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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On leaving the two minor children in the custody of her parents, the first respondent authorised them to use proceeds from the rent for the Braeside property to pay for the children's school requirements and other needs.

Whilst the applicant said that the first respondent went to live with her boyfriend in South Africa, the first respondent contended that she went to seek employment. Whatever the reason it may not be crucial in my decision. What is pertinent to note is that custody and responsibility over the welfare of the children was entrusted to applicant and his wife.

Later in May 2014, unbeknown to the applicant, the first respondent sold the Tynwald property and took the proceeds with her. The applicant said that he only learnt of this later on in 2014 when the first respondent, through the second respondent, was now trying to sell the Braeside property.

The applicant became apprehensive about the fate of his grandchildren's proprietary interests since he had not been told about the sale of the Tynwald property and the fate of proceeds there from. It is this apprehension that prompted him to approach this Court with this application in order to protect his grandchildren's rights and interests in the Braeside property.

Before approaching court with this application applicant applied for and was appointed curator ad litem for the two minor children on 17 December 2014.

It may also be pertinent to note that in February 2015 the first respondent applied for custody of the minor children in the Children's Court and her application was dismissed on 19 March 2015. According to the applicant, the dismissal was after the children had been called to testify and the magistrate ruled against granting custody to applicant. In effect therefore, the applicant remained the custodian of the minor children and so with a right to protect their interests. It was thus in his capacity as curator ad litem and custodian of the children that he brought this application.

In the face of the above scenario the first respondent could only contend that the applicant had no locus standi to bring such an application against her. As the biological mother to the children she had superior rights as guardian. In any case she was moving to get custody of the children.

She contended that the applicant had no right to interdict her from doing whatever she wished with her children's share of the property as guardian of the children.

I am of the view that as the applicant had been appointed curator ad litem and the first respondent's application for custody had been dismissed, thus effectively leaving applicant as the custodian of the children, the applicant had the locus standi to bring this application in the best interests of the children. The point in limine is thus without merit.

In his application the applicant alleged that the first respondent sold the Tynwald property behind his back and squandered the money with her boyfriend in South Africa. The two minor children never got anything from those proceeds. By implication the children were never consulted or informed about the sale of the property in which they held a two thirds share. The applicant feared that the first respondent would dispose of the Braeside property and squander the money to the detriment of his grandchildren's interests. The children are still at school and require financial support for their education. It is in these circumstances that the applicant argued that the first respondent's share in the Braeside property should be transferred to the minor children in lieu of their two thirds share in the Tynwald property which the first respondent had squandered with her boyfriend.

The first respondent did not deny selling the Tynwald property and effecting transfer without the knowledge of applicant despite the fact that the applicant had the original title deeds for this property. The first respondent applied for a copy of the title deeds on the pretext that the original title deeds were lost when she knew this was not so. The first respondent's conduct in this regard raised questions about the motives for the sale. To lie as she did to the Registrar of Deeds clearly shows how determined she was to dispose of the property without the knowledge of the holders of two thirds share in the property or their custodian.

In defence of the sale the first respondent contended that she applied for the appointment of a curator ad litem for the minor children who upon inquiries with her agreed that the sale was in the interests of the children as she was intent on buying another property for the children in South Africa.

The first respondent indicated in paragraph 8 of her founding affidavit to her application for leave to dispose of the Tynwald property that:

"I intend to dispose of the property (indicated in clause 7.1 above) by manner of sale and transfer of ownership rights to one Alice Nyamugama for US$ 43 000 (forty-three thousand United States dollars) and remain with the other property (indicated in clause 7.2). I intend to use proceeds of disposal of the property to acquire an immovable property in South Africa for the benefit of the children where I intend to take them to for residential purposes."

Despite what appeared a noble intention, the first respondent did not disclose what she did with the proceeds from the Tynwald property. It is now over one and half years since the sale and she can still not disclose what happened to the proceeds. I did inquire of this from her counsel and he seemed not to know.

It was common cause that the children did not benefit from those proceeds and the first respondent was unwilling to disclose what she did with the money. She is indeed the natural guardian of the children but that did not entitle her to do as she pleased with the children's rights and interests even to their detriment. It was in this regard that the applicant virtually said that the first respondent was not a good guardian and was acting contrary to what was in the best interests of the children. She must therefore not be allowed to dispose of the Braeside property.

On the allegation that she was intent on selling the Braeside property the first respondent contended that she engaged the second respondent to manage the Braeside property as she had revoked the power of attorney she had given to VM. She however did not specifically deny that the second respondent had taken prospective buyers to view the house. Her attitude seemed to be that she could do as she pleased with the property as she was co-owner with her children. Clearly the first respondent intended to sell this property as well.

