (ACRWC) provide for it, and national constitutions in their children’s rights provisions make reference to it.

There are a number of statutes such as the Maintenance Act, the Children’s Act and the Children’s Protection and Adoption Act that either make specific reference to the principle of the best interest of the child, or such principle can be inferred from the provisions in the statutes that the factors will lead to a determination of the best interest of the child.

The best interest of the child in the Zimbabwean context

The Zimbabwean Constitution is the supreme law of the country and provides for the protection and promotion of a wide array of human rights. This supremacy then also means that any law or conduct inconsistent with the provisions of the Constitution will be invalid. Section 81 of the Constitution of Zimbabwe sets out children’s rights. That section of the Constitution specifically provides that “a child’s best interest is of paramount importance in every matter concerning the child”. Whilst the courts would probably refer to jurisprudence on the subject to make a determination, the law ought to be self-sufficient enough to ensure there is no prejudice to the beneficiaries of such law.

Giving effect to the principle in question buttresses Zimbabwe’s obligations under international and regional instruments. In the event that domestic law, including the country’s Constitution does not adequately protect the rights of the child, the safeguards provided by the Convention on the Rights of the Child (CRC) should be sought. Happily, our new Constitution does not suffer from such a defect.

The new constitutional dispensation entrenches certain fundamental values and rights that impact negatively on the legal relationship between the extra-marital children and their biological fathers. This relationship may be affected by the right to equality, human dignity and parental care, the paramountcy of the best interests of the child and the values of equality and human dignity. The common law and statutory position of extra-marital children in relation to their biological fathers is unsatisfactory from a children's rights perspective. It is high time that children in Zimbabwe are taken seriously as independent bearers of rights. It seems to me that the legal position of children born out of wedlock in respect of custody, access and guardianship in Zimbabwean law undermines the significance of children's rights and is therefore inconsistent with children's constitutional rights.

The child's right to parental care

The child's right to parental care is expressly entrenched in s 19(1), s 19 (2) (a) as elaborated in s 81 of the Constitution. The use of the word “parental care” instead of the word “parental authority” clearly demonstrates a radical departure from the notion of parental authority in the common law. In terms of the Zimbabwean common law, parental authority comprises the sum total of rights, responsibilities and duties of parents with regard to their children, and the rights, responsibilities and obligations that have to be exercised in the interests of such children. This definition accords with the modern shift of emphasis from parental power to children's rights and thus parents' duties towards their children. In my view, a court seized with the determination of issues affecting children such as custody and guardianship must consider the reference to parental care as expressed in s 19 and 81 of the Constitution. Consequently, I consider that for the purposes of both these sections, parental care includes custody, guardianship and access. Academic writer, Robinsonpoints out, quite correctly, that the authority of the pater has lost much of its harshness in modern South African law, and the best interests of the child almost always serve as a qualification of the exercise of parental power. The author further points out that parental authority in its origin as an institution favouring the interests of the parents, rather than those of the child, still remains. However, one might add that parental authority in the context of Zimbabwean law should be seen as a measure for the protection of the child. This measure should be applied in the interests of the protected person, namely the child. To enable the parent to exercise his or her authority and meet his or her obligations, he or she is entitled to certain rights. She indicates that these rights flow from the parents' obligations to protect the child and act in the child's best interests. This understanding of parental power is welcomed as it emphasises the fact that parental power imposes legal duties on parents to take care of their children and protect their interests. The parents' legal duties do not exist in a vacuum but co-exist with the children's rights to parental care.

An extra-marital child has a right to parental care (and not just maternal care) by both parents, including his or her biological father. In other words, an extramarital child should be given an inherent right of access to, and custody and guardianship from his or her biological father. This right should only be limited if it is contrary to the child's best interests. Denying an extra-marital child an automatic right of custody, access and guardianship would be therefore a violation of his or her constitutional right to parental care as it would be contrary to s 81(1) (d) of the Constitution of Zimbabwe. To emphasise, as the case law cited by Ms Njerere does, the differentiation in treatment between legitimate and illegitimate children is discriminatory against the child as it deprives the child the enshrined constitutional right in s 81 (1) (a)  of the Constitution.

The entrenchment of the paramountcy of the child's best interest is one of the most progressive moves towards recognition of, and respect for, children's rights. It acknowledges children's vulnerability and lack of judgement. Section 81(2) provides that the child's best interests should be of paramount importance in any matter concerning the child. The phrase `in every matter concerning the child' implies, to my mind, that the standard of `the best interests of the child' is comprehensive and has far-reaching effects. This provision has a profound impact on the relationship between an extramarital child and his or her biological father. As indicated above, the position of the extra-marital child in respect of access, custody and guardianship in our law is unsatisfactory. It is in the best interests of the child that he or she be granted automatic rights of access to, and the custody and guardianship of both parents. This will ensure that, depending on his or her age and maturity, the child has a choice as to the parent with whom he or she wishes to associate. The child will also have the advantage of the option of being cared for by both parents and may in this way also avoid the stigma of being called an `illegitimate child'.

