Judgment No. HB 129/2003
Case No. HCA 100/2002
IN THE HIGH COURT OF ZIMBABWE
CHIWESHE & CHEDA JJ
BULAWAYO 22 SEPTEMBER & 12 FEBRUARY 2004
CHEDA J: This is an appeal against the order of Zvishavane Magistrates’ Court sitting at Zvishavane on 17 September 2002 wherein it granted custody of the minor child to respondent.
According to the facts on the record of proceedings, which I must say, are very scanty, the parties were married under customary law, which resulted in the birth of Tafadzwa (a boy) aged 9 years. On separation appellant took custody of the minor child. However respondent approached the court applying for custody which was awarded to him. Appellant was not satisfied with this order, hence this appeal. During the trial at the Magistrates’ Court appellant raised one important objection being that the child is happy staying with her, there was therefore no reason why custody of the child should be awarded to respondent, only to be taken care of by his step mother (respondent’s wife).
On the other hand respondent argues that he had been advised that the child had not been doing well at school due to non attendance at school, which conduct and behaviour does not seem to bother appellant. In addition, it was his assertion that appellant has no fixed abode and is also involved in some anti-social behaviour which behaviour is not good for the mental and physical growth of the child. The trial court
in its wisdom sought the child’s attitude towards the issue and the discussion went along these lines:
Court to child
“Q You know that your parents are no longer staying together?
A Yes I am aware
Q Which of the parents do you want to stay with?
A I want to stay with all of them (sic) I can visit my father during school holidays but at the moment I would like to stay with mum. I can go and see my father every weekend and go back to my mother on Sundays and Monday I will be at school. I love both my parents but I am not happy with the idea of me going to stay in Rusape with my grandpa. It would be better if I am going there for school holidays. That is what I want. We have no problems with food because my mum gives us enough food.”
After listening to the proceedings the magistrate ruled that the custody should be awarded to respondent. The gist of his judgment is where he stated,
“after hearing arguments from the plaintiff and defendant I have decided to award custody of Tafadzwa Kapiya a boy aged 9 years to his father.”
This conclusion does not tell us on what basis he decided to do so. It is important that the parties be informed why their submissions are rejected or admitted. To leave it as it is, does not help the losing party, yet it is supposed to know why it has lost so that it can either decide to accept its fate or challenge the decision on the basis of facts or law.
It is important for judicial officers to note that the interest of justice are served by our time honoured legal principle relating to the laws governing
custody of minor children. The first and paramount consideration which our courts must focus on without fail, is the best interest of the minor child. This indeed is the correct legal position see Fletcher v Fletcher 1948(1) SA 130 (A) and Gordon v Gordon 1953(2) SA 41 (W) at 49.
In ascertaining the minor child’s interest, the courts should bear in mind the following factors of the parents:-
financial and social means
past behaviour; and
attitude towards children etc
It is either or a combination of these factors that should assist the trial court in determining what is best for the interest of the child. In casu, unfortunately the trial magistrate merely gave his conclusion which for all I know was with good intentions. But, in my view, whenever, there are allegations and counter allegations of this nature where the court can only accept one and reject the other, it is extremely necessary that the court must go further and cause the Social Welfare Department to professionally carry out investigations and thereafter come up with recommendations to the court.
As it is, there is no basis, with respect, upon which the court decided to award custody to respondent. While we accept that the justice system is presently reeling under extreme socio-financial difficulties, that should not be a justifiable reason for failing to cause the relevant authorities to carry out proper investigations which of necessity are required by the court, for it is upon such investigations that it can make an informed decision. Justice should not be sacrificed on the altar of expediency.
This matter has not been adequately handled and as such the decision reached by the trial court was not based on full facts and professional advice.
The following order is therefore made:
That the finding of the court a quo be and is hereby set aside.
That the matter be and is hereby referred back for trial de novo before a different magistrate.
That a Social Welfare Officer in Zvishavane be and is hereby directed to investigate this matter and compile a report to be submitted to the trial magistrate for the determination of the issue of custody.
Chiweshe J ………………………… I agree