Josephine Matemera v James Chirimuuta

The respondent (James Chirimuuta) was in a relationship with Pamela Matemera, and they had three children together, including twins Jordan and Jillian born on 22 February 2020. Pamela died immediately after delivering the twins. The parties disputed whether the relationship was a customary law union (respondent's position) or mere cohabitation (appellant's position). The appellant (Josephine Matemera) was Pamela's cousin. Upon discharge from hospital, the twins were placed in the appellant's care while the respondent attended the mother's burial. When the respondent requested the return of the children, the appellant refused. The respondent applied for custody in the Magistrates Court, which granted him custody. The appellant appealed, arguing she was better suited to care for the twins, who had been in her care since birth. The twins' elder brother Jayden (then 4 years old) was staying with the respondent's brother and sister-in-law in Mount Darwin.

• Whether a father of children born out of wedlock has an inherent right to custody under the Constitution of Zimbabwe Amendment (No. 20) 2013
• Whether the best interests of the children were properly considered in awarding custody to the biological father
• Whether the probation officers' reports were biased
• Whether custody should be awarded to a third party (the appellant) over the natural parent
• The interaction between constitutional rights to equality and non-discrimination (sections 56 and 81) and custody determinations

The appeal was dismissed. Each party was ordered to bear its own costs. The custody order in favor of the respondent (James Chirimuuta) was upheld.

1. Under the Constitution of Zimbabwe Amendment (No. 20) 2013, sections 56 and 81, it is unfair discrimination to deny a child the benefits of associating with their biological father based solely on whether the child was born in or out of wedlock. 2. The common law principle that fathers of children born out of wedlock have no custody rights is inconsistent with the constitutional provisions on equality and children's rights. 3. A child's best interests are paramount in every matter concerning the child (section 81(2)), and this principle takes its character from the constitutional rights accorded to children. 4. Custody will only be awarded to a third party over a natural parent on special grounds showing detrimental or undesirable effects on the child's physical, moral, psychological or educational welfare. 5. The natural affinity and emotional bond between parent and child are generally irreplaceable, and such association benefits and promotes a child's emotional security, normality and wellbeing.

The court observed that the issue of whether children are born 'out of wedlock' or labeled as 'illegitimate' constitutes unfair discrimination against children, reflecting a paradigm shift in legal thinking. The court noted that children should not be defined or penalized for choices they did not make regarding their parents' marital arrangements. The court also commented that while third parties like grandparents or relatives may provide superior material advantages, unlimited time and attention, or even greater wisdom and patience, these attributes alone do not entitle them to custody in competition with natural parents. The court noted that in custody matters involving children, there should be no order as to costs. The court also observed that many children have to adjust to new environments, and the twins' young age (around two years) made this an appropriate time for transition rather than later.

This case is significant for establishing that under Zimbabwe's 2013 Constitution, the common law position denying fathers of children born out of wedlock inherent custody rights is unconstitutional. It demonstrates how constitutional provisions on equality, non-discrimination, and children's rights (sections 56 and 81) have transformed family law, placing children's best interests as paramount regardless of their parents' marital status. The judgment clarifies that biological fathers cannot be treated as mere 'third parties' in custody disputes based solely on the absence of marriage. It represents an important development in aligning family law with constitutional values of equality and the rights of children, moving away from outdated distinctions between 'legitimate' and 'illegitimate' children. The case also reaffirms the principle that third parties can only obtain custody over natural parents on special grounds showing harm to the child's welfare.