The applicant filed a notice of appeal on 11 May 2020 but failed to inspect the record within the prescribed time. On 13 April 2021, the Registrar advised that the appeal had been deemed abandoned. The applicant brought a chamber application for condonation and reinstatement of the appeal in terms of Rule 70(2) of the Supreme Court Rules 2018. During these proceedings, it emerged that the applicant had snatched the minor child (his son) from the first respondent (the child's mother) at a shopping centre in Waterfalls, Harare, and took him out of Zimbabwe through an undesignated exit point to South Africa. The child had been kept away from his mother for 15 months. The High Court had previously granted the parties joint custody and guardianship of the child. The third to sixth respondents advised that the applicant was on Interpol's wanted list and was a fugitive from justice.
The court gave an ex-tempore ruling partly upholding the first respondent's point in limine and postponed the hearing of the application until the applicant brings the minor child back to the court's jurisdiction and presents him to the court.
The binding legal principles established are: (1) Parents exercising guardianship and access rights must do so lawfully and in a manner that does not adversely affect the rights of children; (2) Joint custody and guardianship must be exercised in terms of the law and in a manner ensuring the child is not exposed to illegalities; (3) Removing a child from the court's jurisdiction through unlawful means and keeping the child away from the other parent for an extended period is not in the best interest of the child and is inconsistent with joint custody and guardianship; (4) While a party in contempt of court may have constitutional rights of access to courts, such access may be limited or conditioned upon compliance with court orders, particularly where children's welfare is concerned; (5) Courts have a duty to protect minor children and may exercise procedural powers to ensure children are within the court's jurisdiction for proper protection according to law.
The court observed that if a parent is hindered in exercising guardianship and access rights, the proper recourse is to resort to the courts to enforce those rights, rather than taking self-help measures. The judge also noted that it was in the best interest of the child that parental issues be resolved by the courts, which is why complete denial of audience was not appropriate. The court made general observations about the importance of children being able to bond with both parents and being accessed by both parents. The procedural note that the Registrar failed to bring the Constitutional Court's order regarding judgment delivery timelines to the judge's attention before 22 September 2021 was also mentioned but had no bearing on the substantive decision.
This case is significant in Zimbabwean jurisprudence as it emphasizes the paramountcy of the best interests of the child principle in family law matters. It establishes that parental rights of custody and guardianship must be exercised lawfully and in accordance with court orders. The judgment demonstrates the court's willingness to use its procedural powers to protect children's rights, including refusing audience to parties in contempt of court orders relating to children, while balancing this against the constitutional right of access to courts. It reinforces that parents cannot take the law into their own hands by removing children from the jurisdiction in violation of joint custody arrangements, and that the courts have a duty to protect minor children even in the context of procedural applications.