Kathleen Lisa Lothian v Peter Valentine

### Preamble
HH 91-07
HC 4963/05
KATHLEEN LISA LOTHIAN
Versus
PETER VALENTINE
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KATHLEEN LISA LOTHIAN
Versus
PETER VALENTINE

HIGH COURT OF ZIMBABWE
GOWORA J
HARARE 6,7,8,9, and 10 March 2006, 31 May, 10, 11, 12, and 13 July 2006, 25, 29 January, and 8 February 2007 and 3 October 2007.

Civil trial

R Harvey, for the plaintiff
Advocate J B Wood, for the defendant.

GOWORA J: On 3 October 2005, the plaintiff lodged with the Registrar of this court an urgent application for interim custody of her son Brandon. On 4 October 2005 a certificate of service was filed by the legal practitioners of the plaintiff confirming that service had been effected at the respondent’s residence. I enrolled the matter for 6 October 2005. At the appointed time there was no appearance by the defendant and I therefore issued a provisional order in terms of which the applicant was given immediate custody of the child. When the order was served on him, the defendant then filed an affidavit opposing the granting of the order. The matter was placed before me again, this time for confirmation or discharge of the Provisional Order. The attitude of the defendant was that service had not been effected at his residence and thus he had not defaulted on the initial date of hearing. I was requested to set aside the order I had given. I declined, firstly, because the child had at that stage been in the mother’s custody for a period in excess of a month. Secondly, no proper application for the rescission of that judgment was mounted and I could not set aside the order on the basis of the papers placed before me.

Equally, I was not able to determine the matter on the papers as both of the parties filed numerous affidavits from acquaintances, friends and family which raised issues that had disputes of facts. Those disputes could not be resolved on the papers and I therefore directed that the parties give viva voce evidence on the dispute between the parties. The result was a long drawn out bitterly fought and acrimonious trial. There were accusations and counter accusations. The police and the department of social welfare was also dragged into the dispute as accusations of abuse, assault and kidnapping were made by the parties at various stages of the trial.

With the evidence concluded I requested counsel to prepare and file, for the assistance of the court, reasoned submissions backed up by authorities. Both parties were given deadlines, and despite this, *Mr Harvey* for the applicant did not file his. Several reminders and letters of complaint were addressed to him by the defendant’s legal practitioners to no avail. I have now been furnished with the submissions for the defendant. I therefore am preparing this judgment without any submissions from the plaintiff. I turn now to the dispute before me.

**BACKGROUND TO THE DISPUTE.**

The plaintiff is aged 24. She left school at 17 and has no qualifications to speak of. Her background appears to have been unstable. She was born in South Africa where, she her brother and parents lived. The family migrated to Zimbabwe in the early 1990’s. The plaintiff and her brother were enrolled at Lomagundi College, however they had to leave school when the farm the father was working at got acquired. The plaintiff was unable to continue but her brother was offered accommodation by a relative and remained in school. As a consequence the education of the plaintiff was interrupted and she has no educational certificate. She did some bookkeeping course but it was not established in evidence as to the level that she attained in such course. What is obvious, however, is that she has no skills to permit to obtain permanent employment. Her employment record or lack thereof speaks for itself.

Her parents are divorced. The defendant is either a friend or a former business partner of her father, the nature of relationship depending on which of them is describing it. In any event the defendant was an associate of her parents. At some point when she was either 15 or just turned 16 the plaintiff commenced a relationship with the defendant. When she was 16 her mother handed her over into the defendant’s care and as a consequence she moved in with him.

At the age of 17 the plaintiff fell pregnant. They commenced to live as man and wife. The child who is the cause of the dispute was then born after the plaintiff turned 18. What emerges from her evidence and that of the defendant is that she was at the time completely dependant on him. In fact it is not in dispute that the defendant preferred for her to stay at home. Whilst the plaintiff contends that she was a good mother but had to stop breastfeeding on the advice of the doctor because her milk was not good for the child, defendant is of the view that she was not and refused to breastfeed her son. She denies the contention by the defendant that she never used to stay in to look after the baby. They continued living with each other but due to differences the plaintiff left after Brandon turned 2. The plaintiff returned to the nest but for a brief period. Brandon was left with the defendant in whose custody he remained until he was placed in the custody of the plaintiff on 6th October 2005. The plaintiff is seeking confirmation of the interim order of custody. She stated that she had been young when she had her child but that she is more mature now and can be responsible. The defendant opposes such confirmation. He has not himself counter-applied for an order of custody.

**EVIDENCE PLACED BEFORE THE COURT**

The two parties adduced viva voce evidence. In addition the court had the benefit of evidence from a clinical psychologist and a social welfare officer. Subsequent to the order that I granted giving custody of the minor child to the plaintiff at the instance of the defendant various allegations were made against the plaintiff.

The most serious allegation against her is that she had abused Brandon. The defendant testified that she had burnt Brandon on the foot with an iron when he was still an infant. It was also alleged by the defendant that the plaintiff had thrown the minor child against the wall resulting in him sustaining an injury. The minor child does have a scar which corresponds to the burn on his foot. According to the plaintiff the child had been burnt by a maid who had been dismissed for the alleged abuse. She denied throwing the child against the wall and said the child had fallen. Under cross-examination however, she admitted that she had struck the child with a belt.

