Sithandiwe Miranda Ngwenya v Justin Taonehama Samudzimu

### Preamble
1
HH 473-18
HC 5585/18
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SITHANDIWE MIRANDA NGWENYA

versus

JUSTIN TAONEHAMA SAMUDZIMU

HIGH COURT OF ZIMBABWE

MUSAKWA J

HARARE, 19 & 26 June, 12 & 20 July & 8 August 2018

Urgent Chamber Application

A.Mugiya, for the applicant

Miss Munganasa, for the respondent

MUSAKWA J: Although this matter was filed on the back of a certificate of urgency, its hearing got delayed on account of the need for a clinical psychologist’s report. There was also a directive that the court be furnished with an additional report from a social worker but this never materialised. Other administrative interventions also militated against an early resumption of hearing. Ultimately, at the hearing of the matter the legal practitioners involved had not engaged in any research, a task that then fell on the Judge.

The applicant seeks the suspension of an existing order granting access to their minor children by the respondent. The order is framed as follows-

TERMS OF THE FINAL ORDER SOUGHT

That the Respondent show cause if any the final order should not be made in the following items (sic):-

The Respondent be barred from exercising his rights to access to two minor children namely David Michael Nathan Samudzimu and Danielle Alaina Janet Samudzimu until the children attains (sic) the age of 18, should he be convicted of the pending case of ill-treating a child in terms of the Children’s Act which is pending in court number 5 at Harare Criminal Magistrates Court.

Respondent to pay costs on the legal practitioner client scale.

INTERIM RELIEF GRANTED

Pending the confirmation of the Provisional Order,

IT IS ORDERED THAT:-

The Respondent (sic) rights of access to David Michael Nathan Samudzimu and Danielle Alaina Janet Samudzimu are suspended pending the finalization of the criminal case against the Respondent as stated above.”

The parties in this application have an acrimonious relationship which is being fanned through the minor children. An unregistered customary law union between the parties fell apart in 2005. As a consequence of the fallout the applicant sought an order that custody of the minor children who had been taken by the respondent be restored to her. With custody being awarded to the applicant, the respondent was granted access to the children once a week on Saturdays between 10:00 hours and 17:00 hours. The other terms of the order in HC 2701/05 are not necessary to replicate in the present matter. Subsequent to that there was an order by consent in which the terms of the original order were varied in 2008 pending the determination of an appeal the respondent had lodged with the Supreme Court against dismissal of his application for custody of the children in HC 5878/07 (HH-92-08). The appeal is said to have been dismissed.

The present application is premised on allegations of the emotional and physical abuse of David Michael Nathan Samudzimu (hereinafter called David) by the respondent. The applicant claims to have learnt of the abuse when the child reported to her on 19 May 2018. This prompted her to lodge a report with Highlands Police on the same day. As a result, the respondent was placed on remand and is awaiting trial. Copies of the charge sheet, outline of state case and the child’s statement are annexed to the application. There is also a small note by the Head of Department (Guidance and Counselling) at St George’s College dated 11 June 2018.

The children are twins. They are said to be attending professional counselling sessions. It is not indicated who is providing the counselling. The applicant’s justification for seeking withdrawal of access rights to Danielle Alaina Janet Samudzimu, (the other twin hereinafter called Danille) is premised on the serious nature of the assault on David. I refer to paragraphs 18 and 19 of the founding affidavit.

What precipitated the present application was the applicant’s claim that the respondent contacted her on 12 June 2018 and stated that he intended to take the children during the weekend of 22 June 2018. It is averred that the respondent intimated that he would engage Police to forcibly remove the children. I am not sure why the applicant could have believed the threats of use of Police Officers. Police officers do not ordinarily enforce civil orders unless this is specified in the particular order.

In his opposing affidavit the respondent acknowledges the frosty relations with the applicant. He states that communication between the two is mostly through family mediators or legal practitioners. He disputes the allegations made against him in respect of David. On the contrary, he claims that it is the applicant who subjects him to emotional and physical abuse. The respondent further claims that the applicant actually learnt of the assault on 17 March 2018 and took two months to lodge a report.

The respondent also contends that no evidence has been led to justify withdrawal of access to Danielle. In addition he points out that it is in neither child’s interests to have them alienated from him. The respondent claims to enjoy a good relationship with the children. He cites an occasion they went for a meal and watched the movie “Avengers, Infinity War” on Fathers’ day.

