In re: Margret Chikombingo and Enia Sithole and Jasper Hutu and Panashe Gireya John and Edwin Dube and Trinity Dube and Letwin Dube and Mike Kanzimbe

These were eight separate matters involving juvenile children brought before the Children's Court at Bindura between 2005-2006 in terms of the Children's Act [Cap 5:06]. The matters involved various juveniles in need of care: orphaned children, abandoned children, and children exposed to immoral or dangerous circumstances. Applications were made by Probation Officers to have the children declared in need of care and placed in various institutions including SOS Children's Village, Montgomery Heights Christian Centre, Ponesai Vanhu Junior School, and Shearly Cripps Children's Home. The magistrate granted orders placing the children in these institutions. However, the records submitted for review contained only the Probation Officers' reports and the court orders (Form 8), with no record of any inquiry held by the Children's Court. Queries were raised by Musakwa J in November 2005 and Makarau J (as she then was) in May 2006 regarding the absence of inquiry records. The magistrate responded in August 2006 claiming he relied on s 5(1) and (2) of the Act and did not feel it necessary to call witnesses beyond reading the Probation Officers' reports. The records were only referred to Mawadze J for review in December 2013, seven years after the magistrate's response.

• Whether the Children's Court is required to conduct and record an inquiry in terms of s 19(1)(a) of the Children's Act when dealing with applications concerning children in need of care
• Whether a Children's Court, as a court of record, is obliged to keep full records of proceedings including the inquiry held
• Whether the Children's Court must provide written reasons for its decisions
• Whether proceedings can be certified as being in accordance with real and substantial justice in the absence of a proper record of inquiry and reasons for the decision
• Whether the High Court can effectively exercise its review powers under s 27 of the Children's Act without a proper record of proceedings

The court withheld its certificate and declined to certify the proceedings in all eight matters as being in accordance with real and substantial justice. However, due to the lapse of time and changed circumstances, no remedial orders were made and the matters were not remitted to the magistrate.

The Children's Court, as a court of record dealing with applications under the Children's Act [Cap 5:06], is legally required to: (1) conduct an inquiry as mandated by s 19(1)(a) of the Act in respect of every child brought before it; (2) maintain a full, legible record of all proceedings including the nature of the inquiry held, whether based on viva voce evidence or affidavits and reports; (3) provide brief written reasons explaining its decision, including the circumstances of the child, the evidence relied upon, findings on why the child is in need of care, and the basis for the particular order granted under s 20; (4) submit the record of proceedings to the High Court for review within 7 days as required by s 27 of the Act. The failure to conduct a proper recorded inquiry and provide written reasons constitutes a misdirection. Without such records and reasons, the High Court cannot effectively exercise its review powers to determine whether proceedings were in accordance with real and substantial justice or whether the court properly considered the child's best interests.

Mawadze J made several obiter observations: (1) He expressed concern about the inordinate and unexplained seven-year delay in the review process from 2006 to 2013, which rendered the proceedings purely academic. (2) He noted that he dealt with the matter of In re Enia Sithole despite the initial query being raised by Musakwa J, having brought this to his attention and receiving confirmation it was in order. (3) He acknowledged that his sister Makarau JA had left the High Court bench in 2010 after her elevation to the Supreme Court. (4) He emphasized that magistrates appear not to appreciate how these matters should be properly handled and in some cases seem unaware of the need to send such matters for review timeously. (5) He stated that the only reason for writing the judgment was to provide guidance to magistrates, given that no practical remedial purpose could be served due to the passage of time and changed circumstances of the juveniles.

This case provides important guidance on the procedural requirements for Children's Courts in Zimbabwe when dealing with applications concerning children in need of care. It establishes clear obligations for magistrates to: (1) conduct a proper inquiry as mandated by s 19(1)(a) of the Children's Act; (2) maintain full records of all proceedings as a court of record; (3) provide written reasons for decisions made; and (4) submit matters timeously for review within 7 days as required by s 27 of the Act. The judgment emphasizes that the High Court's review function under the Children's Act cannot be effectively exercised without proper records and written reasons. It serves as a cautionary tale about the consequences of procedural irregularities and delay in the review process, demonstrating how such failures can ultimately render review proceedings academic and prevent the correction of errors.