Silibaziso Zikwature v Elliot Zikwature

The appellant (wife) and respondent (husband) are married and have two minor children. On 5 November 2020, the appellant left the matrimonial home due to marital difficulties and obtained a protection order against the respondent. She left the minor children with the respondent. The appellant, a police officer at Gweru Central Police, alleged that the respondent denied her access to the children and kept the gate and house locked. The respondent denied violence and alleged that after marriage, he discovered the appellant had two other undisclosed children. He claimed the appellant habitually deserted the matrimonial home, partied away from home returning late at night, and psychologically abused him. The respondent's maid supported his account. A probation officer's report recommended that custody be granted to the respondent. The Magistrates Court at Gweru dismissed the appellant's application for custody, and she appealed to the High Court.

• Whether custody of minor children automatically vests in the mother upon separation
• Whether the court a quo erred in relying on the probation officer's report
• Whether the court a quo inappropriately prioritized the respondent's financial capacity over the best interests of the children
• What constitutes the best interests of the child in custody determinations

The appeal was dismissed with costs.

In determining custody of minor children, the best interests of the child is the paramount consideration, as required by section 81(1) of the Constitution of Zimbabwe and the Guardianship of Minors Act [Chapter 5:08]. Custody does not automatically vest in the mother upon separation. The court must consider all relevant factors including: the strength of the bond between each parent and the children; the stability and safety of the environment provided; each parent's involvement in the children's welfare (including academic matters); the commitment demonstrated by each parent to the children's care; and properly prepared probation officers' reports. The best interests principle permeates all laws relating to children and must guide custody determinations in accordance with Zimbabwe's obligations under the UN Convention on Children's Rights and the African Charter on the Rights and Welfare of the Child.

The court noted approvingly the statement by Chitakunye J (as he then was) in Munetsi Blessing Masedewe v Manyara Masedewe HH 775-17, citing Tsanga J in Katsamba v Katsamba 2014(1) ZLR 187 (H), that the Constitution's separate provisions on children's rights indicate the role that observation of children's rights is expected to have in building a just society. The court also observed that the best interests principle is characterized by the three pillars of protection, provision, and participation that characterize the UN Convention on Children's Rights.

This case affirms that custody of minor children does not automatically vest in the mother upon separation in Zimbabwean law. It emphasizes the paramountcy of the best interests of the child principle in custody determinations, as enshrined in section 81(1) of the Constitution of Zimbabwe and the Guardianship of Minors Act. The judgment reinforces that custody decisions must be made holistically, considering factors such as the quality of the parent-child bond, stability of the environment, parental involvement in the child's welfare, and evidence-based assessments including probation officers' reports. It demonstrates the courts' willingness to award custody to fathers where evidence supports that this serves the children's best interests, departing from any presumption of maternal preference.