Rodney Ndangariro Dangarembizi v Melisa Nothando Hunda

### Preamble
Judgment No. SC 122/20
1
Civil Appeal No. SC 629/18
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REPORTABLE	(109)

RODNEY     NDANGARIRO     DANGAREMBIZI

v

MELISA     NOTHANDO     HUNDA

SUPREME COURT OF ZIMBABWE

MALABA CJ, GARWE JA & MAVANGIRA JA

HARARE: JANUARY 29, 2020 & OCTOBER 2, 2020

T Zhuwarara, for the Appellant

Respondent in person

MAVANGIRA JA:  This is an appeal against the whole judgment of the High Court in terms of which the custody of the two minor children sired by the appellant with the respondent was awarded to the respondent and the appellant ordered to pay the respondent’s costs of suit.

The matter was heard by the High Court on 9 June 2014 and 7 July 2014. Judgment was handed down on 25 July 2018, some four years later. The appellant filed a Notice of Appeal on 17 August 2018 raising therein five grounds of appeal. On 27 February 2019 he filed an amended Notice of Appeal in terms of which he raised an additional three grounds of appeal. It will not be necessary at this juncture to restate them.

Notably the physical custody of the minor children, the subject of this matter, did not revert to the respondent after the High Court judgment was handed down. The minor children were still in the appellant’s physical custody as at the date of this appeal hearing. Before us, the respondent, who represented herself, indicated that she was, until a few days before the hearing, unaware that judgment had been granted in her favour and only got to hear about it when she was notified of the date of hearing of this appeal. She also indicated that her erstwhile lawyers had indicated to her that they were no longer representing her as they had lost contact with her and had failed to locate her after the High Court hearing. She also failed to find another legal practitioner to represent her in this appeal and was therefore going to represent herself to the best of her ability.

FACTUAL BACKGROUND

The appellant is married to the respondent’s elder sister in terms of the Marriage Act [Chapter 5:11]. The respondent went to stay with her sister and the appellant. During the course of her stay with them, the respondent became pregnant and bore her first child with the appellant - a son - on 28 September 2010. The appellant secured separate accommodation for the respondent. It is not clear whether this was done before or after the birth of the child. The appellant would pay visits to her and the child. Due to certain developments that took place the respondent left the place together with the minor child. This was without the appellant’s permission or knowledge.

Subsequent to this development the appellant filed an application for custody of the minor child with the Magistrates’ Court in case number JC 122/12. He contended that the respondent was, for several reasons that he stated therein, unsuitable to retain custody of the child. These included the allegation that she placed her needs or wants above the best interests of the child. Furthermore, and in the main, he contended that the respondent had irresponsibly chosen not to avail the child for vital surgery that needed to be performed on him pertaining to an alleged life threatening condition that he was suffering from. He submitted that the respondent was not a fit mother and that custody ought to be taken away from her and awarded to him.

On 3 April 2012 an interim order was issued in terms of which the respondent was ordered to take the minor child to Westend Clinic for surgery. Thereafter, on 28 May 2012 an order was granted awarding custody of the minor child to the appellant.

Pursuant to this order, the appellant approached the respondent and advised her that he would abandon the order if she moved into the house that he had bought for the child in Harare’s Greystone Park suburb. This was a house located a short distance from the home that the appellant shared with his wife. The respondent agreed and moved into the house with the child.

On 18 June 2012 the appellant filed a Notice of Abandonment of “the whole judgment appealed against by appellant in terms of s 41 (a) of the Magistrates Court Act [Chapter 7:01].”

The parties, having reconciled, the abuse of the respondent allegedly resumed. The appellant prohibited the respondent from taking contraceptives. Consequently, she conceived again and on 6 June 2013 gave birth to a baby girl. It is the respondent’s claim that the abuse did not stop. It intensified. On 14 November 2013 she fled from the house together with the two children, taking only a few clothes with her. The baby was still suckling at about five months old. Her flight was allegedly triggered by an assault by the appellant on 11 November 2013 of the two maids who she lived with and their dismissal the following day coupled with threats against her which induced great fear in the respondent. She feared for her life and for the interests of the children.

