Chantelle Muteswa, ex-girlfriend of property and gold tycoon Frank Buyanga, has approached the High Court in a bid to reclaim custody of their five-year-old child, Daniel Alexander.
Muteswa’s urgent chamber application seeks the return of the minor child to Muteswa within 12 hours of Buyanga being served with this order.
Muteswa, who has retained Advocate Fadzayi Mahere as her lead counsel, also asked the High Court to overturn a July 19 ruling by 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.
“Respondent be and is hereby ordered to return the minor child Daniel Alexander Sadiqi born 5 August 2014 to applicant by personally appearing before the Registrar of this Court, at the Harare High Court, to hand over the child to applicant within twelve (12) hours of being served with this order at his given address or through his legal practitioners of record,” said the urgent chamber application.
“Failure which, all members of the Zimbabwe Republic Police be and are hereby ordered to enforce this order. Failure which, this order shall serve as a warrant of arrest against respondent until he has personally appeared before the Registrar to hand over the child to applicant.”
But Justice Happias Zhou has thrown out Muteswa’s application.
“The effect of the relief which is being sought is to suspend the operation of the rule nisi granted by the Children’s Court,” Justice Zhou ruled.
“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.”
Justice Zhou explained that it is a settled principle of law that it is only in exceptional circumstances that the High 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.”
Though Muteswa initially succeeded in gaining custody of the boy, her custody battle appeared to reach a dead end last month, when a Civil Court magistrate awarded custody of Daniel to his father, who now lives with him.
According to court documents, the judge accepted Buyanga arguments that she was unfit to raise Daniel because Muteswa, who was living with her dad, moved house after the father lost his property after being evicted from the Glen Lorne property over an agency debt. Muteswa’s father Lawrence fraudulently registered two bonds over the 4 300 square metre property, which was acquired in 2009 with help from Buyanga.
One of Buyanga’s firms, Hamilton, extended funds to Muteswa’s dad to buy the Glen Lorne house – which has now been seized – but up to now, a decade later, the father has ignored his obligations.
After Chantelle changed addresses after her father’s eviction by bailiffs, 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 was assessed. .
Muteswa approached the High Court in a bid to invalidate that order of the lower court. In her application, she made untested claims that Buyanga was 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, strenuously 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 revealed a family seeking an out of court settlement with Buyanga.
Besides being owed thousands by Chantelle’s dad, Buyanga also reveals that he bailed out her brother Shaun out of jail with his lawyers Rubaya and Chatambudza when he sought his intervention.
He also revealed that he not only bailed him out but also sent him funds as he had requested.
In impassioned plea for an out of court settlement, Shaun said: I think there are ways we can solve all issues that are pending. As I said before, I might be the youngest and you might not take this seriously but I ask you to consider we work a way forward.”
Muteswa, according to Buyanga, contemptuously violated two court orders ordering her to surrender his son’s passport.
In June, Muteswa approached the High Court seeking and order proscribing Buyanga from taking Daniel to his Johannesburg base.
Muteswa went to the High Court in June and obtained an order barring Buyanga from taking the child out of the country.
Buyanga, through Advocate Thabani Mpofu, has lodged an appeal against that ruling before Justice Jacob Manzunzu. Mpofu raised procedural flaws in the manner the application was filed. Her also challenged assertions by Muteswa that access to the child can only be exercised in Zimbabwe, and that taking him out of the country was 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 said in the appeal.
“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.”