The parties were formerly married with two minor children born in 1994 and 1995. On 2 November 2006, the High Court granted a decree of divorce in favor of the respondent, who was awarded custody of the minor children. The parties had entered into a Consent Paper defining the applicant's access rights to the children on alternate weekends, holidays, and school vacation periods. On 18 March 2008, Guvava J granted an order permitting the respondent to take the children out of Zimbabwe and relocate with them to the United Kingdom. The applicant opposed this order and noted an appeal against it on 25 March 2008. The respondent refused to give an undertaking not to leave with the children before the appeal was determined and intended to depart on 26 March 2008. The applicant then filed an urgent application seeking an interdict preventing the respondent from removing the children from Zimbabwe pending the appeal.
The court granted the provisional order interdicting the respondent from removing the minor children Anthony Christie Pissas and Dean Alexander Pissas from Zimbabwe pending the appeal in SC /08 (Refer HC 1476/08) or the earlier written consent of the applicant. The respondent was directed to deliver up all passports of the minor children to the Registrar of the High Court to be retained pending the outcome of the appeal or earlier written consent of the applicant.
The binding legal principles established are: (1) Access rights are an incidence of custody and where rights of more than one parent are at stake, access cannot be excluded from the custody exception in section 43(2)(d) of the High Court Act - to do so would lead to absurdity not intended by the Legislature. (2) The noting of an appeal against a judgment or order of a superior court has the automatic effect of suspending that judgment or order pending the appeal. (3) A party seeking to execute a judgment pending appeal must obtain leave from the court that granted the judgment. (4) The High Court, as a superior court with inherent jurisdiction, has the power to control the operation of its own judgments and regulate its proceedings.
The court observed that it would not rehash the substantive issues that were before Guvava J regarding the relocation of the children, as to do so would be akin to reviewing those proceedings. The court noted that the applicant did not object in principle to the children relocating to England, but that such relocation should be in circumstances where it is in their best interests with proper infrastructure for day-to-day care, supervision, stability, living costs, education, medical care, transportation and proper arrangements for paternal access. The court expressed its prima facie view that the applicant was awarded access rights which may be prejudiced by removal of the children in the absence of variation of those rights to accommodate their intended place of abode.
This case is significant in Zimbabwean family law and civil procedure for: (1) clarifying that access rights are an incidence of custody and fall within the exception to the requirement for leave to appeal under section 43(2)(d) of the High Court Act where custody of minors is concerned; (2) affirming the common law principle that the noting of an appeal automatically suspends execution of the judgment pending appeal, except with leave of the court that granted the judgment; (3) demonstrating the court's protective approach to parental access rights and its willingness to ensure these rights are not undermined by unilateral relocation of children pending appeal; and (4) illustrating the court's inherent jurisdiction to regulate its own proceedings and judgments in matters involving minor children.