Chantelle Tatenda Muteswa v Frank Buyanga Sadiqi

This case involved a dispute between unmarried parents over the custody and guardianship of their minor child born out of wedlock. The High Court had granted the respondent (father) joint custody and joint guardianship of the minor child on 18 March 2020. In the same order, the High Court ordered that an investigation be conducted by the Department of Social Welfare into how the parents were to exercise joint custody and joint guardianship. The appellant (mother) appealed against this order, arguing that joint custody and joint guardianship was not in the best interests of the minor child, particularly as it was granted before any investigation into the child's best interests had been conducted.

• Whether the common law rule giving mothers of children born out of wedlock sole guardianship and custody while denying natural fathers parental power is constitutional
• Whether joint custody and joint guardianship should be granted before an investigation into the best interests of the child has been conducted
• What is the proper procedural sequence when determining custody and guardianship disputes - should the investigation precede or follow the determination

1. The appeal partially succeeded. 2. The High Court's order in paragraph 1 (declaring the common law rule unconstitutional) was upheld. 3. The High Court's orders in paragraphs 2, 3 and 4 (granting joint custody and guardianship and ordering investigation) were set aside. 4. The matter was remitted to the High Court to determine the issue of joint custody and joint guardianship after an inquiry as to whether such arrangements are in the best interests of the child, and if so, how such arrangements should be exercised without jeopardizing the child's best interests. 5. Each party was ordered to bear its own costs.

The binding legal principle established is that in determining custody and guardianship of minor children, particularly in cases involving children born out of wedlock, courts must conduct a full investigation and inquiry into what is in the best interests of the child before making any determination on custody and guardianship arrangements. The welfare of the child must not be prematurely exposed to unverified parental circumstances. The sequence is critical: investigation must precede determination, not follow it. Furthermore, the common law rule that gives mothers of children born out of wedlock sole guardianship and custody while denying natural fathers parental power is inconsistent with sections 56(1), 56(3), and 81(1)(a) of the Constitution of Zimbabwe 2013 and is therefore invalid.

The Court made reference to the respondent's counsel's "chicken and egg conundrum" argument - suggesting that either sequence (granting custody then investigating, or investigating then granting custody) could work - but firmly rejected this approach. The Court's implicit observation was that there is no equivalence between these two approaches when children's welfare is at stake; the proper procedure is clear and non-negotiable. While not strictly binding, this reflects the Court's strong view that procedural safeguards in children's matters cannot be treated as mere technicalities or matters of judicial discretion in sequencing.

This case is significant in Zimbabwean family law for several reasons: (1) It affirmed the constitutional invalidity of the common law rule that automatically gave mothers sole custody and guardianship of children born out of wedlock while denying natural fathers parental power, confirming this rule's inconsistency with the Constitution of Zimbabwe 2013. (2) It established the crucial procedural principle that in custody and guardianship disputes, investigations into the best interests of the child must be conducted before any determination of custody and guardianship arrangements, not after. (3) It emphasized that the welfare of minor children is paramount and should not be subjected to unverified parental circumstances. (4) It provided guidance on the proper judicial approach to balancing constitutional rights of unmarried fathers with the paramount consideration of children's best interests.