BUSINESSMAN Frank Buyanga wants the Constitutional Court to overturn a Supreme Court ruling, stating that the biological father of a child born out of wedlock does indeed have an automatic right to joint custody and guardianship, with the courts only being able to rule on the details of that right on a case-by-case basis .
The legal saga on the rights of fathers of illegitimate children began last year when the Supreme Court ruled in a ruling by Judge Happias Zhou that constitutional provisions on children’s rights replaced the common law position that the mother of a child was born out of wedlock. had sole custody and guardianship.
The judge then ordered the High Court Registrar to appoint a social worker to recommend how this joint custody and guardianship should work in the particular case of Mr Buyanga’s son and former lover Chantelle Tatenda Muteswa.
That report would then be submitted to a Supreme Court judge who would make the final decision on the be-all and end-all of joint custody and guardianship in this boy’s case.
Ms. Muteswa appealed. Last month, the Supreme Court partially agreed with Judge Zhou, stating that the constitutional provisions on the rights of the child could allow joint custody and guardianship, but only if it is in the best interests of the child concerned. The three judges disagreed that fathers of illegitimate children automatically have the right to joint custody and guardianship, the most important point being the best interests of each child in all circumstances.
The Supreme Court then reversed Judge Zhou’s order on the operation of this joint arrangement and referred the case back to the Supreme Court for an investigation into whether the best interests of the son of Mr Buyanga and Ms. Muteswa belonged to joint custody and guardianship best served.
It is this decision that Mr. Buyanga now wants to appeal to the Constitutional Court and obtain a decision that grants him and thus all biological fathers of illegitimate children an automatic right to joint custody and guardianship, instead of keeping the case to individual decision in the judgment of the Supreme Court .
Buyanga, in his constitutional complaint prepared by attorney Admire Rubaya, believes that the investigation ordered by the Supreme Court violated his constitutional right to joint custody and guardianship regardless of how a court might determine his fitness to exercise that right.
He said that if his ex-lover thwarted the investigation that was ordered, it automatically means that she will continue to assume custody and guardianship of the minor child.
Buyanga also appealed a Supreme Court order requiring him to return the child from South Africa to Zimbabwe before his cases go to trial.
He then requested that his affairs be heard before the child was returned to Zimbabwe, saying that even if the child had dirty hands, the constitution gave him the right to be heard in any court and it was not from compliance the provisions depend on the law. The Supreme Court order deprived him of his constitutional right of access to justice, he said.
The question of condolence and dirty hands arises from a second strand of the legal saga. Last year, Supreme Court Justice Jacob Manzunzu ordered Mr. Buyanga to return the boy to Ms. Muteswa or the Waterfalls Police within 24 hours.
This happened after Mr. Buyanga allegedly snatched the child from Ms. Muteswa’s custody.
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Mr Buyanga appealed the Supreme Court decision, but never pursued the appeal and was eventually struck down by the Supreme Court.
He then applied for his delays to be tolerated and for his appeal to be reinstated, but last month, after the appeal in the other section, Judge Tendai Uchena ruled that he wanted to see the boy in his court before he could decide on that motion in the second row of legal cases.
Against the request for apology, Ms. Muteswa had argued through the lawyer Munyaradzi Bwanya that Mr. Buyanga had not followed court orders to return the child to his mother’s care, to hand the child’s passport to the registrar and not to take the child with him without her consent Muteswa from Zimbabwe. It was also alleged that Mr. Buyanga was a refugee from the judiciary and was wanted by the police on charges of kidnapping the child.