The social worker who prepared reports for the benefit of the court made reference to the alleged abuse. She testified that Brandon had showed her a scar and said that it had been caused when his mother burnt him with an iron when he was young. He also told her that his mother had thrown him against a wall. It was the evidence of Ms Taurai that these reports were given to him by his father and were not based on his own independent knowledge of the said events.

A burn like that would have caused a wound that would have resulted in the child suffering from pain and one wonders why the defendant, if indeed he is to be believed that the plaintiff deliberately burnt her own infant son, took no action, especially if regard is had to the general tenor of his evidence that the child had been neglected by the plaintiff. He was content to leave matters as they were. Equally if indeed the plaintiff had thrown the child against the wall, why did he fail to act on it instead of keeping quiet until she launched proceedings to have the custody of the child returned to her. Given the length of time it has taken for the allegations to be made and the fact that no action had been taken by the defendant at the material time, it would be inappropriate in my view to conclude that the plaintiff had been abusing the child during those early years.

During the course of the trial I became aware that there were further allegations being made against the plaintiff in that the defendant was accusing her of physically abusing the child. It was indicated that the plaintiff had cut the child’s hair and in the process had removed chunks of hair and had also deliberately cut him with a pair of scissors or a shearing razor. I requested that I see the child. He was brought to my chambers accompanied by the legal practitioners of the plaintiff and the defendant. I noted that the child had three scars at the back of the head which I
 concluded to be ring worms in his head, although at the time it was difficult to be certain because his hair had grown longer. He also had a mark about seven centimetres on the side of his head. There was one mark on his knee and another on his left chest. Lastly there was a mark about one centimeter on the sole of his foot. He was asked by the plaintiff’s legal practitioner as to how he had come by the marks at the back of his head and he said he had been cut when his mother cut his hair. He said he had not been keeping still. He also said that he had been cut on the thumb when the razor fell from his mother’s grasp. There was no cut on his thumb. As we were not sure about the nature and origins of the marks I requested that the legal practitioners submit to me a written statement of the marks that were on the child. The following is their joint statement:

The patches on Brandon’s head were round and due to ringworm, as was the mark on his chest (since confirmed by the doctor).

There was a reddish mark under his jaw (it is common cause that this was due to an accidental burning leaf that occurred at Respondent’s house)

There was a small scar on the underside of his foot which was not significant.

There was also a black mark on his scalp which he said was caused while his hair was being cut by his mother and he was not keeping still (a medical examination has confirmed this was due to a birth mark).

He claimed his thumb was cut by a razor being dropped while his hair was being cut but there was no mark.

There was a patch of dry skin on the lower part of his shin, just above the ankle.

Brandon was lively and effervescent while in the Ante-Chamber but upon entering the judge’s chambers he was initially withdrawn and he became more open as the interview progressed..

He would clam up or be guarded in his responses when questioned about anything related to the purpose of his visit and the dispute between his parents, but when distracted from the purpose he would volunteer information quite freely.

When I had requested that the child be brought to my chambers it had been my intention at that stage to intervene if the child was being abused physically as the defendant was claiming. The child was at the conclusion of the visit to my office referred to a doctor to ascertain the nature of the injuries. Clearly, although the child should not have had ringworms, he was certainly not being abused by the mother. Even his assertion that he had been cut was wrong as the patches in his hair were attributed to ring worms. The allegations by the father that the mother had removed tufts of hair from the child’s scalp would have caused even the most hardy of persons to immediately remove the child from the mother’s custody and place him in a place of safety. I found no evidence of abuse at that stage of the inquiry.

In addition to these allegations, were allegations of exposure of the child to sexual activity. This emerged from the reports submitted by the psychologist and as well from her evidence of the psychologist and that of the social welfare officer. The psychologist, Ms Magaisa submitted two reports to the court. She then gave evidence in support of those reports. The initial report is dated 21 November 2005. It was therefore prepared about a month after the plaintiff had been given custody of Brandon pursuant to the Provisional order that I had granted. She had interviewed both parents and the child on three occasions.

She observed that the parents had a lot of anger issues and that they were using the child to fight each other. Both accused the other of being manipulative, controlling and irresponsible. She also noted right off that the child preferred to stay with his father as opposed to the mother. In his mother’s presence he lacked facial expression or animation and instead of answering questions directly would look to his mother for answers. He behaved differently in the presence of the father in that although he displayed initial signs of shyness he would relate and did not display flat facial expressions. Home visits revealed that at his father’s he would communicate in both English and Shona but at his mother’s house he tended to be withdrawn. She made him draw and from these drawings she was able to conclude that he had emotional conflict issues with his mother. She felt that he behaved more as a child in his father’s home than that of the mother.

The second report was prepared on 6 July 2006 and was as a consequence of assessments done during the period 29 June to 6 July 2006. From the report and her evidence it is clear that the plaintiff frustrated the efforts of the psychologist to do proper assessments. Two home visits were initially aborted because on one occasion the plaintiff would not open the gate to the premises and on another occasion she had gone to house sit for a friend at a house in Mt Pleasant. The psychologist concluded that there was evidence of psychological abuse by the mother on Brandon. The form of psychological abuse was not clarified but from the tenor of her evidence and report it seemed to emanate from the tendency on the part of the plaintiff to resort to physical punishment. She also said that Brandon complained that his mother ill-treated him most of the time. Her recommendation was that Brandon be removed from his environment as it was detrimental to his development.

