SAMUDZIMU v NGWENYA 2008 (2) ZLR 228 (H)

Flynote

Family law — child — custody — rights of custodian parent — access rights of non-custodian parent — must follow child at his own expense — custodian parent not permitted to impede access rights of non-custodian parent — onus of proof in this regard — custodian parent relocating with children to another country — rights of non-custodian parent — must show that such relocation is not in the best interests of the children — need for possible variation of custody order in the future

Practice and procedure — parties — locus standi — "clean hands" — need for litigants to come to court with clean hands — not allowed to seek assistance of court if guilty of lack of probity or honesty

Headnote

People are not allowed to come to court seeking the court's assistance if they are guilty of a lack of probity or honesty in respect of the circumstances which cause them to seek relief from the court. It is called, in time-honoured legal parlance, the need to have clean hands. It is a basic principle that litigants should come to court without dirty hands. If a litigant with unclean hands is allowed to seek a court's assistance, then the court risks compromising its integrity and becoming a party to underhand transactions (dicta per Bartlett J in Deputy Sheriff Harare v Mahleza & Anor, 1997 (2) ZLR 425 (H) at p 426 followed).

A parent who is entitled to access must follow his children at his own expense. A custodian parent is, however, not permitted to place impediments in the way of the non-custodian parent's access rights. But the onus is on the latter to show that the former has deliberately acted to frustrate his or her access rights.

The applicant sought an order granting him the custody of his two very young children. Custody had been granted to their mother, the respondent, when she and the applicant were divorced, with provision for access. The custody order also provided that if the respondent wanted to remove the children from Zimbabwe, she should seek the consent of the applicant, "which consent shall not be unreasonably withheld". The respondent proposed to relocate to South Africa, and sought the applicant's consent. His response was to initiate the present action. He averred that the relocation was not in his best interests. The respondent counterclaimed for the removal of the children to South Africa.

Held, that the respondent, as the custodian parent, was in absolute charge of the day-to-day needs of the children. She did not exercise these powers in consultation with anyone and as long as they were in the best interests of the children, they could not be impugned.

Held, further, dismissing the application, that although the applicant had averred that the relocation to South Africa was not in his best interests, he had failed to show how that relocation was not in the best interests of the children. It was not enough to aver that she had relocated to another country or that the non-custodian parent was economically better able to support the children and offer them the creature comforts of life. In casu, he could not use the fact of her employment in South Africa as a changed circumstance which necessitated the variation of custody. The children were still very young and their mother was best suited to look after them. The view that that the maternal link, which is necessary for the psychological well being of children, is formed earlier than the paternal link, was still true.

Held, further, with regard to the counterclaim, that it should be granted. As the custodian parent she had the power to decide where she and the children should live. In terms of the existing custody order, all she had to do was to seek the applicant's consent. She had done so and was not obliged to obtain his approval. His consent was required for the purpose of ensuring that the parties come to some reasonable accommodation on the applicant's access rights. If he was able to exercise them in South Africa, then well and good; if not, then the custody order would need to be varied so as to allow him to have them in Zimbabwe at his cost on agreed terms. If both parties, as the parents, truly had the interests of their children at heart, then they should come to a workable compromise.