4
HH 648-23
CIV ‘A’ 27/23
CHIDOCHEMOYO IMMACULATE SIBANDA
versus
HUGH SIBANDA
HIGH COURT OF ZIMBABWE
MAXWELL & DEME JJ
HARARE, 26 September & 6 December 2023
Civil Appeal
G R J Sithole & R Venge, for the appellant
A Masango, for the respondent
MAXWELL J: This is an appeal against the decision of the Children’s Court for the Province of Mashonaland sitting at Harare.
BACKGROUND
Appellant and respondent are married and their marriage was blessed with two minor children. On or about March 2022, appellant moved out of the matrimonial home with the children and did not disclose where she was relocating to. In May 2022 respondent wanted to take the children for interviews at Peter House School and approached the lower court for access which was granted. Respondent averred in the lower court that on being granted access to the children, he noticed that the older child had a burn on the forehead. During the second term, he was advised that the children were absenting from school and missing lessons. He submitted that investigations carried out revealed that appellant was not taking good care of the children. Respondent approached the lower court seeking an order for custody of two minor children, Rukundo Michaela Sibanda, born on 23 July 2014, and, Pundutso Zion Munopa Sibanda, born on 15 November 2017. He submitted that it is not in the best interest of the minor children for appellant to have custody as she leaves them to fend for themselves in the care of third parties.
Appellant opposed the application in the lower court stating that she moved out of the rented accommodation due to prolonged physical, emotional and financial abuse as well as financial irresponsibility and negligence of the respondent. She stated that she did not disclose her whereabouts as she feared for her personal safety as respondent had been threatening her. She confirmed that Rukundo was burnt and stated that it was accidental. She disputed that she denied respondent access to the children and that the children missed school except when they were ill. She denied leaving the children alone and dispute the allegation that she was irresponsible. She pointed out that she applied for maintenance because the respondent was neglecting his financial obligations.
The application was granted and appellant was allowed reasonable access to the minor children. She was aggrieved and appealed to this court on the following grounds; -
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The court a quo erred and grossly misdirected itself when in considering the custody application before it, it ignored and or paid lip service to the personal circumstances of the appellant as contained in her opposing affidavit a quo, resulting in a ruling which does not accord with substantial justice and fails to look out for the best interests of the minor children.
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The court a quo erred and grossly misdirected itself by concluding that the pictorial or photographic evidence tendered by the Respondent sufficed as evidence that appellant abused drugs, lived a party life, yet one of the photographs did not show an image of the appellant and absent expert evidence the court a quo was ill-equipped to conclude whether the other photo was an image of appellant consuming marijuana.
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The court a quo erred and grossly misdirected itself in failing to find as it ought to have done that the respondent was not a suitable candidate to be awarded custody of the two minor children in issue due to the uncertainty of his availability as a parent for as long as the admitted fraud criminal trial proceedings against him remain unterminated.
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The court a quo erred at law and grossly misdirected itself in placing too much reliance on the probation officer’s report and taking it as the gospel truth as a basis for awarding custody to the respondent, yet a care analysis of the report showed that the appellant’s personal circumstances could not be impugned in favour of those of the respondent.
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The court a quo further erred by heavily relying on the Probation Officer’s Report as biblical truth in the absence of any convincing evidence to demonstrate conclusions and findings in her report including those relating to appellant.
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The court a quo erred at law and grossly misdirected itself in granting the appellant unspecified reasonable access to the minor children, thus, rendering an order for access which is incapable of specific performance.
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A fortiori the court a quo erred at law and grossly misdirected itself in purporting to set aside/vary/amend or discharge the terms of an extant consent access order in CCA 260/22, absent any request from the parties to do so.”
Appellant prayed for the setting aside of the ruling of the Children’s Court and its substitution with an order dismissing the application for custody.
SUBMISSIONS BY THE PARTIES
In heads of argument, appellant submitted that the impugned order was granted in circumstances whereby the court a quo lacked the requisite jurisdiction to relate to the causa a quo. She argued that the issue of custody was now a matter subject to divorce proceedings in the High Court and respondent ought to have filed an application for custody pendente lite in the High Court. Appellant stated that the issue was raised in the lower court and it was not determined therefore the entire judgment ought to be set aside. Appellant submitted that the lower court ignored documentary evidence she placed before it showing that she was best suited to be the custodial parent. Further, that the lower court paid lip service to her personal circumstances such that it is as if her side of the story was not considered. Appellant submitted that the pictorial evidence ought not to have been relied upon without evidence of the circumstances in which the pictures were taken. She accused the lower court of ignoring the existence of the criminal charges against the respondent. She faulted the lower court for relying on the Probation Officer’s Report in view of the admissions and concessions she made proving a lack of objectivity. On the order granted, appellant submitted that the order for access ought to be set aside as it does not specify the terms which constitute reasonable access and that the order had the effect of varying the terms of a consent order obtained by the parties in CCA 260/22 which variation was not sought by any party.
