In Re Juveniles: Tenson Makandeni and Others

Six records concerning eleven children were dealt with by the same magistrate sitting as a Children's Court on 23 May 2017. These were enquiries carried out in terms of sections 19, 20 and 21 of the Children's Act. In all cases, the court determined on application by a probation officer that the juveniles involved were children in need of care. The court placed each child under the foster care of persons mentioned in the orders. The magistrate endorsed the orders on a Form 8, referring to the court as a "Juvenile Court" and citing the repealed Children's Protection and Adoption Act, 1972. The records were only forwarded to the High Court for review on 12 July 2018, more than a year after the orders were made on 23 May 2017, in breach of the seven-day requirement in section 27(1) of the Children's Act.

• Whether the magistrate's court was properly designated as a 'Juvenile Court' or should have been referred to as a 'Children's Court'
• Whether orders made under the repealed Children's Protection and Adoption Act, 1972 were valid when the Children's Act [Chapter 5:06] was the operative legislation
• Whether the delay in forwarding the records for review complied with section 27(1) of the Children's Act which requires forwarding within seven days
• Whether the correct statutory provisions were cited in the orders

The proceedings in the Children's Court were confirmed. The orders made were altered as follows: (i) The reference to the Children's Protection & Adoption Act was altered to Children's Act [Chapter 5:06]; (ii) The reference to 'Juvenile Court' was altered to 'Children's Court'; (iii) The enquiries made were deemed to have been made in terms of section 19 as read with section 20(1)(a)(ii) of the Children's Act. The Registrar was directed to provide a copy of the judgment to the office of the Chief Magistrate for dissemination to Children's Courts.

Orders made by a Children's Court must correctly designate the court as a 'Children's Court' as established under sections 3-5 of the Children's Act [Chapter 5:06], not as a 'Juvenile Court'. Courts cannot make orders under repealed enactments; orders purporting to be made under the repealed Children's Protection and Adoption Act, 1972 must be corrected to refer to the operative Children's Act [Chapter 5:06]. Section 27(1) of the Children's Act peremptorily requires that records of proceedings in which orders are made under sections 20 and 25(3) must be forwarded to the Registrar of the High Court for review by a judge not later than seven days after the making of the orders. This requirement is justified by the constitutional provisions in section 81(2) and (3) which make children's best interests paramount and establish the High Court as upper guardian of minors, as well as section 171(1)(b) which gives the High Court jurisdiction to supervise and review subordinate courts.

The judge made several non-binding observations: (1) He noted apparent contradictions in the Children's Act regarding terminology (defining 'infant', 'child', 'young person' but only using 'juvenile' in relation to foreign states under section 40), but stated he would not engage in academic debate about these shortcomings as that is not the court's function. (2) He observed that the Children's Act was intended to bring local law into sync with international instruments like the UN Convention on the Rights of the Child (UNCRC) and the African Charter on the Rights and Welfare of the Child (ACRWC), though did not purport to debate whether it achieved its ends. (3) He emphasized that court orders are life records and should be authentic and verifiable, warning that slavish adherence to outdated forms without updating them can have undesirable consequences including potential invalidity and embarrassment to judicial officers. (4) He stressed that the review process should be viewed positively by magistrates as a learning opportunity, stating that 'a review is not a witch hunt' and the High Court's approach should be to educate and promote the rule of law rather than to vilify or berate inferior courts. (5) He noted that an 'astute magistrate' should welcome having decisions reviewed as this provides opportunity for correction and professional development.

This case is significant for establishing proper procedures and terminology in Children's Court proceedings in Zimbabwe. It serves as an important educational judgment for magistrates presiding in Children's Courts, clarifying: (1) the correct designation of the court as a 'Children's Court' not 'Juvenile Court'; (2) the necessity of citing current, operative legislation rather than repealed statutes; (3) the strict seven-day time limit for forwarding records for High Court review; and (4) the constitutional basis for High Court oversight of children's matters under section 81 of the Constitution, which recognizes the High Court as upper guardian of minors. The judgment emphasizes that review is a quality control mechanism aimed at education and correction, not punishment, and reinforces the principle that children's best interests are paramount in all matters concerning them.