Amongst the documents submitted through the defendant are two medical reports from Dr Stockill, a doctor at the Parirenyatwa Group of Hospitals who examined Brandon following a report of alleged physical abuse reported by the father. This was in February 2006. The doctor found a 2cm haematoma on the right bottom and a 4cm haematoma on the left bottom of the minor child. He also had sores on both his legs. In his view the injuries had been caused by an assault on the child. According to the doctor two blows had caused the injuries. He found that moderate force had been used and concluded that there was no possibility of permanent injury to the child. Apart from the department of Social Welfare being told that the plaintiff was abusing Brandon, a report was also made to the police who obtained a statement from the child. The matter was referred to court but no prosecution ensued. Although not specifically questioned about the report by the doctor, the plaintiff admitted that she tended to chastise or punish him through use of force. She said she used a belt or her hands. According to the social welfare officer she was heavy handed when it came to meting out punishment to the child. With regard to these injuries she said that the child had fallen off his bike and had got injured in the process.

Although the psychologist stated in her report that Brandon was being exposed to pornography, when the plaintiff gave evidence this issue was accorded scant attention during cross-examination. Taking into account the gravity of the allegation I am surprised that she was not taken to task over the allegation that she was exposing her child to such harmful practices.

When the social welfare officer gave her evidence, it came out that Brandon when explaining the scars that he had, mentioned that his father had told him that when he was young his mother had thrown him against a wall and had also burnt him under the soles of the feet with an iron. It was on the same day that he said that his mother made him watch “blue movies”. The question I ask myself is whether a child of that age would refer to these films by that name. I am unable to conclude that what the child was saying in that respect was what he himself knew. It raises strong suspicions that he had been told what to say during the interview with the Social Welfare Officer.

It appears to me that whether or the allegation on the question of pornographic material is correct, there does seem to be some concern on the part of all parties who came into contact with the mother in relation to this matter. Assuming that she struck the child on the buttocks in order to punish him, my view is that she did not have to strike the child so hard that she caused bruises to form on his backside. Of concern as well is that the child had, in addition, mosquito bites which she did not seem to be concerned about in that no attempt was made to have the same treated. She did not even suggest that she thought the bites needed some form of treatment. As regards the hernia, she decided not to take the child to school for the greater part of 2006 soon after I gave her custody of the child. Her reason was that the child would sometimes wake up and not want to go to school because of the pain. Although no medical evidence was led on that issue it seems to have been the consensus that the hernia could not have interfered with the attendance at school. The issue of the hernia leads me to discuss another related issue concerning the same.

My sister judge, CHATUKUTA J had to preside over an application launched by the defendant in relation to the hernia. It is not clear as to when precisely this medical condition occurred but when the child was handed over to the plaintiff it was something that was worrying the child. As to whether or not it needed attention at that time, none of the parties is forthcoming. In January of 2006 it became an issue and the plaintiff approached the defendant seeking funds for the child to undergo an operation to correct it. The defendant would not pay unless the operation was performed by a doctor of his choice with the child being placed in his custody so that he could recuperate.

The plaintiff refused to accede to the conditions which left the defendant with the option of seeking from this court an order to permit him to have custody of the child for purposes of having the operation performed. The application was unsuccessful and was determined in early February 2006 but the operation was finally performed in June or July 2006. The defendant paid but a copy of a letter dated 20 October 2006 and written by his legal practitioners to those of the plaintiff indicated that he wished to be reimbursed for half of the costs of the operation. The letter also questioned why the plaintiff had enrolled the minor child at Barwick instead of a government school. It was stated therein that the defendant would only pay half of the fees if the plaintiff persisted in sending the child to the school in question. He indicated that unless the child was sent to a government school he would not pay for more than half the fees charged by such school. This defies logic as the defendant had apparently enrolled Brandon at White Horse Academy which is itself a private school. Given the stance by the defendant that he was comfortably well off and able to look after Brandon better than the plaintiff the attitude displayed in the letter suggests a will not to pay what is necessary unless he gets his own way. I ask myself does this exhibit a love for the child.

THE LEGAL POSITION

The cardinal common law principle according to our law is that the mother of a child born out of wedlock is its legal guardian from birth until some special order is made by court. The father to such child cannot claim custody as of right but, may, in the same manner that any other third party can, claim custody of such child. This court, in the exercise of its discretion may award him access or custody of such minor child if he has made application and if the court is satisfied that it is in the best interests of the minor child to do so. What constitutes the best interests of the minor child has been the subject of a number of judgments in this jurisdiction. The test to be used to determine what would in the best interests of the minor child was laid down by GOLDIN AJA (as he then was) in W v W\(^2\) at p 247H wherein he stated:

> “A court will only deprive a natural parent of custody and award it to a third party upon special ground. Such special grounds include detrimental and undesirable effects upon the physical, moral and psychological or educational welfare of a child. The test is still not whether a third party can provide materially or possess more desirable attributes, but whether the parent or parents should be deprived of custody for any reason involving harm or danger to the child’s welfare as mentioned above”.