In response Mr Masango disputed that the matter was lis pendens and stated that the application for custody was issued first on 27 August 2022 and the summons were issued later on 2 September 2022. He pointed out that appellant had not disputed that she was the one in the pictures and nothing had been submitted to show that respondent was not a proper person to be granted custody. He submitted that the criminal charges did not affect respondent’s ability to cater for the children and in the event that he is incarcerated appellant would be free to apply for variation of the custody order citing changed circumstances. Mr Masango pointed out that the order was granted on 9 January 2023 and the court should not disturb the lifestyle the children have been accustomed to for the past nine months. He further pointed out that the Constitution does not discriminate parents and there was nothing before the lower court against awarding custody to respondent. He stated that there was nothing wrong in the lower court relying on the Probation Officer’s Report for persuasive value and that the concessions made by the Probation Officer did not discredit the factual findings.
ANALYSIS
WHETHER OR NOT THE MATTER WAS LIS PENDENS
The defence of lis alibi pendens is based on the proposition that where a dispute between the parties is being litigated elsewhere, it is inappropriate for it to be litigated in the court or tribunal in which the plea is raised. The position on the law is set out in, The Civil Practice of the Supreme Court of South Africa, 4th Edition, by the authors, Herbstein & Van Winsen, at p 249 as follows:
“If an action is already pending between parties and the plaintiff brings another action against the same defendant on the same cause of action and in respect of the same subject matter, whether in the same or in a different court, it is open to the defendant to take the objection of lis pendens, that is, that another action respecting the identical subject matter has already been instituted, whereupon the court in its discretion may stay the second action pending the decision of the first……
A defence of lis pendens depends upon the existence of pending earlier action.”
(underlining for emphasis)
The deciding question is which proceedings were instituted first? We did not hear Advocate Sithole disputing the dates given by Mr Masango, that the custody proceedings before the Children’s Court were instituted first on 27August 2022, whilst the summons were issued later on 2 September 2022. It did not help that the attached summons do not bear the registrar’s stamp that would prove when they were issued out of the High Court. The copy on record has the date of preparation as 20 August 2022 whilst the Declaration is not dated. It follows that appellant did not prove that as of 27 August 2022, there were pending divorce proceedings between the parties. The defence of lis pendens is therefore not available to her.
In any event, a plea of lis pendens is not an absolute bar to the proceedings. On p 606 of The Civil Practice of the Supreme Court of South Africa, 4th Edition, the learned authors Herbstein and Van Winsen put it thus:-
“A plea of lis pendens does not have the effect of an absolute bar to the proceedings in which the defence is raised. The court intervenes to stay one or other of the proceedings, because it is prima facie vexatious to bring two actions in respect of the same subject matter. The court reserves a discretion in the matter even if all the essentials of the plea are present, and may in spite of that fact consider whether it is more just and equitable or convenient that it (the action against which the special plea is advanced) should be allowed to proceed. It often happens that the court will decide that the lis which was first commenced should be the one to proceed but this is not an immutable rule.”
Appellant was not candid with the court. In her heads of argument, in paragraph 1.3 it is submitted that
“In casu, in proceedings a quo the point was taken that the court a quo could not grant the order sought therein because the issue of custody was now a matter subject to divorce proceedings in the High Court under case number HC 5878/22. The legal effect of that point was that the court a quo lacked the jurisdiction to entertain the custody causa because such cause of action could only have been related to if the respondent had filed an application for custody pendent lite with the High Court in terms of s 2(1)(a) of the Matrimonial Causes Act [Chapter 5:13] read together with s 3(1) and (2) of the same Act.”
Further in Para 1.6 of the same heads appellant argued
“The Court a quo was seized with the legal point related to above, it having been mentioned in the opposing affidavit a quo, and also having been related to through the heads of argument filed by the Appellant (as the respondent) in the court a quo. However the court a quo failed to deal with this point and it does not relate to in its ruling. It was incumbent upon the court a quo to have determined this issue and not to take it as pro non sriptor. The failure or omission by the court a quo to determine these points amounts to a misdirection and error of law which can only be corrected by the setting aside of the entire judgment……..”
We have reproduced these excerpts to show how far the appellant went in trying to mislead this court. That the point was taken in the court a quo is not borne out by the record of proceedings. In the opposing Affidavit, appellant simply stated in para 2; -
“ Ad Paragraph 6-7
2. This is correct, save to mention that matrimonial summons for divorce have been instituted and personally served upon the applicant in the High Court, attached hereto as Annexure A.”
