Z v K and Others (121 of 2025) [2025] ZWHHC 121 (3 March 2025)

1 HH 121-25 HCHF 3356/24 PATIENCE ZISENGWE versus EDMORE KANDIRA and EUSTINA GUTA and THE MASTER OF THE HIGH COURT N.O HIGH COURT OF ZIMBABWE MAXWELL J HARARE; 3 March 2025 Chamber Application for Sole Custody and Guardianship MAXWELL J This is one of those cases in which the words of my sister CHIRAWU MUGOMBA J are pertinent. In the case of In RE Maenzanise HH 39/20, she stated. “The Court has noted that Legal Practitioners do not make the best curator ad litems. The rules are very clear that a curator’s report should be an investigative one, see R 249 (3). In my view there is no need for a curator to outline the Law on guardianship but to conduct an investigation on the application that would have been served on her or him. The report should outline factual findings that assist a Court to make an informed decision. In my view, the issue of whether or not the order sought is in the best interests of the child is not a conclusion to be made by the curator but by the Court after taking into account all the circumstances of the case including the report. After all the best interests” standard is a legal consideration, see Grant v Jefta and Others HH 366/18” On 13 December 2024, the present chamber application was filed. The Applicant stated in the Founding Affidavit that she seeks authority to relocate the minor children to the United Kingdom, where she is now based. Further, she separated from the First Respondent in December 2017 and, since then, has had de facto custody of the minor children. She also stated that the First Respondent has never stayed with the minor children since 2017 and has married a wife who is neither willing to take responsibility nor accommodate the minor children in their home. The Second Respondent was appointed as the curator ad litem by order of Court dated 29 November 2024. In terms of r 61(4) of SI 202 of 2021. “After the appointment of a curator ad litem following a chamber application in terms of subrule (1), a copy of the substantive application shall be served on him or her and after he or she has conducted such investigation as may be necessary, he or she shall prepare a written report which shall be filed with the registrar and a copy served on the applicant and all other interested parties.” Second Respondent’s report was issued on 13 December 2024. It was very short showing that the curator ad litem did not appreciate her role at all. She simply confirmed the information stated in the Founding Affidavit, that the Applicant is the biological mother of the minor children and is gainfully employed in the United Kingdom. She confirmed that the applicant wishes to relocate the children to the United Kingdom and that she has always been the custodian of the minor children since separation from First Respondent. She concluded by stating. “I have no objection in the order sought since it is in the best interest of the minor children.” The Master’s Report filed in accordance with Rule 61(3) of SI 202 of 2021 was concluded with the following remark. “We therefore leave the Court to decide since the biological father is silent in this application.” The circumstances of the biological father’s silence are not clear. I observed that the Founding Affidavit gives his address of service as Number 26 Begarmont Crescent Msasa Park, Harare. The Certificate of Service on p 18 of the record shows that service was affected on 19 December 2024 at 13:24 pm at Flat 58 Block 5 Dzivarasekwa Extension Harare on Debbie Munyede core tenant who accepted service on behalf of the First Respondent. There is no explanation on why service was not affected on the address of service stated in the Founding Affidavit or how the address in Dzivarasekwa was obtained. It is questionable if the First Applicant is aware of this application at all. After reading the mini-skirt report by the curator ad litem, on the 17 January 2025. I made the following comments which were relayed to the applicant’s counsel. “The curator ad litem’s report does not show any investigations done. The requirement is not whether or not she objects to the order sought. She must state facts she established during investigations showing that granting the order is appropriate. There is no indication that the curator interviewed any relevant persons. The norm is that the applicant, the father of the children, the current custodians, relatives, and the children themselves are interviewed in the course of the investigations. A comprehensive report must be availed as soon as possible.” On the 20 January 2025 applicant’s legal practitioners filed what they termed “the comprehensive report” The curator ad litem was obviously piqued by my insistence on further information. She started the report by referring to this Court’s rules and the requirement for the appointment of a curator ad litem in an application in connection with a minor. She then proceeded to give her credentials and stated in paragraph 4; “I have assisted Courts in a number of cases involving custody and access issues. I have previously provided evidence in regard to the sentencing of youthful offenders and primary care givers of minor children.” I noted that the curator ad litem did not mention guardianship issues. There is a possibility that the fine