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.
“If I had the power to stop the parties from coming to court, I would do it,” Justice Joseph Mafusire said.
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.
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…”
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.”
He 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.
“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.