The Supreme Court yesterday overturned what became a landmark ruling last year, in which a biological father of a child born out of wedlock, was granted parental control through joint custody.
Last year, High Court judge Justice Happious Zhou, who presided over the case involving Frank Buyanga and girlfriend Chantellle Muteswa, declared that the common law rule granting guardianship and sole custody rights of a child born out of wedlock to the mother, was inconsistent with the new Constitution and therefore invalid.
The ruling therefore granted Buyanga joint custody of his minor son following a long battle in the courts.
However, Muteswa appealed to the Supreme Court, and yesterday, it ruled that Justice Zhou made his ruling without checking if joint custody was in the best interests of the child.
Said Muteswa’s lawyer, Advocate Choice Damiso in an interview with The Herald yesterday: “Chantelle was successful. Her appeal was upheld by the Supreme Court.
“The court ruled that judge (Justice) Happious Zhou made a mistake by awarding joint custody without making an inquiry to determine whether or not joint custody is in the best interests of the child.”
However, the judgment has come at a time when the mother does not know where the child in question is, and there are plans to go back to the High Court to compel Buyanga to release the child.
Muteswa’s lawyers believe the child might have been taken out of the country.
“Apparently the father removed the child from Zimbabwe illegally. I understand that Ms Muteswa’s other lawyers Munyaradzi Bwanya are working on compelling the father to return the child.
“I came in on the limited brief of arguing her case before the SC (Supreme Court) so I can’t speak on the way forward,” said Adv Damiso.
In the High Court last year, Muteswa had disputed that joint custody and joint guardianship with Buyanga was in the best interest of the child.
She also questioned the sustainability of the applicant being given custody or guardianship rights over the child, and further denied that the common law on the custody and guardianship of a child born out of wedlock was inconsistent with section 19 (1) and section 19 (2) as read with section 81 of the constitution and, further denied that section 56(3) was contravened by the existing common law.
But the High Court handed down the ruling as follows; “The applicant and respondent shall within 30 days of this order arrange to have the minor child interviewed by a Government social worker to be appointed by the Registrar of this court after which the appointed social worker shall prepare and present a report with recommendations on how the parties shall exercise their joint custodial rights without disrupting the social life of the child.
“Such report shall be placed before any judge of this court within 30 days of being presented to the Registrar, together with this record, for a final order to be made regarding the terms of the joint custody. If any costs are to be incurred in respect of the work of the social worker, such costs shall be shared equally by the applicant and the respondent.”