The parties, through their respect counsels failed to agree on a psychologist who could compile a report for the court. This culminated in the court having to appoint one from a list that was availed. Hence the appointment of Ms Agnes Ottiriah Runganga.

Ms Runganga attended the hearing. In elaboration of her report she explained that she interviewed both children and the parties. She only managed to interview David at home and did not manage to visit St George’s College where he is a student. David was initially positive when she conducted the interview with him alone. This changed when she conducted the second interview in the presence of the parents.

David told Ms Runganga that the respondent beat him without any provocation. He reported of the most recent incident (19 May) only. Ms Runganga formed the opinion that David has had issues with the respondent for the past ten years. However this may also be due to adolescence. Father and son have never bonded and this could be attributed to the strained relations between the parents.

From her interview of both parents she formed the opinion that both love their children. The respondent is keen to shape David’s life and future. The respondent strives to have the children get the best in their education, hence their enrolment at St George’s and St John’s Colleges.

Ms Runganga is of the view that some issues can be resolved through psychoanalysis. There are some practising psychoanalysts in Zimbabwe. She further opined that the best interests approach is paramount. She left it open as to whether the respondent should be denied access to David.

Ms Runganga recommended the following interventions-

Psychotherapy for David

Divorce therapy for both parties

Third party professional intervention to regulate co-parenting activities and compliance with court orders.

Arising from the psychologist’s report, Mr Mugiya conceded that access to Danielle can be maintained. However, he persisted with the prayer for withdrawal of access to David pending psychoanalysis. In furtherance of that he submitted that both parties should share costs of psychoanalysis. He further submitted that David is at an age where he is able to meaningfully express what he prefers. Mr Mugiya also submitted that although the applicant is willing to pursue the other recommendations by the psychologist there are financial constraints.

Ms Munganasa submitted that whilst she agreed on psychoanalysis, she was opposed to denial of parental access. She was of the view that the denial of access would be more detrimental to David. Commenting on David’s preference, she submitted that whilst that must be considered, it may not be in his best interests. She pointed out that both parents are said to love their children. She further pointed out that separating David and Danielle may be detrimental to their development. She also submitted that the respondent is willing to pay for costs for third party supervision of co-parenting activities but will not be able to meet costs of additional interventions.

It was in the course of Mr Mugiya’s reply that he brought up an additional issue. This relates to a video recording of the respondent’s meeting with David. Mr Mugiya submitted that the video has evidence of the respondent verbally abusing David. Ms Munganasa initially opposed the production of the video on the ground that the issues are already canvassed in the psychologist’s report and that the psychologist had sight of the video. Eventually she relented and suggested that other recordings done by the respondent be also produced.

A copy of the video was availed to the Registrar. It runs for six minutes twenty one seconds. It was recorded in the car park at Avondale Shopping Centre where the parties met in order for David to go with the respondent for the weekend. The video shows the respondent talking to David at some shops whilst the applicant is in attendance. The respondent is insisting (badgering) that he goes with David who is refusing to go with him. Although David is hardly audible, his response as repeated by the respondent is that he is uncomfortable studying at the respondent’s place of residence. David also states that he does not have his books with him, to which the respondent responds that they can collect them. When the applicant intervenes the respondent tells her to stay out of the exchanges. The respondent then states that he feels unsafe in the applicant’s presence. He also heaps shame on the applicant. At some stage the respondent states and insists to David that he has to go with him in compliance with the order of this court.

Analysis

An applicant who seeks the variation of an existing order of access must satisfy the court that it is in the best interests of the child that the existing rights be varied. Whilst the right of access of a non-custodial parent is recognised, the best interests of the child are paramount.A variation is normally based on developments subsequent to the original order.

In N v N supra, in the process of divorcing the wife had custody of the minor children. The husband applied for access, since the wife had refused to allow him access to the children. The woman opposed the relief sought on the basis that it was not in the best interests of the children. She also claimed that the husband subjected the children to excessive corporal punishment. The children in turn did not want to see their father. GWAUNZA J (as she then was) quoted extensively from authorities on best interests, access and the views of the child. She observed that children are impressionable. Whilst the children’s wishes should be considered, denial of access to their father may not be to their best interests in the long term. Courts will not lightly interfere with a custodian parent’s right of the day to day life of the child. However, as long as there is a possibility that a child’s views may be influenced by the mother it would be unwise for a court to consider the child’s views as the sole indicator of their long term wishes.

