Marume & Furidzo Legal Practitioners

The Name On The Title Deed

Marume & Furidzo Legal Practitioners — Sat, 02 Mar 2024 10:54:39 +0000

In terms of the Deeds Registries Act (Chapter 20:05) the ownership of land may be conveyed from one person to another only by means of a deed of transfer executed or attested by a registrar. A deed of transfer is therefore prima facie proof of ownership by the person whose name appears therein. In other words, there is a presumption that the person whose name appears on the title deed is the owner of the land with the sole and exclusive rights to the same. In Takafuma v Takafuma 1994 (2) ZLR 103 (S) the court had this to say:

The registration of rights in immovable property in terms of the Deeds Registries Act [Chapter 139] (now [Chapter 20:05]) is not a mere matter of form. Nor is it simply a device to confound creditors or the tax authorities. It is a matter of substance. It conveys real rights upon those in whose name the property is registered…

The records for the registration of transfers are kept at the deeds office and people rely on these records to check on the ownership of land. Thus, in Machiva v Commercial Bank of Zimbabwe Ltd & Anor 2000 (1) ZLR 302 (H) it was held as follows;

Generally speaking, members of the public are entitled to rely on the records held in the Deeds Office and to assume that such records reflect the position about land ownership and the burdens which may be reflected on the deeds of transfer. If the position were otherwise, the land registration system in the entire country would be a farce and the lending system in the financial sector would be thrown into chaos.

There is a tendency by some purchasers to only demand the original title deed from the seller and not attend to the registration of transfer process for one reason or the other. Notwithstanding the fact that the purchaser is holding the title deed, the property remains that of the seller. This becomes problematic if the seller dies, disappears or does not cooperate. The purchaser may have to go to court and get a court order for the transfer to be registered. He/she will have to rebut the presumption of ownership and bear the legal costs which could all be avoided if registration of transfer had been attended to at the time of purchase.

A court order would also be required where the property is registered in the name of an agent or where the registration of transfer is fraudulent. In Machiva v Commercial Bank of Zimbabwe Ltd supra the court had this to say;

The principle that registration of title is not conclusive proof of ownership does not cause me any difficulty at all. It is the applicability of the principle to the facts of this matter which I find questionable. The principle can only be of application in those cases where, for purposes of expediency, property is registered in the name of an agent or where the true owner agrees to have the property in the name of a spouse or where, for fraudulent reasons, the property is registered in the name of the wrong person or where the underlying cause for the registration aborts. It does not apply in a situation involving a buyer who has never taken transfer of title.

The contents of this article are for general information purposes only and do not constitute our legal or professional advice. We accept no responsibility for any loss or damage of whatsoever nature which may arise from reliance on any of the information published herein.

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Alteration Of Information On Birth Certificate

Marume & Furidzo Legal Practitioners — Fri, 16 Feb 2024 10:47:10 +0000

The registration of births in Zimbabwe is governed by the Births and Deaths Registration Act (Chapter 5:27). Registration is done through the giving of notice in the prescribed form primarily by the father or mother of the child. The prescribed form is the BD 1 Form and the information to be filled in this form include the child’s name, place of birth, date of birth, marriage status of the parents and the parents’ details. For children born outside the country the form is the BD 3 Form.

In the case of a child born out of wedlock (born to unmarried persons) no person is compelled by law to acknowledge being the father of the child. Thus, the mother of a child born out of wedlock can give the notice herself in which case the section written ‘FATHER OF CHILD’ on the birth certificate will be empty. The father of the child can however acknowledge paternity and the registrar can enter the name of the father upon the joint request of the mother and the father.

Once completed and accepted by the registrar, the BD 1 Form becomes the primary source document for the issuance of a birth certificate and the information on the birth certificate cannot be easily altered unless it is a minor clerical error. This why, in terms of section 27 of the Act, any person who willfully provides false information on the BD 1 Form can be found guilty of an offence and punished to a maximum of one year imprisonment.

There are cases where a child is born outside marriage and the father acknowledges paternity but the mother then decides later to have nothing to do with the father and applies to have the birth certificate altered by removing the father’s name. This may be because the mother is frustrated that the father is not being responsible or because the ‘father’ is not the real father of the child. In recent cases, women have also sought to have the father’s name ‘removed’ from the birth certificate to make it easy for them to emigrate with the child.

