KUTSANZIRA v MASTER OF THE HIGH COURT 2012 (2) ZLR 91 (H)

Flynote

c Family law — child — guardianship — attributes of — common law rights of parents to be guardian of minor child — transfer of guardianship from parents to a third party — power of court to divest a parent of guardianship — power to be exercised very sparingly — inquiry into guardianship — factors requiring to be considered before a parent can be divested of rights of guardianship.

Headnote

The applicant, the mother of a minor child, sought to have guardianship of the child transferred to the child's aunt. The applicant was unemployed and her husband, the child's father, was serving a prison term. She did not have the financial resources to look after the child. The child's aunt had been providing financial support for the child for a long time and if she were to be awarded guardianship of the child she would be able to take advantage of her employment benefits, such as medical and education allowances, to maintain minor child.

Held, that parents are the legitimi tutores of their children, which makesthem guardians by operation of law. Parental power consists of duties and rights which parents have in respect to their minor children. Children are from birth subject to the guardianship of their father or parent. The father or parent of a child is the natural guardian of his legitimate children until they attain the age of majority. Parents acquire parental power over a legitimate child at the time of its birth. The natural guardianship of parents is identical with parental power. This power cannot be waived or abandoned in favour of someone else as this is considered to be contrary to public policy. The reason why public policy is against transfer or delegation of parental power in favour of another is basically to protect the child from abuse, which could occur should the parental power fall into the wrong hands. Transfer of guardianship thus is only allowed in very limited circumstances and, normally, only after a full enquiry has been conducted so as to safeguard the interests of the minor child concerned.

Held, further, that there are basically three situations recognized by the law whereby guardianship or parental power may be lawfully transferred. These are (a) adoption; (b) legitimatio per subsequens matrimonium, where children whose parents marry after their birth become legitimated as a result of the subsequent marriage of their parents; and (c) venia aetatis, the grant by a sovereign or the courts of the status of majority to a minor. Guardianship cannot merely be transferred from one person to another if it does not fall under any of these categories. The willingness of the parents to give away their guardianship does not appear to have any significance in the ultimate decision by the court of whether or not to grant the guardianship of the minor child to another. None of these situations applied here.

Held, further, that the Guardianship of Minors Act [Chapter 5:08], whilst imposing on the father the duty to consult with the mother on questions on guardianship of their minor child and setting out the powers of this court relating to custody and guardianship of a minor where the parents are no longer living together, has not altered the common law position, especially relating to transfer of guardianship. The Act provides primarily for the situation where a minor has no natural guardian or tutor testamentary and sets out a procedure to allow a third party to be appointed as guardian. This procedure (outlined in s 9 of the Act) specifically requires that an inquiry be conducted to determine the suitability of the person who seeks to be appointed as guardian. In making the appointment of guardianship, the court must consider the minor child's best interests. This applies whether the child's parents are alive or dead. The courts may divest a parent of guardianship where it is established that to retain guardianship in the parent would pose a danger to the child.

Held, further, that the inquiry into guardianship, like that of custody, cannot be one sided. It is not only an inquiry into the advantages that will accrue to the child if guardianship is granted to the applicant but also an inquiry into why the respondent must be deprived of his guardianship. Thus, an inquiry seeking to divest one parent of guardianship in favour of another or of a third party must involve not only an inquiry into why and how the respondent parent must be divested of guardianship but also why the applicant is deemed suitable to be able to discharge those legal obligations that are imposed on natural guardians by law. An inquiry into guardianship is an inquiry into the suitability of a person to discharge the legal obligations imposed by law on the guardian of a minor child.

It is not an inquiry into issues like where the child will live or how and where it will be educated, as those inquiries relate to issues of custody. In casu, no basis had been laid out for the parents to be relieved of their obligations. Although the father was in prison, the mother was available. Poverty does not appear to be a reason to consider in order to divest a mother of guardianship. More importantly, no investigation had been conducted as to the suitability or otherwise of the aunt to be the guardian of the minor child and for the court to satisfy itself that it was in the child's best interest for the aunt to be appointed as guardian. These days, when there is rampant abuse of children by relatives and child trafficking, it can only be in the best interest of any child that a proper inquiry is conducted in terms of the Childrens Act [Chapter 5:06].