Having outlined the law I now proceed to apply it to the present matter. The applicant claims to have received a report of assault by the respondent upon David on 19 May 2018. The charge sheet alleges that the assault was perpetrated on 17 March 2018. However, the outline of state case alleges that assault took place on 17 March 2018 and 19 May 2018.

The applicant’s statement to Police states that she received the report of the 17th March assault on the same day. She merely consoled the child. She informed the headmaster who brought in a counsellor.

The 19th May report is not properly accounted. It is not clear if and at what stage the applicant received the report. Paragraphs 8 and 9 of her Police statement are not clear on this aspect. Paragraph 10 then abruptly states that she took the child to the Police station. But it is not stated what caused the applicant to take the child to the Police station.

The report by Mrs Emma King of St George’s College is very brief. It does not state who advised her that the child had domestic issues affecting him. The child simply told her about being scared of his father who, when angry threatens to assault and hurt him. No mention is made as to when the child claimed to have been threatened. In any event it is not explained what Mrs King did with the reports she received on 27 March and 22 May 2018. Mrs King’s very brief statement is dated 11 June 2018.

I am mindful that the assault case is pending trial before the Magistrates Court. However, one cannot fail to note the delayed report on the March assault. No explanation is given by the applicant in her founding affidavit.

It appears the meetings between the parties when they exchange David are video recorded. It looks like this is done to safeguard against accusations of ill-treating the child. I have reservations on the efficacy of this practice. What about when the respondent is alone with the child? Would it not entail a recording of the seven hours that the respondent will be with the child every Saturday?

It is evident that the parties have a very acrimonious relationship. I do not see the point in meeting at a public place in order to exchange a child and then video record it. In the video provided to the court, a woman who gets attracted to the exchanges between the parties can be seen in the background stealing looks at the scene. Why could the discussions not be conducted inside the vehicle? It is not as if a recording cannot be done inside a motor vehicle. The respondent also exhibits deplorable parenting skills. In the video he claims he has to be with the child because the court ordered so. Is his desire to be with the child dictated by the court or it is his wish as a parent? In any event, the order for access was a result of litigation between the parties. It is not like the order was foisted on the parties by the court on its own accord. I also wonder on the point of a parent insisting on being with a child who is hostile to his company. All this points at sour relations between the two. Ms Runganga also brought out the aspect that David appears to prefer the company of the applicant’s partner. This was not expressly stated as Ms Runganga put it indirectly as “the son is seeing other things from elsewhere.” No details were given, but it looks like the applicant has struck a new relationship with another man. And this appears to have swayed David from the respondent.

Disposition

I am of the view that uninterrupted sibling bonding is required between David and Danielle. There is also need for enhanced bonding between David and the respondent. The relief being sought is subject to the outcome of criminal proceedings that are pending against the respondent. Assuming that the respondent is acquitted, does it mean his issues with David also fall away? In N v N supra GWAUNZA J adopted the position of that of a “super father”, which according to the learned Judge entails telling both the children and the parents, “no”. 	This approach entails that neither party has their cake and eat it. GWAUNZA J ordered joint therapy for the parties and gave timelines for that. She also granted the applicant in that case leave to approach the court on the same papers following therapy to determine his suitability for access to the children. I will adopt that approach, but with modifications.

It is therefore ordered as follows-

The parties together with David and Danielle shall attend joint psychotherapy/counselling within twenty days of the granting of this order.

The duration of the therapy shall be determined by the therapist.

The parties, together with their legal practitioners shall identify a mutually agreed therapist from a list of practitioners from the Allied Health Practitioners Council of Zimbabwe.

In the event of the parties failing to reach consensus on a suitable therapist, the Registrar is directed to do so in consultation with the Zimbabwe Institute of Systemic Therapy (Connect).

Depending with the costs and time that it may entail, the parties shall first choose a psychoanalyst, failing which they shall choose a chartered clinical psychologist.

The therapist shall submit a report of his or her assessment to the court within six weeks of commencement of therapy and thereafter shall submit regular reports until completion of therapy.

Once the first report of the therapist is filed with the court, the applicant is granted leave to approach the court on the same papers for determination of whether respondent’s access to David should be suspended.

Costs for the joint therapy shall be borne equally between the parties.

A copy of this order shall be served on Zimbabwe Institute of Systemic Therapy (Connect).

Costs of suit are reserved.

Mugiya and Macharaga Law Chambers, applicant’s legal practitioners

Mhishi Nkomo Legal Practice, respondent’s legal practitioners