Jealous Cement v Maureen Chiweshe and Deputy Master of High Court

The applicant and first respondent are divorced parents of two minor children: Christian Cement (born 16 November 2001) and Chelsea Cement (born 18 January 2005). The first respondent had custody of the children. The applicant alleged that the first respondent threatened to pull Chelsea out of Ambassador Academy Harare and transfer her to a rural school in Murambinda where the first respondent works. The applicant cited a previous incident in 2014 where the first respondent removed Christian from Petra High School in Bulawayo after applicant had paid $4,500 in fees and uniforms. The applicant swore the founding affidavit on 9 May 2017, a day before schools opened nationally, but the first respondent was only served on 5 June 2017, almost a month after schools had opened. The first respondent had surrendered the children to the applicant through his wife on 6 May 2017 to prepare them for school and denied making any threats to change schools. By the time of the hearing on 9 June 2017, no change of school had occurred.

• Whether the application met the requirements of urgency for an urgent chamber application
• Whether the applicant established the requirements for a temporary interdict, namely: (1) a prima facie right; (2) a well-grounded apprehension of irreparable harm; (3) absence of any other remedy; and (4) balance of convenience
• How to deal with disputes of fact in motion proceedings
• The relevance and admissibility of a social worker's report in custody matters

The urgent application was dismissed with costs.

For a temporary interdict to be granted, an applicant must establish: (1) a prima facie right open to some doubt; (2) a well-grounded apprehension of irreparable harm; (3) absence of any other remedy; and (4) that the balance of convenience favours the applicant. In motion proceedings, affidavits must contain sufficient factual averments to support the cause of action on which relief is sought. Where the court is not fully satisfied with the applicant's version and the respondent's denials cannot be found to be far-fetched or clearly untenable such that they should be rejected, the court may choose not to decide the dispute of fact and instead dismiss the application. The assessment of custodial suitability requires consideration of multiple variables beyond financial capacity, as a parent of no means can be awarded custody if it is in the children's best interests, with the financially sound parent paying for upkeep.

The court observed that in the case of Chelsea, who attended boarding school with both parents having access during half the school holidays each, the aspect of custody becomes somewhat technical as neither parent actually lives with the child during term time. The court also commented that social workers preparing reports for custody matters should investigate the children's circumstances comprehensively, including where they live and with whom, interviewing teachers and both parents, rather than simply asking children which parent they prefer. The court noted that children's preference based solely on who pays fees does not meaningfully assist in determining what is in their best interests.

This case illustrates the strict requirements for urgent applications and temporary interdicts in Zimbabwean family law matters. It emphasizes that applicants must provide concrete, substantiated evidence rather than bare allegations to establish a well-grounded apprehension of harm. The case also demonstrates the court's approach to disputes of fact in motion proceedings and reinforces that payment of fees alone does not determine custodial suitability. It provides guidance on the proper preparation of social workers' reports in custody matters, requiring comprehensive investigation rather than merely asking children which parent they prefer based on financial considerations.