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
0 comments:
Post a Comment