Unfortunately, and as already stated above, once the father acknowledges paternity his name cannot just be removed from the child’s birth certificate. The alteration to remove the father’s name from the birth certificate can only occur on the basis of a court order or if the mother (or both the mother and the father) are convicted of willfully providing false information during registration of birth.

Paternity is a presumption and where the mother is not sure at birth nothing stops her from registering the child as having a single parent with the ‘FATHER OF CHILD’ section remaining empty. Thus, in Minezhi v Boora (HH 201 of 2020) the court had this to say;

Whilst I am cognisant of the fact that in Katedza v Chunga and anor 2003(1) 470 the mother of the minor child was allowed to change his surname from that of his father into hers, in my view such an action is never in the best interests of the child. It ends up confusing the child. Today he is known by one surname and the next day by another surname. In my considered view, for a child born out of wedlock, there is nothing that bars the mother from using her own surname for the child from the start- see s 12 of the Births and Deaths Registration Act [Chapter 5:02].

It is therefore critical that the correct information be provided during registration of birth. Where the father is irresponsible and is not in the life of the child, the remedy is not to apply for a change of name of the child but to seek sole guardianship or sole custody.

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Termination Of Employment For Incapacity

Marume & Furidzo Legal Practitioners — Fri, 15 Dec 2023 13:28:50 +0000

Section 14 (4) of the Labour Act (Chapter 28:01) grants the employer the right to terminate the employment of an employee who has exhausted the sick leave prescribed in the Act or in the contract of employment if this is more favourable.

Section 14 (4) provides as follows;

(4) If, during any one-year period of service, the period or aggregate periods of sick leave exceed— (a) ninety days’ sick leave on full pay; or

(b) subject to subsection (3), one hundred and eighty days’ sick leave on full and half pay; the employer may terminate the employment of the employee concerned

The question which arises is whether the statute as cited above gives the employer an absolute and unfettered right to elect to terminate the employment of an employee who has exhausted the maximum sick leave period specified in the Act without compliance with any substantive and procedural fairness.

That question was answered by the Supreme Court in the case of Zimasco (Pvt) Ltd v Maynard Marikano SC 6/14 as per Garwe JA in the following words;

“Since the decision to terminate an employment contract has far reaching consequences, one should assume that before such a decision is taken the employer would be obliged, at the very least, to advise the employee of the fact that he has taken the sick leave contemplated in s 14(4) and that for that reason it is intended to terminate his contract of employment in terms of that section on a date specified in such notice unless the employee returns to work before the expiration of the specified period. In my view it would not be proper for an employer to invoke the provisions of s 14(4) of the Act and without notice to the employee, proceed to terminate his contract of employment. In short the audi alteram principle would still need to be respected and failure to do so would render any such termination null and void.”

Put simply, the Supreme Court in Zimasco v Marikano judgment (supra) in obiter though,remarked that the right to terminate on medical grounds is subject to compliance with substantive and procedural fairness in that the employer is required to at least inform the employee affected of its intention to terminate on medical grounds by serving them with a notice and the employer is also expected to respect the audi alteram principle by hearing the side of the employee before the decision to terminate is taken.

However, this decision was revisited in the case of Zulu v ZB Financial Holdings (Private) Limited SC48/18 where the Supreme Court as per Hlatshwayo JA held as follows;

“A reading of this section shows that it is silent on the requirement for the employer to give notice to the employee before terminating employment under the section. In the absence of such a requirement, to hold that the employee ought to have been afforded a chance to be heard before dismissal is tantamount to “reading into” and altering the clear language of the statute…

In this case, the Act gives the employer the discretion to terminate the employment of the employee and does not go further to state that the employee should be notified of the impending dismissal. This provision codifies the common law principle that an employer is entitled to terminate employment due to incapacity. This common law principle is entrenched in our law and there is a presumption that a statute cannot alter the common law without saying so explicitly…

In light of the above, I am of the view that the provision does not take away the employer’s unfettered discretion to terminate employment due to incapacity. It would be a gross miscarriage of justice to impose an onerous obligation on the employer where the clear language of the statute does not provide such an obligation.”

See also Girjac Services (Pvt) Ltd v Mudzingwa 1999 (1) ZLR 243 SC at p246

The decision in Zulu v ZB Financial Holdings (Pvt) Ltd (supra) entrenches the position that the right of the employer to terminate the contract of employment for incapacity as granted by Section 14(4) of the Act is absolute and unfettered which means that the employer has no obligation to notify the affected employee of the intention to terminate.

