Source: Zimbabwe Women Lawyers Association
On the 3rd of June 2010, the Supreme Court of Zimbabwe exercising its jurisdiction in terms of section 24(2) of the Constitution handed down its judgment in the case of Margaret Dongo versus The Registrar General and the Attorney General.
ZWLA’S INTEREST AND ROLE IN THE CASE
The Zimbabwe Women Lawyers Association (ZWLA) is a women’s rights membership organisation whose mission it is to advance women’s rights in Zimbabwe. It does this through various strategies including advocacy for law reform, legal education and legal aid. ZWLA has, for a long time, been aware of and disturbed by the practice of the department of the Registrar General of insisting that minor marital children be assisted by their fathers to apply for passports. This insistence has caused severe inconvenience, mental trauma and hardships for women who are forced to rely on the fathers of their children who are either unable or unwilling to assist them. ZWLA, as part of its advocacy strategy teamed with Ms. Margaret Dongo to institute a test case challenging the conduct of the Registrar General. They instructed Ms. Njerere of Honey and Blackenberg Legal practitioners to represent Mrs. Dongo
THE FACTS OF THE CASE
The brief facts of the case are that Ms. Dongo, is a married woman and the mother of Kudakwashe Norman Dongo. In 2006, when Kudakwashe was still a minor, Ms. Dongo, like so many other women in Zimbabwe approached the office of the Registrar General to apply for a passport for her son. Like so many women before and after her, Ms Dongo was turned away on the grounds that as the mother of a marital minor child, she could not sign the passport application form authorising the Registrar General to issue the passport as she was not the guardian of the child. The common law in Zimbabwe relating to guardianship, as confirmed by the Guardianship of Minors Act is that the father of marital children is their legal guardian and his consent must always be sought for all juristic acts performed on behalf of the child.
The questions which arose for decision by the Supreme Court were as follows:
- whether s.3 of the Guardianship of Minors Act [Chapter 5:08] in its effect and implementation concerning the rights of guardianship of a minor child is discriminatory against women and in violation of the provisions of section 23(1) of the Constitution which prohibits discrimination on the grounds of sex, gender and marital status, among others.
- whether the common law relating to the guardianship of marital children discriminates against women and violates the provisions of section 23 of the Constitution
- whether African Customary Law relating to the guardianship of children born in a customary law union discriminates against women and violates the provisions of section 23 of the Constitution
The refusal by the Registrar General to allow Ms. Dongo and other women in her position the capacity to assist their minor children to obtain a passport was premised on the assumption that the acquisition of a passport for a minor child is a juristic act and, therefore, an act of guardianship. A juristic act is an act which confers new or additional rights on the minor child in question or changes his or her legal status. A change of the child’s surname, would, for example be a juristic act. The Court examined in detail, the correctness of this premise and found it to be erroneous. It found that under Zimbabwean law, the issuance of a passport is not a juristic act in as far as it does not confer any additional rights on the holder of a passport. It merely facilitates the exercise by its holder of right of freedom of movement, which the child, like any other person was already entitled to in terms of section 22 of the Constitution.
The finding that the acquisition of a passport is not a juristic act, led to the logical conclusion that the exclusive assistance of the minor child’s guardian is not a legal requirement. On that basis, the Registrar General erred in disallowing Ms. Dongo’s application to assist Kudakwashe, her minor son to apply for a passport and, in insisting that only the child’s guardian could assist. Both parents can assist a child to obtain a passport.
PRACTICAL IMPLICATIONS OF THE JUDGMENT
The Supreme Court is the final arbiter of disputes in this country. Its judgments are final and should be the last word on any dispute. There is no forum to which either the Registrar General or Ms. Dongo can appeal against it. Naturally, ZWLA would have preferred for the Court to find in favour of Ms. Dongo on the merits of the Constitutional questions that were referred to it as that would have had more far reaching ramifications on the legal rights of women in the family sphere where, undeniably, they still suffer the worst forms of discrimination. Having said that, ZWLA still respectfully accepts and welcomes the judgment in as far as it has succeeded in settling a matter that has long been a thorn in the flesh for women. They CAN now apply for passports for their children without having to resort to unwilling or unavailable fathers. This is no small victory as many women, whose memories of their experiences in this regard still cause them to grow goose bumps can testify. The beast of gender discrimination has not been slain but it has been muzzled. It cannot bite any longer.