The Supreme Court yesterday overturned a landmark ruling from last year granting parental control through joint custody of a biological father of an illegitimate child.
Last year, High Court Judge Happious Zhou, who led the case of Frank Buyanga and her friend Chantellle Muteswa, stated that the common law rule, which gives guardianship and sole custody of a mother born out of wedlock, complies with the new constitution and therefore invalid.
The judgment therefore granted Buyanga joint custody of his underage son after a long legal battle.
However, Muteswa appealed to the Supreme Court yesterday, which ruled that Judge Zhou made his decision without considering whether joint custody is in the child’s best interests.
Courageous attorney, Advocate Choice Damiso, said 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 in granting joint custody without conducting an investigation to determine whether or not the joint custody was in the best interests of the child.”
However, the verdict came at a time when the mother does not know where the child in question is and plans to return to the High Court to compel Buyanga to release the child.
Muteswas lawyers believe the child may have been taken out of the country.
“Apparently the father took the child away from Zimbabwe illegally. I understand that Muteswa’s other lawyers, Munyaradzi Bwanya, are working to force the father to return the child.
“I came because of the limited time to hear your case in the SC (Supreme Court) so I cannot speak on the way forward,” said Adv Damiso.
Last year, Muteswa had denied in the High Court that joint custody and guardianship with Buyanga was in the best interests of the child.
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She also questioned the sustainability of the transfer of custody or guardianship rights for the child and further denied that the customary law on custody and guardianship for a child out of wedlock is incompatible with Section 19 (1) and Section 19 (2)) as read with Section 81 of the Constitution and further denied that Section 56 (3) was violated by existing customary law.
But the High Court ruled as follows; “The applicant and the defendant must, within 30 days of this order, arrange for the underage child to be interviewed by a government social worker appointed by the Registrar of this court, whereupon the appointed social worker prepares a report recommending how the parties practice exercise joint custody without disrupting the child’s social life.
“This report, along with these minutes, must be submitted to a judge of this court within 30 days of submission to the Registrar so that a final order can be made on the conditions of joint custody in relation to the work of the social worker, these costs will be shared equally by Applicant and defendant borne. “
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