HH 28-2009

HC 7039/08

ANTHONY BIRGER BERENS

and
MICHELLE ELIZABETH BERENS

HIGH COURT OF ZIMBABWE

CHITAKUNYE J.
HARARE, 06 January 2009

Urgent Chamber Application

Advocate Fitches, for applicant

Mr. T.H. Chitapi, for respondent

CHITAKUNYE J: The applicant and the respondent are husband and wife. In HC
4530/07 the respondent instituted divorce proceedings. That divorce action is still pending.
Arising from difficulties in their marriage the parties separated in or about April 2007 and they
have been living apart since. On separation the custody of their three minor children remained
with the respondent.
The respondent subsequently moved to Victoria Falls in or about December 2007. She
took the children with her and enrolled them at a school in Victoria Falls. Their eldest child
Mathew Lewis Berens born on 28 July 1996 is due to start secondary education this year 2009.
Each parent has purportedly secured a secondary school place for him at their own school of
choice. The Applicant said he has secured a place for Mathew at St. Johns College Harare as a
day scholar whereas the Respondent said she had secured a place for Matthew at Falcon
College, Esigodin as a boarder.
The applicant seeks an interim order to the effect that:-

The respondent be interdicted with immediate effect from interfering in or obstructing

in any way the attendance at St. Johns College, Borrowdale, Harare of the minor child
Matthew Lewis Berens to undertake his secondary education with effect from 12 January
2009.
The terms of the final order were that:-

1. That the enrolment of the minor child MATTHEW LEWIS BERENS at St.
Johns College Harare from January 2009 be and is hereby confirmed.

2. that the secondary education of MATTHEW LEWIS BERENS at St. Johns

College shall commence on the 1st day of the 2009 Calendar year and shall
continue thereafter at the said College unless and until the parties may agree to
2
HH 28-2009
HC 7039/08

change the school, or until his attendance at the said school may for good cause
no longer be permissible or in his best interests.

In seeking the above order the applicant in paragraph 31 of his founding affidavit
alleged that:-
In my capacity as Matthews natural father and co-guardian I do hereby request this
Honourable Court to intervene as upper guardian of all minors, and to overrule what is,
in my respectful submission the unreasonable decision by Matthews mother to enroll
him at Falcon College in Esigodini near Bulawayo, where he has no family and friends
at all, and to direct that he be enrolled at St. Johns College in Harare where he has his
father and his devoted and caring grand mother (being my mother). And for which
school (unlike Falcon) he has passed the entrance exam.
I should also point out that the respondents parents also live in Harare.

The respondents response was to the effect that:-

I oppose the relief sought vehemently. I have not acted unreasonably. Passing an
entrance examination for St. Johns was excellent. However all private schools have the
same criteria. I have already denied that it is a good ground to insist on a child
attending a day school merely because his parents and grand parents will have access
to him daily. Living away from applicant and the grand parents is of course not a new
experience to Matthew.

On her efforts at securing a place at Falcon respondent said that: -

My position is that Matthew must attend Falcon College. He has been placed in
Chubb House and he is wanted at the school on 10 January 2009. I attach and mark H
a copy of an e-mail confirming this.

The parties are agreed that the respondent has sole custody of Matthew in terms of
section 5(1) of the Guardian of Minors Act [Cap 5:08]. That section provides that:
Where either of the parents of a minor leaves the other and such parents commence to
live apart, the mother of that minor shall have the sole custody of that minor until an
order regulating the custody of that minor is made under section four or this section or
by a superior court such as is referred to in subparagraph (ii) of paragraph (a) of
subsection (7).

As the custodian parent respondent is given certain rights and powers in the exercise of
such custody. In Makuni v Makuni 2001 (1) ZLR 189 GOWORA J alluded to the fact that a
custodian parent is vested with all the rights that entail the nurturing, shaping and bringing up
of the minor children. She quoted with approval from Boberg Family Law at page 460 where
in the author stated that:
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
 3
HH 28-2009
HC 7039/08

passes into the home of the mother, and there it must find all that is necessary to its
growth in mind and bodyA 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.

It should thus be clear that the custodian parent is empowered to make decisions on the
day to day needs of the child without having to refer to the non custodian parent. One of those
decisions is the choice of school for the child. In the exercise of such custody she may, if she
so desires, consult the non-custodian parent. The non-custodian parent can apply for
intervention in the choice or decision made by the custodian parent where such decision is not
in the best interest of the child or the decision is inimical to the child. In such intervention the
applicant needs to establish or show that the choice or decision is unreasonable or irrational or
that no reasonable custodian parent can make such a decision and that such a decision is
therefore not in the best interest of the child.
In casu, it is clear that each parent opted for a school of their own choice for their own
reasons. In as far as respondents choice is concerned as the custodian parent the question is: is
the decision by respondent to secure a place for Matthew at Falcon College unreasonable
irrational or one such that no reasonable custodian parent can make? Can it be said the
decision is not in the best interest of the child?
There is no dispute that the school chosen by respondent is an equally good school to
that chosen by applicant. The applicant did not point at any areas of inferiority of that school
as compared to St. Johns College. No differences in the quality of education offered thereat
were alluded to. There was no challenge to the assertion on the well structured nature and
disciplinary aspect of Falcon College. The applicants borne of contention was simply on the
fact of the College being a boarding school and the lack of family or friends of Matthew at or
near the school. Applicant was averse to Matthew attending a boarding school apparently
because of his own childhood experience at a boarding school. The question that naturally
arises is whether being a boarding school and in a place where Matthew has no family
members or friends makes the choice of the school unreasonable or irrational and one that no
reasonable custodian parent can make.
4
HH 28-2009
HC 7039/08

In my considered view, that is not so. The boarding facilities were not shown to be unsuitable
for Matthews needs.
The issue of lack of friends is one that should not turn a good decision into a bad
decision. As a child grows up whether in a new environment or familiar environment they
make friends. In my view a child should not be denied a good education at a good school just
because he has no friends at that school.
As for family members unless there is a particular need for family members to be close
by in order to attend say to the childs special needs, I do not see this as cause for concern.
The question of what is in the best interest of the minor has to be looked at from both
short term and long term. In assessing such court has to consider that which will assist the
child to grow up and not that which serves selfish parental interests but end up spoiling the
child. Emotional or sentimental feelings maybe disturbed in the short term for the long term
interest of the child.
On consultation it is my view that the custodian parent may consult the non custodial
parent as this would in some cases be in the best interest of the minor. How ever failure to
consult would not on its own turn a good decision into an un reasonable or irrational decision.
Even where consultation has taken place the final decision is still with the custodian parent
with the non custodian parent left to challenge such decision.
The non custodian parent is at liberty to apply for custody as provided for in the Act. It
may also be pertinent to point out that the net effect of what the applicant seeks is to be
granted custody without having applied for it in terms of the Act. This cannot be.
I am of the view that the application cannot succeed.
Accordingly the application is hereby dismissed with each party to bear their own costs.

Atherstone & Cook, legal practitioners for the applicant.

T. H. Chitapi & Associates, legal practitioners for the respondent.