The respondent claimed that a good Samaritan who was driving by saw her walking with the children and gave her a lift and subsequently also sheltered her at her home for some time before directing her to and involving the police on 25 November 2013. The police decided to hand her over to Musasa Project, a non-governmental organisation that provides shelter and refuge for women and children who are victims of domestic violence.

Upon failure to locate the respondent and the minor children, the appellant filed an application in the Children’s Court on 19 November 2013 in terms of s 5 (3) (b) of the Guardianship of Minors Act under case number CC 803/13, claiming custody of the two minor children and for the respondent to be granted unlimited access to them.  The appellant’s basis for the application was his claim that the minor children were being subjected to hostile treatment by the respondent. This included her alleged disappearance with the children on religious sojourns that took her into unsafe and unhygienic environments in the bush, such environments not being compatible with the children’s health.

A default judgment was granted in favour of the appellant on 29 November 2013.

The respondent avers that on the date of the hearing she was present at the court house. She was in the company of police officers who had been assigned to protect her from the appellant. She claims that when the matter was called the police officers did not call her as they had indicated they would. She thus did not appear in court and the appellant obtained an order by default.

On the basis of the default judgment the children were taken away from the respondent while she was housed at a Musasa Project safe house where she and the children had been granted refuge. The children were placed with the appellant and he has had their physical custody since then.

The respondent filed an urgent ex parte application on 2 December 2013 in the Magistrates Court and obtained a rule nisi granting in her favour the following interim relief:

“Pending the confirmation or discharge of this rule nisi the   Applicant is hereby granted the following relief:-

Execution of the order granted in case number CC 803/13 be and is hereby stayed.

The applicant be and is hereby given leave to retain custody of the minor children …, born … and … born …

Within two hours of service upon his legal practitioners of this rule nisi, the Respondent is to return the minor children to the Applicant by handing them over to the Director of Musasa Project at 64 Selous Avenue/Cnr 7th Street, Harare.

In the event that the children are not returned as stipulated in paragraph ‘c’ above the Officer in Charge of the Police Station in the district or area in which the minor children might be, in the company of the Messenger of Court if necessary, be and is hereby ordered to remove the children from the Respondent’s custody and hand them over to the Director of Musasa Project at 64 Selous Avenue/Cnr 7th Street, Harare.”

The rule nisi, which was returnable on 12 December 2013, also called upon the respondent (appellant herein) to show cause, if any, on the return day why:

“1. The judgment entered in default against the applicant on 29 November 2013 in case number CC 803/13 should not be rescinded.

2. The Applicant should not be given leave to file her opposing papers in case number CC 803/13 within seven days of the date hereof.

3. The respondent should not bear the costs of this application.”

By the time that the rule nisi was granted, the minor children had already been taken away from the respondent.

Appellant filed an urgent application for the stay of the order of the Magistrates Court granting custody to the respondent. The application was styled: “Urgent Chamber Application (for stay of execution pending application for review)”

When the matter was heard in chambers by the court a quo the court granted the appellant interim relief. A Provisional Order was issued in the following terms:

“TERMS OF FINAL ORDER SOUGHT

The decision of the learned Magistrate Honourable Miss T Manhanzva granted ex parte on 2 December 2013 be and is hereby set aside;

The respondent shall pay the costs of this application.”

INTERIM RELIEF GRANTED

Pending determination of this matter and the application for review, the Applicant is granted the following relief:-

The execution of the order of the learned Magistrate Honourable Miss T Manhanzva granted ex parte on 2 December 2013 be and is hereby stayed.

The Applicant be and is hereby allowed to file an application for review of the Magistrate’s decision on 3 December 2013;

The Applicant be and is hereby allowed to serve this application on 3 December 2013;

The custody of the two children Ryan Ndangariro Dangarembizi born 28 September 2010 and Rujeko Renre Dangarembizi born 7 June 2013 remains with the Applicant.”

