Chakanetsa Chidyamatiyo 

Harare — THE Registrar-General has no right to bar married women from obtaining travel documents for their children, the Supreme Court ruled yesterday.

The landmark ruling follows a case in which former Harare South legislator Mrs Margaret Dongo had sought the nullification of certain provisions of the Guardianship of Minors Act, which she claimed were discriminatory against married women who were not regarded as natural guardians of their children.

Mrs Dongo -- who cited the RG and the Attorney-General as respondents in December 2008 -- filed a constitutional challenge on the presumption in the Guardianship of Minors Act that only the father of a child born in wedlock had legal guardianship.

The Guardianship of Minors Act follows the Roman Dutch law that the legal guardianship of a minor child born in wedlock is vested in the father.

But the High Court has occasionally varied this after parents have divorced or when a father who does not have custody of his children neglects the children, transferring guardianship to the mother.

But under the Act the father was the only party with authority to exercise all powers of guardianship including the power to sign applications for passports and other travel documents, but in consultation with the mother of the minor child.

Justice Rita Makarau said the issue of a parent assisting his/her child to obtain travel documents was not juristic (judicial) adding the RG erred in denying them right to do so.

"I have come to the conclusion that an application for a passport is not a juristic act and that the exclusive assistance of a minor child's guardian is not a legal requirement.

"On that basis, the first respondent (RG) erred in disallowing the applicant (Mrs Dongo) from assisting the minor child to apply for a passport and insisting that only the child's guardian can assist," Justice Makarau said.

The judge said in Zimbabwe there was no written law that specifically governed the application or issuance of a passport.

"In Zimbabwe while the possession of a passport is not guaranteed by the Constitution, the right to freedom of movement, which is constitutionally guaranteed, can only be fully enjoyed by citizens who are in possession of a passport.

"The right to freedom of movement inheres in all human beings and is enshrined in the Constitution.

"Minor children are too guaranteed that right by virtue of being human beings," she said.

Revocation of that right, Justice Makarau said, has to be found in the Constitution and not the RG's administrative act or provisions of another statute not consistent with the Bill of Rights.

"In my view, to deny a minor child a passport because he or she has not been assisted by his or her natural guardian may amount to an unlawful abrogation of the minor child's right to freedom of movement," Justice Makarau said.

She said it was the court's view that issuance of a passport did not confer new or additional rights that the citizen of Zimbabwe did not enjoy before the document was issued.

"It does not change the holder's legal status after issuance. The conclusion I reach is that the issuance of a passport to a citizen is thus not a juristic act," she said.

She drew a contrast with the British laws.

"The possession of a British passport would thus, in a wide sense, denote nationality and afford the possessor the right of protection whilst abroad.

"It is in this spirit that passports issued to non-British people but to the so-called naturalised person were issued for limited periods and upon the expiry of the passport the protection of the Crown would automatically cease," Justice Makarau said.

The judge said Ms Dongo has correctly observed in her application that the issue at hand could only fall for determination in the Supreme Court if it was legally correct that an act of applying for a passport was a juristic act.

Mr David Drury of Gollop and Blank Legal Practitioners, who represented the RG, had asked the court to dismiss the application saying it was a matter of personal law.

He argued the law on guardianship appeared to be prima facie discriminatory towards women but that did not make the law unconstitutional.

Mr Drury further argued that it could not be said the provisions of the law of guardianship of minors were not reasonably justified in a democratic society notwithstanding the fact that other countries may have opted to adopt a different approach.

"The Zimbabwean law does not preclude women from being guardians. Mothers in respect of children born outside of a marriage are the guardians of those children," he argued.

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