distinction between custody and guardianship was not appreciated by the curator. Her credentials do not do away with the need to interview the First Respondent and put his views on record. The resultant report still fell short of what is needful. It was just an improvement of the first one by simply adding vists to and interviews of the minor children and their custodian, the Applicant’s brother. The report stated applicant’s circumstances clearly on the basis of the information provided by the brother. There is no indication that the curator ad litem contacted the applicant herself. It is concluded with a discussion on the best interests of the minor child. Since the report fell short of what I expected after pointing out the usual norm of interviewing all interested persons, on 5 February 2025, my further comments to the following effect were relayed to the applicant’s legal practitioners. “The curator ad litem’s report does not indicate that the father of the minor child was contacted. The curator ad litem is referred to the case of Ralph v Van Vuuren 2009 (1) ZLR 51. The report is sufficient for custody only where guardianship is sought, the further of the minor must be interrogated. This is the last chance before I make a decision on the matter.” The report that was subsequently filed in response stated the curator’s views and the law. The curator chose to ignore the issue of interviewing the father of the minor children. Her attitude is detrimental to the speedy determination of this application which ordinarily does not take time. The father is entitled to be heard by the Court on what he has to say about the applicant’s averments and claims as the children bear his surname. The curator ought to have contacted him and included his views in the report. The curator’s report does not contain sufficient factual findings for the Court to make an informed decision. I find myself faced with a situation as was in the Ralph v Van Vuuren matter (supra), where the factors that the applicant used in her Founding Affidavit to portray the First Respondent as an uninterested parent all fall in the category of those that are exercisable by a custodian parent. Those factors are not demonstrative of the First Respondent’s ineligibility as a guardian. Only the applicant’s version of how the parties have been dealing with the children is before the Court. The First Respondent’s version must be availed through a curator ad litem’s report. Two issues plague this application and must be rectified. The first is service of the application on the First Respondent. The second is a properly comprehensive curator ad litem’s report. The Applicant must ensure that the two issues are attended to before resubmitting the application. The appointed curator ad litem has indicated an unwillingness to comply with the directions of the Court. In the interests of justice, a different curator ad litem should be appointed to compile a report that addresses the Court’s concerns. The Applicant’s Legal Practitioners are to take the necessary steps to have another curator ad litem appointed. Consequently, I make the following order. The application be and is hereby removed from the roll. Manage & Manase, applicant’s legal practitioner 1 HH 121-25 HCHF 3356/24 1 HH 121-25 HCHF 3356/24 PATIENCE ZISENGWE versus EDMORE KANDIRA and EUSTINA GUTA and THE MASTER OF THE HIGH COURT N.O HIGH COURT OF ZIMBABWE MAXWELL J HARARE; 3 March 2025 Chamber Application for Sole Custody and Guardianship MAXWELL J This is one of those cases in which the words of my sister CHIRAWU MUGOMBA J are pertinent. In the case of In RE Maenzanise HH 39/20, she stated. “The Court has noted that Legal Practitioners do not make the best curator ad litems. The rules are very clear that a curator’s report should be an investigative one, see R 249 (3). In my view there is no need for a curator to outline the Law on guardianship but to conduct an investigation on the application that would have been served on her or him. The report should outline factual findings that assist a Court to make an informed decision. In my view, the issue of whether or not the order sought is in the best interests of the child is not a conclusion to be made by the curator but by the Court after taking into account all the circumstances of the case including the report. After all the best interests” standard is a legal consideration, see Grant v Jefta and Others HH 366/18” On 13 December 2024, the present chamber application was filed. The Applicant stated in the Founding Affidavit that she seeks authority to relocate the minor children to the United Kingdom, where she is now based. Further, she separated from the First Respondent in December 2017 and, since then, has had de facto custody of the minor children. She also stated that the First Respondent has never stayed with the minor children since 2017 and has married a wife who is neither willing to take responsibility nor accommodate the minor children in their home. The Second Respondent was appointed as the curator ad litem by order of Court dated 29 November 2024. In terms of r 61(4) of SI 202 of 2021. “After the appointment of a curator ad litem following a chamber application in terms of subrule (1), a copy of the substantive application shall be served on him or her and after he or she has