With regard to the rights and interest of parents and children born out of wedlock, the leading case in our jurisdiction is that of Douglas v Meyers\(^2\), which was a judgment by MUCCHECHETERE J (as he then was). The learned JUDGE had to consider an application by the father of a child born out of wedlock to have access to his son. The Learned JUDGE after reviewing a number of authorities on the subject, concluded that there was no inherent right of access or custody for a father of a minor child who had been born out of wedlock, but, that such father had a right as other third parties to claim and would be granted those rights if the court considers that to do so would be in the best interests of the minor. In view of its impact on the law relating to the rights of parents in that type of relationship, it is only appropriate that I quote the paragraph in which the Learned JUDGE made his pronouncement. It appears at pages 6 to 7 of the judgment and was phrased as follows:

> “From the above, my conclusion is that there is no inherent right of access or custody for a father of a minor illegitimate child but the father, in the same way as other third parties, has a right to claim and will be granted these if he can satisfy the court that it is in the best interests of the child. The onus is on the applicant, in this case the father, to satisfy the court on the matter and usually the court will not intervene unless there is some very strong ground compelling it to do so. The standard usually applied by the court is that used before interfering with the rights of a father of a legitimate child although in a case like the present one the fact that the applicant is paying maintenance for the child will also in my view be taken into account. See Calitz v Calitz 1939 AD 56 at 64 where TINDALL JA said:

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\(^1\) 1981 ZLR 243 (A)
\(^2\) 1991 (1) ZLR 1 (HC)
 “Where, however (as in the present one) it is not exercising such a power, the Court in Scotland cannot deprive the father of custody except upon special grounds. In Nicholson v Nicholson (6SC LR 692) a case where the Court ordered an infant to be returned to the father- the common law was thus stated: ‘The legal right to the custody of a lawful child is in the father. But that right is not absolute, it is not beyond the control of the law. It is within the power of the Court to mitigate the severity of the general rule by interfering in exceptional cases. The exceptions must be few and must rest on clear grounds and the grounds must be found in consideration of danger to the life, health or morals of the child. When the interests of the child in regard to life, health or morals have required it, the Court has refused to permit the father to retain custody. This has been done in Scotland in the exercise of the noble officium of this Court’. I presume that power corresponds with the powers of the Supreme Court in South Africa as upper guardian of minors’” (Emphasis is mine)”

In view of the above the applicant in this case can therefore only succeed if he satisfies this court that it is in the best interests of the child that the court interferes with the custodial rights of the respondent and grant reasonable access to him”.

It would be incumbent upon the respondent, therefore in the capacity of the father to such minor child to show to the court that the mother should be deprived of custody, but the court will not intervene until or unless there is some very strong ground compelling it to do so.

In this jurisdiction the case has been followed in the following decisions-Masama v Nyoni³; Mudzimrwa v Kamunga⁴. The question came up for determination again before our courts in the matter of Cruth v Manue⁵ which was an appeal to the Supreme Court by the father of a child born out of wedlock against a refusal by the High Court to grant him access to that child. MUCHECHETERE JA rendered a judgment in which EBRAHIM JA concurred with SANDURA JA dissenting. The Learned JUDGE of Appeal stated at p 14A- D as follows:

“............In my view, in cases of this nature it is of paramount importance to keep in mind the point of law which I consider has been approved and accepted in all the cases cited above, that is, Douglas v Meyers (supra); B v P (supra); T v M (supra) and B v S (supra). It is to the effect that:

‘............there is no inherent right to access or custody for a father of a minor illegitimate child but the father, in the same way as other third parties, has a right to claim and be granted these if he can satisfy the court that it is in the best interests of the child ............Douglas v Meyers supra at p 914 E (the emphasis is mine)’
 I have always understood the above to mean that the father of a child born out of wedlock has no rights at all in the child and that conversely all these rights are vested in the mother. The law does not therefore recognize the father of a child born out of wedlock as a parent to it but gives full recognition to the mother. In the circumstances, the rights of the mother to the child are the same as the rights of legitimate parents to their children. It is in this context that that the case of Calitz v Calitz supra, was cited in Douglas v Meyers supra. It was to emphasize that the rights of the mother to the child are the same as those of a legitimate father or mother to their child. It appears, therefore, that this point was not appreciated by HOWIE J A in B v S supra.”

In his dissenting judgment, SANDURA JA considered that the papers revealed serious disputes of fact which necessitated the hearing of *viva voce* evidence. He therefore set aside the order granted by the court *a quo* and remitted the matter for oral evidence. However, the LEARNED JUDGE felt himself compelled to disagree with the dicta in *Douglas v Meyers (supra)*. In so doing he followed the long line of South African cases decided after Meyers.

