Tuesday 20 July 2021


BUSINESSMAN Frank Buyanga wants the Constitutional Court to overturn a Supreme Court judgment and find that the biological father of a child born out of wedlock does in fact have an automatic right to joint custody and guardianship, with the courts just deciding the details of how that right can be exercised in individual cases.

The legal saga over the rights of fathers of children born out of wedlock started last year when the High Court, in a judgment by Justice Happias Zhou, found that constitutional provisions on the rights of children overturned the common law position that the mother of a child born out of wedlock had sole custody and guardianship.

The judge then ordered that the Registrar of the High Court should appoint a social worker to recommend how this joint custody and guardianship should operate in the particular case of the son of Mr Buyanga and his former lover Chantelle Tatenda Muteswa.

That report would then be submitted to a High Court judge who would make the final order on the nuts and bolts of the joint custody and guardianship in the case of this boy.

Ms Muteswa appealed. Last month the Supreme Court agreed in part with Justice Zhou, finding that the constitutional provisions on child rights could allow joint custody and guardianship, but only if this was in the best interests of the child in question. The three judges disagreed there was an automatic right for fathers of children born out of wedlock to have joint custody and guardianship, the critical point being the best interests of each child in each set of circumstances.

The Supreme Court then set aside Justice Zhou’s order concerning how the details of this joint arrangement would operate and referred the case back to the High Court so that there could instead be an investigation whether the best interests of the son of Mr Buyanga and Ms Muteswa would be best served by joint custody and guardianship.

It is this decision that Mr Buyanga now wants to appeal to the Constitutional Court and to have a ruling that grants him, and by inference all biological fathers of children born out of wedlock, an automatic right to joint custody and guardianship rather than retain the case-by-case approach in the Supreme Court ruling.

Buyanga, in his constitutional appeal prepared by lawyer Mr Admire Rubaya, believes the investigation ordered by the Supreme Court violated what he believes is his constitutional right to joint custody and guardianship, regardless of what any court might decide about his suitability to exercise that right.

He said that if his ex-lover frustrates the conduct of the ordered enquiry, it will automatically mean that she will continue taking custody and guardianship of the minor child.

Buyanga also appealed against a Supreme Court order that requires him to return the child to Zimbabwe from South Africa before any of his cases are heard in court.

He then sought leave for his matters to be heard before the child is brought back to Zimbabwe saying even if he has dirty hands, he has a right to be heard before any court as enshrined in the Constitution and this was not dependent on compliance with the law. The Supreme Court order took away his constitutional entitlement of access to courts, he said.

The question of condonation and dirty hands arises from a second strand in the legal saga. Last year High Court judge Justice Jacob Manzunzu ordered Mr Buyanga to return the boy within 24 hours to Ms Muteswa or Waterfalls police.

This was after Mr Buyanga had allegedly snatched the child from Ms Muteswa’s custody.

Mr Buyanga appealed against the High Court order but never followed up the appeal and it was eventually struck off the Supreme Court roll.

He then applied for condonation of his delays and reinstatement of his appeal, but last month, after the appeal in the other strand, Justice Tendai Uchena ruled that he wanted to see the boy in his court before he could rule on this application in the second strand of legal cases.

Opposing the application for condonation, Ms Muteswa had argued through lawyer Munyaradzi Bwanya that Mr Buyanga had failed to obey court orders to return the child to the custody of his mother, to hand the child’s passport over to the registrar, and not to take the child out of Zimbabwe without the consent of Ms Muteswa. It was also alleged Mr Buyanga was a fugitive from justice and wanted by the police over allegations of kidnapping the child. Herald


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