HARARE – Businessman Frank Buyanga has taken his fight for the custody of his five-year-old son to the highest court in the land, after suffering two setbacks at the High Court.

The African Medallion Group boss is fighting an April 16 order by Justice Jacob Manzunzu giving him hours to return the boy to his ex-girlfriend, Chantelle Muteswa, or face arrest.

The two have been at loggerheads over the custody of their son for years, and this is the second time the fight has spilled into the Supreme Court. Muteswa is currently appealing a judgement of the High Court giving both parents joint custody and guardianship.

“Take notice that the appellant hereby appeals against the whole of the judgement of the High Court of Zimbabwe, per Manzunzu J, handed down at Harare on the 16th April 2020 in case 2149/20,” said Buyanga’s lawyers in the notice of appeal filed on May 11.

“Take further notice that the judgement appealed against is a mandatory interdict mandating the handover of a minor child to the first respondent and also relates to the welfare and custody of a minor and as such no leave is required to appeal the said judgement by reason of section 43 (1) (d) (i) –(ii) of the High court Act {Chapter 7:06}.”

Cited as respondents are Muteswa, Killian Kapfidze, Police Commissioner General Godwin Matanga, Registrar General Clemence Masango, the Chief Immigration Officer, the Justice Minister and South African Airways.

Buyanga’s lawyers said Manzunzu erred in granting relief outside the pleaded cause of action and thus assuming jurisdiction in respect of and determining a matter that had not been properly placed before the court.

“The court aquo erred in any event in granting final and definitive relief under the guise of an interlocutory mandatory interdict,” Buyanga says in his notice.

At the heart of the appeal is whether Manzunzu should have proceeded to hear the matter, even after Buyanga’s lawyers informed the court that he had left the country and was therefore out of the court’s jurisdiction.

Justice Manzunzu said no evidence was placed before him proving that Buyanga was out of the country. Justice Joseph Mafusire subsequently accused Buyanga’s lawyers of “playing hide and seek” with the court by failing to show proof that he had left the country, after the businessman sought the suspension of Manzunzu’s order.

Buyanga had temporary custody of his son since July last year, on the strength of an order granted by the Children’s Court after Muteswa was evicted from a property she shared with her father in Harare rendering her and her son homeless.

Buyanga accuses Muteswa of unlawfully withdrawing the boy from a top private school in Harare without his knowledge on March 11, effectively re-assuming custody.

The businessman says police were unwilling or failed to locate and return his son, leading up to a dramatic movie-style operation on March 26 when two men wearing masks and apparently sent by Buyanga grabbed the boy from a parked vehicle outside a Harare supermarket.

Buyanga’s lawyers say he left the country a day later, on March 27 – but immigration officials told the High Court they had no record of him exiting the country.

On that basis, Muteswa’s lawyers argued that Justice Manzunzu should proceed to hear her application for the return of the child. Muteswa argued that she has sole custody of the child, citing her own favourable court judgements.

Manzunzu upheld Muteswa’s application before ordering Buyanga to return his son to his ex-girlfriend.

The judge said Buyanga should exercise supervised access through video calling pending finalisation of Muteswa’s Supreme Court appeal.

Buyanga’s lawyers say he cannot comply with Manzunzu’s order, even if he wanted, owing to travel restrictions imposed by countries around the world which have lockdowns in place to control the spread of the coronavirus.

The businessman has vowed to fight attempts by Zimbabwean police to invoke Interpol to locate and extradite him. He accuses President Emmerson Mnangagwa, through his son, Collins, who is an associate of Muteswa, of politicising the child custody battle which he maintains is a civil dispute.