The decision in Meyer’s(supra) case was followed in the South African case of *F v B*6. In that matter KRIEK J considered that it would not be in the best interests of the minor child for the father to be granted access. Subsequent to this the courts in South Africa have refused to follow the decision. In B v P7 the parties had in 1979 had a child out of wedlock whilst living together. The mother was a divorcee whilst the father was married. In 1984 they stopped cohabiting and the appellant, who had by then divorced remarried. The respondent regularly permitted the appellant to have access to the child at his home until 1989 when the child turned nine. She then refused to allow the child to speak to the appellant. An application to the High Court having been unsuccessful he then filed an appeal. Making reference to *Calitz v Calitz* (supra) KIRK-KOHEN J observed that the court in that case had to consider an application to deprive the father of a legitimate child of custody to such child where no divorce or order of separation had been granted and that the court in that case had rightly held that it had no jurisdiction, in the circumstances prevailing, to deprive the father of his child, except in exceptional cases, where there

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6 1988 (3) SA 948 (D)
7 1991 (4) SA 113 (T) was a danger to life, health or morals. At p 115 I-116 A the learned Judge made the following further observations:

‘There is no justification in introducing or applying that test, relating as it does to particular circumstances, to the issue of access to an illegitimate child. It would be untenable to suggest that the Court, as upper guardian, will assist a legitimate child, whose parents are in the process of becoming divorced or are divorced, on the basis of what is in the best interests of that child, but an illegitimate child only if there is danger to life, health or morals.’

This decision was followed and approved in *B v S*<sup>8</sup>, and *T v M*<sup>9</sup>. In *B v S* HOWIE JA, questioned the appropriateness of the reference to whether or not a parent had rights when it came to the issue of custody or access being considered by a court. On this issue he quoted the dicta from an English case, *A v C*<sup>10</sup>, by ORMOND LJ, to the following effect:

“(The Judge a quo`) took the point at an early stage in the judgment, when he came to deal with the law, that it was a mistake to talk, in relation to access in terms of rights, and he was undoubtedly, in my judgment, correct in what he said. The word “rights” is a highly confusing word, which leads to great deal of trouble if it used loosely, particularly when it is used in a court of law. So far as access to a child is concerned, there are no rights in the sense in which lawyers understand the word. It is a matter to be decided always entirely on the footing of the best interests of the child, either by agreement between the parties or by the court if there is no agreement....The first and paramount consideration (is) the welfare of the child bearing in mind, of course, the wishes and feelings and so on of the respective parents and other people concerned with the child, but always bearing in mind that the decision must rest in terms of the best interests of the child, having taken all these other factors into account.”

Judging by the dicta in those cases, the South African courts considered that the court in Meyers case, when considering the application for access to a child by the father of a child born out of wedlock, had erroneously derived the perceived need for very strong compelling grounds from *Calitz v Calitz*<sup>11</sup>. Thus, the courts in South Africa viewed the welfare and best interests of the minor child as the overriding factor for consideration, irrespective of the manner of birth of the child. The fact that the child might have been born out of wedlock would not be of import as long as the court was satisfied that the access or custody being sought by the father would be in the best interests of the child. The common trend in

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8 1995 (3) SA 571 (A)
9 1997 (1) SA 54 (A)
10 [1985] FLR 445 (CA)
11 1939 AD 56 those judgments was that in so far as it related to custody, the position of a father to an illegitimate child was no different to that of a father whose child was born in wedlock. The overriding consideration in so far as HIS LORDSHIP, SANDURA JA, in *Cruth v Manuel* (supra) was concerned was whether or not it was in the best interests of the minor for access or custody to be awarded to the father. In the case of *T v M12* SCOTT JA summed up the legal position in that jurisdiction as follows:

“While at common law the father of a child born out of wedlock, unlike the father of a legitimate child, has no right of access, the difference between the respective positions of the two is not one of real substance in practice since in our modern law whether or not access to a minor is granted to its non custodian father is dependant not upon the legitimacy or illegitimacy of the child but in each case wholly upon the child’s welfare, which is the central and consistent consideration. Accordingly, and to the extent that one may choose to speak in terms of inherent right or entitlement, it is the right or entitlement of the child to have access or to be spared access, that determines whether contact with the non-custodian parent will be granted. Furthermore, when the question of access is judicially determined for the first time there is no onus in the sense of an evidentiary burden or so-called risk of non-persuasion on either party. This is because the litigation really involves a judicial investigation in which the court can call evidence mero motu and is not adversarial.”

In the written submissions filed by her, Mrs Wood has submitted that in South Africa there is now an Act of Parliament the Natural Fathers of Children born out of Wedlock Act 1997 which enables a court to grant such a father rights of guardianship custody or access if it would be in the best interests of the child to do so. I have not been given a copy of the Act and cannot confirm that it provides accordingly. However, whatever the legal position may be in South Africa, in our law, in terms of the common law, the inherent right of custody and guardianship of such minor child vests in the mother. It is settled in our law that a father to a child born out of wedlock has no automatic right to claim access or custody to the minor child. This is so even if he pays maintenance for the minor child. In *Hardy v Skaramangas*13 this court sitting as an appeal court against a decision from the Magistrates Court reaffirmed the legal position as stated in *Cruth v Manuel* (supra). OMERJEE J14 put the position as follows:

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12  
13 2000 (1) ZLR 196 (H)  
14 At p 198E-F


“The law with regard to the question of minor children born out of wedlock was dealt with in Masama v Nyoni S-154-96 in particular at p 2 of the cyclostyled judgment where EBRAHIM JA stated as follows:

‘It is true that under our law the natural father has no automatic right to the custody of his illegitimate child. See s Guardianship of Minors Act [Chapter 5:08]. The interests of the child will always be the paramount consideration in any case relating to the custody of a child, regardless of whether customary law or any other law is applied. In the case of Mudzimirwa v Kamanga S-52-89 MANYARARA JA outlined the approach to be followed thus:

‘it follows that it is the common law principles which must now be applied to custody disputes. The starting point therefore the cardinal common law principle that the mother of an illegitimate child is its legal guardian from its birth until some special order of court is made. See Spiro’s Law of Parent and Child 4 ed p454.’”

