By Everson Mushava
Buyanga was taken to court by his ex-wife, who was seeking the court to make a declaration on the custody of their child after tussling over the matter that has, to date, implicated many people, including police officers, lawyers and magistrates.
The businessman filed contempt of court charges against Muteswa and wanted her to be sentenced for 60 days for failing to hand over the child’s passport to him in April when he wanted to travel with him to South Africa.
This resulted in Muteswa being detained by the police in April for contempt of court.
Nyatsanza on Monday heard both matters; Muteswa’s application for declaration of custody as well Buyanga’s application of execution pending appeal, where he wanted Muteswa to release the child’s passport.
Buyanga has already placed criminal and civil charges against his ex-wife.
The declaration of custody was handed down on May 27, and for the execution pending appeal, the ruling was supposed to be released on May 28 and then later moved to May 29.
“The applicant is the sole custodian of the minor child (name withheld). The respondent and applicant to pay own costs,” read the ruling by Nyatsanza, delivered in court on May 27.
After losing custody of the child, Buyanga on May 28 wrote a letter of complaint to the resident magistrate, accusing Nyatsanza of bias.
He claimed that his driver saw the magistrate in town chatting with his ex-wife and has the potential of making unfavourable ruling against him.
In his letter, he said he had been denied access to the passport of the minor child against a court order, forcing him to apply for the execution pending appeal, but verdicts have been postponed on several occasions.
“Prior to court ruling (the one giving Muteswa custody), Mr Nyatsanza, who was not at the court premises, was seen by my driver Lloyd chatting to Ms Muteswa along Fourth Street at the intersection of Kwame Nkrumah,” Buyanga claimed in his letter dated May 28.
“I am now concerned that Mr Nyatsanza, who was seen and discussing with Ms Muteswa outside court, can still adjudicate over my matter in an impartial manner. My concern is particularly informed by the fact that after meeting Ms Muteswa, Mr Nyatsanza further postponed the matter to May 29, 2019 for ruling. He might prejudice me after his meeting with another litigant in the same matter.”
He made an application for the magistrate to recuse himself.
The application was heard on Thursday, with Nyatsanza, who had already made the ruling on the execution pending appeal case before Buyanga’s complaint, agreeing to recuse himself, but referred the matter to the High Court.
“The essence of my ruling is that, and I quote from that ruling: ‘The portions that I stressed bring out the intention of the legislature that in the event of any access order, however framed but which is in substance an access order to determine the fate of such appeal. The magistrate court is clearly stripped of any power to allow execution pending appeal as is the case generally in terms of section 40(3) of the Magistrate Court Act (Chapter 7:10) This is a ruling based on what the law says in black and white’,” part of Nyatsanza’e ruling read.
Muteswa is represented by Munyaradzi Bwanya of Wilmot and Bennett Legal Practitioners, while Buyanga is represented by Rubaya and Chatambudza Legal Practitioners. NewsDay