SITHOLE (nee MOYO) v SITHOLE (8 of 2026) [2026] ZWHHC 6 (5 January 2026)

2 HH 08-26 HCHF 3403/25 NATASHA SINIKIWE SITHOLE (nee MOYO) versus NISBERT SITHOLE HIGH COURT OF ZIMBABWE ZHOU & CHIKOWERO JJ HARARE; 6 November 2025 & 5 January 2026 Civil Appeal E Mubaiwa, for the appellant J Gwapedza, for the respondent ZHOU J: This is an appeal against a judgment of the Magistrates Court sitting as a Children’s Court. The judgment ordered that sole custody of the minor child of the parties who is at the centre of disagreement must remain with the appellant, with the respondent being granted access to the child for the entirety of every school holiday. The order was made pursuant to an application instituted by the respondent in which he was seeking sole custody of the minor child or, alternatively, access to the child. The appeal is opposed by the respondent. The factual background to the matter is as follows: The appellant is the respondent’s wife. The two have a pending divorce case in this Court. The parties separated in February 2024. Upon separation the appellant retained custody of their minor child who was born on 15 February 2020. The respondent’s basis for seeking sole custody was that the appellant was resident in South Africa where she was working, and that she had informed him of her intention to leave the child in the custody of her cousin sister in Harare. The respondent averred that in the event that the appellant was returning to settle in Zimbabwe he was amenable to her having sole custody of the child subject to him being granted access to the child every school holiday. After finding that the appellant had placed sufficient evidence before the Court to prove that she had obtained employment in Harare and would be settling there, the Court a quo granted the order in the terms already adverted to earlier on. That is the order that the appellant seeks to challenge. The first ground of appeal is that the Court a quo erred in interfering with the appellant’s sole custody rights given to her by s 5 (1) of the Guardianship of Minors Act by giving the respondent access to the minor child in the absence of an application made in terms of s 5 (3) (b) or (c) of the same Act. This ground of appeal does not make sense, because the order of the Magistrates Court did not in any way interfere with the issue of custody. In fact, the request by the respondent for sole custody was dismissed. What was granted was an order of access to the child. The respondent as the father of the child is entitled to have access to the child. From the submissions made by Mr Mubaiwa for the appellant and with reference to the second ground of appeal, the case being advanced by the appellant is that because there was no statement on the face of the application to the effect that the application was being made in terms of 53 (3) of the Act then the application was fatal because the jurisdiction of the court has not been established. The application form has no provision for a statement of the law in terms of which an application is being made. This ground is therefore not based upon a correct reading of the rules. Further, whether or not the court has jurisdiction to determine a matter before it does not depend upon a statement whether on the face of the notice of the application or in the affidavit but on the cause of action pleaded. The appellant has not alleged, let alone established, that the Court a quo had no jurisdiction to deal with the issue of access to the minor child. There is therefore no substance in the two grounds of appeal and in the submissions made in support thereof. The third ground of appeal is that the court a quo grossly misdirected itself by exercising its discretion on wrong principles, irrelevant considerations or absent the relevant ones, in determining a matter in respect of which the respondent had already instituted proceedings in the High Court and, further, in giving the respondent relief which is contrary to what he is seeking in the High Court case number HCBF 428/25. The essence of the argument is that the Court a quo ought to have deferred its determination on the matter to the High Court since in the divorce proceedings there are also the issues of custody and access to be dealt with. The pending divorce proceedings in this court did not oust the jurisdiction of the Court a quo to deal with the matter. It is trite that lis pendens does not absolutely bar a party against whom it is held. The Court has a discretion as to whether or not to stay the matter before it pending determination of the matter before another competent court. This is a matter within the discretion of the court before which the objection is being taken. The exercise of a discretion can only be impeached on very limited grounds. None of those grounds have been established by the appellant in casu. The mere fact that the respondent is the dominus litis in the High Court divorce case is not a ground for upholding the appellant’s objection to the determination of the access dispute by the Magistrates Court. The fourth ground of appeal is that the court a quo grossly