DISPOSITION

I come now to crux of the dispute what do I do with the child. In so far as the order for guardianship is concerned the law is clear that the plaintiff is the natural guardian of the child. She needs no confirmation of that situation. The defendant has not, in my view, disputed that. All that concerns me therefore is the issue of custody, and whether or not I should return the child to the father. It is important therefore that the starting point in the determination of this inquiry be clarified. In Cruth v Manuel (supra) MUCHECHETER JA stated thus:

“The rights of legitimate parents and therefore those of the mother of a child born out of wedlock cannot be interfered with ordinarily. Third parties, and the father of a child born out of wedlock is placed in the same category, can only interfere with those rights when they are not being exercised properly. In my view, it should first be appreciated here that it is the rights of the parents and the mother which the third parties would seek to interfere with. And one cannot interfere with another’s rights if the other person is exercising them properly. The trigger that warrants any interference must therefore be an allegation that the rights are not being exercised properly and that it is therefore in the interests of the child if those rights be interfered with. The welfare of the child in cases of this nature only becomes an issue when there is an allegation that the exercise by the mother of her rights causes some concern.”15

The undisputed fact is that the defendant has had custody of the child from when the child was about 2 years and some months. There is no disputing that the child and the father have a bond, unlike the child’s relationship with the mother. It is also obvious that if the parties had not quarreled over the child’s birthday party the plaintiff might never have brought these proceedings in order to obtain custody of the child. She did bring the matter to court and it now becomes necessary to decide what to do with the child as a result of the action instituted by his mother.

It seems to me that the defendant in seeking to defend these proceedings and ask the court to refuse to confirm the provisional order had a misapprehension of our law. The plaintiff is accorded inherent rights which are vested in her by virtue of being the mother and natural guardian of Brandon who was born out of wedlock. She came to court to assert those rights and to that end have the child removed from his custody into hers. Her position was that he had no rights under our law to have custody of Brandon, this not withstanding the illegal agreement they had entered into. The first ‘agreement’ was to the following effect:

**I Kathleen Lisa Lothian I D 63- 11664404 N 00 have agreed that Peter Valentine I D No 63-107296 690 D00 will have full custody and be Brandon Luke Valentine’s legal guardian.**

**In return Peter Valentine will give me Two Hundred Thousand Dollars and a motor vehicle in good working order and will make sure it doesn’t break down within six months and will repair it at his own cost.**

**This document is not to be shown to family members.**

This ‘agreement’ was concluded on 23 July 2002 and was signed by both the plaintiff and the defendant. On 12 October 2002 yet another agreement was concluded, this later one was typed. Again it concerned the same issue, custody of Brandon being surrendered to the defendant by the plaintiff with the added provision that the defendant would make an application to adopt Brandon. As events have indicated he never did.

There is no disputing the fact that under our law, these agreements were invalid and of no force and effect. I note that, properly in my view, the defendant’s legal practitioners did not seek to have the court accord him rights as agreed between them in terms of those contracts as those contracts were contrary to *bonis mores* and against public policy. You cannot exchange a child for money or a vehicle. I will assume in favour of both of them that neither of them knew that what they did was reprehensible.

From the manner in which they dealt with the question of Brandon, it was never an issue between the plaintiff and the defendant that as the father to the minor child, the defendant could exercise in respect of Brandon, not just access but custody as well. The question of whether or not he could act as guardian did not enter into their minds. Thus, in the eyes of all, including Brandon, the defendant was a father who cared from the child and did all that a child expected his father to do. In interviews with the social welfare officer and the clinical psychologist, Brandon expressed the wish to live with his father as opposed to his mother. From my assessment of the evidence, this is in all probability due to the fact that he has a bond with his father, which is missing in his relationship with his mother. In addition it is apparent that whilst his mother believes in punishment his father does not. Whatever the reason for such a preference on his part, the reality is that unless the criteria set in *Douglas v Meyers* and *Cruth v Manuel* is satisfied, this court will not be in a position to grant Brandon’s expressed wishes. In terms of our law currently, the child has no right to indicate any preference as to who he wants to live with. It is only the rights of the mother that considered unless the father can show that the mother has not been exercising such rights properly. Even if it is in his best interests for him to live with his father, before the court can determine that, it, the court has to be satisfied that the mother is not exercising ‘her rights’ over the child before it can interfere with those rights.

