By Caleb Mucheche LLM Commercial Law (South Africa), LLM Labour Law
(Zambia), LLB Hons (UZ): Head Partner at Caleb Mucheche and Partners Law
Chambers, Legal Practitioners: advocatemucheche@gmail.com
Introduction
Guardianship and Custody are important legal concepts when dealing with the affairs of minor children. Guardianship and Custody are important concepts in law with regards to minor children. These concepts are closely intertwined, and as such, often confused by many. Custody refers to the physical control and primary responsibility of well-being and daily care that a person has over a minor child, whilst Guardianship encompasses the full rights over the affairs of a minor including dealing with health, education needs, financial security or any welfare needs. The primary focus of this paper is on guardianship, and particularly the roles of the Master of the High Court as the upper guardian of the minor child in Zimbabwe amid the existing inheritance and estate laws in Zimbabwe.
Zimbabwean Legal Framework
A clarity on who is a minor is, crucial in this paper to lay a good foundation on who the courts of law through the office of the Master of the High Court, protects. A minor in terms of our law any person under the age of 18. The Constitution of Zimbabwe in terms of section 81 (2) provides that, “A child’s best interests are paramount in every matter concerning the child”. The guiding principle in all matters involving a child, is the promotion of the child’s best interest at all times. In Zimbabwe, the Guardianship of Minors Act [Chapter 5:08] regulates the law regarding minors, in accordance with the provisions of the Constitution of Zimbabwe.
Guardianship in its widest sense connotes custody and embraces the care and control of the minor’s person as well as the administration of his property and business affairs. There are instances where custody and guardianship are separated; the custodian parent has the care and control of the minor’s person, while the guardian parent administers his/her property and business affairs (guardianship) in the narrower sense.
Further, the concept of guardianship and sole guardianship are two different issues. That is why they are governed by different sections under the Guardianship of Minors Act [Chapter 5:08]. Guardianship per se is the paramount right exercised by the father of a child born inside wedlock in terms of common law and this is referred to as guardianship simpliciter. This right is subject to section 3 of the Act and the power of the court as the upper guardian of children.
In terms of section 3 of the Guardianship of Minors Act [Chapter 5:08], a father whose guardianship simpliciter has not been challenged can exercise his rights in consultation with the mother of the child. The consultation duty imposed on the father by the law equally applies to parties who both married and divorced. Situations may arise where parents may disagree on what is best for the child, the Act is clear and it provides as follows,
not all parents are equipped to know, how to act in the best interests of their minor children. Section 19 of the Constitution prescribes that in all matters involving minor children their best interests are paramount. Whatever, is done if it affects children must always be done to ensure that the children are protected and that they enjoy the rights accorded them as children in the Constitution.
In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. In all actions concerning the child undertaken by any person or authority the best interests of the child shall be the primary consideration. A child’s best interests are of paramount importance in every matter concerning the child. In all actions concerning the care, protection and well-being of a child the standard that the best interest of the child is of paramount importance, must be applied. Courts play the role of a guardian angel in promoting and protecting the interests of children read more…