No S.C. 51\2002
Appeal No 143\2001
MAKUNI v MARTHA MAKUNI
COURT OF ZIMBABWE
CJ, ZIYAMBI JA & MALABA JA
MARCH 14 & JULY 8, 2002
for the appellant
for the respondent
CJ: The appellant and the respondent were formerly husband and
wife. They were divorced on 19 June 1998. Upon
of the four minor children of the parties, two boys and two girls was
awarded to the respondent, the wife, with
the appellant being granted
rights of reasonable access. Since the divorce of the parties, the
four minor children have been in
the custody of the respondent.
In or around
May 2000 the respondent obtained employment as a nurse in the United
Kingdom. She wished to take the children with
her to the United
Kingdom. The appellant was opposed to the removal of the children
to the United Kingdom. He, according to the
respondent, refused to
sign papers for the children to obtain passports to enable the
respondent to take the children with her to
the United Kingdom.
This prompted the respondent to launch a court application in the
High Court in which she sought the following
Respondent shall grant his permission for the applicant to obtain
passports for the four minor children within seven (7) days
the Respondent fails to sign and grant his permission the
Registrar-Generals office is authorised to issue passports for
the children based on the papers signed only by the Applicant.
Applicant is granted permission to obtain residence, study and work
permits for the children in the United Kingdom and to sign
documents pertaining thereto.
the movement of the children to the United Kingdom the Applicant is
authorised to decide whether the children be placed
school or not and the authorities at Goldridge Primary School are to
accept papers signed by the Applicant and avoid
the interference by
appellant (then respondent) did not only oppose the court application
but filed a counter-claim. In the counter-claim the appellant
sought the following relief:
Custody of the minor children
S M (Born on 15/07/1983)
T M (Born on 24/09/1985)
E M (Born on 12/06/1990)
D M M (Born on 22/05/1992)
awarded to Respondent.
shall pay costs of this Application.
who heard the matter, granted the court application and dismissed the
counter-claim. She issued the following order:
applicant succeeds in her application and the counter application is
dismissed with costs.
there will be an order as follows:
is ordered to sign the necessary consent papers with the
Registrar-Generals Office to enable the applicant to obtain
passports for the four minor children.
the event that the respondent fails to sign and grant his consent,
the Registrar-Generals Office is authorised to issue passports
for the minor children on documents signed only by the applicant.
is hereby granted permission to obtain residence and study permits
for the minor children in the United Kingdom and to
documents pertaining thereto.
pays applicants costs.
counter application is dismissed with costs.
appellant was dissatisfied with the above order and appealed against
the whole judgment of GOWORA J. Several grounds of appeal
out in the notice of appeal. In the notice of appeal the appellant
takes issue with several factual conclusions reached
by the court a
quo. In my view it
is no longer necessary to consider those challenges in the light of
developments since the hearing of his matter.
In particular Mr
Matinenga, for the
respondent, in his heads of arguments, made the following
1. This appeal may well be an
academic exercise. Appellant needs to seriously consider whether
the Honourable Courts time needs
to be taken up to decide
theoretical questions. This point is made arising out of the
the eldest child of the parties, has now attained majority.
E and D M have since been removed to the United Kingdom and now
attend Sidney Russel School and Valent School respectively.
is in Zimbabwe completing writing O level examinations. By
the time the appeal is heard, he may well have joined his
the United Kingdom.
the conclusion of submissions by counsel the court enquired where
the children were. Neither counsel was able to assist the
that regard. The court requested counsel to advise it of the
present whereabouts of the minor children. The letter from
respondents legal practitioners in response to the above enquiry
reads in part as follows:
client has advised us that T is due to commence his A Level
studies in the United Kingdom in September, 2002. Because
not yet found a school place as at January 2002 he had returned to
the country to commence his A Levels at Marist Brothers,
Nyanga. He is abandoning that and starting his A Levels
afresh in the United Kingdom.
other two children T E and D M are already learning in the United
Kingdom where our client recently purchased a three bedroomed
The major child S is in the United Kingdom though he will do his
degree in medicine at the University of Zimbabwe. If
further clarification please do not hesitate to contact us.
situation as of now is that two of the minor children are already
settled in the United Kingdom where, from the reports
the above letter, they are doing well. The other minor child, now
doing A Level will soon join the other siblings
in the United
Kingdom. If the order of the court a
quo were to be altered
he is the only one who will be affected by such an order being the
only one of the minor children still under
the jurisdiction of this
Court. I see very little merit in such an order as it leads to the
separation of the siblings - something
that the courts are always
anxious to avoid. The eldest child is now a major. Consequently
the issue of his custody has fallen
the respondent were resident in the United Kingdom and the children
were resident in Zimbabwe then there would be merit
appellants contention that he be awarded custody. That is not
the case so there is no basis for interfering with the
order of the
court a quo.
the costs of this appeal there is a basis for departing from the
general rule that costs follow the result. The appeal
in pursuance of the interests of the minor children of the parties.
The result of this appeal was to some extent influenced
such as the present location of the children not known by the
appellant at the time of launching the appeal. In the
the interests of justice demands that each party pays it own costs.
result the appeal is dismissed but there will be no order as to
JA: I agree
JA: I agree
appellant's legal practitioners
respondent's legal practitioners