The appellant subsequently lodged an application for review under HC 10376/13

On 9 January 2014, with both parties legally represented, an order was issued by the court a quo in HC 10336/13 in which it was ordered by consent as follows:

“IT IS ORDERED THAT:

The Provisional Order be and is hereby extended pending the final determination of the consolidated matters between the parties which consolidation will be achieved in the following manner;

1. Parties are to file a joint consent to the application for rescission in the Children’s Court Case number 803/13 by Monday 13 January 2014.

2. Respondent be and is hereby ordered to file her opposing papers regarding the application for custody under children’s court case 803/13 on or before 23 January 2014.

3. Applicant in case number 803/13 be and is hereby ordered to file his answering affidavit on or before 30 January 2014.

4. Applicant be and is hereby directed to write a letter to Justice For Children Trust on or before 10 January 2014.

5. The Clerk of Court, Magistrates Court, Harare be and is hereby directed to forward the record of the Children’s Court 803/13 to the Registrar of the High Court, (Civil) upon the parties filing with that Court, their heads of argument on or before 27 January 2014.

6. Applicant be and is hereby directed to file his heads in all matters requiring Heads of Argument to be filed on or before 13 February 2014.

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

As is apparent, the order had the effect of consolidating the matter pending between the parties in the Magistrate’s Court in CC 803/13 with the matters lodged with the High Court referred to above.

A perusal of the record shows that, pursuant to the order of 9 January 2014 by the court a quo and in compliance with the terms thereof, on 10 January 2014 the parties jointly filed in the magistrates court a Consent Order in case number CC 803/13. In terms of the consent order the (1) appellant consented to rescission of the order granted in his favour on 29 November 2013 in default of appearance by the respondent. A perusal of the record also shows that in compliance with the order of 9 January 2014 the respondent filed her opposing papers to the appellant’s application for custody of the minor children on 23 January 2014 while the appellant filed his answering affidavit on 30 January 2014. (3) The entire file of the proceedings in the Magistrates Court was, in pursuance of the order of 9 January 2014, thereafter, forwarded to the court a quo.

A report by Justice for Children Trust pertaining to the two minor children was also filed with the court a quo on 16 April 2014.

The parties and some witnesses gave evidence before the court a quo. They tended to disparage each other in their efforts to buttress their respective suitability to be the custodian parent.

The appellant averred that the respondent was his second wife and that they were customarily married.  It was his case that the respondent was not fit to be awarded custody because she had reduced the children to a downgraded life affecting their health, wellness and welfare and this had resulted in the children ending up in hospital for treatment of acute illnesses. This was because the respondent was in the habit of abandoning the house that the appellant had bought for her and the children and taking the children with her to consult and obtain spiritual attention from prophets. He had previously been granted custody of his minor son under JC 122/12 but he had abandoned the order because he thought the respondent had repented from her wayward ways which harmed the children.

The appellant argued that he should be awarded custody of the minor children because, unlike the respondent, he had upheld his duty to provide love, affection and attention to the minor children as evidenced by the family pictures and other documents that he had attached to his papers.

The appellant also averred that unlike the respondent, he was better placed to take care of the children’s material needs which would enable their social and psychological development. He stated that his “first wife”, who was also the respondent’s elder sister, was willing to take care of the children as shown by the affidavit that she had sworn to confirming the same. He also attached an affidavit sworn to by one of the house maids who used to live with the respondent and who stated that, of the two parents, he was the one who looked after the best interests of the children and that the respondent, on the other hand, was violent and did not treat the children well.

The respondent, on the other hand, disputed that she was married to the appellant. She contended that the appellant was married to her sister under the Marriages Act [Chapter 5:11] and that this marriage invalidated any subsequent marriage. As such, she argued, since there was no valid marriage between her and the appellant, she was the sole legal custodian and guardian of the minor children.