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Third Party Insurance In Zimbabwe

Marume & Furidzo Legal Practitioners — Wed, 10 May 2023 20:30:12 +0000

A contract of insurance has been described as an agreement where an insurer promises in return for a money consideration, the premium, to pay the other party, the insured, a sum of money or provide him with some corresponding benefit upon the occurrence of a specified event. See Prudential Insurance Company v Inland Revenue Commissioners [1904] 2 K.B 658, Gordon and Getz, The South African Law of Insurance, Third Edition @p 77.

In Zimbabwe, the Road Traffic Act (Chapter 13:11) provide for a statutory type of insurance called third party insurance. Section 22 of the Road Traffic Act makes it a requirement for users of motor vehicles and trailers to be insured against third parties. The requirements of this form of insurance are the same as those of the common law insurance contract except that the party claiming or on whose behalf a claim is brought, is not a party to the insurance contract, his claim being based on statutory requirements. A third party is able to sue an insurer directly on the basis of ss 22, 23 , and 25 of the Road Traffic Act. These sections provide for compulsory statutory insurance cover to third parties harmed by conduct of insured persons or an authorized driver of the insured person.

Section 23(2) provides that a statutory policy shall insure persons specified in the policy in respect of ‘any liability’ which may be incurred. In Johanne v Clarion Insurance Company and Ors HH 429 /12, the court considered the meaning of the phrase, “any liability” and concluded that the word “any” as used in s 23,

“simply means that the nature of the liability claimable in respect of a statutory policy is unlimited. To say that “any” means that the extent of the liability viz-a-viz the quantum, is unlimited, is to stretch the word to elasticity limit.”

Section 23 is couched in wide terms. The legislature intended that persons injured or suffering damages resulting from an accident were afforded wide protection and are left with a remedy. The phrase “any liability” speaks to the actual injury and nature of damages or injuries that may give rise to a claim. The mischief behind the use of that phrase was in order that all manner of injuries and damages in respect of death and bodily injury to, any person and the destruction of, or damage to, any property was covered. The use of the phrase “any liability” allows the court in the event of a dispute over what actual injuries or damage a policy covers, to always lean in favour of a third party. The phrase does not suggest that the amount claimable or arising from any injury to the claimant is unlimited. This is supported by the fact that the legislature put a cap on amounts claimable by prescribing the cover payable in those instances. The amounts payable are prescribed in the Act. See also Eagle Insurance Co Ltd v Grant 1989 (3) ZLR 278 at 280H to 281A. Both ss 23 (2) and 25 of the Act cover injuries and damages suffered as a result of an accident but limits the claim to amounts covered by the statutory policy.

Section 25 allows a third party to proceed directly against the insurer for any liability arising out of the accident and to recover amounts not exceeding the amount covered by the statutory policy. The section creates a form of vicarious liability on the part of the insurer. The section allows a third party to claim so much of his claim as exceeds the amount recoverable from the insurer from the insured. A person who sustains injuries and suffers damages in a road traffic accident may make a claim for a wide variety of damages but the amount claimable by him from the insurer is limited to amounts specified in the statutory policy. He may not claim all his monetary damages from the insurer but may claim so much of his claim as exceeds the amount recoverable from the insurer from the insured. Put simply, where a third party incurs damages which exceed the amounts specified in the Act, the third party is at large to recover the amounts from the insured person.

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Separation Before Divorce in Zimbabwe

Marume & Furidzo Legal Practitioners — Fri, 24 Mar 2023 10:06:05 +0000

In Zimbabwe the Matrimonial Causes Act (Chapter 5:13) provides for what is called judicial separation. Judicial separation is when a court issues an order directing the husband and wife to live separately without necessarily dissolving the marriage. In other jurisdictions like South Africa the court’s power to order judicial separation has been abolished. While it still remains in our statute books, it is submitted that judicial separation no longer serves any legal or practical purpose. Thus, in the case of Kumire v Kumire 2006 (1) ZLR 134 (H) the court had this to say;

“In changing the law thus, the legislators also effectively took away the power of the court to order the parties to go on judicial separation for a given period. Thus, if the court is satisfied on the evidence adduced before it that the marriage can be restored, it will simply decline to grant the divorce. The court cannot however order judicial separation in the sense the term was judicially interpreted, to give the marriage a chance, failing which the innocent spouse will be granted the divorce. That practice is inconsistent with the irretrievable breakdown principle.”

