In Re: Senzeni Moyo

Senzeni Moyo, a State Registered Nurse residing and employed in the United Kingdom, applied for guardianship of two minor children, Martin Gugulethu Hamandishe (born 3 February 1995) and Jacqueline Nkosinothando Hamandishe (born 2 February 1998). The children were the applicant's deceased sister and brother-in-law's children. Following the death of their parents, the children were being cared for by their maternal grandmother, Ellie Moyo, a retired nurse in Zimbabwe. The applicant sought guardianship on the basis that she was employed as a nurse in the United Kingdom and had been financially supporting the children. The Juvenile Court in Bulawayo granted the application on 14 November 2012, and the matter was forwarded to the High Court for confirmation.

• What are the requirements for granting guardianship of minor children to a person residing in a foreign jurisdiction?
• What evidence must be provided by an applicant seeking to remove children from Zimbabwe's jurisdiction?
• What standard should the High Court apply when reviewing guardianship applications that involve removing children to foreign countries?
• Whether the Juvenile Court properly exercised its discretion in granting guardianship without sufficient proof of the applicant's socio-economic standing

The order granted by the Juvenile Court on 14 November 2012 at Bulawayo Magistrates Court was set aside, and the matter was referred back for a further inquiry in line with the principles laid down in the judgment.

The binding legal principles established are: (1) The High Court, as upper guardian of all minors in Zimbabwe, must carefully scrutinize applications to remove children from its jurisdiction; (2) Such removal should only be permitted when it is demonstrably in the best interests of the children; (3) An applicant seeking guardianship with a view to removing children to a foreign country must provide comprehensive proof including: right of stay in the foreign country, financial support or regular income, suitable accommodation, and adequate arrangements for school-going children; (4) The fact that an applicant resides in the diaspora is not alone sufficient legal justification to remove minor children to a foreign land; (5) Courts must be stringent in determining such applications to avoid facilitating child trafficking.

The court observed that if courts fail to be stringent in their determination of such applications, they may easily find themselves unconsciously assisting or abetting child trafficking. This was a cautionary observation about the broader social implications of insufficiently scrutinized guardianship applications involving removal of children to foreign jurisdictions.

This case is significant in Zimbabwean family law as it establishes clear requirements and safeguards for guardianship applications where children are to be removed from Zimbabwe's jurisdiction to foreign countries. It reinforces the High Court's role as upper guardian of all minors and sets out a stringent test to prevent potential child trafficking under the guise of guardianship applications. The judgment emphasizes the paramountcy of children's interests and the need for comprehensive evidence of an applicant's ability to care for children in a foreign jurisdiction before such removal is permitted.