Upon a careful analysis of the submissions by the parties I got a distinctive impression that the first respondent did not seem to appreciate the effect of registering the properties in her name and in those of her children. That registration had the effect of restraining her on how she could deal with the properties as the children had become co-owners. She was thus bound to consider the rights and interests of the children in the properties. In that regard she had to convince the curator ad litem that what she intended to do was in the best interests of the children. In casu, applicant as curator ad litem and custodian of the children was not satisfied that disposing of the Braeside property would be in the best interests of the children.

Another aspect to note is that the first respondent seemed oblivious of the need to consult or at least inform the children or their current curator ad litem of her plans with their property. In the Tynwald property she had a curator ad litem appointed for the children. That was as it should be. Unfortunately, that curator ad litem did not seem to have done a good job. He merely interviewed the first respondent and nothing more. He should have investigated the veracity of what the first respondent had said rather than accept her word. He ought to have interviewed the custodian of the children and the children themselves depending on their evolving capacity. As at the time the curator ad litem did his report in 2014 LMZ was about 15 years old and in Form 3 whilst SZ was about 12 years old and in grade 7. At such ages the children could have been able to air their views over their properties. Had the curator ad litem interviewed the children and the custodian the truth would have come out that applicant had the title deeds to the property and as custodian of the children he was not for the idea. If at all the property was to be sold better safeguards for the children's share would have been put in place.

In terms of s 81 (2) of the Constitution of Zimbabwe, 2013, the children's best interests are paramount in every matter concerning children. This is in tandem with international instruments to which Zimbabwe is part of, for instance, Art 3 of the United Nations Convention on the Rights of the Child and Art 4 of the African Charter on the Rights and Welfare of the Child. Article 4 of the African Charter on the Rights and Welfare of the Child provides that:

"ARTICLE 4

Best interests of the child

1. In all actions concerning the child undertaken by any person or authority the best interests of the child shall be the primary consideration..."

In determining such best interests, it is important to canvass the children's views especially when such children are old enough to communicate their views. In casu, the oldest child was aged 15 years at the time the curator ad litem prepared his report. This child could surely have expressed his views just as the children did when the first respondent unsuccessfully applied for custody in the Children's Court. Even the younger child was old enough to express its views on the disposal or otherwise of the property.

It is my view that the failure to interview the children resulted in an injustice whereby their share in the Tynwald property was sold without any benefit accruing to them. It is time that those appointed curator ad litem in respect of minor children bear in mind the constitutional provisions and international instruments that require that children be heard. The era where adults would just make decisions without consulting children should now be a thing of the past especially where such children are old enough to express their views.

In the circumstances of this case I am of the firm view that the applicant has shown clearly that the first respondent's attitude is inimical to the best interests of the children. Her conduct was not in the best interests of the children and there is need for this Court as the upper guardian of the minor children to provide protection of the children's rights and interests in the property in question.

I have considered the relief sought by the applicant. It is however my view that to order transfer of the first respondents share in the Braeside property in lieu of the two thirds children's share in the Tynwald property share may not do the justice to the case. The first respondent must be ordered to account for the two thirds share of the Tynwald property to the children. That two thirds share has not been shown to be equivalent, in value terms, to first respondent's third share in the Braeside property.

In the circumstances a caveat will be placed on the Braeside property such that the property will not be sold without applicant's participation as the custodian of the children and without the Master's involvement.

Accordingly, it is hereby ordered that:

1. The first respondent be and is hereby interdicted from dealing in any manner with the Braeside property without the consent of the applicant and the Master of the High Court and obtaining leave of the High Court wherein applicant and the Master of the High Court are cited, until such time as the children attain majority status.

2. The first respondent is hereby directed to account to the Master of the High Court and to the applicant for the two thirds share of the value of the proceeds of the sale of the Tynwald property which the first respondent sold in May 2014 for US$ 43 000 within 60 days of the date of this order.

3. Should the first respondent fail to account for the two thirds share, then the two thirds value shall be deducted from her one third share in the Braeside property and awarded to the two children in equal shares. In the event that her one third share is greater than the children's two thirds share of the US$ 43 000 she shall be entitled to the balance as her remaining share in the property.

4. The Braeside property shall be valued by an evaluator appointed by the Registrar of the High Court from his list of evaluators upon request by the applicant or the Master of the High Court.

5. The Master of the High Court is hereby authorised to take all such steps as are necessary to effect the change in the new sharing structure should such be necessary and to have the new share structure endorsed on the title deeds by the fifth respondent.

6. The fifth respondent is hereby directed to register a caveat restraining transfer from the minor children's names without the consent of the applicant as custodian, the Master of the High Court and an order of the High Court.

7. The second respondent is hereby interdicted from offering the Braeside property for sale forthwith.

8. The first respondent shall bear the costs of this application.

Mushonga, Mutsvairo & Associates, applicant's legal practitioners

Ushewokunze Law Chambers, first respondent's legal practitioners

 

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