Sharmen Tendayi Kombayi v Hamutendi Kombayi

### Preamble
1
HH 320-12
CA 368/2010
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SHARMEN TENDAYI KOMBAYI

versus

HAMUTENDI KOMBAYI

HIGH COURT OF ZIMBABWE

HLATSHWAYO & MAWADZE JJ

HARARE, 3 July 2012 and 9 August 2012

Civil Appeal

E.M. Mugwadi, for the Appellant

Advocate F. Mahere, for the Respondent

MAWADZE J: This is an appeal against the whole judgment of the Gweru Magistrates court delivered on 20 April 2010 in which the court a quo inter alia granted sole custody of two minor children to the respondent without also granting appellant reasonable access, maintenance in respect of the appellant in the sum of $300,00 per month and a reciprocal protection order against both parties.

The facts giving rise to this appeal may be outlined as follows:-

The appellant and the respondent are husband and wife having been married in terms of the Marriage Act [Cap 5:11] at Gweru on 5 January 2010. Hitherto the parties were married in terms of an unregistered customary law union since 2002. The marriage was blessed with two minor children TANATSWA ADELE KOMBAYI (born on 1 March 2004) a female now about 8 years old and UDOVHUSA ZARANYIKA KOMBAYI (born on 3 September 2005) a male now about 6 years old. The older child is attending school at Midlands Christian College in Gweru and the younger child attends pre-school at Dominican Nursery in Gweru. The appellant is not employed and has been a full time house wife. The 	respondent is said to be a Director in a chain of businesses with interests in the hotel and transport industries.

It is common cause that the marriage between the parties has irretrievably broken down. On 12 February 2010, the appellant moved out of the matrimonial home with the two minor children alleging among other things physical abuse and torture and proceeded to reside at House No. 11266 Mkoba 20 Gweru. On 17 February 2010 the appellant approached the Gweru magistrates court seeking an order for maintenance for herself and the two minor children in terms of section 4(1) of the Maintenance Act [Cap 5:09]. The appellant claimed the sum of $300.00 per month for her own up keep and US$700.00 per month for the upkeep of the two minor children, giving a total claim of US$1000,00 per month.

The maintenance application was set down for hearing on 11 March 2010. The record of proceedings indicates the respondent was served with the maintenance application and notice to appear in court for the hearing on 17 February 2010. However before the hearing of the maintenance application the respondent took custody of the two minor children in following circumstances;-

On 1 March 2010, the respondent alleges that he was advised by the pre-school authorities at the Dominican nursery that the minor child Udovhusa Zaranyika Kombayi was unwell. He proceeded to the school before the appellant could collect the child at the normal time and took custody of the child. The next day on 2 March 2010, the respondent alleges that he realized the other child was lonely and he also proceeded to Midlands Christian School before the appellant could collect the child as usual and took custody of TANATSWA ADELE KOMBAYI. The respondent took the minor children to his mother’s residence at No.2 Umsungwe Block, Nova House in Gweru and later to his residence at No. 1 Simpson Road, Kopje Gweru.

The appellant, realizing that her claim in respect of maintenance had been subverted by the respondent’s conduct proceeded on 16 March 2010 to file a supplementary affidavit in which she explained the new developments highlighting that the respondent had violated the provisions of section 5 (1) of the Guardianship of Minors Act [Cap 5:08] and also expressing her fears that she may be dispossessed of the motor vehicle in her custody citing respondent’s alleged violent nature. The respondent did not, as per the record file any opposing papers either in respect of the maintenance claim or the issues raised in the supplementary affidavit.

The matter proceeded for the hearing on the scheduled date and both parties were represented. The appellant did abide by the papers filed of record. The respondent gave evidence and was cross examined. The appellants’ request to give evidence thereafter was declined by the court a quo. As already stated the court a quo granted sole custody of the two minor children to the respondent. The maintenance application in respect of the two minor children therefore fell away. An order for maintenance in respect of the appellant was granted together with a reciprocal protection order against both parties.

Dissatisfied with the learned magistrates’ judgment the appellant filed a notice of appeal with the court on 13 May 2010 and on the same date filed an urgent court application with this court HC 3571/10 and CHITAKUNYE J on 13 May 2010 granted the following provisional order or interim relief;-

“INTERIM RELIEF GRANTED

That pending finalization of the appeal in case No. CIV’A’ 368/10 and the Divorce Action in case No. 2431/10 the respondent is hereby interdicted from removing the minor children Tanatswa Adele Kombayi; (born 1st March 2004) and Udovhusa Zaranyika Kombayi (Born on 3 September 2005) from the jurisdiction of this court without written consent of the applicant.

