A suspension of an order was recently issued by the Children’s Court to allow South Africa based businessman, Frank Buyanga to take his four-year-old-son sired with ex-girlfriend Chantelle Muteswa out of the country.
This was revealed during a Notice of Appeal with the High Court made by Buyanga recently.
The development comes after Chantelle had made an application challenging that Buyanga should not leave the country with their son until the custody matter was finalised.
The two have been fighting over the custody of their son for years and the businessman recently got interim custody of the child when High Court Judge Happious Zhou ruled Chantelle had no proper accommodation for the boy in HC 8488/19.
In his recent application, Buyanga argued that during the application made recently by Chantelle, the court had made a mistake in relating to an invalid application since it was brought contrary to the mandatory provisions of the proviso to rule 241 of the High Court Rules and it also having been founded upon an application for review which does not comply with the mandatory provisions of rule 230 of the same rules of court.
“The court aquo erred in not detailing reasons that are legally justifiable and sustainable for its decision to ignore the invalidity afflicting the application before it. The court aquo erred in holding that the fact there was a pending review application entitled applicant (Chantelle), in and of itself, to the relief that she sought,” he said.
“The court aquo erred in not considering the merit or lack therefore of the review application filed and particularly erred in not considering that. In view of the enforcement provisions of the Convention of the Rights of the Child and the mutual enforcement provisions of the law, nor legitimate fears could be entertained by the respondent on appellant failing to return the minor child at the end of hiss access period.”
Buyanga further argued that the temporary removal of the minor child to a country in which he was born and live constituted the lawful exercise by appellant of his rights to access and was in the best interests of the minor child.
“The insistence by respondent (Chantelle) on the superiority of her rights was based on an antiquated position which is now constitutionally invalid and of no effect and was accordingly contrary to the best interests of the minor child.
“The suspension of the order issued by the Children’s Court allowing appellant (Buyanga) to take the child out of the republic could be and was properly made the subject of an order granting leave to execute pending appeal.
“In the circumstances of the matter properly considered respondent had appealed an order made in her favour and such appeal was invalid.”
Buyanga also recently filed an urgent chamber application with the High Court seeking to have the school which his son attends, Harare International School be drawn into the fight between him and Chantelle.
Buyanga is now seeking Harare International school to be cited as a respondent in the proceedings so that the school authorities will be compelled to deny Chantelle access to the child.
“I am of the respectful opinion that the first respondent (Harare International School) ought to be joined in these proceedings because it plays a crucial role in the day to day academic life of the minor child, in that it is an institution where our child is getting his education.
“Further Chantelle Muteswa still exercises her right of access to the minor child and in light of the above interim court order, that is, order in case number HC8488/19 the school should also protect the best interest of the child by not releasing the minor child into the hands of Chantelle Muteswa as it risks the very same reason that is being avoided by the said order,” he said.
The order Buyanga referred to is a judgement by Justice Zhou who ruled the interests of the child were paramount before he granted him temporary custody on grounds that Chantelle was of no fixed abode.
Buyanga said if the school bars Chantelle from seeing their son it will be protecting his best interests.
He submitted that he had approached the school, which turned down his request.
“However the school has refused or was reluctant to do so despite having received a letter from me on the basis that it was not cited in the said court order,” he said.
Buyanga said Chantelle should meet him for a Memorandum of Agreement on the issue of access and custody of the minor child.
The businessman also wants Chantelle to release their son’s South African passport saying he fears she will run away with the child.
“Worse still in light of the applicant’s knowledge that Chantelle Muteswa has obtained a 10 year United States of American visa, there is great risk that she has plans to take my minor child with her outside the country without my knowledge and consent and most importantly contrary to the two different court orders which are still extant,” he said.
He said it is important that the school is joined as respondent as it has a bigger part to play in assisting the court officials to enforce the interim order that was granted and the final relief sought in case number HC8488/19.
The case is yet to be set down for hearing. H-Metro