The issue is addressed in her heads of argument in para 4 in the following terms; -
“ 4. The Honourable High Court is seized with matrimonial action under case number HC 5878/22 whilst the access matter was heard under case number CCA 260/22 and the maintenance matter being case number M848/22 respectively.”
Merely mentioning an issue is not the same as raising it as a legal point for determination. It is trite that a court cannot be faulted for not dealing with an issue that was not placed before it for consideration. It is required to apply the law to the facts and issues placed before it by the parties. See Nzara & Others v Kashumba & Others SC 18/18. In any event, assuming the matter had been raised for determination before the court a quo, failure to determine it would be a procedural irregularity which would have to be raised through an application for review. There is no merit in the preliminary issue raised by the appellant.
FIRST GROUND OF APPEAL.
Appellant accuses the lower court of ignoring her personal circumstances contained in her opposing affidavit. The lower court’s ruling outlined the appellant’s submissions and analysed what both parties said. Applicant did not elaborate which personal circumstances were ignored or paid lip service to. In heads of argument, appellant accused the lower court of ignoring documentary evidence which established that respondent was an irresponsible father who was not worthy of being afforded sole custody of the minor children. She referred to pp 59 to 60 of the record.as proof that respondent was in the habit of defaulting on his rentals. In Para 2.2 of her heads of argument, appellant argued that the unavailability of reasons detailing how the court analysed the documentary evidence adduced by the appellant renders the impugned ruling susceptible to being vacated. In my view, the failure to give reasons for a decision or the failure to analyse evidence is a procedural irregularity which should be brought to court on review. In any event an analysis of the tendered documents does not in any way help the appellant. Pages 59 to 60 are letters from SEEFF Properties dated 10 January 2022. Both letters are not signed by either the author or the recipient. Page 59 outlines arrears from November 2021 to January 2022. There is no indication of when the parties’ family moved into the premises in question. Considering that the parties were married in 2013 as per the attached summons, and in the absence of any other evidence proving continued failure to pay rentals previously, what was placed before the court a quo was not sufficient to confirm a habit and discredit respondent. A habit is described by the online dictionary as
“a settled or regular tendency or practice, especially one that is hard to give up.”
In the absence of proof of a settled or regular tendency or practice, appellant’s allegation remained unsubstantiated. Appellant also refers to the fact that respondent had difficulties paying school fees for the minor children. She attached letters addressed to both of them. Parents have a joint responsibility to facilitate their children’s education. That is the reason why the school communicated with both parents as confirmed by appellant to the Probation Officer. In that regard the non-payment of the fees reflects negatively on both appellant and respondent. It cannot be held against respondent alone. The first ground of appeal cannot succeed.
THE SECOND GROUND OF APPEAL.
Appellant faults the lower court for making conclusions on her lifestyle based on pictorial evidence in the absence of expert evidence. There is nowhere in the ruling of the lower court where it is stated as a finding that appellant abused drugs and lived a party life. On p 9 to 10 of the record the lower court made it clear that it was simply quoting what respondent had submitted before it. Moreover, it was not stated that the lower court based its decision on the pictorial evidence. The decision seems to be based on the recommendation of the Probation Officer and the fact that our law does not discriminate between the mother and father as they are equal in the upbringing of a child. Furthermore, appellant did not dispute what was happening in the pictures. In para 24 of her opposing affidavit, she stated that she was at a work function for a part-time beverage sales job she sometimes did to supplement income as the Respondent had been indisposed by way of being incarcerated. Such a response would not necessitate the calling of an expert to determine what was happening in the picture. The second ground of appeal has no merit and it fails.
THIRD TO FIFTH GROUNDS OF APPEAL
Appellant argued that the lower court ought to have found that respondent was not a suitable candidate to be awarded custody of the minor children due to the criminal charges he was facing. She also faulted the lower court for relying on the Probation Officer’s Report on the basis that there was no convincing evidence to demonstrate conclusions and findings in the report. appellant made reference to the case of Magnus v Magnus HH 154-04 as authority that our courts tend not to grant custody to a parent who is facing criminal charges. That case does not help her as it is clearly distinguishable. From the passage quoted in appellant’s heads of argument, the applicant in the Magnus case (supra) was facing criminal charges arising from her alleged abuse of the child. It has not been argued in casu that the charges respondent is facing have to do with the minor children. The lower court exercised its discretion in relying on the Probation Officer’s report and in awarding custody to a party facing criminal charges. It is trite that an appellate court will not interfere with the exercise of discretion by a lower court unless such discretion has been afflicted by a serious misdirection. Appellant alleged bias on the part of the Probation Officer. Evidence of bias or that there is a likelihood of it is given as one of the reasons an appellate court will interfere with the discretion of the lower court. To ascertain whether the Probation Officer was biased, the
“The test appears to be whether the person challenged has so associated himself with one of the two opposing views that there is a real likelihood of bias or that a reasonable person would believe that he would be biased.”