The respondent averred that her life with the appellant was one where she was subjected to daily physical and mental torture and that that was the reason why she ran away with her children. She had previously reunited with the appellant after he promised to treat her well and to abandon the custody order in his favour but the abuse continued and she had no choice but to run away in order to save her life. She averred that after running away she had stayed with a good Samaritan before being taken to the Police Victim Friendly Unit and was afterwards handed over to Musasa Project where she was put in a safe house together with her children. She disputed appellant’s claim that her conduct throughout her absence from their matrimonial home compromised the health of the children.

The respondent also disputed the medical evidence produced by the appellant from the medical doctors noting the extent of the children’s afflictions. She stated that the indicated afflictions were normal for children of their age and could not be described as medical complications. She further argued that her sister, the appellant’s wife, could not possibly look after her children well because their relationship had turned sour with her sister despising her for taking her husband from her. The respondent noted that she had always looked after the best interests of her children and thus she is entitled to the custody of the two minor children.

In its reasons for judgment the court a quo went at length to convey that it is the children’s best interests that ought to be of paramount importance in a matter of this nature. The court then proceeded to state:

“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 had lived on her own with the minor children all their lives with the respondent (sic) 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.”

In the 16 page judgment the court a quo finally disposed of the matter in this manner:

“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 … born … and … born … be and is hereby awarded to Melisa Nothando Hunda, the respondent.

Applicant to pay respondent’s costs.”

As already indicated earlier, the judgment of the court a quo was only rendered four years after the hearing. The appellant noted this appeal on 17 August 2018 and on 26 February 2019 filed an amended notice by which he added three more to the five grounds of appeal earlier raised.

Before this Court Mr Zhuwarara for the appellant submitted that he would motivate the appeal on the basis of the first filed Notice of Appeal as he abandoned the Amended Notice. He submitted that the second ground of appeal goes to the root of the matter. The second ground of appeal reads:

“The Court a quo also grossly misdirected itself in awarding the Respondent custody of the minor children in disregard to the evidence demonstrating that the said Respondent paused a palpable danger to the welfare of the children. If the Court a quo had turned its mind, and given proper regard, to the substantiation of the Respondent’s neglect and endangerment of the children’s welfare, then the said Court a quo would not have come to the determination that the Appellant now seeks to impugn.”

Mr Zhuwarara submitted that the record was replete with indicators that the appellant was the parent who had the best interests of the minor children at heart in contradistinction to the respondent who had been shown to be more concerned with her relationship with the appellant than with their welfare. He made reference to various pages of various documents including the report by Justice for Children dated 16 April 2014 which recommended that it would be in the best interests of the children for their custody to be awarded to the appellant and not to the respondent. He bemoaned the fact that the court a quo did not make any reference at all in its judgment to the report despite having ordered its compilation. The court had proceeded to make a startling finding contrary to the recommendation made in such report.

He also criticised the respondent for having made no effort at all to visit, interact with and engage with her children even after having been granted unlimited access to them.  He submitted that our law does not have a rule of maternal preference whether by statute or at common law and that the illegitimacy principle is no longer part of our law. The primary consideration is now the best interests of the child and any delay in resolving a custody dispute is inimical to this adage of the law. He cited the case of Mtengwa v Mtengwa 2010 (1) ZLR 312 (H) at 315 in which it was affirmed that the determining factor in a custody dispute are the best interests of the child. He also bemoaned the four-year delay in the rendering of the court a quo’s judgment.

In response to the Court’s query, Mr Zhuwarara stated that the children were with the appellant, the situation having been so since the interim order of the court a quo. Note may be made at this stage however, that a perusal of the record shows that from the time that the children were taken away from the respondent when she was under the care of Musasa Project, they have not, at any time thereafter, been in the respondent’s custody despite the order by the Magistrates court to that effect referred to earlier. The position has also remained the same even after the judgment of the court a quo.

