Susan Tafeni v Edwin Edward Gumbo

The applicant (Susan Tafeni) and respondent (Edwin Edward Gumbo) entered a customary law union which resulted in the birth of a minor child, Makanaka Noah Gumbo (born 17 January 2018). The parties separated in 2020, and the applicant relocated to the United Kingdom with the minor child. Upon a request by the respondent, the applicant returned to Zimbabwe for the respondent to spend time with Makanaka. The agreed visiting period was to end in December 2021, extended to after the child's birthday on 17 January 2022. Upon expiry of the agreed visiting period, the respondent refused to return the child's passport and refused to sign documents that would enable the applicant to travel back to the United Kingdom with the minor child. The applicant filed an urgent chamber application on 9 February 2022 (HC 805/22) seeking the return of the passport and authorization to travel with the child to the UK. The respondent filed a counter application (HC 911/22) seeking custody of the minor child.

• Whether the application HC 805/22 was properly brought as an urgent matter
• Whether urgency was properly established in the founding affidavit
• Whether the counter application HC 911/22 was properly before the court
• Whether a custody application can be determined without compliance with the procedural requirements under the Guardianship of Minors Act and High Court Rules, specifically the appointment of a curator ad litem and Master's report

1. The application under HC805/22 is not urgent and is removed from the roll of urgent matters. 2. The counter application under HC911/22 is struck off the roll. 3. Each party shall bear its own costs.

The binding legal principles established are: (1) Urgency must be properly established in the founding affidavit of an urgent application, with clear averments as to when the need to act arose and how the applicant acted promptly thereafter. Vague and contradictory averments will not suffice. (2) In custody matters involving minors, the procedural requirements under the Guardianship of Minors Act (Chapter 5:08) and Rule 61(2)(b) of the High Court Rules SI 202 of 2021 are peremptory and must be complied with. This includes the appointment of a curator ad litem, service on the Master for a written report, and the curator ad litem's investigation and report. (3) A custody application that fails to comply with these peremptory procedural requirements is irregular and will be struck from the roll, regardless of whether it is filed as a primary application or a counter application. (4) The best interests of a child cannot be properly determined without the involvement of impartial parties such as a curator ad litem and personnel from the Master's office.

The court made several non-binding observations: (1) The court noted with concern that the certificate of urgency was signed a day before the founding affidavit, questioning where the legal practitioner drew the facts attested to if the founding affidavit was not yet signed, and suggesting this illustrated an effort to manufacture urgency. (2) The court observed that where interim relief and final relief are essentially the same (i.e., once interim relief is granted there would be no need for final relief), this indicates an attempt to clothe an application in urgency when it is not truly urgent. (3) The court referenced and agreed with findings in Jim Kunaka v Minister of Health and Child Care and 2 Others HH46/21 regarding various defects in urgent applications. (4) The court cited Biblical Solomonic wisdom and the pronouncement in Constantine Guvheya Dominic Chiwenga v Marry Mubaiwa SC 86/20 that a child cannot be treated as common property in a custody tussle and that elaborate laws and procedures exist for good reason in custody matters.

This case is significant in Zimbabwean family law and civil procedure for several reasons: (1) it reinforces strict requirements for establishing urgency in applications, particularly that urgency must be clearly and coherently established in the founding affidavit itself; (2) it emphasizes the peremptory nature of procedural requirements in custody matters, specifically the mandatory appointment of a curator ad litem and filing of the Master's report under Rule 61(2)(b) of the High Court Rules; (3) it illustrates that courts will not entertain improperly constituted custody applications even when filed as counter applications; (4) it reinforces the principle that the best interests of children require thorough investigation by impartial parties and cannot be determined on incomplete papers; and (5) it demonstrates judicial scrutiny of attempts to manufacture urgency, including examination of when certificates of urgency are signed relative to founding affidavits.