HARARE – The High Court has thrown out an urgent chamber application filed by the ex-girlfriend of property tycoon Frank Buyanga, seeking to regain custody of their five-year-old child.
Chantelle Tatenda Muteswa was seeking an interim relief for the return of the young boy within six hours of the order being granted or alternatively that an arrest warrant be issued for Buyanga should he fail to do so.
Muteswa, through her lawyer Advocate Fadzayi Mahere, also sought a final order setting aside the July 19 decision of a Harare magistrate extending Buyanga’s access to the child. If the order was granted, Muteswa also wanted it to “serve as a warrant of arrest whenever he fails/neglects/refuses to return the child” for the next five years.
But Justice Happias Zhou, in a judgement released on Monday, said Muteswa’s application was defective on many levels.
In dismissing the application, Justice Zhou said: “The effect of the relief which is being sought is to suspend the operation of the rule nisi granted by the Children’s Court. Ms Mahere for the applicant submitted that what is at stake are the best interests of the minor child as entrenched by section 18 of the Constitution of Zimbabwe… Based on these submissions she urged that the procedure by which the dispute has been brought to the court should be disregarded.
“It is a settled principle of law that it is only in exceptional circumstances that this court will intervene in undetermined proceedings of a lower court. The procedure by which the court’s powers to intervene in such unterminated or pending proceedings of a lower court must be one which is provided for by law. Thus, where, as in casu, the applicant seeks the setting aside of an order of the lower court in the final relief sought, that must be by way of either appeal or review.
“The instant application is neither an appeal nor a review application. There cannot, therefore, be a basis upon which this court could set aside the order of the Magistrate’s Court. Yet the final relief is the basis upon which the interim relief is founded. Put in other words, the interim relief is predicated upon an incompetent final order sought. This also renders the interim relief itself incompetent.”
The custody dispute between Buyanga and Muteswa has been raging for months.
Muteswa, who has been living with her father, recently changed addresses after the house changed ownership and the new owner evicted them, according to the court papers.
It was the basis upon which Buyanga approached the Children’s Court on July 19 to obtain permission to keep the child for longer while the suitability of Muteswa’s new home is checked.
Muteswa went to the High Court seeking to overturn that order of the lower court. In her application, she accused Buyanga of abusing her and her family; as well as blocking her attempts to speak to the boy over the phone.
Buyanga, represented by Advocate Lewis Uriri, denied the intimidation claims. “As a matter of fact, it is the applicant’s family that has been harassing me,” the businessman argued, while attaching several communications from Muteswa’s family including from her mother, brother and father.
The communications also show that Buyanga is owed thousands of dollars by Muteswa’s father, Lawrence, and was instrumental in getting her brother, Shaun, released from prison after hiring lawyers for him.
Muteswa, according to Buyanga, is in open breach of two court orders directing that she should release the child’s passport whenever the boy goes to his father.
Muteswa went to the High Court in June and obtained an order barring Buyanga from taking the child out of the country.
Advocate Thabani Mpofu, for Buyanga, is appealing that ruling by Justice Jacob Manzunzu. Mpofu says the application by Muteswa was not filed according to the rules and the position taken by Muteswa that access to the child can only be exercised in Zimbabwe was not in the best interests of the child.
“The temporary removal of a minor child to a country in which he was born and lived constituted the lawful exercise by appellant of his rights to access and was in the best interests of the minor child,” Buyanga says in his appeal, which is pending.
“The insistence by the respondent on the superiority of her rights was based on an antiquated position which is now constitutionally invalid and of no effect and accordingly contrary to the best interests of the minor child.”