The court inquired of Mr Zhuwarara whether the order of the court a quo granting custody to the appellant was lawful. His response was that, on the face of it, he had problems with the order and how it was obtained but that, however, the law is that an order is valid until it is set aside. On further engagement with the court, he submitted that “the sum total is that we have a procedural nightmare and a legal difficulty.” On the pivotal and crucial question as to how the court a quo took over a matter that was before another court, he submitted that the constitutionalisation of the upper guardian status of the High Court gave it “more power”, a half-hearted submission which he quickly abandoned, and properly so. Properly so, I say, because the provision in the Constitution does not sanction illegality or illegal procedure in the name of or under the guise of acting as the constitutionally mandated upper guardian of minor children and thereby taking care of their best interests. Presumably, he was referring to s 81 (3) of the Constitution of Zimbabwe, 2013 which provides that:

“(3) Children are entitled to adequate protection by the courts, in particular by the High Court as their upper guardian.”

Mr Zhuwarara also confirmed in response to another question by the Court that the ex parte order granted by the Magistrates Court on 2 December 2013 was eventually set aside. This is the order that had awarded custody to the appellant. He finally submitted that the appeal must succeed and the determination of the court a quo which was tainted by jurisdictional overreach be set aside. Custody must be awarded to the appellant with the respondent being granted access to the minor children. In the alternative, he submitted, the matter must be remitted to the High Court for proper adjudication which would entail having a fresh investigation of the current circumstances as the Justice for Children report which was prepared some six years ago would no longer be reliable, having been overtaken by events.

On her part, the respondent’s submissions as she presented her case before this Court were clear and lucid even though she had not had a copy of the voluminous appeal record. The registrar’s copy was availed to her for the duration of the hearing.

In summary, she stated that she loves her children. She is poor but that cannot be a factor against her having custody of her minor children. She gave the normal sentiments of any mother. She was unaware that a custody order had been granted in her favour by the court a quo. She had not been able to have access to the children as the appellant did not want her to have access to them except when she was living under his authority. However, when she was with the appellant, he tended to listen more to the worker that she lived with than to her as the mother of the children, on the occasions that he came to visit them. She related an incident that occurred when she still had the one child, the boy only. He assaulted her severely and took her to her aunt in Chitungwiza. He handed a “divorce token” to her aunt stating that he no longer loved the respondent and was no longer interested in her and that she must go and stay at her mother’s place in Budiriro from where he would take care of her and the child. The child was operated on during her stay at her mother’s place.

After the child’s operation the appellant later came to collect her and the child from her mother’s place and took her home. They continued to have problems. She found herself served with court papers for the first court case (JC 122/12) and she managed to engage the services of a legal practitioner to represent her. She however failed to make it in time to attend the hearing of the matter at the magistrate’s court and when she asked her legal practitioner she was advised that custody of the minor child had already been awarded to the appellant.

She also stated that after the interim order of 2013 in which the High Court ordered that custody was to “remain with the appellant”, they reconciled at the appellant’s request. He provided accommodation for her and the children. He continued paying them visits and would go back to his family. She conceived and gave birth to a third child in 2016. At some unclear stage the two older children were taken away from her.  Thereafter he chased her from the house and he also took the third child to her sister. She said that she had ended up surrendering the third child to the appellant due to his repeated utterances that he was so powerful and influential and how her wishes would never prevail over what he wanted. She also stated that, if she had remained at the house she would have, in all probability, seen the communication from her legal practitioner about the High Court judgment that was given in her favour.

The respondent stated that she and her sister do not talk to each other. With regard to the report by Justice for Children and their recommendation in favour of the appellant being granted custody, she said that whilst those were their findings, on her part, she loves her children and she wants to stay with them.

It bears emphasis at this stage that the consent order of 10 January 2014 in CC 803/13 in the Magistrate’s Court in terms of which the appellant consented to the rescission of the order giving him custody of the minor children had the legal effect of rescinding the order in terms of which custody of the children had been granted to him.

The matter that was before the court a quo was the determination or discharge of the rule nisi granted in favour of the respondent on 2 December 2013. That is the only matter that the court a quo ought to have dealt with. That is the matter that was properly before it and required its determination. Its mandate was to determine whether or not the rule nisi had been granted judiciously.

