In re Regina Chimhanzi

HH 10-11
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IN RE REGINA CHIMHANZI
(For appointment of Susan Chimhanzi as guardian of her two minor children)


HIGH COURT OF ZIMBABWE
CHITAKUNYE J
HARARE January 14, 2011


Chamber Application


MTN Chingore, for the applicant


       CHITAKUNYE J:           The applicant is the natural mother of two minor children who
shall herein be referred to as A and B. The biological fathers of the children are unknown.
The applicant has approached this court seeking an order that her sister Susan Chimhanzi be
awarded custody and sole guardianship of the two minor children purportedly in terms of s
9(1) of the Guardianship of Minors Act, Chapter 5:08, herein after referred to as the Act. In an
earlier application Susan Chimhanzi had been cited as the applicant. After I queried the
appropriateness of the application especially as it was made in terms of s 9(1) of the Act, the
name of the applicant was changed to that of the present applicant.
       The basic facts are that the applicant gave birth to the two minor children. The
biological fathers of the children disowned the children before birth. Even after birth they
denied paternity. The applicant lives in Wedza and is not gainfully employed. Her sister, Susan
has been supporting her in raising the children. Susan moved to the United Kingdom sometime
ago and is employed there. She has since acquired citizenship of the United Kingdom. Susan
has now asked for custody and sole guardianship of the two minor children. She wishes to take
the children to the United Kingdom. The basis for the applicant seeking to divest herself of the
guardianship of her children is the financial hardships and promises of better life for her
children in the United Kingdom.
       As was the case when the application came in the name of Susan, the question is: is
this application properly before me in terms of s 9(1) of the Act?
       Section 9 of the Act provides for the appointment of Guardian by the Children’s Court.
Subsection (1) thereof states that:
       “Without prejudice to the rights, powers and privileges of the High Court as upper
       guardian of minor children, and the Master in terms of s 74 of the Administration of
       Estates Act [Cap 6:01], the Children’s court may, on application in terms of this
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       section, appoint a fit and proper person to be the guardian of a minor who has no
       natural guardian or tutor testamentary.”

       It is clear to me that an application in terms of s 9(1) of the Act is for those
circumstances where the minor child has no natural guardian or tutor testamentary. In casu, the
minor children have a natural guardian in the form of their biological mother. On that basis
this application cannot succeed.
       In the event that the applicant is desirous of divesting herself of her guardianship of her
children this court has held that a proper inquiry and investigation ought to be made.
Guardianship cannot be divested of the natural guardian and vested in favor of a third party on
the mere say-so in an affidavit. The Children’s Act Chapter 5:06 provides a clear procedure to
be followed. Where however one opts to approach the High Court an inquiry is still necessary.
       In re Maposa HB 115/07, CHEDA J had occasion to deal with a similar situation. In
that case an aunt applied to be appointed sole guardian of a minor whose mother had died but
the father was alive. The father had, as in this, consented to the aunt being appointed sole
guardian. It was again a case of the aunt wanting to take the minor out of the country. After a
careful consideration of the case the honorable judge held that:

        “While the guardianship of a minor child can be granted to one parent to the exclusion
       of the other, the courts should be slow in granting that status to a third party. The
       reason is that, the court being the upper guardian of all minors, it should grant
       guardianship and order subsequent removal from its own jurisdiction only after serious
       considerations of the circumstances surrounding such application. While the best
       interests of the child are the first and paramount considerations, they are not the sole
       consideration in the determination of the suitability of an applicant for guardianship.
       Other considerations come into play. The wishes of an unimpeachable parent
       undoubtedly stand first. Although in casu the minor’s father expressed wish was in
       favor of guardianship by the applicant, the applicant still had to satisfy court of her
       suitability as a new parent. She should satisfy the court that she was in a position to
       adequately look after the child and was a fit and proper person to adopt the child. In
       that regard the child’s welfare should not be measured only by money or physical
       comforts, but by all factors that will affect its future. The court should not rely on the
       applicant’s ability to support the child by her mere say-so in an affidavit; she must go
       further and convince the court by authentic documentary proof of her capacity to do
       so…”.

       In Musonza v The Master of the High Court HH 89-07 GUVAVA J had occasion to
deal with another case of a similar nature. The applicant was a nurse working in the United
Kingdom. She sought to be granted guardianship of her late sister’s minor child with the
intention of taking the minor with her to the United Kingdom. The father of the minor child
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was alive and employed in Zimbabwe. The father consented to being divested of his rights of
guardianship in favor of the applicant. At p 3 of her judgment GUVAVA J stated that:

   “The Act provides primarily for the situation where a minor has no natural guardian or
   tutor testamentary and sets out a procedure to allow a third party to be appointed as
   guardian in their stead. It should be noted that the procedure outlined in s 9 of that Act
   specifically requires that an inquiry be conducted to determine who should be appointed as
   guardian. In the case of In re Gonyora 2001 (2) ZLR 573 it was held that in making the
   appointment of guardian the court must consider the minor child’s best interests. Although
   in this case the court was dealing with a child whose parents were deceased the same
   principles must be taken into account even in a case such as this where one of the parents
   is alive.”

       This court as upper guardian of all minor children may intervene even where a nature
guardian is alive in circumstances that justify that he/she be divested of the rights of
guardianship. In such instances an inquiry is still necessary. It is only after such inquiry that
court may divest a nature guardian of the rights of guardianship.

   In Musonza v the Master supra (at pp3-4) the honorable judge went on to say that:-

   “The inquiry into guardianship, like that of custody, cannot in my view, be one sided. In
   other words it is not only an inquiry into the advantages that will accrue to the child if its
   guardianship is granted to the applicant but also an inquiry into why the respondent must
   be divested of his guardianship. Thus in my view, an inquiry seeking to divest one parent
   of guardianship in favor of another or a third party must involve not only an inquiry into
   why and how the respondent parent must be divested of guardianship but also why the
   applicant is deemed suitable to be able to discharge those legal obligations that are
   imposed on natural guardians by law. An inquiry into guardianship is an inquiry into the
   suitability of a parent to discharge the legal obligations imposed by law on the guardian of
   a minor child. These issues relate to controlling his estate and assisting them in litigation
   among other duties. It is not an inquiry into issues like where the child will live or how and
   where it will be educated as those inquiries relate to issues of custody.”

       In casu the applicant’s reason for seeking to be divested guardianship of her minor
children is her inability to adequately cater for the children. Susan Chimhanzi in her
supporting affidavit confirms the same. She wishes to be appointed guardian because she is
better resourced than her sister Regina. Apart from her word that she is able to look after the
children because she is employed, there was no other evidence to support her assertion. No
inquiry was made on her suitability to take on all the duties and responsibilities of a guardian
imposed by law.
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       It is my view in the absence of a proper inquiry into why the applicant should be
divested of guardianship and why it is deemed Susan is suitable to be awarded custody and
sole guardianship this application would still not succeed.
       Accordingly the application is hereby dismissed with no order as to costs.




Chingore & Associates, applicant’s legal practitioners