The Constitutional Court has struck off the roll the two cases lodged by businessman Frank Buyanga after finding he was in flagrant violation of many court judgments and will only hear his applications when he has returned his child with former girlfriend Chantelle Muteswa to the mother as ordered by the lower courts.
On that basis, the Constitutional Court said it was withholding its jurisdiction to entertain Buyanga’s applications against Ms Muteswa and he could only be heard once he obeys the orders.
Two separate applications were heard in the Constitutional Court this week before Justice Paddington Garwe, Justice Ben Hlatshwayo and Justice Bharat Patel.
In one of them, Buyanga wanted to appeal against the Supreme Court judgment partly overturning a ruling by Justice Happias Zhou in which he awarded joint custody to both parents, setting a precedent for a child whose parents had never formally married and overturning the previous law that granted full custody and guardianship to the mother.
The Supreme Court, while agreeing change was warranted, wanted the system to follow that when a married couple splits, custody and guardianship arrangements are made in the best interests of the child.
So the High Court was asked to investigate this requirement in the Buyanga-Muteswa case.
Buyanga was trying to appeal to the Constitutional Court to have an absolute right to joint custody restored.
In the other case, Buyanga was appealing against a Supreme Court judgment by Justice Uchena who had ruled that he should not be heard in his application for condonation for failure to comply with the rules of the Supreme Court when he wanted to appeal against a judgment by Justice Manzuzu that he should not remove the child from Zimbabwe without the consent of the mother or the court.
The Constitutional Court decided, with the consent of the parties, to hear both cases on the same day because of similarities.
Mrs Olivia Zvedi, who was representing the Commissioner-General of Police, the Registrar General, the Chief Immigration Officer and the Minister of Justice, Legal and Parliamentary Affairs, had all been sued along with Muteswa.
Advocate Choice Damiso, who represented Muteswa, and was instructed by the Women and Law in Southern Africa (WLSA), made submissions that given that Buyanga was in flagrant violation of numerous orders from the Magistrates Court, High Court and Supreme Court, the Constitutional Court should not accord him a hearing.
The judges agreed and made the unanimous decision that it would not entertain the applications until such time Buyanga had purged his violations and returned the child to his mother.
The Constitution provides that the best interests of the child are paramount, and that means they can trump any rights given to parents.
The Constitutional Court showed utmost concern that the child was the ultimate innocent victim of Buyanga’s intransigence.
The court struck both cases off the court roll with an order that Buyanga must meet the full costs of Ms Muteswa and the State officers on an attorney-client scale.
This means that they can claim back the fees and other costs charged by lawyers as well as the much lower fees for processing court papers. Adv Damiso told The Herald after the cases were heard that since the Constitutional Court is the highest court in the country, the judgment signals “the end of the road for Buyanga”.