Enica Chenga (in her application for guardianship of C. C. C) v Master of the High Court

The applicant sought to be appointed guardian of her brother's minor child (C.C.C) to enable the child to attend St Benedict's Catholic School in the United Kingdom. The child's mother abandoned the family in 2005 and her whereabouts were unknown, though believed to be in South Africa. The child's father had been caring for the two children since then and supported the application. The applicant was a UK citizen employed as a cognitive behavioural therapist and claimed to be close to her niece who wished to study chemical engineering. The application was served on the mother through substituted service via newspaper advertisement. The applicant had not complied with Rule 249 requiring the appointment of a curator ad litem.

• Whether the court can grant guardianship without compliance with Rule 249 requiring appointment of a curator ad litem
• Whether the procedural requirements for guardianship applications involving minor children had been satisfied
• Whether it is in the best interests of the child to divest guardianship from her natural father and bestow it on the applicant
• What the role and responsibilities of a guardian entail

The matter was removed from the roll. There was no order as to costs. The Registrar was directed to bring the order to the attention of the Master of the High Court.

In applications for guardianship of minor children, compliance with Rule 249 requiring the appointment of a curator ad litem is mandatory and not discretionary. The court will not proceed with a guardianship application without proper appointment of a curator ad litem and their independent report assessing the best interests of the child. The procedure requires: (1) a chamber application for appointment of curator ad litem with written consent; (2) service on the Master for a report on the proposed curator; (3) after appointment, service of the substantive application on the curator ad litem; and (4) the curator's investigation and report to be filed with the registrar and served on interested parties. An order of guardianship is drastic as it extinguishes the natural parent's guardianship rights, and therefore proper procedural safeguards must be followed to ensure the best interests of the child are properly assessed.

The court made several non-binding observations: (1) The current world is full of vices such as trafficking and sexual abuse, making procedural safeguards particularly important when a child will be removed from Zimbabwe's jurisdiction. (2) Guardianship involves onerous responsibilities beyond education, including administering property, representing the child in legal matters, and giving consent for marriage, adoption, departure from the country, passport applications, and alienation of property. (3) The court expressed skepticism about whether the natural father fully understood what guardianship rights he would be giving up. (4) The court noted that some officers in the Master's office appeared unaware of their proper role in relation to curator ad litem appointments and inappropriately commented on substantive issues before the substantive application was before the court. (5) The court referenced its previous decision in Mutongwizo v The Master of the High Court HH 573-18 emphasizing the need for legal practitioners to comply with court rules when minor children's rights are at stake.

This case is significant in Zimbabwean law for reinforcing strict procedural requirements in guardianship applications involving minor children. It emphasizes the court's role as upper guardian of minors and the mandatory nature of Rule 249 requiring appointment of a curator ad litem in matters concerning minors. The judgment provides detailed guidance on the proper procedure for guardianship applications and clarifies the respective roles of the applicant, curator ad litem, Master of the High Court, and the court itself. It underscores that guardianship involves far more extensive responsibilities than merely educational decisions and that the best interests of the child standard, as enshrined in the Convention on the Rights of the Child, must be properly assessed through appropriate procedural safeguards.