The parties can enter into a separation agreement themselves, or as most commonly happens, one party may ‘separate’ themselves. For this reason, it therefore becomes unnecessary for one to apply to court for judicial separation. Where the parties are on separation then issues of payment of maintenance and parental responsibilities and rights in respect of the children must be dealt with. The parties can agree between themselves on these issues failing which either party may approach the court for resolution.

Spouses can live separately even under the same roof. This occurs where spouses stay in the same house but are no longer living together as husband and wife. Conversely the fact that parties are physically living separately does not necessarily follow that they are no longer living as husband and wife. It is the fact of separation in the sense of the parties not living together as husband and wife which can be used as evidence of irretrievable breakdown of the marriage. The Act considers one year (minimum) of the parties not having lived together as husband and wife as a factor showing irretrievable breakdown of marriage.

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Registering A Deceased Estate In Zimbabwe

Marume & Furidzo Legal Practitioners — Thu, 06 Oct 2022 08:45:36 +0000

The law requires that the estate of a deceased person who leaves behind ‘property’ be registered for purposes of administering the deceased’s property which forms part of his/her estate. If the deceased had a registered marriage, the estate has to be registered at the Master of the High Court. If the deceased was in unregistered customary law union, the estate may be registered at the Magistrates Court. The initial step is to have the death recorded and registered at the nearest Births and Deaths Registry and a death certificate be obtained. The estate must be registered within 14 days of the demise of the deceased. In terms of Section 5(3a) of the Administration of Estates Act (Chapter 6:01) failure to register an estate within the stipulated period, without a just cause, is a criminal offence attracting a jail term of up to one year or a fine or both.

The surviving spouse, or if there is no surviving spouse then a family member or any person connected to the estate like creditors can take steps to register the deceased estate. Upon registering, the responsible person will complete a death notice form, as well as an inventory form listing the deceased’s assets. An edict meeting will then be held, attended by at least four close relatives of the deceased, where a person called an executor will be appointed to administer the estate. Where the deceased left a Will, their wishes will be respected and an executor nominated in the Will shall be appointed. Where the deceased left no Will, the executor will be appointed at an edict meeting. If there is no consensus among the relatives regarding the choice of executor, then the Master of High Court will appoint a neutral executor from its list of registered and professional executors. The neutral executor will be entitled to a fee.

The executor will be issued with Letters of Administration which grants the executor authority to administer and wind up the estate.

The process of registering an estate is key to enable beneficiaries of the estate to lawfully deal with the deceased’s assets such as immovable and movable properties that will be registered in the name of the deceased.

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Co-Ownership Of Property In Zimbabwe

Marume & Furidzo Legal Practitioners — Thu, 22 Sep 2022 13:44:21 +0000

Co-ownership or joint ownership occurs where two or more persons own the same property at the same time in undivided shares. A good example of co-ownership is where a husband and a wife (whether under a customary union or registered marriage) own the same stand, in other words both their names appear on the title deed to the property.

One of the most important elements of co-ownership is that the property is jointly owned in undivided shares. In the example above neither the husband nor the wife is the owner of the whole stand nor are they each owners of a particular physical piece of the stand. The husband or wife alone cannot sell or donate the whole stand without the consent of the other. Neither of the two can also mortgage the property without the consent of the other. Each co-owner can use the property in proportion to his/her undivided share. The same applies to the sharing of profits and maintenance costs.

With regard to each person’s undivided share, each is free to do as they wish. In the example above the wife can sell her undivided share in the stand to a third party with the undesirable result the husband becomes a co-owner with a complete stranger. Similarly, one person’s undivided share can be attached by the sheriff and sold in execution of a judgment debt resulting in the other spouse being a co-owner with a complete stranger. However, the whole property cannot be attached and sold in execution in respect of a debt of one co-owner unless the other co-owner(s) consent (see Gonyora v Zenith Distributors (Pvt) Ltd and Ors 2004(1)195(H)).

Co-owners can agree to terminate the co-ownership relationship and subdivide the land in which case there will be partition transfers. However, this is subject to the land being possible to subdivide. Parties can also agree to sell the jointly owned property and share the proceeds according to their respective shares. Where the co-owners cannot agree, a co-owner can approach the court. The court has a wide discretion; it can order a subdivision or if this is not possible the property may be awarded to one co-owner subject to payment of compensation to the other co-owners. The court may also order that the property be sold and the net proceeds shared among the co-owners in their respective shares. Note that the situation differs if the joint owners are husband and wife and they divorce (see article on division of assets upon divorce).