In that context, Cynthia Milligan and Allan Dowey write:

“There is substantial evidence that children are more likely to attain their psychological potential when they are able to develop and maintain meaningful relationships with both of their parents whether or not the two parents live together”.

Authors Bosman-Swanepoel, H. M., Fick A and Strydom N A 1998 p 90 opine thus:

“Social science research supports the notion that both parents have a vital role to play in the growth, development and sense of wellbeing of a child ... Children need to be able to enjoy parental love without tension, and without being made to feel guilty through the jealousy and demands of their parents. Children need a balanced, stable and loving relationship with both their parents as to help them with the formation of new relationships. Children from estranged, separated and divorced homes, particularly, need to be able to enjoy both parents, without any hostile pressures from both parents. ... Children need to see their divorced parents behaving with respect, understanding, courtesy and consideration towards each other.”

It will be seen from the above that the child's best interests are not necessarily served by separate rules in respect of parental power over legitimate and extra-marital children. It is clear to me that compliance with the requirement that the child's best interests must be paramount dictates that the marital status of the child's parents has to be irrelevant. A view may be expressed that the legal position in this regard wrongly creates the impression that it is always in the best interest of the child to be under the custody, guardianship and access of the mother. Furthermore, such a view incorrectly assumes that it is not always in the child's best interest to have an inherent right of access to, and custody or guardianship of his father. This is the equivalent of saying that mothers are better parents than fathers are. It is not the court’s intention to debate this point from the parents' perspective, but it does no harm to mention that the best interests of the child are not necessarily promoted by granting the mother automatic rights to custody and guardianship of the child. It is doubtful whether this is what the drafters of the Constitution had in mind when entrenching the standard of the child's best interest. It is my view; therefore, that it will be in the child's best interests to enjoy access to, and custody and guardianship of both parents.

The right to equality

Equality is a right that accrues to every human being irrespective of age, gender, birth and social origin, among other things. It is one of the values upon which the new constitutional dispensation is based. Section 56 (1) provides that everyone is equal before the law and has the right to equal protection and benefit of the law. Section 56 (3) prohibits any form of unfair discrimination based on, inter alia, birth and social origin. As such the differentiation between the extra-marital child's parents amounts to unfair discrimination against the extra-marital child based on the grounds of social origin and birth. In the case of an extra-marital child, the law in effect decides in advance that the child is not entitled to a legal relationship with both parents, while a legitimate child is.

The child's right to human dignity

The right to human dignity is entrenched in s 10 of the Constitution. Human dignity is another of the values underpinning our new constitutional dispensation. It is inextricably interwoven with equality. Indicating that the right to human dignity is intricately linked to other human rights, O'regan J explained as follows in S v Makwanyane 1994 (3) SA 868:

“Recognising a right to dignity is an acknowledgement of the intrinsic worth of human beings: human beings are entitled to be treated as worthy of respect and concern. This right therefore is the foundation of many of the other rights that are specifically entrenched in . . . [the Bill of Rights].”

Clearly, by denying an extra-marital child access to, and the custody and guardianship of his or her biological father, the law infringes the child's right to human dignity. It implies that in the eyes of the law an extra-marital child is not human enough to be granted access to, and custody or guardianship of both parents. This may also be linked to the equality argument in the sense that by differentiating between children on the basis of their parents' marital status the law creates the impression that it does not attach the same inherent human worth to extramarital children as it does to legitimate children.

The basic questions should always be whether an extra-marital child has an inherent right of access to (as was indicated by Van Zyl J in Van Erk v Holmer 1992 (2) SA 636 (W)) or the custody or guardianship of both parents irrespective of their marital status, and whether it is in the child's best interests to enjoy the parental care of both parents. The legislature should reformulate the law relating to an extra-marital child's access to, and custody and guardianship of his or her biological father. One way of doing this would be to grant joint custody and guardianship of, and inherent access to, the child by both parents where this is practicable. As observed by Professor Leong Wai Kum:

“The authority of parents should, as far as possible, not be completely undermined by an order of custody. An order giving one parent sole custody is unattractive precisely because it undermines the authority of the other parent.”

In the present case, neither party argued for joint custody. Had either party urged me to consider it, I would have considered this noble and progressive idea. This court would be foisting upon the parties that which they never contemplated- joint parental responsibility which the concept of parental care in the Constitution espouses. Without the good will of the parties, it would be difficult to implement. As such what the court remains to decide is; between the parents which of them is the better placed to exercise custody of the two minor children?

In deciding what is in the children’s best interest, the Court is required to assess, among other things:

any views expressed by the child if, by virtue of his/her age, the child is able to express any views;

the gender and age of the child;

the capacity of each parent to provide for the child’s needs;

the attitude of the parent towards the child and the responsibilities of parenthood;

any family violence involving the child or a member of the child’s family;

any other factors which, in a particular case, are relevant for the determination of the best interests of the child.

The applicant argued that he is better placed that the respondent to take care of the material needs of the two minor children. He has bought a house that he registered in the name of the older child. He has placed the two minor children on his international medical aid cover. He has placed the older child at the International School in Harare, an exclusive school meant largely for children of diplomats. He has a room full of toys. He has other children with whom the two can easily relate. His wife has agreed to look after the two minor children.