conducted such investigation as may be necessary, he or she shall PATIENCE ZISENGWE versus # PATIENCE ZISENGWE versus EDMORE KANDIRA and # EDMORE KANDIRA and EUSTINA GUTA # EUSTINA GUTA and # and THE MASTER OF THE HIGH COURT N.O HIGH COURT OF ZIMBABWE MAXWELL J HARARE; 3 March 2025 Chamber Application for Sole Custody and Guardianship # THE MASTER OF THE HIGH COURT N.O HIGH COURT OF ZIMBABWE MAXWELL J HARARE; 3 March 2025 Chamber Application for Sole Custody and Guardianship MAXWELL J This is one of those cases in which the words of my sister CHIRAWU MUGOMBA J are pertinent. In the case of In RE Maenzanise HH 39/20, she stated. “The Court has noted that Legal Practitioners do not make the best curator ad litems. The rules are very clear that a curator’s report should be an investigative one, see R 249 (3). In my view there is no need for a curator to outline the Law on guardianship but to conduct an investigation on the application that would have been served on her or him. The report should outline factual findings that assist a Court to make an informed decision. In my view, the issue of whether or not the order sought is in the best interests of the child is not a conclusion to be made by the curator but by the Court after taking into account all the circumstances of the case including the report. After all the best interests” standard is a legal consideration, see Grant v Jefta and Others HH 366/18” On 13 December 2024, the present chamber application was filed. The Applicant stated in the Founding Affidavit that she seeks authority to relocate the minor children to the United Kingdom, where she is now based. Further, she separated from the First Respondent in December 2017 and, since then, has had de facto custody of the minor children. She also stated that the First Respondent has never stayed with the minor children since 2017 and has married a wife who is neither willing to take responsibility nor accommodate the minor children in their home. The Second Respondent was appointed as the curator ad litem by order of Court dated 29 November 2024. In terms of r 61(4) of SI 202 of 2021. “After the appointment of a curator ad litem following a chamber application in terms of subrule (1), a copy of the substantive application shall be served on him or her and after he or she has conducted such investigation as may be necessary, he or she shall # MAXWELL J This is one of those cases in which the words of my sister CHIRAWU MUGOMBA J are pertinent. In the case of In RE Maenzanise HH 39/20, she stated. “The Court has noted that Legal Practitioners do not make the best curator ad litems. The rules are very clear that a curator’s report should be an investigative one, see R 249 (3). In my view there is no need for a curator to outline the Law on guardianship but to conduct an investigation on the application that would have been served on her or him. The report should outline factual findings that assist a Court to make an informed decision. In my view, the issue of whether or not the order sought is in the best interests of the child is not a conclusion to be made by the curator but by the Court after taking into account all the circumstances of the case including the report. After all the best interests” standard is a legal consideration, see Grant v Jefta and Others HH 366/18” On 13 December 2024, the present chamber application was filed. The Applicant stated in the Founding Affidavit that she seeks authority to relocate the minor children to the United Kingdom, where she is now based. Further, she separated from the First Respondent in December 2017 and, since then, has had de facto custody of the minor children. She also stated that the First Respondent has never stayed with the minor children since 2017 and has married a wife who is neither willing to take responsibility nor accommodate the minor children in their home. The Second Respondent was appointed as the curator ad litem by order of Court dated 29 November 2024. In terms of r 61(4) of SI 202 of 2021. “After the appointment of a curator ad litem following a chamber application in terms of subrule (1), a copy of the substantive application shall be served on him or her and after he or she has conducted such investigation as may be necessary, he or she shall prepare a written report which shall be filed with the registrar and a copy served on the applicant and all other interested parties.” Second Respondent’s report was issued on 13 December 2024. It was very short showing that the curator ad litem did not appreciate her role at all. She simply confirmed the information stated in the Founding Affidavit, that the Applicant is the biological mother of the minor children and is gainfully employed in the United Kingdom. She confirmed that the applicant wishes to relocate the children to the United Kingdom and that she has always been the custodian of the minor children since separation from First Respondent. She concluded by stating. “I have no objection in the order sought since it is in the best interest of the minor children.” The Master’s Report filed in accordance with Rule 61(3) of SI 202 of 2021 was concluded with the following remark. “We therefore leave the Court to decide since the biological father is silent in this application.” The circumstances of the biological father’s silence