In the Namibian Supreme Court case of National Housing Enterprise and Edwin Beukes & 6 Ors Case No. SA 21/2013, GARWE AJA, with MAINGA JA and ZIYAMBI AJA concurring, stated at para 18:

“(18) There is a plethora of decided cases which are authority for the proposition that it is inappropriate for a superior court to intervene in unterminated proceedings of a lower court.”

He further pronounced at para 20:

“(20) There is however an exception to this rule. In a proper case a superior court can grant relief – before completion of the proceedings in a lower court – in order to obviate a grave injustice. In general a superior court should be slow to intervene in unterminated proceedings in a court below and should confine the exercise of such powers to rare cases where grave injustice might otherwise result or where justice might not by any other way be attained. …” (the underlining is added)

As further authority the learned judge made reference to the case of Mantzaris v University of Durban-Westville and Others (2000) 10 BLLR 1203 (LC) wherein Lyster AJ at 1210H-J and 1211A also cited the following authorities that make the same point : Lawrence v Assistant Magistrate, Johannesburg 1908 TS 525; Ginsberg v Additional Magistrate, Cape Town 1933 CPD 357 at 361; Ellis v Visser 1956 (2) SA 117 (W) at 120-121; Sita v Olivier 1967 (2) SA 442 (A); Haysom v Additional Magistrate Cape Town 1979 (3) SA 155 (C) and Mendes v Kitchings NO 1996 (1) SA 259 € at 260. He thereafter proceeded to state at para 21:

“(21) On a consideration of all the above authorities, I take the view that a superior court can, but only in very exceptional circumstances, intervene in uncompleted proceedings, be they civil or criminal, in order to prevent or obviate a clear miscarriage of justice. The process for achieving such intervention may be an appeal or a review application.”

In the same case reference was also made to the Zimbabwean case of Nyaguwa v Gwinyayi 1981 ZLR 25. At para 26, the learned judge continued:

“(26) On whether the High Court, being a superior court, had the power to interfere in proceedings pending before the Magistrates’ Court on the basis that the court had the inherent jurisdiction to remedy an injustice, the learned judge (in Nyaguwa v Gwinyayi) remarked as follows:

‘I was of the opinion that, in this country, each court is a creature of statute, and its powers are created and defined by statute. The function of every civil court is to recognise what it believes to be the rights of the parties before it. Once a civil court has given such recognition, that recognition must be accepted by each of the other courts, whatever its relative position in the hierarchy of courts may be, unless authority to overrule such recognition has been conferred upon it by statute. If one court were to claim that it has some inherent power to overrule another court, instead of a power specifically created by statute, in effect it would be claiming the power to nullify the body of statute, which specifically relates to the establishment and powers of each of the civil courts in the country, …’”

I find the following further remarks by GARWE AJA, at para 28, to be particularly instructive:

“… The essence of inherent jurisdiction is that a superior court hearing a particular matter must be enabled to control the conduct of such proceedings before it. Such control cannot possibly apply to proceedings taking place in lower courts. The proceedings can only be subjected to scrutiny by a superior court if they are the subject of an appeal or review before such court.” (the underlining is added)

The applicants in the Zimbabwean case of Masedza & Others v Magistrate, Rusape & Another 1998 (1) ZLR 36 (H) sought to invoke the review jurisdiction of the court in unterminated criminal proceedings.  DEVITTIE J stated at 42B:

“The principle that emerges from the foregoing is that a superior court will exercise its review jurisdiction to intervene in unterminated criminal proceedings where the irregularity is gross or where it is such that ‘justice might not by other means be attained’”

In casu, the court a quo purported, by virtue of the consent order of 21 January 2014, to assume jurisdiction over a matter that was otherwise not before it but was properly before the Magistrate’s Court. There was no cause for it to do so. This was not a case where it could be said that there was a need for “rescue” from an impending grave injustice that had to be obviated. No such cause had been applied for before that court.  Neither was this a case where it could be said that justice might not by any other way be or have been attained. There would have been no impediment to the Magistrate’s Court awarding custody to the respondent if it found that the interests of the children would be best served thereby, the respondent’s poverty being no barrier to such an order. An order for maintenance by the appropriate court would help ensure that she is enabled to materially provide for the children.

