M (In his capacity as curator ad litem of LMZ & SZ) v M & ORS

HIGH COURT, HARARE

[Opposed Application HH 548-16]

September 22, 2016

CHITAKUNYE J

Property law – Legal effect of registering property in a minor child’s name – Rights of minor child upon transfer of a property co-registered in child’s name.

Family law – Best interests of the child – Right to be heard.

Held, that the registration of the properties in the name of the children has the effect of restraining the mother, albeit a co-owner, on how she could deal with the properties as the children become co-owners. The mother is thus bound to consider the rights and interests of the children in the properties. In that regard, she has to convince the curator ad litem that what she intends to do is in the best interests of the children.

Held, further, that in terms of s 81 (2) of the Constitution of Zimbabwe, 2013 the children’s best interests are paramount in every matter concerning children. In determining such best interest, it is important to canvass the children’s views, especially when such children are old enough to communicate their views.

Case cited:

Takafuma v Takafuma 1994 (2) ZLR 103 (S), referred to

Legislation considered:

Constitution of Zimbabwe, 2013, s 81 (2)

International instruments:

African Charter on the Rights and Welfare of the Child, CAB/LEG/24.9/49 (1990), Art 4

United Nations Convention on the Rights of the Child, GA RES/44/25 (1989), Art 3

S Mushonga, for the applicant

S Ushewokunze, for the first respondent

No appearance for the second to fourth respondents

CHITAKUNYE J:

This is an application pitting a father and his daughter over the daughter’s minor children’s rights and interests. The applicant who is father to the first respondent seeks an order that:

1. The stand also known as the Braeside property shall have the one third share transferred from the name of HMM, first respondent, into the exclusive names of LMZ and SZ in equal shares.

2. The Deputy Sheriff be and is hereby directed to sign all requisite papers to enable the name of HMM to be removed and her share be transferred in equal portions into the names of the two minor children.

3. The fifth respondent, Registrar of Deeds be and is hereby ordered to accept the transfer papers of HMM’s share from her into her two minor children’s names in equal shares and to register a special caveat restraining transfer from the names of the minor children without the consent of the applicant de facto custodian, Master of the High Court and an order of the High Court.

4. That second respondent Matrix Reality Estate Agency be and are hereby interdicted from continuing to offer the Braeside property for sale forthwith together with the first respondent.

5. That the first respondent must bear the costs of this application if she opposed it on attorney client scale, otherwise each party must bear its own costs.

The first respondent opposed the application. She contended that the applicant had no locus standi to bring such an application against her as she is the biological mother to the children and thus their natural guardian.

She also contended that the applicant could not interdict her from dealing with the property as she wished as she is also registered as a co-owner of the property together with her two children.

The facts giving rise to this application are that:

The applicant is the biological father of the first respondent.

The first respondent was married in terms of customary law to the late JZ who died on 29 June 2002. The parties’ union was blessed with two children namely LMZ (born on 20 June 1999) and SZ (born on 31 January 2002).

At the time of his death the late JZ was the registered owner of the Braeside property. Upon his demise, the first respondent registered the property into her name and those of the two minor children.

The first respondent also acquired another property namely the Tynwald property which she registered in her name and her children’s names. This is confirmed by Deed of Transfer dated 18 December 2008.

The source of funds for acquiring the Tynwald property was disputed. The applicant claimed first respondent sold the late JZ’s other property to buy this property whilst the first respondent contended that she raised the money on her own. Nothing much turns on the source of the money. What is of importance is that the property was registered in the names of the first respondent and her two minor children. By virtue of such registration each one owned a third share in that property – see Takafuma v Takafuma 1994 (2)
ZLR 103 (S).

In the year 2012 the first respondent entrusted the custody of the two minor children to her parents as she left for South Africa. She also gave her sister VM a power of attorney to manage the Braeside property. She also left the title deeds to the two immovable properties with applicant for safe keeping.

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