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Nullity Of Marriage

Marume & Furidzo Legal Practitioners — Wed, 08 Jun 2022 13:59:42 +0000

The High Court has the power to declare a ‘marriage’ void where the grounds for doing so exist. Where there is a declaration of nullity it is as if the parties never entered into a marriage at all. The grounds on which a marriage can be declared void are classified into two; non-compliance with the formal requirements and non-compliance with the material requirements.

Situations where a marriage can be declared void for non-compliance with the formal requirements include;

The marriage is solemnized with someone who is not a competent marriage officer.
One or both of the parties are below the age of 18
No witnesses are present at the marriage.

Situations where a marriage can be declared void for non-compliance with the material requirements include;

One of the parties is already married to someone else
The parties are related to each other within the prohibited degrees of relationship
One of the parties is mentally ill
The parties are of the same sex

In some cases, a marriage can be set aside at the instance of one party where he/she alleges material mistake, duress and pregnancy with another man’s child at the time of the wedding when the husband is not aware.

The procedure for seeking a declaration for nullity of a marriage is the same as that for seeking a divorce. The process is initiated by the issuance of a summons and declaration which should be served personally on the defendant.

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Variation Of Employment Contracts

Marume & Furidzo Legal Practitioners — Fri, 13 May 2022 09:00:28 +0000

Once the parties have agreed on the essential terms of the contract, its terms are fixed in the sense that neither party may unilaterally vary them unless the original contract provides for variation. Statutorily, the Labour Act Chapter 28:01 states that one of its objectives is to promote the participation by employees in decisions affecting their interests in the work place which entails the need for employees to be consulted before any decision which affects their interest is made by the employer. (Section 2A(1)(e) of the Act).

At common law, an employer cannot without agreement be compelled to vary a contract of employment in a manner more favourable to the employee. Conversely, an employer cannot unilaterally alter the terms or conditions of a current employment contract even if the change is to the employee’s advantage. However, that does not mean that the relationship between the parties is frozen in a contractual straightjacket; an employer may change working practices, provided that such changes do not alter the employee’s contractual rights. This principle was underscored by the Supreme Court in Chirasasa&Ors v Nhamo NO 2003 (2) ZLR 206 at 220 (SC) as per Malaba JA (as he then was) as follows;

“The appellants perhaps failed to appreciate that a contract of employment cannot remain static throughout the whole of its existence regardless of the changes in the fortunes of the business. Refusal to accept a change in the terms and conditions of employment necessitated by the commercial interests of a business may be a good enough reason for terminating a contract of employment on notice.”

Whether a change constitutes a mere change of work practice (which is permissible) or a contractual change (which is impermissible) depends on the facts of each case. There is a thin line between unilateral variations of contractual provisions and changes to working practices. The fine line is a fertile ground for contractual disputes which often times spill into the courts of law.

The terms of a contract of employment may be lawfully varied at any stage by mutual consent of the employer and the employee. The agreement to vary maybe obtained by engaging the employee individually or through collective agreements with the employee’s lawful representatives like workers committee or trade union. The parties’ consent need not be express or in writing. Silence coupled with acquiescence in the change may stop the parties from later denying the legality of the variation. This principle was applied with full force by the Supreme Court in the case of Moses Mawire v Rio Zim Limited (Private) Limited SC 13/21 where the court held as follows;

“As already mentioned earlier, the respondent issued out an internal memorandum
on 21 March 2009 following the adoption of the United States dollar currency. This
memorandum had the effect of altering the appellant’s contract of employment. Following the
memorandum, the appellant, who was the Human Resources officer, accepted his new salary
in terms of the memorandum. He was receiving a salary in terms of the memorandum and for
the five years, he never raised any complaint nor did he challenge the new salary scale.
It is trite that consent can either be express or implied.

In the case of Smith v Hughes L.R 6 Q.B 597 at p 607, it was stated that:

“If, whatever a man’s real intention may be, he so conducts himself that a reasonable man would believe that he was assenting to the terms proposed by the other party, and that other party upon that belief enters into the contract with him, the man thus conducting himself would be equally bound as if he had intended to agree to the other party’s terms.”

