FN versus AK (HCHF186/26) [2026] ZWHHC 31 (26 January 2026)

2 HH 66-26 HCHF186/26 FN versus AK HIGH COURT OF ZIMBABWE **TSANGA J **HARARE; 21 & 26 January 2026 _**Urgent Chamber application**_ _M Chizhande for Applicant H Gora for Respondent_ TSANGA J: The applicant filed an urgent chamber application seeking an order compelling the respondent to urgently release the parties’ three minor children so that they may commence the school term at a boarding school in Norton. _**Background**_ The children are aged nine, eight and six years respectively. The parties were married under an unregistered customary law union for nearly ten years. Following their separation in December 2024, the children remained in the custody of the applicant, their father, in Harare, where they were attending school. After experiencing difficulties in accessing the children, the respondent, their mother, applied for custody of the minor children in the Magistrates’ Court in October 2025. Custody was granted to her on 31 October 2025 on the basis that the children are still young and require the nurturing care of their mother. Although the applicant argued that he had another wife as well as a domestic helper who could assist with the children, the _court a quo_ did not find this sufficient to deprive the children of the care of their natural mother. The magistrate’s court further held that, consequent upon the award of custody, the children could be transferred to a new school. As the school term had not yet ended at the time custody was granted, the respondent allowed the children to complete the term whilst with their father. On 5 December 2025, after schools had closed, she wrote to the applicant through his lawyers, requesting that custody of the children be handed over to her and that he release their birth certificates so that she could seek new school placements. The applicant responded by advising that he had noted an appeal against the magistrates’ court judgment and enquired whether the respondent had obtained an order for execution pending appeal. It appears that thereafter the applicant advised the respondent of his intention to place the eldest child in boarding school. This is borne out by a WhatsApp message sent by the respondent on 16 December 2025 as a follow up enquiring whether a place had been secured and, if so, where. He responded that a place had been found at a boarding school in Norton and that he was also considering enrolling all three children at this same school. The respondent requested proof, stating that the applicant tended to act clandestinely. It is common cause that on 8 January 2026 the respondent collected the children from the applicant, who instructed her to return them by 12 January 2026 in time for them to commence at the new school. She did not return the children and has retained custody of them, which precipitated this application. _**Applicant’s Case**_ The applicant averred that he has paid school fees and all necessary expenses for the children’s enrolment at the boarding school, which he contended offers better learning opportunities. He argued that it would be unfair to deny the children this opportunity. He further alleged, without elaboration, that the respondent was residing with her sister in Marondera under conditions not conducive to the children’s wellbeing. _**Respondent’s Opposition**_ The respondent opposed the application. She stated that when the parties separated in December 2024, the applicant took the children from her without her consent and moved to a new house which she had anticipated they would occupy as a family. She applied for custody after the applicant denied her access to the children. She emphasised that custody had been awarded to her by the magistrates’ court in the best interests of the children, and that it was incumbent upon the applicant, as the aggrieved party, to seek a stay of execution pending appeal. She had not been consulted about the decision to enrol the children in boarding school and was merely informed of the applicant’s intention. She stated that she had engaged with him on the issue and pretended to go along with the idea only to secure access to the children, fearing that she would otherwise not see them. Indeed, she had not seen the children for the entirety of December 2025. The respondent further argued that it would not be in the best interests of the children, who are in Grades 4, 2 and 1 respectively, to be placed in boarding school. She pointed out that the two younger children are unable to adequately bathe and dress themselves and require their mother’s daily care. She stated that the children themselves had expressed reluctance to attend boarding school. In her view, the enrolment was intended to frustrate her custodial rights. She produced proof that she has enrolled the children at a day primary school in Marondera. She vehemently denied that her living conditions were unsuitable, explaining that although her sister owns a farm, she resides with the children in her sister’s three-bedroomed house in Marondera town. The children were attending school and were happy and settled. Beyond education, she stressed the importance of love, nurturing, care and a safe environment. _**Effect of the Appeal**_ Before determining whether the application meets the requirements for urgent interim relief, it is necessary to address whether the noting of an appeal suspended the magistrates’ court order granting custody. Section 40(3) of the Magistrates Court Act provides: “Where an appeal has been noted the court may direct either that the judgment shall be carried into execution or that execution thereof shall be suspended pending the decision upon the appeal or application.” In _Ritenote Printers (Pvt) Ltd_ v _A Adam & Co & The Messenger of Court, Harare_ SC 11/15, Chidyausiku CJ (as he then was) stated: “A proper reading of the section reveals that it confers on the magistrate the power to stay execution despite the noting of an appeal. It also confers on the magistrate the power to order execution despite the noting of an appeal. It follows therefore that the party seeking to have the discretion exercised in its favour has to make an application.” In the present matter, custody was awarded to the respondent in the best interests of the children. The applicant, having been aggrieved, noted an appeal but did not apply for a stay of execution pending appeal. The magistrates’ court order was therefore not suspended by the mere noting of an appeal. _**Urgent Interim Relief**_ The interim relief sought is couched in the following terms: _**Interim Order**_ 1. The respondent be ordered to release the minor children to the applicant within 24 hours for the purpose of attending boarding school at Shalom Elite School in Norton. 2. In the event of non-compliance, the Zimbabwe Republic Police be authorised to remove the children from the respondent and hand them over to the applicant. 3. Costs be in the cause. It is apparent that the applicant is, in effect, seeking final relief through an urgent application. As a general principle, final relief is not granted by the courts on an urgent basis, particularly where the matter has not been fully ventilated. In any event, the applicant has failed to establish the requirements for interim relief. There is an extant court order granting custody to the respondent in spite of the appeal. The children are enrolled in school and are in the lawful custody of their mother, who is entitled to determine their schooling. See _Makuni_ v Makuni 2001 (1) ZLR 189 (H) on the rights of a custodian parent when it comes to a child’s education in relation to those of the non-custodial parent. No irreparable harm has been demonstrated. Any school fees paid by the applicant can be refunded or held pending the outcome of the appeal. Also, since the applicant himself revealed that he has other children at the same boarding school, he can make arrangements with the institution regarding the fees already paid. The alleged harm is self-created. The balance of convenience pending appeal clearly favours maintaining the status quo, which accords with the magistrates’ court finding which has not been stayed pending appeal, that it is in the best interests of the children to remain with their mother. _**Disposition**_ The application for interim relief is accordingly dismissed with costs. **Tsanga J:……………………………………** _Marume & Furidzo: _Applicant’s Legal Practitioners _ Legal Aid Directorate:_ Respondent’s Legal Practitioners 2