Buyanga ex fined $20

Chantelle Tatenda Muteswa was on Friday fined RTGS$20 after being found in contempt of court for refusing to release the passport of her minor child to her ex, Frank Buyanga in violation of a court order issued in April.

The South Africa-based businessman, who is the child’s father, took up the matter with the courts and magistrate Noah Gwatidzo ruled that Chantelle was guilty of contempt of the order of court granted under CCA205/18 on April 17 this year.

“Respondent (Chantelle) is accordingly sentenced to a fine of RTGS20 to be paid forthwith. In addition one month imprisonment wholly suspended on condition that she purges her contempt by complying with the order.

“The order shall itself act as a Warrant of Arrest for the personal attachment and detention of the respondent (Chantelle) upon persistent con compliance.

And

“The respondent (Chantelle) to meet the costs of the application.”

In his findings, Magistrate Gwatidzo noted:

“As can be gleaned from the order itself and all documents filed of record, the contempt of court proceedings are premised on the assertions that, despite the clear and specific order to always surrender the child’s passport upon request, she (Chantelle) has willfully disregarded the order by refusing to surrender the same.

“According to applicant (Buyanga), she was in attendance when the court varied the prior order to incorporate the clause regarding the child’s passport.

“By refusing to surrender the same upon request in the full knowledge of the compelling nature of the access order, she consciously took a decision to violate that term of the order. It is the applicant (Buyanga’s) contention that through that open defiance to the order, she sought to frustrate and curtail his full enjoyment of access rights as the surrender of the passport is ancillary to such enjoyment. It is his prayer that she be found guilty of contempt of court and be punished accordingly.”

The magistrate noted that Chantelle made conflicting assertions in her opposing affidavit.

“She makes a conflicting assertion that, upon request, she sought to convey the passport to applicant (Buyanga) in satisfaction of that order through their respective legal practitioners to avoid handing it direct to the applicant (Buyanga).

“She asserts she took that avenue as (Buyanga) cannot be trusted in that regard in the absence of written acknowledgement of receipt through the lawyers. According to her (Chantelle), she played her part by surrendering to her lawyers but due to reasons beyond her control, the passport remained in the custody of her lawyers.

“She therefore did not willfully disregard the court order. As such, Chantelle prays for the dismissal of the charge and a finding by this court that she is not guilty of violating the access order.”

“However, after perusing the documents filed of record and hearing counsel for the parties, it is quite clear that the respondent (Chantelle) has not, with respect, correctly construed the applicable provisions of the law governing the matter before the court.

“She is laboring under the erroneous interpretation that the order whose violation is complained of was applied for and granted in terms of section 6 (4) of the Act, when in fact it was in terms of Section 5 (3) of the Act, as correctly pointed by Buyanga.”

He added:

“In light of the foregoing, one is left wondering as to the respondent’s basis of asserting that they order in contention was not issued in terms of the above-cited provision but a subsequent provision whose primary thrust is the enforcement of access orders, section 6 [4] of the Act.

“As that access order was issued in terms of section 5 [3] [c] and not section 6 [4] as asserted by respondent, its operation cannot be suspended by section 6 [9] which reads as follows; 6[9] . . . ‘Where an appeal in terms of subsection [8] is noted, the order of the children’s court against which the appeal is noted shall be suspended until the appeal lapses for want of prosecution or is withdrawn, abandoned or dismissed.’

“In my view, the above-cited provision which the respondent seeks to rely on as having suspended the access order in issue is clearly inapplicable and inoperative on that access order that she allegedly violated. The order remains extant and operative against her, notwithstanding the noting of appeal against it.

“Furthermore, that fact was never lost to her at any-time especially if one considers that she has always been ably represented as all material times. She has enjoyed the benefit of legal counsel and was also in attendance when the order was issued. She understood its compelling import, hence her assertion that she attempted to satisfy its terms by surrendering the passport through her lawyers.

“From the totality of the circumstances, it is clear that the respondent consciously and deliberately chose to disregard the order issued. She was also alive to the implications of her violation of the order. It can therefore be safely concluded that she deliberately assumed the real risk of being cited for contempt of court. She was prepared for whatever legal consequence that could arise from her glaring disobedience to the order. All the elements for a charge of contempt are attendant in her case as clearly laid out by applicant.

“Even if one is to assume that she genuinely believed the order to be irregularly issued, she still had had the obligation to comply with it and seek redress after. As enunciated in Capital Radio (Pvt) Ltd vs Minister of Information 2009 (2) ZLR 289 [H], a person may not refuse to obey a court order merely because it has been wrongly made, for to do so would be seriously detrimental to the standings and authority of the court. The proper approach is to comply with that supposedly invalid order first and seek redress later.

“In casu, respondent’s conduct flies in the face of this wise counsel from the superior court, and deliberately so.” H-Metro