David Makuni v Martha Makuni

The appellant and respondent were divorced on 19 June 1998. The respondent was granted custody of their four minor children (two boys and two girls), with the appellant having reasonable access rights. In May 2000, the respondent obtained employment as a nurse in the United Kingdom and wished to take the children with her. The appellant opposed this and refused to sign papers enabling the children to obtain passports. The respondent launched a High Court application seeking permission to obtain passports and relocate the children to the UK without the appellant's consent. The appellant opposed the application and filed a counter-claim seeking custody of the children. The High Court (GOWORA J) granted the respondent's application and dismissed the counter-claim. By the time of the appeal, circumstances had changed significantly: the eldest child had attained majority, two children were already settled in schools in the UK where the respondent had purchased a house, and the third minor child was completing examinations in Zimbabwe before joining his siblings in the UK.

• Whether the High Court was correct in granting the respondent permission to relocate the minor children to the United Kingdom without the appellant's consent
• Whether custody of the minor children should be varied and awarded to the appellant
• Whether the appeal had become academic or moot given the changed circumstances since the High Court judgment
• Whether siblings should be separated in custody matters

The appeal was dismissed with no order as to costs (each party to bear their own costs).

In custody and international relocation matters, courts will not interfere with established custody arrangements where: (1) minor children have already been relocated and are settled and doing well in the new jurisdiction; (2) altering the custody order would result in the separation of siblings, which courts should avoid; and (3) the custodial parent is resident in the same jurisdiction as the children. The welfare and best interests of the children remain paramount, and this includes consideration of maintaining sibling relationships and stability in established living and educational arrangements.

The Court observed that if the respondent were resident in the United Kingdom and the children were resident in Zimbabwe, there would be merit in the appellant's contention that he be awarded custody. However, this was not the factual situation. The Court also commented on costs, noting that where an appeal is brought in pursuance of the interests of minor children and the result is influenced by factors not known at the time of launching the appeal, the interests of justice may require departure from the general rule that costs follow the result.

This case is significant in Zimbabwean family law (though this is a Zimbabwean judgment, not South African) as it addresses the principles applicable to international relocation of children following divorce. The case demonstrates the principle that courts will consider the welfare of children as paramount and will generally avoid separating siblings. It also illustrates that appellate courts will consider changed circumstances that have occurred since the lower court's judgment, and may find appeals academic or moot where the factual situation has fundamentally altered. The case shows judicial reluctance to disturb custody arrangements where children have already been relocated and settled in a new jurisdiction, particularly where there is evidence they are thriving in their new environment.