The applicant is hereby granted the right of access to the children every alternate weekend and alternate public holiday and in this regard;

The respondent should take the children to the appellant’s home at No 11266 Mkoba 20, on a Friday after school and will collect them the next Monday morning and take them to school.

The children’s maid should accompany the minor children when they are visiting the applicant.”

The terms of the final order sought are couched in the following terms;-

“TERMS OF THE FINAL ORDER SOUGHT

That you show cause to this Honourable court why a final order should not be made in

the following terms;-

Pending the determination of the divorce proceedings in Case No. HC 2431/10;-

Custody of the minor child Tanatswa Adele Kombayi (born 1st March 2004) and Udovhusa Zaranyika Kombayi (born 3 September 2005) is hereby granted to the applicant.

The respondent is hereby granted access to the children every alternate weekend and alternate public holiday and in this regard;

The respondent should collect the children from school and nursery respectively on a Friday and take them to the school / nursery on the following Monday morning. Thereafter the applicant will take over collection of the children from and ferrying them to school.

The children’s maid should accompany the minor children when they visit the respondent.

The respondent be and is hereby interdicted from physically or verbally abusing and or threatening the applicant and further the respondent is interdicted from visiting the applicant’s place of residence without specific invitation by the applicant.

The respondent pays maintenance for both the applicant and the two minor children in the sum of $1 700 per month.

The respondent should pay costs of this application.”

It is common cause that the provisional or interim order is yet to be confirmed or discharged by this court.

On 5 July 2011 the appellant issued summons out of the court in which she claims a decree of divorce, sole custody of the two minor children, maintenance for herself in the sum of US$700 per month and for the two children in the sum of $500 per month, division of the parties’ assets and costs of suit. Again this divorce action is pending before this court.

I now turn to the appeal before this court.

The grounds of appeal are stated as follows:

GROUNDS OF APPEAL

The learned magistrate erred in granting the sole custody to the respondent without the right of access by the appellant contrary to the crushing evidence led by the respondent in cross examination about his fitness to be awarded custody and in violation of the clear statutory provisions of the Guardianships of Minors Act [Cap 5:08].

The Learned magistrate erred in denying the appellant her right to adduce evidence contrary to the Rules in particular Order 19 Rule 6 (5) which provides for adducing of evidence by either party at any time before judgment. He therefore did not make a proper inquiry into the matter as required at law.

The court a quo also erred in failing to appreciate what is in the best interests of the minor children.

The court also erred in denying the appellant the full maintenance she claimed.”

The appellant had since abandoned the ground of appeal relating to the maintenance claimed. This concession was made in the appellant’s heads of argument (and confirmed at the hearing). Regarding the merits of the appeal, it is clear that the court a quo failed to appreciate the nature of the matter which was before it and consequently misdirected itself. A reading of the judgment clearly shows that the learned magistrate perceived the issues falling for determination to be maintenance of the two minor children and the appellant, custody of the minor children and what is called a binding order (which should in proper parlance be a protection order issued in terms of section 10 of the Domestic Violence Act [Cap 5:16]. Whilst the learned magistrate in general correctly perceived the issues before the court, he nonetheless fell into error in his failure to understand what was to be determined before him in relation to the custody of the two minor children. As a result the court a quo proceeded to deal with the matter in respect of the custody of the two minor children as if the application in that respect had been made by the respondent.

The dispute between the parties in casu can be resolved by reference to the clear provisions of section 5 of the Guardianships of Minors Act [Cap 5:08] which provides for the scenario in which the court a quo found itself in. It provides as follows;-

“5 special provisions relating to custody of minors.

Where either of the parents of a minor leaves the other and such parents commence to live apart, the mother of that minor child shall have the sole custody of that minor until an order regulating the custody of that minor is made under section four of this section or by a superior court such is referred to in sub paragraph (ii) of paragraph (a) of subsection (7)”.

It is therefore clear that when the appellant moved out of the matrimonial home on 20 February 2010 she was entitled to have sole custody of the two minor children until an order to the contrary was made by a competent court. The facts of the case show that the appellant enjoyed the rights provided for in section 5 (i) of the Guardianship of Minors Act only from 20 February 2010 until about 1 and 2 March 2010 when the respondent, without any authority from a court took custody of the minor children. The appellant who had filed a maintenance application before the court a quo properly acted in terms of section 5 (2) of the Guardianship of Minors Act [Cap 5:08] as per her supplementary affidavit.  The section provides as follows;-

“5  (2) where-

The mother of a minor has the sole custody of that minor in terms of subsection (1) and

The father or some other persons removes the minor from the custody of the mother or otherwise denies the mother the custody of the minor; the mother may apply to a children’s court for an order declaring that she has the sole custody of that minor in terms of subsection 1) and, upon such an application the children’s court may make an order declaring that the mother has the sole custody of that minor and, if necessary, directs the father or, as the case may be, the other person to return that minor to the custody of the mother.”

