Judgment No. HB 11/15
Case No. J/C 219/14
CHARITY SIQONGILE GONYORA
(In her application for the guardianship of
Clifford Mayizoni Mwale (male born 7 July 1998))
IN THE HIGH COURT OF ZIMBABWE
BULAWAYO, 29 JANUARY, 2015
MUTEMA J: On 12 November, 2014 the provincial magistrate issued the applicant Gonyora with a certificate of guardianship in respect of the minor child whose name is stated supra.
In the application for the guardianship in the magistrates’ juvenile court the applicant was represented by an organisation called Justice For Children as her legal practitioners. The papers filed in the application ventilate the following facts:
The minor child’s mother Sekai Mwale died on 7 January, 2001. She was not employed. The father Moses Mwale died on 4 April, 2014. He was a retired soldier. The applicant Gonyora is the late Moses Mwale’s sister. She averred that she has been staying with the minor child since 2001 when his mother passed away. The minor child’s parents left four children including the minor in question. The minor child is doing form 3 at Founders High School. The applicant is a widow with three children. She is self-employed vending clothes. She resides in Gwabalanda in the house belonging to the minor child’ late father Moses Mwale.
The applicant proffered two reasons for her application, viz to enable her to apply for a passport for the minor child so that she can travel with him to South Africa where most of his paternal relatives are and that she will be able to legally act for the minor child in all issues affecting him. She attached four supporting affidavits to her application two of which were deposed to by the minor child’s purported paternal uncles Lion Phiri and Stanford Chirwa while one was by Nhamo Richard Mandaza who purported to be a maternal uncle to the minor child and the other was by Jane Nhamo who said is a maternal aunt to the minor child.
It was not elucidated how a Chirwa and a Phiri came to be paternal uncles to a Mwale and also how the Nhamos came to be maternal aunt and uncle to the minor child whose late mother was Sekai Mwale (nee Mahupete).
As the upper guardian of minor children, this court finds that the trial provincial magistrate was enjoined to make an indepth and more thorough enquiry clarifying the alleged relationships alluded to above. Even the applicant was supposed to disclose her maiden surname to find out whether she truly is who she averred to be vis-à-vis the late Moses Mwale. Over and above the eyebrows raised by the shortcomings pointed out above what makes the entire scenario worse is that the applicant is staying in the minor child’s late father’s house. The father died on 4 April, 2014. To date his estate is still not registered. No explanation for it has been proffered. It does not require a being from outer space to smell a rat here. Even the Deputy Master’s report is to the effect that registration of the deceased Moses Mwale’s estate was supposed to have been done first.
When the record of proceedings landed on my desk on automatic review in terms of section 9 (6) of the Guardianship of Minors Act [Chapter 5:08] I asked the trial magistrate whether the deceased estate was registered and if so proof thereof and the response was simply that it was not; who the minor child’s siblings are, how old they are, what they do in life and where they are and the reply was that he has two sisters Norine Savi Mwale (now late) and Tatenda Mwale who is unemployed and resides with her husband in South Africa yet in paragraph 4 of her affidavit the applicant avers that including the minor child, the deceased parents left four children – so the fourth child has not been accounted for, and whether the minor child’s parents were employed to which the reply was that “only the father was retired from the army and there seems to be no pension benefits therein” (sic). If the father retired from the army it is inconceivable how there could be no pension accruing to him which this minor child should benefit from.
Experience has taught us that orphaned minor children must by all means be protected against the vagaries and avarice of certain members of society, relatives or not, hence the need for magistrates in enquiries of this nature to think outside the box and make exhaustive enquiries in the interests of the innocent children who might end up destitute on the streets as a result of inadequate fact-finding.
In the result, in terms of the powers vested in me in terms of section 9 (7) (b) and (c) of the Guardianship of Minors Act, [Chapter 5:08], the matter is hereby remitted to the children’s court for the following to be done:
- to establish the via documentary proof the relationship between the applicant and the late Moses Mwale, between Lion Phiri and Stanford Chirwa on one hand and Moses Mwale on the other hand; between Nhamo Richard Mandaza and Jane Nhamo on one hand and Sekai Mwale (nee Mahupete) on the other;
- to account for the unnamed fourth sibling to the minor child, how old he/she is, where he/she is and whether employed or not;
- to establish if the late Moses Mwale has pension benefits from the army he is entitled to and if so the certificate for guardianship must incorporate a provision that such proceeds be deposited into the Guardian’s Fund;
- to establish the Gwabalanda house number and its title deeds or other title and that the late Moses Mwale’s deceased estate be registered and an executor appointed before the appointment of the guardian can be confirmed;
- to establish the views towards the application of the minor child’s sister Tatenda Mwale as well as those of the unnamed sibling alluded to in 2 above.