Natasha Sinikiwe Sithole (nee Moyo) v Nisbert Sithole

The appellant and respondent are married with a pending divorce case in the High Court. They separated in February 2024, and the appellant retained custody of their minor child born on 15 February 2020. The respondent applied to the Magistrates Court (Children's Court) seeking sole custody of the child, or alternatively, access to the child. His basis was that the appellant was working in South Africa and intended to leave the child with her cousin sister in Harare. The appellant produced evidence that she had obtained employment in Harare and would be settling there. The Magistrates Court dismissed the application for sole custody, confirmed the appellant's custody, but granted the respondent access to the child for the entirety of every school holiday. The appellant appealed this order on four grounds.

• Whether the Magistrates Court interfered with the appellant's sole custody rights under s 5(1) of the Guardianship of Minors Act by granting access without an application under s 5(3)(b) or (c)
• Whether the application was fatally defective for not stating on its face the statutory provision under which it was brought
• Whether the Court a quo should have deferred its determination pending the High Court divorce proceedings (lis pendens)
• Whether granting the respondent access to the child for the entirety of every school holiday was in the best interests of the child

The appeal was partly allowed. The portion of the Magistrates Court order granting the respondent access to the minor child for the entirety of every school holiday was set aside and substituted with an order granting access during the first half of every school holiday. Each party was ordered to bear their own costs.

1. An order granting access to a non-custodial parent does not interfere with the custodial parent's sole custody rights under s 5(1) of the Guardianship of Minors Act. 2. Jurisdiction of a court does not depend on a statement on the face of the application form but on the cause of action pleaded. 3. Lis pendens does not absolutely bar a court from determining a matter where parallel proceedings are pending before another competent court; the court has discretion whether to stay proceedings. 4. Access arrangements must be determined according to the best interests of the child, taking into account the practical realities of the custodian parent's time with the child during school terms and the need to prepare the child for each new term.

The Court observed that the appellant's position of seeking to deny the respondent access to the child entirely showed selfishness on her part and was not in the best interests of the child. This observation informed the Court's decision that the appellant should not recover costs despite succeeding on one ground of appeal. The Court also noted that although the appellant did not specifically request the modified access arrangement in her notice of appeal, the relief proposed in the notice is merely for guidance and the Court is at large to grant appropriate relief, particularly in matters concerning children's welfare.

This case illustrates important principles in Zimbabwean family law regarding the balance between custody and access rights, the application of the best interests of the child principle, and the interaction between different court proceedings involving the same parties. It confirms that a parent's right to access does not require interference with custody rights, and that courts must carefully consider what access arrangements genuinely serve the child's best interests rather than simply accommodating parental preferences. The case also demonstrates that lis pendens does not automatically oust a lower court's jurisdiction in family matters, and that courts have discretion to proceed with matters despite parallel proceedings in higher courts.