The parties were divorced by court order on 23 May 2001 in case HC 9097/99. The applicant was granted custody of the minor child Tina Erasmus (born 10 February 1999) with the respondent entitled to reasonable access. The respondent left Zimbabwe in January 2001 without informing the applicant or leaving contact details, and has not paid maintenance for three years. In September 2003, the applicant filed an application seeking sole guardianship and sole custody of the child. The applicant had difficulty locating the respondent and the application was only served in Botswana in 2005. By the time of the hearing in January 2007, the applicant and child were residing in South Africa (since October 2005) and the respondent was in Botswana (since November 2003). All parties were therefore outside the jurisdiction of the Zimbabwean court.
The application was dismissed with costs.
The binding legal principles established are: (1) An application for sole guardianship under section 4 of the Guardianship of Minors Act constitutes a new cause of action where the original divorce order dealt only with custody and access, and did not address guardianship. (2) The High Court of Zimbabwe lacks jurisdiction to determine applications for sole guardianship when all parties (both parents and the minor child) are outside the territorial jurisdiction of Zimbabwe, as section 13 of the High Court Act limits jurisdiction to persons and matters "within Zimbabwe". (3) A custodian parent may remove a child from the jurisdiction in the absence of evidence that such removal is not in the child's best interests or is intended to frustrate the non-custodian parent's access rights.
The court observed that it would have had jurisdiction to hear an application for variation of the custody and access provisions of the original divorce order, as this would have constituted a true variation rather than a new cause of action. However, when the applicant abandoned those claims at the hearing and pursued only the sole guardianship claim, she removed the basis upon which the court had jurisdiction. The court also noted the distinction between guardianship rights under common law (which the father retained subject to section 3 of the Act) and sole guardianship under section 4, highlighting that sole guardianship carries additional powers including testamentary appointment of guardians and independent power to consent to the minor's marriage.
This case is significant in Zimbabwean family law for clarifying: (1) the distinction between guardianship and sole guardianship under the Guardianship of Minors Act; (2) when an application constitutes a variation of an existing order versus a new cause of action; (3) the territorial limits of the High Court's jurisdiction in family law matters; and (4) the rights of custodian parents to relocate children from the jurisdiction. The judgment emphasizes that the court's jurisdiction under section 13 of the High Court Act is territorially limited to persons and matters "within Zimbabwe", which can impact family law proceedings when parties relocate abroad.