misdirected itself in giving the respondent full and exclusive access to the child over the full length of all school holidays contrary to the evidence tendered and the best interests of the child. We find merit in this ground of appeal. Other than that, the draft order in the application made the alternative request to have the child during the entire school holiday, the respondent did not justify this relief. Even in the hearing before this Court no meaningful submissions were made to justify taking the child away from the appellant on all school holidays. During the term the appellant, even if she was unemployed or spent all her time at home, will not be having all the time with the child since the child will obviously be attending school. If, as is apparent from the papers, she goes to work then it means that the only time that she has with the child would be in the evening or during the weekends. It is therefore in the best interests of the child that that portion of the order be interfered with so that the respondent has the children during the first half of every school holiday. Having the child during the second half of the school holiday enables the appellant as the custodian parent to adequately prepare the child for the commencement of a school term. We note, however, that the appellant did not ask for this relief in her notice of appeal although the ground of appeal was argued. This court is mindful of the fact that the relief proposed is merely for the guidance of the Court which is otherwise at large to grant appropriate relief. She wanted the respondent’s application to be dismissed in its entirety or to be held in abeyance pending determination of the High Court divorce matter. In essence, she wanted the respondent to be denied access to the child. That is not in the bests interests of the child and shows selfishness on her part. For those reasons, she cannot recover the costs of the appeal. In the result, IT IS ORDERED THAT: The appeal is partly allowed.The portion of the order of the court a quo granting the respondent access to the minor child for the entirety of every school holiday is set aside and the following is substituted: “The applicant be and is granted access to the minor child TS (born on 15 February 2020) during the first half of every school holiday.” Each party shall bear his or her own costs. ZHOU J: . . . . . . . . . . . . . . . . . . CHIKOWERO J agrees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Nyahuma’s Law, appellant’s legal practitioners Chitsa & Masvaya Law Chambers, respondent’s legal practitioners 2 HH 08-26 HCHF 3403/25 2 HH 08-26 HCHF 3403/25 NATASHA SINIKIWE SITHOLE (nee MOYO) versus NISBERT SITHOLE HIGH COURT OF ZIMBABWE ZHOU & CHIKOWERO JJ HARARE; 6 November 2025 & 5 January 2026 Civil Appeal E Mubaiwa, for the appellant J Gwapedza, for the respondent ZHOU J: This is an appeal against a judgment of the Magistrates Court sitting as a Children’s Court. The judgment ordered that sole custody of the minor child of the parties who is at the centre of disagreement must remain with the appellant, with the respondent being granted access to the child for the entirety of every school holiday. The order was made pursuant to an application instituted by the respondent in which he was seeking sole custody of the minor child or, alternatively, access to the child. The appeal is opposed by the respondent. The factual background to the matter is as follows: The appellant is the respondent’s wife. The two have a pending divorce case in this Court. The parties separated in February 2024. Upon separation the appellant retained custody of their minor child who was born on 15 February 2020. The respondent’s basis for seeking sole custody was that the appellant was resident in South Africa where she was working, and that she had informed him of her intention to leave the child in the custody of her cousin sister in Harare. The respondent averred that in the event that the appellant was returning to settle in Zimbabwe he was amenable to her having sole custody of the child subject to him being granted access to the child every school holiday. After finding that the appellant had placed sufficient evidence before the Court to prove that she had obtained employment in Harare and would be settling there, the Court a quo granted the order in the terms already adverted to earlier on. That is the order that the appellant seeks to challenge. The first ground of appeal is that the Court a quo erred in interfering with the appellant’s sole custody rights given to her by s 5 (1) of the Guardianship of Minors Act by giving the respondent access to the minor child in the absence of an application made in terms of s 5 (3) (b) or (c) of the same Act. This ground of appeal does not make sense, because the order of the Magistrates Court did not in any way interfere with the issue of custody. In fact, the request by the respondent for sole custody was dismissed. What was granted was an order of access to the child. The respondent as the father of the child is entitled to have access to the child. From the submissions made by