In casu, the appellant who had sole custody of the two minor children in terms of section 5 (1) of the Guardianship of Minors Act [Cap 5:08] had made an application in terms of section 5 (3) (a) of the same Act for maintenance in respect of the two minor children. Before that application was determined the respondent took custody of the two minor children. In so doing, the respondent acted unlawfully and with the clear intention of defeating the appellant’s maintenance claim which was properly before the court. The court a quo was alerted to this fact by the appellant in her supplementary affidavit. The mind boggles, therefore, at the court a quo’s finding of the respondent’s conduct as acceptable. To make matters worse the court a quo proceeded as if the respondent had made an application in terms of section 5 (3) (b) of the Guardianship of the Minors Act [Cap 5:08] which provides as follows:-

“5 (3) where the mother of a minor has the sole custody of that minor in terms of subsection (I) a children’s court may at any time upon the application._______

a)----------------------------

b) of the father, make an order depriving the mother of the sole custody of the minor and

granting the sole custody father if the court is satisfied that it is in the best interests of the minor that the father be granted the sole custody of the minor, and further, make such an order relating to payment of maintenance by the mother, and right of the mother to have access to that minor as the court thinks fit or

c)……………….

d) ………………”

The respondent did not make an application in the court a quo in terms of section 5 (3) (b) of the Guardianship of Minors Act [Cap 5:08]. It was therefore improper for the court a quo not only to disregard the appellant’s application for a declaratur in terms of section 5 (2) of the same Act but to also deal with the concept of the best interest of the minor children as if the respondent had made an application seeking custody of the minor children. All what the respondent had done was to take the law into his own hands by unlawfully depriving the applicant of the sole custody of the two minor children. The respondent was not motivated by the best interests of the minor children when regard is made to the fact that he had been served with a maintenance application in respect of the same minor children. The respondent, in one swoop as it were, wanted to defeat the applicant’s claim for maintenance in respect of the children, and take custody of the same children.

It is clear that the respondent’s conduct lacked probity and honesty, let alone the respect of the law. The court a quo in my view compromised its integrity by not only turning a blind eye to the clear provisions of section 5 (2) of the Guardianship of the Minors Act [Cap 5:08] but also by condoning and legitimising the respondent’s underhand tactics. This court is the upper guardian of all minor children and should always act in the best interests of the minor children. It therefore follows that where clear provisions of the law are flagrantly violated or disregarded, the court should pronounce itself loud and clear as to the correct position of the law and express its displeasure at such conduct.

I am satisfied that the learned magistrate misdirected himself by denying the appellant her right provided for in section 5 (1) of the Guardianship of the Minors Act [Cap 5:08]. The court a quo also misdirected itself by dealing with the matter as if the respondent had made an application in terms of section 5 (3) (b) of the same Act. The court a quo also failed to appreciate the simple fact that the respondent had acted unlawfully with the clear intention to defeat the appellant’s maintenance claim in respect of the minor children. Lastly, the court a quo condoned the respondent’s illegal conduct and proceeded to cleanse his dirty hands by awarding him custody of the minor children, a relief he had not even properly sought. In the circumstances the appeal should succeed. The order of the court a quo should be set aside except in respect of the maintenance payable to the appellant in the sum of US$300,00 per month until the divorce matter is finalized or the order is varied by a court of competent jurisdiction.

Accordingly, for the reasons aforementioned I make the following order:

The appeal is allowed;

The order of the court a quo is hereby set aside except in respect of the protection order in respect of both parties and maintenance order in respect of the appellant;

The respondent is ordered to surrender custody of the two minor children, namely TANATSWA ADELE KOMBAYI (born on 1 March 2004) and UDOVHUSA ZARANYIKA KOMBAYI (born on 3 September 2005) to the appellant forthwith;

The Gweru Magistrates court is directed to proceed to determine the maintenance claim filed by the appellant in respect of the minor children in issue on 17 February 2010;

The same court is also directed to deal with the respondent’s rights of access in respect of the two minor children; and

The respondent shall pay the costs.

HLATSHWAYO J: agrees.

Mugwadi & Associates, Appellant’s legal practitioner

Chitere, Chidwanyika & Partners, respondent’s legal practitioners