HARARE – An exasperated judge on Thursday said he wished he could stop businessman Frank Buyanga and his ex-girlfriend Chantelle Mutesewa from using courts as a “playground” in their long, drawn-out child custody battle.

Justice Joseph Mafusire said Buyanga and Muteswa “want their day-to-day lives regarding the child to be managed by the courts,” commenting: “It’s impossible. The courts will always give an order which either both parties may not agree with, or one party will be aggrieved with.

“If I had the power to stop the parties from coming to court, I would do it.”

The judge passed the comment as he threw out an application by Buyanga, who was seeking the suspension of an April 16 order granted by another High Court judge directing him to surrender his five-year-old son and passport to Muteswa within two hours or face arrest.

Justice Mafusire said he had “misgivings” about Justice Jacob Manzunzu’s order for Buyanga’s arrest for failing to comply, even as he accepted that court orders “must bite.”

Buyanga’s lawyer Advocate Lewis Uriri had argued in court that the millionaire businessman was not in the country and therefore out of the court’s jurisdiction. In any event, the lawyer said, lockdown regulations in many countries restricting the free movement of people made it impossible for him to comply.

Justice Mafusire was not persuaded.

“After considering the matter, the judgement by Manzunzu J, and after considering the notice of opposition, first personally I have misgivings and with all due respect, I say this with all due respect, I have misgivings about Paragraph 4 of the order of Manzunzu J,” Mafusire said, referring to the order for Buyanga’s arrest should he fail to comply.

“But on reflection, an order of court must have teeth, it must bite, it must have repercussions. If an order is granted, there must be a mechanism to enforce it. My decision is that I am denying this application, I am dismissing it for the reason that I am not satisfied that the applicant (Buyanga) has brought all his cards to the table, I’m not satisfied that the applicant has been candid with the court and I’m also not satisfied that this matter meets the criteria for urgency given the stated fact that he is out of the jurisdiction of this court.

“But my major reason which is going to come into the written judgement is that the substance of this application is to sanitise a breach of the court order, and I am not going to do that, so the application is dismissed with costs.”

Justice Mafusire said the court battles between the parents were not good for the child.

Last month, Justice Happious Zhou of the Harare High Court granted Buyanga and Muteswa joint custody of the child after ruling that the common law rule that gives the mother of a child born out of wedlock sole guardianship and custody of a minor child is unconstitutional.

Muteswa has appealed the judgement at the Supreme Court, and Justice Manzunzu ruled that she should have custody of the child until her appeal was heard.

Justice Zhou had also advised the couple to engage a social worker to give a professional opinion about what was best for the child, with the outcome being a negotiated consent order regarding access and custody.

On Thursday, Justice Mafusire said he had seen a detailed consent order drafted by Muteswa’s lawyer, Munyaradzi Bwanya, and thought it could be the basis of resolving the dispute between the parties.

“This is off the cuff, this is food for thought,” Mafusire said. “Perhaps the Supreme Court is going to put an end to the litigation and come up with a definitive verdict, but I don’t think so. The matter might end up at the Constitutional Court. I don’t see, given the heat that is being generated, this matter dying away before the Constitutional Court. These are my observations.

“What I find happening is that these courts are being used as a playground, and the parties are just looking at their own self not the interests of the child. Right now, I don’t know where the child is, there was a judgement (by Justice Zhou) that Social Welfare be involved which was most sensible in my view, but no-one is paying attention to that. It’s like one party wants to get at the other.

“There are reports of the child being snatched from school (by Muteswa), there are reports of the child being kidnapped from a shopping centre (by Buyanga) and people then come to court. I find that incredible.”

The court heard that police had invoked the international police organisation, Interpol, to track down Buyanga and the child and extradite them to Zimbabwe.

But Buyanga has written to Interpol, accusing authorities in Zimbabwe of targeting him in what he says is a “political ploy”. He has dismissed the police request for Interpol to seek his arrest as a “toxic, politically-motivated request.”

The businessman has previously fired off a flurry of letters to the Zimbabwe Anti-Corruption Commission, the Judicial Services Commission and the Zimbabwe Human Rights Commission accusing members of President Emmerson Mnangagwa’s family of meddling in his custody dispute, including making over a dozen inappropriate calls to the judge who heard his case, Justice Manzunzu.

Buyanga claims one of Mnangagwa’s sons, Collins, is in a romantic relationship with Muteswa, and that the first family has abused its authority to interfere with the work of the police and the judiciary to tilt the odds in Muteswa’s favour.

In their letter to Interpol, Buyanga’s lawyers wrote: “It is Buyanga’s considered view that the request to place him on Interpol Red Notice is a political ploy disguised as a tool to try and combat crime in Zimbabwe.”

The lawyers argue that he was never arrested nor charged with a crime until he had left the country, insisting that the request for his arrest is a “perfect example of the abuse of the Red Notice mechanism by political hawks who target their perceived political opponents who might be of the firm view that the politics of the country could have been managed in a different and better manner than the current political order.”

“Buyanga therefore urges you to vigorously scrutinise the request in question and get as much information as possible before making a decision on the request,” his lawyers asked Interpol.

“He never appeared before any criminal court to answer to these allegations. Buyanga contends that he is considered a political opponent by those who control the levers of power because of his stance against corruption and gross abuse of power being perpetrated by those who occupy political office and their family members as well as associates.”

Buyanga is reportedly an ally of Vice President Constantino Chiwenga, who is said to be locked in intense behind-the-scenes manoeuvres to wrest power from Mnangagwa. Buyanga’s lawyers say Mnangagwa is now using the child custody battle, with threats to arrest him, as an opportunity to neutralise the property tycoon and cut-off his financial support to Chiwenga.