Mr Mubaiwa for the appellant and with reference to the second ground of appeal, the case being advanced by the appellant is that because there was no statement on the face of the application to the effect that the application was being made in terms of 53 (3) of the Act then the application was fatal because the jurisdiction of the court has not been established. The application form has no provision for a statement of the law in terms of which an application is being made. This ground is therefore not based upon a correct reading of the rules. Further, whether or not the court has jurisdiction to determine a matter before it does not depend upon a statement whether on the face of the notice of the application or in the affidavit but on the cause of action pleaded. The appellant has not alleged, let alone established, that the Court a quo had no jurisdiction to deal with the issue of access to the minor child. There is therefore no substance in the two grounds of appeal and in the submissions made in support thereof. The third ground of appeal is that the court a quo grossly misdirected itself by exercising its discretion on wrong principles, irrelevant considerations or absent the relevant ones, in determining a matter in respect of which the respondent had already instituted proceedings in the High Court and, further, in giving the respondent relief which is contrary to what he is seeking in the High Court case number HCBF 428/25. The essence of the argument is that the Court a quo ought to have deferred its determination on the matter to the High Court since in the divorce proceedings there are also the issues of custody and access to be dealt with. The pending divorce proceedings in this court did not oust the jurisdiction of the Court a quo to deal with the matter. It is trite that lis pendens does not absolutely bar a party against whom it is held. The Court has a discretion as to whether or not to stay the matter before it pending determination of the matter before another competent court. This is a matter within the discretion of the court before which the objection is being taken. The exercise of a discretion can only be impeached on very limited grounds. None of those grounds have been established by the appellant in casu. The mere fact that the respondent is the dominus litis in the High Court divorce case is not a ground for upholding the appellant’s objection to the determination of the access dispute by the Magistrates Court. The fourth ground of appeal is that the court a quo grossly misdirected itself in giving the respondent full and exclusive access to the child over the full length of all school holidays contrary to the evidence tendered and the best interests of the child. We find merit in this ground of appeal. Other than that, the draft order in the application made the alternative request to have the child during the entire school holiday, the respondent did not justify this relief. Even in the hearing before this Court no meaningful submissions were made to justify taking the child away from the appellant on all school holidays. During the term the appellant, even if she was unemployed or spent all her time at home, will not be having all the time with the child since the child will obviously be attending school. If, as is apparent from the papers, she goes to work then it means that the only time that she has with the child would be in the evening or during the weekends. It is therefore in the best interests of the child that that portion of the order be interfered with so that the respondent has the children during the first half of every school holiday. Having the child during the second half of the school holiday enables the appellant as the custodian parent to adequately prepare the child for the commencement of a school term. We note, however, that the appellant did not ask for this relief in her notice of appeal although the ground of appeal was argued. This court is mindful of the fact that the relief proposed is merely for the guidance of the Court which is otherwise at large to grant appropriate relief. She wanted the respondent’s application to be dismissed in its entirety or to be held in abeyance pending determination of the High Court divorce matter. In essence, she wanted the respondent to be denied access to the child. That is not in the bests interests of the child and shows selfishness on her part. For those reasons, she cannot recover the costs of the appeal. In the result, IT IS ORDERED THAT: The appeal is partly allowed. The portion of the order of the court a quo granting the respondent access to the minor child for the entirety of every school holiday is set aside and the following is substituted: “The applicant be and is granted access to the minor child TS (born on 15 February 2020) during the first half of every school holiday.” Each party shall bear his or her own costs. ZHOU J: . . . . . . . . . . . . . . . . . . CHIKOWERO J agrees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Nyahuma’s Law, appellant’s legal practitioners Chitsa & Masvaya Law Chambers, respondent’s legal practitioners