For five years the respondent accepted a salary, in terms of a memorandum which had no provision for any allowances. By such conduct, he accepted the variation of the terms of his contract of employment. If he genuinely felt that the memorandum breached his contractual rights, he ought not to have accepted the salaries and ought to have mounted his challenge at the pertinent time or within the permitted period. In the absence of any challenge
to the variation of the contract, it is clear that after variation of the contract of employment, there was acquiescence by the appellant. If there was acceptance of the variation, as there was, there was no claim to be prescribed. It follows that by his conduct, the appellant impliedly consented to the variation of his contract. In such circumstances, he could not claim any benefits flowing out of the contract that had been varied. The court a quo thus correctly found that the contract of employment was varied with the consent of the appellant and therefore the allowances claimed by the appellant were no longer claimable under the contract ushered in by the memorandum.”

It is prudent that when proposing to vary the employee’s contract, the employer should fully consult with the employee or their representatives and must explain and discuss reasons behind the proposed change. Employees are likely to accept change if they understand the reasons behind them. When there is no agreement, employers often resort to imposing changes unilaterally which amounts to breach of the employment contractand this normally attracts resistance from employees resulting in disputes whichspill into the courts of law. See Agricultural Bank of Zimbabwe Limited t/a Agribank v Machingaifa & Anor SC 61/07; Air Zimbabwe v Zendera& Others 2002(1) ZLR 132 (S).

It must be noted that a contract may contain an express term which allows the employer to make changes to the employee’s terms and conditions. This unilateral variation clause permits the employer to vary the employment contract without the consent of the employee.

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Rights Of Custodian Parent In Zimbabwe

Marume & Furidzo Legal Practitioners — Tue, 22 Mar 2022 12:41:47 +0000

Custody refers to a person’s capacity physically to have the child with him or her and to control and supervise the child’s daily life (J. Heaton, South African Family law, page 171). The issue of custody of a minor child becomes relevant when parents are divorced, separated or living apart. When granting a decree of divorce, judicial separation or nullity of marriage the court will also deal with the issue of custody. Where the parties are not legally married and are living apart either may approach the court for a determination of custody. In some cases, such parties may agree themselves without approaching the court but it is always best to have such agreement made an order of the court. When determining the issue of custody of minor children, the court is guided by section 81(2) of the Constitution of Zimbabwe which provides as follows;

“A child’s best interests are paramount in every matter concerning the child.”

A custodian parent has certain rights and powers when exercising custody and it is important to understand what these rights and powers are. The rights and powers of the custodian parent were succinctly set out in the case of Makuni v Makuni 2001 (1) 189. The court quoted Boberg Family Law at p 460 where it is stated as follows:

“An award of custody to a mother entrusts to her all that is meant by the nurture and upbringing of the minor children. In this is included all that makes up the ordinary daily life of the child – shelter, nourishment and the training of the mind … The child … passes into the home of the mother, and there it must find all that is necessary to its growth in mind and body …. A custodian parent has therefore the right to regulate the life of the child, determining with whom he should or should not associate, how he should be educated, what religious training he should receive and how his health should be cared for. The non-custodian parent has no right to interfere in these matters, though he may petition the court to do so if it appears that the custodian parent has exercised his discretion in a manner contrary to the interests of the child or in conflict with an order of court. Otherwise, he is confined to his right of access to the child.”

In essence the custodian parent has the right to control the minor child’s life and this includes education, religion, place of residence and general upbringing. It is possible that a custodial parent can exercise custody through another person but where this arrangement seems permanent then it can be held that one has parted with custody (see Domboka v Madhamu HH179/04)

The question that arises is whether the custodian parent has the right to remove the child from Zimbabwe or from the jurisdiction of the court? According to case law there is no legal principle that bars a custodial parent from removing the child outside the jurisdiction of the court unless it is shown that this will not be in the best interests of the minor child. In Routledge v Hertz 1988(1) ZLR 252 (HC) the judge had this to say;

“I also consider that, in the absence of an express stipulation that the children be kept at a particular place or were to be brought to the non-custodian parent , it is incumbent upon the non- custodian parent to go to exercise her rights of access at her own expense wherever the children may be , provided of course the custodian parent does not purposely put the children away from the other parent’s reach, to frustrate that other parent’s right of access.”

Although removing a child from Zimbabwe removes her or him from the jurisdiction of the court, our courts have generally been inclined to grant the custodian parent the right to emigrate with a minor child unless it is not in the best interests of the child to do so (see Minezhi v Boora 201/2020). It is submitted that where one foresees, at the time of granting the divorce, that they may emigrate, it is wise to include an order to remove the child from Zimbabwe to avoid coming back to court again.

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