are not clear. I observed that the Founding Affidavit gives his address of service as Number 26 Begarmont Crescent Msasa Park, Harare. The Certificate of Service on p 18 of the record shows that service was affected on 19 December 2024 at 13:24 pm at Flat 58 Block 5 Dzivarasekwa Extension Harare on Debbie Munyede core tenant who accepted service on behalf of the First Respondent. There is no explanation on why service was not affected on the address of service stated in the Founding Affidavit or how the address in Dzivarasekwa was obtained. It is questionable if the First Applicant is aware of this application at all. After reading the mini-skirt report by the curator ad litem, on the 17 January 2025. I made the following comments which were relayed to the applicant’s counsel. “The curator ad litem’s report does not show any investigations done. The requirement is not whether or not she objects to the order sought. She must state facts she established during investigations showing that granting the order is appropriate. There is no indication that the curator interviewed any relevant persons. The norm is that the applicant, the father of the children, the current custodians, relatives, and the children themselves are interviewed in the course of the investigations. A comprehensive report must be availed as soon as possible.” On the 20 January 2025 applicant’s legal practitioners filed what they termed “the comprehensive report” The curator ad litem was obviously piqued by my insistence on further information. She started the report by referring to this Court’s rules and the requirement for the appointment of a curator ad litem in an application in connection with a minor. She then proceeded to give her credentials and stated in paragraph 4; “I have assisted Courts in a number of cases involving custody and access issues. I have previously provided evidence in regard to the sentencing of youthful offenders and primary care givers of minor children.” I noted that the curator ad litem did not mention guardianship issues. There is a possibility that the fine distinction between custody and guardianship was not appreciated by the curator. Her credentials do not do away with the need to interview the First Respondent and put his views on record. The resultant report still fell short of what is needful. It was just an improvement of the first one by simply adding vists to and interviews of the minor children and their custodian, the Applicant’s brother. The report stated applicant’s circumstances clearly on the basis of the information provided by the brother. There is no indication that the curator ad litem contacted the applicant herself. It is concluded with a discussion on the best interests of the minor child. Since the report fell short of what I expected after pointing out the usual norm of interviewing all interested persons, on 5 February 2025, my further comments to the following effect were relayed to the applicant’s legal practitioners. “The curator ad litem’s report does not indicate that the father of the minor child was contacted. The curator ad litem is referred to the case of Ralph v Van Vuuren 2009 (1) ZLR 51. The report is sufficient for custody only where guardianship is sought, the further of the minor must be interrogated. This is the last chance before I make a decision on the matter.” The report that was subsequently filed in response stated the curator’s views and the law. The curator chose to ignore the issue of interviewing the father of the minor children. Her attitude is detrimental to the speedy determination of this application which ordinarily does not take time. The father is entitled to be heard by the Court on what he has to say about the applicant’s averments and claims as the children bear his surname. The curator ought to have contacted him and included his views in the report. The curator’s report does not contain sufficient factual findings for the Court to make an informed decision. I find myself faced with a situation as was in the Ralph v Van Vuuren matter (supra), where the factors that the applicant used in her Founding Affidavit to portray the First Respondent as an uninterested parent all fall in the category of those that are exercisable by a custodian parent. Those factors are not demonstrative of the First Respondent’s ineligibility as a guardian. Only the applicant’s version of how the parties have been dealing with the children is before the Court. The First Respondent’s version must be availed through a curator ad litem’s report. Two issues plague this application and must be rectified. The first is service of the application on the First Respondent. The second is a properly comprehensive curator ad litem’s report. The Applicant must ensure that the two issues are attended to before resubmitting the application. The appointed curator ad litem has indicated an unwillingness to comply with the directions of the Court. In the interests of justice, a different curator ad litem should be appointed to compile a report that addresses the Court’s concerns. The Applicant’s Legal Practitioners are to take the necessary steps to have another curator ad litem appointed. Consequently, I make the following order. The application be and is hereby removed from the roll. Manage & Manase, applicant’s legal practitioner