There is no indication in the record of the proceedings that were conducted in the court a quo of the legal basis or justification for the “consolidation” that was purportedly done in terms of its order of 9 January 2014 by which a matter pending before the Magistrate’s Court was placed before it. It is beyond doubt that there was none.

On 23 February 2014 the respondent filed opposing papers in the Magistrates’ Court where the matter is properly pending. The appellant also filed his answering affidavit on 30 January 2014 in the same court. The proceedings before the court a quo being a nullity, the matter that is pending before the Magistrates’ Court is still to be ventilated before it and determined by it. The judgment of the court a quo and the proceedings before it have to be set aside in order to allow for the resumption of the matter in the Magistrate’s Court.

By virtue of the finding made herein that the court a quo had no power to assume jurisdiction over matters pending before the Magistrates’ Court, it follows, as a necessary consequence, that the order made by the court a quo for the consolidation of the matter that was properly before it with those pending before the Magistrates Court was an incompetent order and therefore ought to be set aside.

It is also opportune at this juncture to advert to the necessity of setting aside the Provisional Order of the court a quo in terms of which, inter alia, custody of the minor children was to remain with the appellant. The necessity arises from the fact that the said Provisional Order was predicated on the Rule Nisi issued by the Magistrates’ Court - per Miss T Manhanzva - on 2 December 2013. This Court has become aware of the fact that the Rule Nisi has long since lapsed. That being the case, the Provisional Order no longer has any basis and cannot therefore continue to stand. It thus behooves this Court to exercise the powers that it has in terms of both ss 22 and 25 of the Supreme Court Act, [Chapter 7:13] and set it aside. The Provisional Order has been overtaken by events and now serves no purpose. Its setting aside will also assist in the removal of any possible doubt or confusion as to any rights that might perchance be claimed to purportedly arise therefrom, particularly with regard to the custody of the minor children.

The setting aside of the order for consolidation and for the Provisional Order will be reflected in the order that this Court will issue at the end of this judgment.

It came to the court’s attention during the respondent’s address that a third child has since been born to the parties. The name, sex and date of birth of the child were not furnished to the court. It is desirable that, when the parties revert to the Magistrate’s Court, they deal with all three children so that there is a holistic approach and determination of the matter once and for all.

For the above reasons the appeal will partially succeed to the extent that the judgment of the court a quo will be set aside. The matter will however not be remitted to the court a quo but to the Magistrate’s Court where it is properly pending. There will be no order of costs. The court therefore makes the following order:

The appeal succeeds in part to the extent that the judgment of the court a quo in HC 10336/13 (HH 447/18) be and is hereby set aside.

The matter is remitted to the Magistrate’s Court for the hearing and determination of the matter pending before it in CC 803/13 and for this purpose:-

The Registrar of this Court shall bring this judgment to the attention of:

the Registrar of the High Court within 5 days of the date of this judgment

the Clerk of the Magistrate’s Court, Harare, within the same period of time.

The Clerk of Court in the Magistrates’ Court shall, in consultation with the relevant Provincial Magistrate and the Chief Magistrate, cause the matter to be set down for hearing on the earliest available date.

The Provisional Order in HC 10366/13 issued on 2 December 2013 be and is hereby set aside.

The order in HC 10366/13 issued on 21 January 2014, extending the Provisional Order referred to in “4” above and consolidating matters pending before the Magistrates’ Court and the matter before the High Court be and is hereby set aside.

There is no order as to costs.

MALABA CJ		     I agree

GARWE JA		     I agree

Chinawa Law Chambers, appellant’s legal practitioners