Enica Chenga (in her application for guardianship of C. C. C) v Master of the High Court

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ENICA CHENGA (in her application for guardianship of C. C. C)
versus
MASTER OF THE HIGH COURT



HIGH COURT OF ZIMBABWE
CHIRAWU-MUGOMBA J
HARARE, 24 and 31 October 2018



CHAMBER APPLICATION FOR THE APPOINTMENT OF A GUARDIAN


R. Tinarwo, for the applicant.


       CHIRAWU-MUGOMBA J: I have previously stated in Mutongwizo v The Master of
the High Court N.O HH 573-18 the need for legal practitioners to comply with the rules of
this court especially when the rights of minor children are at stake. This court is the upper
guardian of minors by design so that there is assurance that whatever is done on behalf of
minor children conforms to the best interests of the child standard. This is a standard that is
recognised in the Convention on the Rights of the Child (CRC) that Zimbabwe signed and
ratified on 11 September 1990. The standard finds resonance in various child rights theories.
          In this matter the applicant seeks that she be appointed guardian of her brother’s
minor child one C.C. C. The minor child has been accepted at St Benedict’s Catholic School
in the United Kingdom where she intends to continue her education and pursue her university
education. To enable her to attend the school, she will need a legal guardian based in the U.K
to be appointed. The applicant is based in the U.K and is willing to be appointed as guardian
of the minor. In her founding affidavit, the applicant lays out the basis upon which she should
be appointed as the guardian. Her brother is married to the mother of the minor child. She
(applicant’s sister-in-law) abandoned the minor children and her sibling in 2005. Her exact
whereabouts are not known except that she is believed to be in South Africa. Her brother has
since then been taking care of the two children. The applicant claims to be very close to her
niece C.C.C. who wishes to study chemical engineering. The applicant is a citizen of the
U.K and she is employed as a cognitive behavioural therapist. She can therefore afford to
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take care of C.C.C who stands a better chance of studying in the UK if applicant is appointed
as her guardian. The applicant’s brother who is father to C.C.C has through an affidavit
expressed support for the appointment of the applicant as the guardian. A sister to the minor
child’s mother has also through an affidavit expressed support for the appointment of
applicant as a guardian.
          The applicant has attended to a query raised previously by ZHOU J on the need to
serve the application on the mother of the minor child. This was done through an order of
substituted service and subsequently an advertisement in the Herald newspaper.
           Whilst courts do not want to stand in the way of progress, it is important that rules be
followed especially in relation to minor children. The current world is one full of vices such
as trafficking, sexual abuse and many others. The child once guardianship is granted will be
removed from Zimbabwe hence will no longer have the protection of this court as her upper
guardian. That is why it is critical that in matters involving appointment of a guardian, a
curator ad litem be appointed.            An order bestowing guardianship is drastic since the
guardianship rights that the natural father of C.C.C has will be extinguished once the
applicant is appointed as guardian.
            The rights of a guardian have been set out in a plethora of cases. The consolidated
South Africans Children’s Act1 sets out what a guardian is expected to do as follows:2

          “(3) Subject to subsections (4) and (5), a parent or other person who acts as
          guardian of a child must—
          (a) administer and safeguard the child’s property and property interests;
          (b) assist or represent the child in administrative, contractual and other legal
              matters; or
          (c) give or refuse any consent required by law in respect of the child,
              including—
             (i) consent to the child’s marriage;3
            (ii) consent to the child’s adoption;
            (iii) consent to the child’s departure or removal from the Republic;
            (iv) consent to the child’s application for a passport; 4 and
            (v) consent to the alienation or encumbrance of any immovable property
                of the child.”

1
    Number 38/2005 as amended
2
    In section 18(3).
3
 Child marriage is outlawed in Zimbabwe. See Mudzuru and anor v. Minister of Justice, Legal and
Parliamentary Affairs and others CCZ 12/15
4
 In Dongo vs. The Registrar-General and Anor SC 6/10, it was held that the acquisition of a
passport is not a juristic act.
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        Given the onerous responsibility bestowed upon a guardian, the issue of schooling
can be described as one of among many responsibilities that a guardian has. The applicant is
therefore mistaken in her belief that all that is required from her is to ensure that the child
gets an education. I am sceptical about whether or not the natural father of C.C.C is aware of
what he has to give up if the application is granted.
        I will reiterate what I expressed in the Mutongiwzo case on the need to comply with
R249.
        “Rule 249(1)(b) states as follows, ‘ In the case of any application in connection with a
minor, a chamber application, annexing the written consent of the person proposed to be so
appointed , shall first be made for the appointment of a curator ad litem’. (My emphasis)
    Rule 249(2) states as follows, ‘A copy of a chamber application in terms of sub rule (1)
shall be served on the Master, who shall make a written report to the judge’. (My emphasis)
   Rule 249(3) states as follows, ‘After the appointment of a curator ad litem following a
chamber application in terms of sub rule (1), a copy of the substantive application shall be
served on him/her and after s/he has conducted such investigation as may be necessary,
s/he shall prepare a written report which shall be filed with the registrar and a copy served
on the applicant and all other interested parties’.
   Simply put, the procedure and the justification is as follows:
   “1. The applicant identifies a potential curator ad litem and obtains written consent from this
       person.
   2. Applicant files a chamber application annexing this written consent and seeks an order that
      this person be appointed a curator ad litem.
   3. This chamber application for the appointment of a curator ad litem is served on the Master
      who is expected to make a written report to the judge. It is pertinent to note that this report is
      not for the applicant but for the judge. This report pertains to the application for appointment
      of a curator ad litem. It could be that the Master has misgivings on the proposed curator ad
      litem and all this should be stated as applicable in the report. At this stage, the Master is not
      being called upon to file a report on the substantive application but to confine her or himself
      to the proposed appointment of a curator. I have noted that some officers in the office of the
      Master seem not to be aware of their role in relation to this application and end up
      commenting on the substantive issues which application will not yet even be before the court.
   4. After the appointment of the proposed curator ad litem, (the court can also decline to appoint
      such person as proposed), the substantive application (it could be for guardianship or selling
      of property belonging to a minor as in this case) is then served on her or him. The substantive
      application must cite the curator ad litem in their capacity as such. S/he is expected to
      conduct such investigation as necessary and must file a written report with the registrar of the
      High Court. It is pertinent to note that a curator ad litem’s role is to assist the court to make a
      decision which is always based on the best interests of the child. Therefore such report must
      be a thorough and an impartial assessment and not a conclusion on the relief sought. The
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         report must be served on the applicant and other interested parties. The rules do not define
         who an interested party is but it is anyone who has a real and substantial interest in a matter.
         To note also is that the Master is now out of the equation unless they have been served with
         the curator’s report since the notion of who an interested party is remains open to
         interpretation and at the curator’s discretion. The Master is not expected to do anything
         because the ball will now be in the court of the curator ad litem”.
          The report by a curator ad litem in this matter is very crucial in assisting the court to
determine whether or not it will be in the best interests of the child to divest guardianship
from her father and bestow such on the applicant.
         The registrar is directed to bring this order to the attention of the Master of the High
Court.


Disposition
         Accordingly, it is ordered as follows:
   a. The matter be and is hereby removed from the roll.

   b. There shall be no order as to costs.



Chinamasa, Mudimu and Maguranyanga, applicant’s legal practitioners