The applicant (father) and first respondent (mother) divorced in Namibia on 3 December 2018. The mother had assumed custody of three minor children (born 2007, 2012, and 2016) under s 5 of the Guardianship of Minors Act. The applicant resided in Namibia while the mother and children returned to Zimbabwe. On 4 October 2018, the applicant filed an application for custody in the Zimbabwean Magistrates Court, seeking custody of all three children or alternatively the two boys. The mother was alleged to have surrendered custody to her parents. A probation officer's report indicated the children were staying with the maternal grandparents while the mother was on a business trip to South Africa. The mother's father later stated she was living with the children in Masvingo. On 15 October 2021, the Magistrates Court dismissed the application. The applicant sought review of this decision on 1 December 2021.
The application for review partially succeeded. The judgment of the Magistrates Court was set aside. The matter was remitted to the Magistrates Court to: (a) request probation officers' reports on the current personal circumstances of both parents vis-à-vis custody; (b) determine whether the first respondent should retain custody after assessing both parents' current circumstances; and (c) determine which party is properly suited to have custody taking into account all factors and circumstances. Each party was ordered to bear its own costs.
A custody determination is reviewable where the court fails to determine material issues placed before it, specifically whether a custodian parent has surrendered custody and what the personal circumstances of the parties are. In custody matters, the court must have before it proper evidence of both parents' current circumstances, including probation reports, in order to make an informed decision in the best interests of the children as required by s 5 of the Guardianship of Minors Act and s 81(2) of the Constitution. A court cannot rely on facts or issues not raised by the parties without first seeking clarity from them. Challenges to the substantive correctness of a decision (as opposed to procedural irregularities) should be raised on appeal, not review.
The court observed that when a point of law or factual issue exercises the court's mind but has not been raised by the parties, the court is at liberty to put the question to the parties and ask them to make submissions on the matter (citing Nzara & Others v Kashumba N.O. & Others SC 18/18). The court noted that the function of a court is to determine disputes placed before it by the parties and it cannot go on a frolic of its own. The court also noted that it is the duty of both parents, not only the custodian parent, to provide for the children. The remedy for reliance on issues not raised by parties is to strike out the offending portion of the judgment rather than set aside the entire decision, particularly where the court had already made its decision before making the improper reference.
This case illustrates the distinction between review and appeal in Zimbabwean law - review addresses procedural irregularities and the method of trial, while appeal addresses substantive correctness of the decision. It emphasizes the court's duty to determine all issues placed before it and provide reasons for decisions. It reaffirms the paramount importance of the best interests of the child in custody matters under both statute (s 5 of the Guardianship of Minors Act) and the Constitution (s 81(2)). The case demonstrates that custody decisions must be based on properly investigated circumstances of both parents, including current probation reports, rather than assumptions or incomplete information. It also confirms that courts cannot rely on issues not raised by the parties without seeking clarity from them first.