The applicants (grandparents of a minor child) sought condonation for the late noting of an application for review of a juvenile court decision that awarded custody to the respondent (the biological mother of the child). The mother had left Zimbabwe to live and work in South Africa, leaving the child in the care of the grandparents for approximately 5 years. The juvenile court ordered that the mother could have custody but should not take the child out of the country without proper documentation. The father of the child was deceased, making the mother the sole guardian. The applicants challenged the juvenile court's decision on multiple grounds including alleged jurisdictional overreach, failure to involve Social Welfare or the Master of the High Court, making a "strange" order not asked for by either party, and exhibiting bias against the first applicant.
The application for condonation was dismissed. The court refused to grant the order on the basis that no case had been made for the relief sought as the criteria for granting condonation had not been met, specifically the requirement of prospects of success on review.
1. For condonation of late noting of a review application to be granted, an applicant must satisfy three requirements: the extent of delay, a reasonable explanation for the delay, and prospects of success in the intended review application. 2. In custody disputes between third parties (including grandparents) and a biological parent, courts will only award custody to third parties in exceptional circumstances where there is valid and cogent evidence of harm or danger to the minor child's welfare. 3. A biological parent who is the sole guardian following the death of the other parent has the power to travel in and out of the country with the child, subject to compliance with proper legal documentation requirements. 4. A court seized with a matter has discretion to determine whether further investigations by the Department of Social Welfare are necessary, and the failure to order such investigations does not constitute a reviewable irregularity where the court was able to resolve the matter on the facts and law presented by the parties.
The court observed that the correct approach where detailed reasons are lacking from a lower court is to attack the proceedings for lack of detailed reasons, rather than to assume or create reasons for the court and then attack those assumed reasons. The court also noted that a mother leaving a child to live and work in South Africa, in the absence of proof of neglect or abandonment, would not qualify as child neglect sufficient to deprive her of custody rights in favor of third parties.
This case clarifies the requirements for condonation applications in Zimbabwe, particularly emphasizing that prospects of success on the intended review must be demonstrated. More importantly, it establishes principles regarding custody disputes between biological parents and third parties (including grandparents), confirming that biological parents have superior rights to custody absent exceptional circumstances showing harm or danger to the child. The judgment also addresses the powers of biological parents as sole guardians following the death of the other parent, including the right to travel internationally with the child subject to proper documentation. The case serves as a caution against applicants creating grounds for review by attributing reasons to a lower court's decision rather than attacking the actual decision or seeking detailed reasons where they are lacking.