Application for Guardianship in respect of Takunda and Kudakwashe Hope Murindagomo (JC 29 of 2014) [2015] ZWHHC 74 (3 January 2015)
Magistrates lack jurisdiction to grant guardianship where a biological parent is alive; such proceedings are a nullity.
Source-derived case information.
- Citation
- [2015] ZWHHC 74
- Parties
- Minors: Takunda and Kupakwashe Hope Murindagomo; Applicant: Biological mother of Takunda and Kupakwashe Hope Murindagomo; Respondent: Grandmother of Takunda and Kupakwashe Hope Murindagomo
- Court
- Harare High Court
- Jurisdiction
- Zimbabwe
- Case Number
- JC 29 of 2014
- Procedural Posture
- Application for Guardianship / Review Judgment
- Outcome
- proceedings set aside as a nullity
- Legal Topics
- Guardianship of Minors, Jurisdiction of Magistrates
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Takunda and Kupakwashe Hope Murindagomo
Minors
Biological mother of Takunda and Kupakwashe Hope Murindagomo
Applicant
Grandmother of Takunda and Kupakwashe Hope Murindagomo
Respondent
Procedural Posture
Application for Guardianship / Review Judgment
Legal Issues
- 1 Whether a magistrate has jurisdiction to grant guardianship when a biological parent is alive
Ratio Decidendi
Magistrates lack jurisdiction to grant guardianship where a biological parent is alive; such proceedings are a nullity.
Court Disposition
proceedings set aside as a nullity
Orders
- The proceedings are a nullity and are hereby set aside.
Full Case Text
Judgment text and source record
1 paragraphs
1 HH 74-15 JC 29/14 APPLICATION FOR GUARDIANSHIP IN RESPECT OF TAKUNDA AND KUPAKWASHE HOPE MURINDAGOMO HIGH COURT OF ZIMBABWE MWAYERA J HARARE, 4 January 2015 Review Judgment MWAYERA J: The matter was brought for review by the trial magistrate who presided over an application for guardianship involving two minors. The biological mother of the two minors testified in the proceedings agreeing to have guardianship rights passed on to the grandmother of the children. The trial magistrate with hindsight realized that he had presided over the matter in error. He hence referred the record of proceeding for revocation of the proceeding by a review judge as he had no power to deal with cases where a parent is still alive. Section 9(1) of the Guardianship of Minor Act [Cap 5:08] reads:- “Without prejudice to the rights, powers and privileges of the High Court as upper guardian of minor children, and the Master in terms of s 74 of the Administration of Estates Act [Cap 6:01], the children’s court may, on application in terms of this section, appoint a fit and proper person to be the guardian of a minor who has no natural guardian or tutor testamentary.” It is clear as correctly observed by the trial magistrate, that magistrates are precluded from dealing with an application for guardianship where one of the biological parents is available. The proceedings conducted by the magistrate therefore have no legal basis on which to stand. Accordingly, the proceedings are a nullity and are hereby set aside. TSANGA J concurs:………………………