The two conflicting versions given by the parties relate principally to the relationship between the applicant and the respondent. The applicant’s version was that the respondent unlawfully removed the children from their usual place of residence on 14 November 2013. At that time the older child, Ryan Ndangariro Dangarembizi was aged 3 years 2 months, and the younger Rujeko Renre Dangarembizi was only 5 months old. He did not know where she had taken the children to despite inquiries with friends and family. He applied for their custody on 29 November 2013 and also engaged the police to assist in locating the children. On the same day, the respondent applied for a protection order against him. The Children’s Court awarded him the order for the custody in his favour. After diligent search the police found the children at an apostolic sect shrine in Budiriro, Harare. Besides being dirty, the children were in a poor health condition. He took them to a medical facility where Ryan was diagnosed with severe chest infection, bruises and scars. Rujeko had pimples over her face.

She claims that it was due to the applicant’s abusive conduct that she decided to move out of the home together with the children for her own safety. She vehemently denied applicant’s claims that she had stayed in bush camps for religious purposes. She disputed his claims that her conduct throughout the period of absence from home had compromised the health of the children. She disputed the medical evidence given by the medical professionals stating that it was normal for children of that age. I am unable to ignore the fact that there appears a certain pattern of behaviour from the applicant. It is this; should the respondent ‘escape’ the ravages of life under the applicant, an application is then brought to divest respondent of her custody of the child/children. In 2012, once he secured the return of the respondent, he abandoned the order that he had obtained. Respondent demonstrated by that she has lived on her own with the minor children all their lives with the respondent only exercising visitation rights. It is clear to me that had the interests of the children been under constant threats as long as they stayed with their mother, applicant would not have abandoned the 2012 order granting custody of Ryan in his favour.

Young children occasionally fell victim to such ailments as the doctors allegedly established upon medical examination. Whatever the doctors found could not be held as militating against her right, as the unmarried mother, to custody of the minor children. The ages of the two minor children (3 years and 5 months respectively) excludes this court from considering this as a factor that the court can have regard to. They are simply not in a position to express reasonably their preferences. They lack the maturity and capacity to express their reasoned preferences.

The two minor children are too young for placement in the custody of anyone other than their natural mother. The applicant has not discharged the onus upon him to show that the respondent’s right of custody will in some demonstrable way, endanger the interests of the minor children. What he showed was that she is capable of acting in a manner that may appear to have ignored the best interests of the children. But then, so can he, as the evidence of his violent behaviour has shown. That far the scales are balanced.

The applicant argued that his wife was prepared to look after the minor children and that the presence of older siblings with which they would grow up with should be considered favourably as a factor which places him in a better position in respect of whether his application should succeed. In making this averment, applicant literally is asking this court to deprive a natural mother of her right of custody in favour of a third party. That third party is his wife with who he will exercise the right of custody. This court however notes that applicant did not call his wife to confirm that she was willing and able to look after another woman’s children within her home. Whilst this court in a proper case, as the upper guardian of minors, has the power to deprive a natural parent of custody and award this right to a third party, usually a relative, In deciding what is in the best interests of a child, The courts generally has regard to the relative merits of only of the parents.  There is no suggestion that applicant’s wife cannot be a good stepmother to the two minor children. However, without her confirmation in court that she accepts that heavy responsibility fully, the danger is that the court runs the risk of placing the minor children in a worst situation than they would find themselves in had they been left in their natural mother’s custody. A court will only deprive natural parent of custody and award it to a third party upon special grounds. Such special grounds include detrimental and undesirable effects or influences upon the physical, moral, psychological or educational welfare of a child. (See W v W 1981 ZLR 243). The natural affinity and emotional bond and attachment between parent and child are generally irreplaceable and a fact. Such an association benefits and promotes a child’s emotional security and feelings whilst engendering normality. On the other hand, the award of a child’s custody to a third party places him in a distinctly unusual or abnormal category. The test is not whether the third party can provide better materially or possesses more desirable attributes, but whether the parent or parents should be deprived of custody for any reason involving harm or danger to the child’s welfare as mentioned above. (See Calitz v Calitz 1939 AD 56, Short v Naisby 1955 (3) SA 572; Horsford v de Jager & Anor 1959 (2) SA 152; Pietersen & Anor v Kruger & Anor 1975 (4) SA 171).

Disposition

At the outset, I pointed out that I made an order in favour of the applicant. This must be seen in the context of deference to an order of the Children’s Court that the respondent appeared to have ignored. Having the benefit of the full facts, this court has determined that the best interests of the two minor children lies in their custody being awarded to the respondent with the applicant exercising reasonable rights of access.

In the result, therefore it is ordered as follows:

That the custody of the two minor children, namely Ryan Ndangariro Dangarambizi born 28 September 2010 and Rujeko Renre Dangarembizi born 7 June 2013 be and is hereby awarded to Melisa Nothando Hunda, the respondent.

Applicant to pay respondent’s costs.

Chinawa Law Chambers, applicant’s legal practitioners

Honey & Blanckenberg, respondent’s legal practitioners