In re Leo Mashizha Nherera

The applicant, who was the paternal uncle of a 14-year-old minor child, applied for guardianship of the child before the children's court at Harare Magistrates Court on 16 January 2015. The minor child's father (applicant's brother) was deceased, but the mother was still alive. The mother deposed to an affidavit consenting to the application. The application was made in terms of s 9(1) of the Guardianship of Minors Act [Chapter 5:08]. The magistrate initially granted the application but, upon sending the record for review in terms of s 9(6) of the Act, attached a note indicating she had erroneously granted the application without realizing one of the biological parents was still alive and sought guidance on how to proceed.

• Whether the children's court has jurisdiction to appoint a guardian for a minor child where one of the natural parents is still alive
• Which court has jurisdiction to entertain an application for guardianship by a relative where a natural parent is still alive
• Whether the magistrate's order granting guardianship was valid

The children's court's decision was set aside as null and void in terms of s 9(7)(a) of the Guardianship of Minors Act [Chapter 5:08]. The learned magistrate was directed to instruct the clerk of court to notify the applicant accordingly and to advise him to apply to the High Court for guardianship if he still wished to pursue the matter.

The children's court has no jurisdiction to appoint a guardian for a minor child where one of the natural parents is still alive. The children's court's jurisdiction under s 9(1) and (2) of the Guardianship of Minors Act [Chapter 5:08] is limited to circumstances where the minor has no natural guardian or tutor testamentary. Where a natural parent is alive and a relative seeks guardianship, the application must be made to the High Court in its capacity as upper guardian of minor children, exercising its inherent jurisdiction. A magistrates court, being a creature of statute, cannot exercise jurisdiction not conferred upon it by statute.

The court observed that for parents who are both alive but divorced or living apart, the parent who wishes to have sole guardianship of a minor child can make an application to the High Court in terms of s 4(1)(b) of the Guardianship of Minors Act. However, the Guardianship of Minors Act does not cover scenarios where the natural guardian is alive and a relative wants guardianship. The court noted the constitutional and statutory basis for the High Court's jurisdiction, citing s 81(3) of the Constitution of Zimbabwe Amendment Act (Number 20), s 171(1)(a) of the Constitution, and s 13 of the High Court Act.

This case clarifies the jurisdictional boundaries between the children's court and the High Court in guardianship matters in Zimbabwe. It establishes that the children's court has no jurisdiction to appoint a guardian where one of the child's natural parents is still alive, and confirms the High Court's role as upper guardian of minor children with jurisdiction to entertain guardianship applications in situations not covered by the Guardianship of Minors Act. The case is significant for delineating the proper forum for guardianship applications involving relatives where a natural parent remains alive.