See City and Suburban Transport (Pty) Ltd v Local Board of Road Transportation, Johannesburg 1932 WLD 100 at 106. Has the Probation Officer associated with the respondent to give an apprehension of bias? Appellant argued that this is evident from the viva voce evidence which the Probation Officer gave under oath. Appellant highlights issues from the viva voce evidence which shows that she was not happy with how the Probation Officer came up with her report. In our view, a difference in approach or inquiries that are not exhaustive are not necessarily a result of bias. We find no fault in the lower court’s reliance on the Probation Officer’s Report. The Probation Officer stated that she arrived at her recommendation after receiving a report from respondent that appellant was not always home and that she was denying respondent access. Both aspects were confirmed by the appellant. In the report, the Probation Officer stated that appellant advised her that when she goes out the children are left with the maid. It is for that reason that the Probation Officer then commented on the abuse of children by care givers. In his founding affidavit in the lower court, respondent alleged that appellant left the children alone when she went to South Africa. In her opposing affidavit, appellant stated that when she went to South Africa she left the children in respondent’s mother’s care with assistance from his sister and appellant’s brother. This was disputed by respondent in the answering affidavit where he stated that appellant and his mother are not on talking terms and the children were never at his mother’s house. The existence of an access order in CCA 260/22 confirms that respondent had a time he had no access to the minor children. Appellant did not allege bias in relation to the issues the Probation Officer stated as having influenced her in her recommendation. For that reason the lower court cannot be faulted for relying on the Probation Officer’s Report. In Attorney General v Howman 1985 (2) ZLR 402 it is stated that an appeal court will not substitute its own decision even where it considers that if it had been in the position of the lower court it would have made a different decision. The basis for interfering with the discretion of the lower court has not been established in this case. The third to fifth grounds of appeal also fail.
THE SIXTH GROUND OF APPEAL
Appellant faults the lower court for granting her unspecified reasonable access to the minor children and argued that the order is incapable of specific performance. Indeed the order of the lower court was to the effect that appellant was to be allowed reasonable access to the minor children. What is reasonable in any case depends on the parties’ prevailing circumstances. As stated in Zungunde v Rusike HH 888-22, it is always necessary to specify what constitutes reasonable access when it comes to access orders. There was therefore a need to specify what would be reasonable access in this case. The failure to specify what is reasonable access is a misdirection entitling interference with the decision of the lower court. The interference however will be in the way of making the order specific, defining what would be reasonable access in this case. There is merit in this ground of appeal and it succeeds. Counsel for both parties confirmed that the access that has been granted to the appellant so far was on alternate holidays and every alternate weekend. There is no reason to alter that arrangement.
THE SEVENTH GROUND OF APPEAL
Appellant accused the lower court of purporting to set aside/vary/amend or discharge the terms of an extant consent access order in CCA 260/22 absent any request from the parties to do so. In para 11 of the opposing affidavit, appellant stated that it was respondent who made the application for access in CCA 260/22 and that she assented to the order. She did not state that the order also dealt with the custody issue. The lower court was not at fault in granting access to the appellant even though none of the parties asked for it. This is because it is a situation regulated by statute. The Guardianship of Minors Act [Chapter 5:08] provides in s 5(3) (b) as follows;
“ (3) Where the mother of a minor has the sole custody of that minor in terms of subsection (1), a children’s court may at any time, upon the application—
(a) ……..
(b) of the father, make an order depriving the mother of the sole custody of the minor and granting the sole custody of the father if the court is satisfied that it is in the best interests of that minor that the father be granted the sole custody of that minor and, further, make such order relating to the payment of maintenance by the mother and the right of the mother to have access to that minor as the court thinks fit;”
In my view, the lower court was authorized by statute to grant that which was not asked for as it would be in the best interests of the minor children, which interests s 81 (2) of the Constitution describe as paramount in every matter concerning the children. It would have been a case of dereliction of duty for the lower court to have issued a custody order without providing for access by the non-custodial parent. There was therefore no misdirection on that point.
In the final analysis, the appeal partially succeeds. Paragraph 2 of the order of the lower court is amended to specify the access agreed to by the parties.
DISPOSITION
The appeal partially succeeds as follows; -
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The appeal against the grant of custody to the respondent be and is hereby dismissed.
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The appeal against the granting of reasonable access to the appellant succeeds.
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Paragraph 2 of the order of the court a quo be and is hereby set aside and substituted with the following;
(2) Respondent be and is hereby allowed reasonable access to the children every alternate weekend and every alternate holiday.’
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Each party bears its own costs.
DEME J…………………………………Agrees
Corious and Company Attorneys, appellant’s legal practitioners
Muronda Malinga Masango Legal Practitioners, respondent’s legal practitioners