The applicant (mother) and respondent (biological father) were involved in a long-standing dispute over their minor child. The parties were never married. The applicant was the custodian parent and sole guardian by order of the Magistrate's Court. The respondent had access rights by agreement. The applicant's family was evicted from their residential property by the Sheriff. While the child was with the respondent exercising access rights, the applicant notified him of a new address for the child's return. The respondent expressed concerns about the new premises and requested inspection and documentation. On 19 July 2019, the respondent obtained an ex parte rule nisi from the Children's Court preventing him from returning the child on 21 July 2019 and allowing the child to remain with him, with the applicant having reasonable access. The rule nisi was returnable on 1 August 2019. The applicant then filed this urgent application on 22 July 2019 seeking to have the child returned and the Children's Court order set aside.
The application was dismissed. Each party was ordered to bear his or her own costs.
The High Court will only intervene in unterminated proceedings of a lower court in exceptional circumstances, such as where grave, irremediable injustice would occur. The proper procedure to challenge or set aside an order of a lower court must be by way of appeal or review. An urgent application seeking interim relief that is predicated upon an incompetent final order is itself incompetent. A rule nisi is not a final order but temporary relief pending proper determination of substantive rights. Supplementary affidavits cannot be filed without leave of the court. Where no special circumstances exist justifying intervention, the High Court must respect the independence and processes of lower courts in accordance with constitutional demands, and granting relief that would nullify or suspend a lower court's interim order would undermine that independence and be against public policy.
The court observed that even though the applicant's procedure was not sustainable, her genuine and bona fide intentions to assert her rights in relation to the child could not be doubted, which justified departing from the usual rule that costs follow the result. The court noted that if there were special circumstances warranting urgent intervention, the law provided a remedy for the applicant to anticipate the return date of the rule nisi, rather than instituting fresh proceedings. The court also commented that to readily accede to relief that would nullify or suspend a lower court's operation would result in uncertainty in the law and the procedures set out in terms of the law.
This case reinforces important principles of procedural law and the relationship between the High Court and lower courts in Zimbabwe. It confirms that the High Court will not readily intervene in unterminated proceedings of lower courts absent exceptional circumstances, even where constitutional rights such as the best interests of the child are invoked. The case emphasizes that constitutional protections do not override established procedural rules and that parties must use proper procedures (appeal or review) to challenge lower court orders. It also demonstrates the court's respect for the independence of lower courts as required by the Constitution, and clarifies that invoking the child's best interests alone is insufficient to warrant departure from procedural requirements where no grave, irremediable injustice would occur.