Judgment No. HB 70/2003

Case No. HCA 84/2002

PIUS POTSIWA

Versus

PRECIOUS MOYO

IN THE HIGH COURT OF ZIMBABWE

CHEDA & NDOU JJ

BULAWAYO 16 AND 26 JUNE 2003

Civil Appeal

NDOU J: We made the order on 16 June 2003 and these are the reasons

for the said order. The appellant sued the respondent at Bulawayo Magistrates’ Court

for the custody of the parties two minor children. From the papers in the record it is

evident that appellant, hereinafter referred to as Mr Potsiwa, and the respondent,

hereinafter referred to as Ms Moyo shared a relationship akin to a marriage. Out of

this relationship two children were born. The parties’ happy relationship came to an

end in May 2001 after Mr Potsiwa found Ms Moyo in their “ matrimonial” lodging

with another man. We do not think it is necessary to deal with the veracity of this

allegation, suffice to say that relationship came to an end as a result thereof. After

their separation Ms Moyo successfully sued Mr Potsiwa for maintenance of these two

children in case number M 216/01. Mr Potsiwa launched the custody proceedings in

the court a quo. He was unsuccessful leading to this appeal. One of his major

concern is that he was denied a fair trial as the trial magistrate did not allow him to

outline and present his case.

Although this was couched as a ground of appeal it is apparent that he alleged

that the proceedings in the court a quo were tainted with irregularities. In such a case

the review procedure as opposed to appeal is applicable. As the parties are self actors

we are prepared to use our discretion in the interests of justice. It is trite that not

HB 70/03

every irregularity will necessarily result in the setting aside of the proceedings of the

trial court. It must be shown that the irregularity is capable of causing prejudice – See

Abbey Estates and Investments (Pty) v Property Renting Corporation (Pvt) Ltd and

Ors 1981 ZLR 39.

The entire record of the proceedings in the court a quo is so scant that we

consider it necessary to quote it in its entirity. The full record is –

“Court Proceedings

Are you married (sic) - No

Any lobola paid (sic) - No

He wants custody of the children because he has been charged maintenance in case M 216/01. A man who is not married claim (sic) custody because he is paying maintenance. If this is allowed then all boyfriends would apply for custody of their children to avoid paying maintenance.

(Signed)

PROVINCIAL MAGISTRATE”

The entire record does no indicate the date on which the proceedings were

held. It is not clear whether or not the parties testified and if so what they said, the

cross examination, re-examination etc. If on the one hand this is indeed the complete

record of the proceedings then the proceedings are tainted with irregularity. If, on the

other hand, the record is incomplete the result is the same. According to the parties it

is common cause that both gave detailed testimony in support of their respective

cases. They both submit that the record is definitely incomplete. In light of this

inaccurate record we are unable to access the entire evidence led in the court a quo.

On what basis can we, sitting as an appellate court, determine the issues raised in the

appeal? Short of acting as a court of first instance and hearing all the evidence afresh,

we are unable to go into the merits of appeal.

HB 70/03

In this matter minor children are involved. The issue before the court a quo

was one of parental responsibility and as such the welfare principle is applicable. In

the circumstances, the interests of the minors are always decisive – see Fortune v

Fortune 1955 (3) SA 348 (A); W v W 1981 ZLR 243; Makumbe v Chikwenhere HB-

42-03; De Montille v De Montille HB-6-03 and De Montille v De Montille HB-20-03.

In the first De Montille v De Montille case (supra) on page 7 of his cyclostyled

judgment CHEDA J stated –

“The interest of the child takes precedent over those of its parents. In making a determination the courts should be guided by arrangements and facilities each parent has made for the child.”

See also Maluwana v Maluwana HH-155-01. Because of the ages of the

children it was desirable for the court a quo to interview them. This was not done.

The court a quo was also enjoined to take into account the children’s need for stability

and continuity, not only in relationship with parents, but also in physical

surroundings, school, friends and relatives – see Re (A minor) (Custody of Child)

[1980] 2 FLR and B and B (Custody of Children) [1985] FLR 166.

In our jurisdiction the welfare principle is qualified in that the mother enjoys

built-in advantage in such matters, and as such will not readily be deprived of the

custody of children without good cause shown – see More v Richardson 1974(2) RLR

16 and Nugent v Nugent 1978 RLR 6. We are of the view that as this matter involves

the rights of children, the welfare principle is core to the determination of the merits

of the case.

We are, however, not in a position to determine the fate of this appeal due to

the irregularities alluded to earlier on. No investigations were carried out during the

HB 70/03

trial on the welfare of the children. Mr Potsiwa, as a non-custodian parent, should

have been afforded a fair trial. He should have been allowed an opportunity to testify

under oath and adduce whatever evidence in support of his custodial claims. Ms

Moyo should, in turn, have been afforded an opportunity to adduce evidence in

opposition of the said claims. The judgment of the trial court should have focused on

the welfare of the children and not meaningless and speculative utterances by the trial

magistrate with no factual basis.

We are of the view that the irregularities in this matter cry out for interference

on account of the prejudice occasioned thereby and the welfare of the children. We

feel that there is a need for a proper inquiry to be carried out in this matter. We hold

the view that remittal to the magistrate is the best course open to us. We will exercise

our review powers on account of the irregularities referred to above. In remitting the

matter to the court a quo the status quo will obtain. In passing we should indicate that

this matter came before us on the day which the nation and the world (through

UNICEF) are commemorating the “Day of the African Child”. Such a

commemoration should serve as a reminder to our courts on the need to promote and

protect child rights. The rights of these two children, their development and survival

is threatened by the unstable family environment that the separation of their parents

brings about.

In the circumstances we make the following order –

1. The order of the court a quo be and is hereby set aside.

2. The matter be and is hereby remitted to the court a quo for a trial de novo before a different magistrate within 30 days of this order.

3. No order is made as to costs.

Cheda J ………………………… I agree