Sebson Sibanda v Amos Hove and Others

The applicant, who works and resides in Australia, was customarily married to the minor child's mother (Barbara Hove) for a brief period between 2014 and 2016. The parties never lived together as husband and wife. Barbara Hove died in June 2016. The minor child (a female born on 9 May 2001) is the biological daughter of the 2nd respondent, who was married to Barbara Hove in terms of African law and custom around 2000, though that relationship ended around 2004. The 1st respondent is the minor child's grandfather (Barbara Hove's biological father), and the minor child has lived with him at his residence in Redcliff for virtually her entire life. The applicant sought guardianship of the minor child, ostensibly to take her to Australia. The applicant had previously been convicted of contravening section 27(2)(a) of the Births and Death Registration Act for supplying false information to registry officials in an attempt to fraudulently obtain a birth certificate for the minor child. The applicant also allegedly kidnapped the child from school and kept her in his bachelor flat for two weeks.

• Whether the applicant, as a third party with no biological relationship to the minor child, could be granted guardianship under the Guardianship of Minors Act
• Whether the application was competent in terms of sections 3, 4 and 5 of the Guardianship of Minors Act
• Whether it would be in the best interests of the minor child to grant guardianship to the applicant and allow the child to be removed from Zimbabwe to Australia
• What weight should be given to the natural parents' rights versus those of third parties in guardianship applications

The application for guardianship was dismissed with costs.

The binding legal principles established are: (1) Third parties seeking guardianship of a minor child cannot interfere with the rights of natural parents unless those parents are not exercising their rights properly; (2) An applicant for guardianship must prove on a balance of probabilities that it is in the best interests of the minor child that guardianship be awarded to them; (3) Courts should be slow to allow third parties to remove minors from the jurisdiction unless it would clearly be in the best interests of the minor child; (4) The natural and biological bond between a parent and child is stronger than any relationship created through a brief customary marriage to the child's deceased parent; (5) Applications for guardianship must be competent under the relevant provisions of the Guardianship of Minors Act (sections 3, 4 and 5); (6) The legislature intended to accord natural parents primary rights relating to custody and guardianship under the Guardianship of Minors Act.

The court made non-binding observations regarding: (1) The need for courts to be extra cautious when dealing with guardianship of minor children and to protect orphaned minors against exploitation by relatives or others; (2) The court's concern about unsubstantiated allegations of improper association between the 1st respondent and the minor child made by the 1st respondent's wife, noting that if such evidence existed it should have been reported to police; (3) The court's view that it viewed the applicant's criminal conviction for attempting to fraudulently obtain a birth certificate in a serious light, noting the offence was carefully planned and that the applicant would have illegally removed the minor child from the country had he succeeded; (4) Concerns about the vulnerability of a teenage girl living alone with a single male (the applicant) in a foreign country with no biological or legally prohibited relationship between them.

This case is significant in Zimbabwean family law for clarifying the position of third parties seeking guardianship of minor children. It reinforces the principle that natural parents have primary rights to guardianship and custody which should not be interfered with unless they are not exercising those rights properly. The judgment emphasizes that courts must be extremely cautious when considering applications that would remove minor children from the jurisdiction, particularly where the applicant is not a biological parent and there are concerns about the child's welfare. The case also illustrates the High Court's role as upper guardian of minors and its duty to act in the best interests of children. It establishes that applications for guardianship by third parties must be competent under the relevant provisions of the Guardianship of Minors Act and that the burden is on such applicants to prove that granting guardianship would be in the child's best interests.