UNIVERSITY OF ZIMBABWE

FACULTY OF LAW
Department of Public Law

NAME: SAMANYAI MICHAEL

REG NUMBER: R151942K

COURSE HISTORY OF ROMAN AND ROMAN DUTCH LAW

PROGRAMME: LLBSP

LECTURER : MUNYARADZI GWISAYI

DUE DATE: 04 NOVEMBER 2016

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INTRODUCTION

It also determine as whether a child is born in or out of wedlock and also legal liability to maintain
the child. Paternity helps us to solve issues involving guardianship, inheritance and maintenance.

The writer shell discuss about the law relating of paternity , men’s rights and crucial analysis of the
facts against the law.

Article 3 of the convention on the rights of children provides that “ In all actions concerning children
whether undertaken by public or private Social Welfare Institutions , Courts of Law, administrative
authorities or legislation borders , the best interests of the child shall be a primary consideration.

Article 9 and 21 of the convention on the right of the child also buttresses the positive of the best
interest of the child.

Article 4 of the African Caster on the Rights and Welfare of the child also buttresses the best of the
child as of paramount importance.

Sect 3 (2) (iii) of the constitution provides that the principles of good governance of which bind the
state and all institutions and agencies of government at every level include the recognition of the
rights women , the elderly , youth and children.

Under general Law all children born during the substance of the marriage one presumed to be the
children of the man married to the mother of the child. Pater est quen nuptide demonstrate .

Even if the baseman divorces the man as long as she is pregnant at the time of termination of
marriage , the child is presumed to be that of the man and woman was married to before the
divorce. Service lack of access at the relevant time or blood tests excludes paternity.

Mtshigime v Moyo HB120 05 is the locus classicism as held that the real natural father could not be
determined from the mere faults presented before the courts. As both men claimed fatherhood , the
determination of paternity required the did of scientific methods. It was now possible to determine
the issue of paternity accurately without the mother , by analysing the blood of the child and alleged
father. While an infliction of wound or prick on an individual’s pursue an assault and an interference
with personal liberty and rights , the courts should adopt a robust approach in dealing with such
matters , particularly when minors are concerned. Both parties agreed to undergo tests themselves.
As far as the child was concerned , the courts will always relax their rules and practice the critises of
the children where two men each claimed to be the natural father of the child , it was in the child’s
best interests that its correct biological father be determined and on that basis , the court could
order that the child also undergo a blood tests.

If a man admits sexual intercourse at the relevant time ……. On the man to prove that he can not
possibly be the father of the child. In the case of Chinofamba v Turumbe 1990 (6) ZLR 321 SC it was
held that since the respondent admitted intercourse , with the appellant at a time when the child
could have been conceived , the respondent bore orus of proving that he was not the father of the
child.

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Mechanical evidence was necessary to determine whether , the child was born prematurely or not ,
that factual issue would help determine whether or not the respondent had discharged the onus on
him.

The supreme court had prove to remit the matter to the District Court for further factual issues to be
determined by evidence.

MEN’s RIGHTS

Section 3 (1) (g) of the constitution sates that Zimbabwe is founded on the respect for gender
equality.

Section 80 (2) of the constitution of Zimbabwe provides “ women have the same rights as men
regarding the custody and guardianship of children , but an Act of Parliament many regulate how
those rights are to be exercised. Section 56 (3) assets that every person has the right not to be
treated in an unfairly discriminatory manner on such grounds as their nationality , race , colors , tribe
, sex gender martial status age, social status or whether they were born in or out of wedlock.

Section 56 (6) state that discriminates on any of the grounds listed in subsection 3 is unfair unless it
is fair , reasonable and justifiable in a democration society based on openness , justice , human
dignity , equality and freedom.

The rights of men seem not to be of much significance although it is mentioned in Section 80 (2) ( c)
of the constitution mention that woman have the same rights as men regarding custody and
guardianship of children it went on to mention that an Act of Parliament may regulate how the
rights and to be exercised.

There is a shortfall in as far as the rights of man are concerned especially when it comes to paternity
and guardianship of the children

CRITICAL ANALYSIS OF THE FACTS AGAINST THE LAW.

Varume Svinurai is a pressure group advocating for the right of men. Their main concern hinges
around the issue of the law relating to paternity. The bone of contention on is whether the law
relating to paterioty is discriminating or not. If it is true that in 11 cases of paternity 7 of the alleged
fathers turned out not to be the fathers , this is surely a cause of concern. The moral fabrics of the
society are broken down. Section 86 (1) of the constitution provides that the fundamental rights and
exercised reasonably and with due regard for the right and freedom of the persons.

Section 86 (2) of the constitution is instructive when it says that the funder mental rights and
freedom set in terms of a Law of general approaches and to the extent that the limitation is far
reasonable necessary and justifiable in not democratic society based on openness, justice , human
dignity , equality and freedom taking into account all relevant factors including the nature and right
or freedom concerned.

The rights being advocated by Varume Svinurai are limited by this section of the constitution.
Therefore the law relating to paternity is not discriminatory. The law it appears seek to protect
families as alluded in section 25 (a) of the constitution. It is not prudent to determine the paternity
of every child born.

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Section 26 (a) of the constitution provides that the state must take appropriate measures to ensure
that to the event of dissolution of marriage , whether through death or divorce , provision is made
necessary for the protection of any children and spouses. Considering that woman have been
regarded as second citizen for a long time Varume Svinurai . Pressure group should just follow the
law as it pertains to the best interest of the child.

Section 46 (1) ( c) of the constitution provides that when interpreting this chapter a court tribunal ,
forum or body must take into account international law and all treaties and conversions to which
Zimbabwe is a party. In view of the above all what is provided for in Article 3 of the convention on
rights of children , Article 4 of the African charter and our constitution confirms that position of the
law in regard to the best interest of the children.

All case laws a regarding paternity put the burden of proof on men. An example is the case of
Mtshiague vs Moyo (Supra) where both men were ordered by the court to foot the bills on paternity
tests.

In S V Mlungu (1995 (3) SA 391 cc) it was said that a constitutional is an organic instrument. Although
it is enacted in the form of a stature it is just generis. It must broadly , liberally and purposely be
interpreted 56 as to avoid the consterify of tabulated legalism so as to enable to continue to play a
creative and dynamic role in the expression of the ideals and aspiration of the nation in the
articulation of the values bonding its people in disciplining its government. On many occasions the
Zimbabwe Supreme Court has had to emphasize the sue generis character of a constitution calling
for principles of interpretation of its own.

One would wonder how the grievances of small pressure group would be addressed. Whether this
group is advocating for full equality of men and women before the law or not is the million dollar
question. Surely how can this be? Maternity is never in dispute but paternity. The limitation of the
rights of men are tandem or harmony with section 56 and 86 of the constitution.

The issue of paternity in Zimbabwe is generally that those who rebut paternity bear the duty of
proving it. The best interest of the child is the basis forming the issue of paternity. A departure from
this basis calls for the total collapse of the institution of the family , marriage , morability and the
socie

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