Doris Mwaita v Fredrick Siyaka Tabanie and Others

The applicant (maternal grandmother) sought access rights to her grandchild, Nathaniel Siyaka Tabanie, born 18 October 2011. The minor child's mother (Kudzai Nyoka) had entered into an unregistered customary union with the first respondent (the child's father) in 2010. After the mother's arrest in 2011, the applicant assumed custody when the child was five months old. In 2016, when the child developed epilepsy at age five, the applicant reached an agreement with the respondents for the child to reside with his paternal grandparents (second and third respondents) during school term in Warren Park for convenience and school accessibility, with the applicant having access during holidays and weekends. In December 2020, the first respondent obtained a default custody order and subsequently denied the applicant access. The first respondent alleged that in 2020, the applicant had taken the minor child to Mozambique illegally without a passport, exposing him to criminal activities and disrupting his education. The child's mother was resident in Mozambique and was not a party to the proceedings.

• Whether a maternal grandmother has an inherent right to access her grandchild
• Whether it is in the best interests of the minor child to grant the maternal grandmother access rights
• What standard must be met for a court to interfere with parental rights in favor of a third party (including grandparents)
• The court's role as upper guardian of minor children

The application was dismissed with no order as to costs.

A maternal grandmother does not have an inherent right of access to her grandchild. To obtain access rights, a grandparent must establish special grounds demonstrating that access is in the best interests of the child. The court, as upper guardian, will only interfere with parental rights (including the right to determine who has access to the child) where it is shown that those rights are not being exercised properly and that interference is necessary in the child's best interests. Where serious allegations are made regarding criminal conduct, illegal cross-border movement of a child, and disruption of the child's education, and such allegations are not adequately refuted, the court will find it is not in the child's best interests to grant access rights.

The court observed that the minor child's stay with his paternal grandparents had its roots in the applicant herself reaching out to the first respondent regarding the child's epileptic condition and the distance to school, suggesting the arrangement was initially in the child's best interests. The court also noted the concerning circumstance that the child's biological mother, though alive, had chosen to relocate to Mozambique leaving her three children in Zimbabwe and had not applied for access rights herself. The court drew an inference that the applicant may have taken the minor child to Mozambique to see his biological mother, though this was not explicitly proven.

This case establishes important principles in Zimbabwean family law regarding grandparents' access rights. It confirms that grandparents do not have an inherent right of access to grandchildren (unlike parents) and must demonstrate special grounds showing that access is in the child's best interests. The case emphasizes the paramountcy of the child's best interests and reinforces that courts will not interfere with parental rights unless those rights are being exercised improperly. It also demonstrates that allegations of exposing a child to criminal activities and illegal cross-border movement will weigh heavily against granting access rights, and that applicants must properly and vigorously refute such serious allegations rather than merely denying them in general terms.