In Zimbabwe a couple can choose to marry according to civil rites or in terms of custom, if they are of African descent. When one chooses to marry according to custom, the parties to such marriage can choose to have their union solemnized or not. According to custom the children born out of an unregistered union are legitimate, and in fact, in accordance with the provisions of the Administration of Estates Act s 68 (1) these children are issue of a union and they are beneficiaries not only to the estates of their mothers but also their father.
 There is then a conflict in that in terms of common law however, the parties would be living as man and wife. Such children would therefore be born out of wedlock. Increasingly, couples are setting up home and living together in unions that have not been formalized. From such unions are born children who have been brought up in a family unit with a father and a mother. The children have therefore become accustomed to having both parents and to relate to them equally. When they separate, and the mother enforces her inherent rights in accordance with the common law, all of a sudden the children are bastardized. It seems therefore that there is confusion in the law which recognizes the legitimacy of children born out of unions contracted in accordance with customary law, when the father to the same children passes away. When he is alive, the mother can safely claim that they had never been married, even where an unregistered customary union might have existed and therefore the children are illegitimate. Thus the mother is the natural guardian and custodian of those children.

The inherent right that a mother has in respect of children born out of wedlock were developed as principles a long time ago. The incidence of couples setting up house and having issue out of these informal unions was frowned upon. The children were ostracized by society in view of the manner of their birth. Times have moved on since then and society no longer frowns on such unions. It therefore defies logic, that society has moved on but the justice system in this country appears to be still stuck in a time warp. Society has variously recognized that children have rights which must be given effect to. This is why when this Court considers applications for custody or access, the welfare of the minor child is the overriding concern. The law should therefore recognize that in as much as the court considers that it is giving weight to the best interests of the minor child, in effect it is recognizing what rights the child has, that is, the right to be placed in an environment that is best for the child. Such child should also be accorded the right to have access to or to refuse access to a parent. It is now the court that is depriving these children of their right to relate to both parents on the legal footing of illegitimacy, itself recognized as an archaic and derogatory appellation. This, our law has not found necessary to do presently and yet as stated by SCOTT JA$^{16}$ the difference between the two positions as relates to a legitimate child and one born out wedlock, is not a matter of real substance. The consideration in both positions is that of the welfare of the child.

Having started by stating the rights of the plaintiff it becomes necessary then to decide whether those rights should be interfered with. Indeed the defendant is of the view that she should be deprived of custody and that it should be given to him instead. It cannot be said that there are no allegations before me of the improper exercise of her rights by the plaintiff. There are plenty both on the documents filed and on the evidence presented to the court. MUCHECHTERE JA, did not, in *Cruth v Manuel* (supra) determine what he meant by the improper exercise by the plaintiff of her rights as the mother of a child of a child born out of wedlock. That discussion was dwelt on in the case of *Douglas v Meyers* (supra). One must accept that the *onus* set in *Douglas v Meyers* is indeed high. The judgment seems to require that the applicant convince the court that before a court intervenes and accords right of custody to another party there must be threat, to life, morality and health of the minor child. When one peruses the later judgment of *Cruth* (supra) one does not get the impression of such a high standard of onus placed on the applicant. In my view, I believe that the main consideration is that of the interests of the minor child.

In the present case a lot of effort has been expended to convince the court that it is not in the best interests of the minor child to remain with the mother. The nature of the evidence related to alleged abuse does not make me conclude that she was indeed abusing her child. The beating on the buttocks might have resulted in the child having bruises but one cannot conclusively say that she was physically abusing the child. With regards to the assault on Brandon, she was taken to court but it appears that the prosecution did not proceed. I am unaware of the reasons for the decision made. What is clear, however, is that, in November 2006 when Brandon was interviewed by the social welfare officer what he complained of against his mother was that she had burnt him with an iron when he was young and that she had thrown him against the wall from which event he is said to bear a scar. These were events related to him by the father. He did not complain about any other physical assault perpetrated by the mother which he himself could recall. Even though he told the psychologist about the constant beatings from his mother, when interviewed by the social welfare officer he did not repeat this. He said she had burnt him with an iron and thrown him against the wall when he was a baby. I have already adverted to the allegations that she had exposed him to pornographic material and I do not intend to dwell on it again. I was not enlightened as to when the ring worms started and cannot therefore conclude that there are as a result of neglect on her part. The drawings that the child made to the psychologist did suggest that the child was being exposed to pornography. From the time that the child was placed in the plaintiff’s custody, he was in contact with his father. He therefore had contact with both parents and given the unwarranted allegations of abuse that I have already referred to I am unable to conclude that if he was exposed to sex it was at the hands of his mother.

A suggestion in one of the reports submitted by Social Welfare was that the child be placed in a children’s home. When he was taken to the children’s home so that he could be interviewed properly i.e without the influence of his parents, he said that he would rather stay at the home than go back to his mother. There is clearly no bond between Brandon and his mother. The plaintiff admitted as such. What sticks out like sore thumb is that the defendant did not want the child to remain in the custody of the plaintiff. He reported an alleged physical abuse and the child was dragged from the police to the doctor and finally to court. Next he launched the ill-fated application for him to have custody whilst Brandon underwent the operation on his hernia. Even as he launched the application, Brandon still needed to undergo the operation and when the court did not find in his favour, it still took the defendant another four months before the doctors could perform the procedure. The irony of the attitude displayed by the defendant is that notwithstanding the need by his beloved son for treatment he felt he could only get this done on his conditions and more specifically by a doctor of his own choice. That failed and another allegation of physical abuse was made.

