A GERMANY-based woman Selina Sitole who allegedly surrendered the custody of her daughter 14 years ago on grounds that she was remarried has approached the High Court seeking to wrestle back the child’s custody.
The child is now an adult, she is 26 years old, and the mother surrendered the custody to the father when she was 15 years old.
Lloyd Muriva, the biological father to the child, is cited as the first respondent.
Sitole approached the court seeking the appointment of one Pepukai Mabundu as a curator ad item (legal representative).
In her application, Sitole alleged that the child is mentally ill and cannot perform any legal on her own.
She submitted that she wanted to utilize her current stay in Germany to seek medical attention for her daughter and as such wants her custody.
Muriva, however, opposed the application, arguing that the child is not mentally ill. The father added that the child completed a tertiary education course four years ago. Sitole was remarried in August 2008 in Denmark.
High Court judge, Justice Fatima Maxwell said in her assessment that the child is not a minor as she is now 26 years old.
“It, therefore, follows that it was incompetent for the applicant (Sitole) to make this application on the basis that the child is a minor…I am of the view that the applicant ought to have stated the grounds on which she believes the child is mentally ill. It is common cause that the applicant took care of the child up to 2011,” read the judgment.
“The applicant should have stated any observations pointing to instability of mind during the time she had the child in her custody. The fact that at that time she did not find it necessary to seek the help of a psychiatrist or neuropsychologist is telling.”
Justice Maxwell quizzed Sitole on why she did not gather evidence of the child’s mental condition up to the teenage years when she had custody.
“Mr Tinarwo’s response was that there are levels of mental disability and when the applicant had custody, the child’s condition was not extreme. That condition was not extreme suggests that there were telltale signs yet none are stated in the founding affidavit,” read the judgment.
“I am not persuaded that a case has been made for the appointment of a curator ad item. No facts have been provided to enable the court to conclude that the child’s condition is such that it warrants the appointment of a curator. The application, therefore, fails.
“The first respondent sought costs on a legal practitioner and client scale. His arguments state that he has been put to unnecessary expense. I agree.
“Despite being challenged that the application was baseless, the applicant persisted. There is no reason why the first to deny the first respondent the costs prayed for.”
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