DAMSON v USHAMBA 2014 (2) ZLR 1 (H)

Flynote

Constitutional law — Constitution of Zimbabwe 2013 — Declaration of Rights — rights of children (s 81) — application of section in determining best interests of children

Court — jurisdiction — concurrent — two courts having jurisdiction over same subject matter — lower court seized with matter — higher court not entitled to deal with matter save by way of appeal or review

Family law — child — best interests of — determination of — guidance to be obtained from rights of child set out in Constitution — right of support from parents — both parents must play role according to ability

Headnote

The applicant sought, on an urgent basis, an upward variation of a maintenance order that had been granted by a magistrates court. The application was occasioned by a need to pay school fees for the child of the former marriage. The maintenance order, having been varied upwards by the magistrates court in a default judgment, had been reduced to what it originally stated when the default judgment was rescinded. The applicant had filed an application for variation at the magistrates court when the present proceedings were brought.

Held, that where there is an existing order by a competent court of jurisdiction, another court cannot make an order competing with or overriding it even if the court making the original order is inferior to the High Court. The issue is not that the magistrates court is an inferior court, but that the courts have to adopt a sensible and practical approach to the matter and avoid dealing with orders that are properly before another court of competent jurisdiction, save as is provided for under the procedure of review or appeal. The applicant's quest to bring an urgent application which would, in effect, vary the maintenance upwards, would in essence amount to interfering with an existing order of a court of competent jurisdiction. To try and reverse maintenance proceedings, which are already under review, by way of an urgent chamber application in the High Court, however temporarily or provisionally, would be tantamount to misapplication of inherent powers to simply muscle out decisions of the lower courts.

Held, further, that maintenance and its variation are by way of enquiry and cannot be dealt with through an urgent chamber application. While cognisant of the High Court's role as upper guardian of all minor children and whilst alive to the principle of the best interests of the child as one of the vital tenets of our Constitution, these are not principles to be applied in a knee-jerk manner. They certainly cannot be read to mean that every order asked for in the name of urgency and the "best interests" of the child should be granted. They equally do not mean that a party can unilaterally create urgency through incurring expenses on behalf of the child that the parent herself cannot afford and expect the courts to endorse her actions thereafter in the face of an existing maintenance order.

Held, further that under s 81(1) of the Constitution, every child has the right to family and parental care. With a comprehensive articulation of children's rights in the Constitution, when courts are called upon to make decisions which call into play an interpretation of "best interests", guidance must of necessity come from the constitutional formulation of children's fundamental rights so as to avoid a purely subjective assessment of what comprises those "best interests" of the child. In other words, it is not what a parent has put forth that should guide the courts in making a legal decision, but what our Constitution provides. It is the rights contained in s 81(a) to (h) that must of necessity inform our understanding of the "best interests" principle if we are to avoid a situation where the meaning essentially stems from each according to one's own understanding. In summary, these include the right to be heard; to a name and family name; to family and parental care or appropriate care outside a home environment; to protection from economic and social exploitation; and to education, health and care services nutrition and shelter. They further include the right not to be recruited into a militia; not to be forced to take part in any political activity and the right not be detained save as a measure of last resort. While these rights canvass a broad range of children's experiences, in addition, children as full citizens, equally benefit from the provisions of the Constitution as a whole.

Held , further, that both parents, constitutionally, have the obligation to provide parental care and the responsibility to take care of their children in terms of education, health care and shelter. While the State also has specific obligations regarding these rights that centre on the duty to respect, protect and fulfil, the fundamental focus of the facts here bring to the fore the obligation of parents specifically with regard to the rights accorded children. With parents in mind, there is no suggestion, either constitutionally or in terms of s 4(d) of the Maintenance Act [Chapter 5:09], that only the father is to contribute to the financial upkeep of a child. In fact the opposite is true. Both parents are called upon to play their role. Support which the mother herself can provide is a matter to be taken into account in determining whether the child is without adequate means of support.