I turn now to the mother. She is the product of a dysfunctional family who was given over by her own mother at the age of 16 to a man of 40. Whilst on the subject of the plaintiff’s mother a letter written by her was admitted in evidence. The tenor of the letter is to the effect that this court should not give custody of the minor child to the plaintiff because she is not a fit and proper person. The letter was not adduced as part of an affidavit nor was it introduced into evidence properly. I will not have regard to it. The plaintiff admitted in a diary produced by the defendant that she had smoked “pot” which I believe to be marijuana. There was a suggestion from the psychologist and the social welfare officer that she might be partaking of harmful drugs but no substantive evidence was adduced on that aspect of her behaviour. What was stated conclusively is that she smokes cigarettes in the home and the social welfare officer was alive to the harmful effects of such habits on her young children. I am unable to deny her custody of her child due to the fact that she indulges in a habit that sections of society frown upon. It is not a compelling reason to do so.

Understandably the child was very confused by all this attention that he was receiving. In his mother’s home people, in the guise of the psychologist, the social worker the police and any other person that should have an input in how he was being looked after could come and go as they liked. He was taken to offices for interviews and followed to a house where his mother was house sitting all in an effort to ascertain just what kind of a person or mother his birth mother was. Is it any wonder then that he would express a preference to stay with his father? When he lived with his father there was no fuss made over him. He was not asked endless questions by strangers he did not care to talk to and life was much more pleasant.

The defendant went to the extent of requesting a copy of the report being prepared by social welfare before its submission to court and demanding that it be altered. Two reports were submitted to court by social welfare recommending that the child be returned to the mother.
 When the third report was being prepared the defendant had the audacity to furnish to the social welfare officer a copy of the report submitted to court by the psychologist. From all this I can only surmise that he would do anything in his power to ensure that the court ruled in his favour as opposed to the plaintiff. He clearly intended to influence the outcome of these proceedings and it gives me pause as to how far his influence extended. When it came to the issue of the child’s health and schooling he was found wanting in that he would only pay for the operation if it was done by his doctor and on his terms. Even so after the operation was performed by the doctor chosen by him after capitulation by the plaintiff he still wanted to be reimbursed for half the costs. This was despite the fact that it was accepted by all concerned that the mother had difficulties in securing well paying employment and there was some doubt on his part that she was in fact in gainful employment. In so far as the school was concerned he felt himself not obliged to pay the fees in full if the child was sent to a school not of his liking. Both the psychologist and the social welfare officer in their evidence said that he overcompensated in his relationship with the child and that it would do no good to the child. There was a suggestion that the defendant undergo some sort of counseling so that he corrects his behaviour in relation to the manner he relates to Brandon.

I am not convinced that the plaintiff has not been exercising her rights properly as regards the minor child. However, she clearly has issues to do with her behavioural patterns and also at relates to her son. She needs to learn to communicate with him instead of resorting to punishment each time he is naughty. She overdoes it and she admitted that she needs to change in that respect. She has admitted that she needs to go for counseling and had in fact started counseling sessions. I do not ignore the suggestion that she might be indulging in drugs and I believe that it is only proper that she submits herself to help with a psychiatrist or psychologist to obtain assistance to rid herself of that habit.

During the course of the trial at the behest of the parties I had given an order by consent in terms of which the plaintiff would have custody with the defendant having rights of access. This was done so that the child would not be denied the company of his father. I believe that this was one of the sources of the problems in Brandon not settling down with his mother, taking into account the father’s attitude to the status quo. He does not wish for the child to have a relationship with the mother if one has regard to the infrequency with which the plaintiff was given access to the child. It is clear and accepted by all parties that the mother and the child had never bonded. In the main matter there has been no application for access and it means therefore that the consent order I had granted falls away. In so far as the father is concerned, he has not applied for custody of his son. It seems to have escaped the attention of his legal practitioners that in the event that he wanted to be awarded custody of his son, the route to take was for him to make application. He has not done so and I cannot give him what he has not sought. The fact that prior to my order awarding the mother custody he had *de facto* custody of the child does not assist him in view of the illegality of their arrangement. In addition, the application placed before me by the applicant was in the form of her asserting her inherent rights to have custody of the minor child. It was not enough for him to just oppose. He should have taken the further step, if he was so inclined, to have himself awarded custody.

It is to be regretted that Brandon will be denied the company of his father as both appear to be attached to the other, but it may well be that the parties in the interests of the child may come to some accommodation to see how that can be achieved. For present purposes that is not before me.

In the premises I find that the plaintiff is entitled to retain custody of Brandon and I make the following order.

IT IS ORDERED AS FOLLOWS:

1. That the plaintiff being the mother and natural guardian of Brandon is entitled to retain custody of her minor child and exercise all the rights of custody and guardianship.


2. The defendant is hereby ordered to pay the costs of this action.

Granger & Harvey legal practitioners for the plaintiff.

Byron & Venturas legal practitioners for the defendant.
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