By Margaret Matibiri
IN A LANDMARK ruling, the high court has invalidated the common law rule which grants guardianship and sole custody rights of a child born out of wedlock to the mother, denying the biological father parental control.
Justice Happious Zhou, who presided over the case pitting prominent business mogul, Frank Buyanga and his former girlfriend Chantelle Muteswa, declared that the common law rule was inconsistent with the new constitution and was therefore invalid.
Therefore, Buyanga was granted joint custody of his minor son by the High Court after a long battle with his former girlfriend.
Buyanga through his lawyers, Admire Rubaya and Everson Chatambudza, challenged the common law position that the mother of a child born out of wedlock is the sole guardian of and has exclusive custody over that child.
In terms of the judgement, the common law position has been overturned and the court says it is unconstitutional and not in line with the best interests of the child for the mother to automatically become the custodian.
“This application is essentially a challenge to the common law position that the mother of a child born out of wedlock is the sole guardian of and has exclusive custody over that child.
The applicant in this instance seeks to be declared joint guardian of the minor child together with the respondent who is the mother and under the current law the natural guardian of the child,” read Buyanga’s application.
“Applicant also wants joint custody over the child. In respect of guardianship, the applicant asks the court to order that he and the respondent exercise the right of guardianship in consultation with each other and that if the parties disagree on any matter relating to the exercise of the rights of guardianship in the matter involved has a bearing on the life, health and morals of the child, either party entitled to approach a judge of this court in chambers for an order to resolve the disagreement.
The judgement by the High Court reiterated that the issue of joint guardianship had not been considered because the parties then accepted that they were bound by the common law position.
“The Constitutional validity of the common law position on custody and guardianship of the child born out of wedlock is what is at issue in casu. In other words, the issue is whether the applicant, being the father of a child born out of wedlock, is entitled to joint guardianship and joint custody over the child under the constitution of Zimbabwe 2013,” reads the judgement.
“The order granted by consent was based on the existing common law position whose constitutional validity he is challenging. This issue has not been determined by any court and is therefore not res judicata. For these reasons I dismissed the objection in limine.”
Muteswa disputed that joint custody and joint guardianship with Buyanga was in the best interest of the child.
“Respondents case, the respondent disputes that joint custody and joint guardianship with the applicant is in the best interest of the child. She also questions the sustainability of the applicant to be given custody or guardianship rights over the child. Respondent denies that the common law on the custody and guardianship of a child born out of wedlock is in consistent with section 19 (1) and section 19 (2) as read with section 81 of the constitution and, further denies that section 56(3) is contravened by the existing common law.”
The High Court handed the ruling as follows;
“The applicant and respondent shall within 30 days of this order arrange to have the minor child interviewed by a government social worker to be appointed by the Registrar of this court after which the appointed social worker shall prepare and present a report with recommendations on how the parties shall exercise their joint custodial rights without disrupting the social life of the child.
“Such report shall be placed before any judge of this court within 30 days of being presented to the Registrar, together with this record, for a final order to be made regarding the terms of the joint custody. If any costs are to be incurred in respect of the work of the social worker, such costs shall be shared equally by the applicant and the respondent.”
Last week Muteswa unsuccessfully sought an urgent injunction to stop Buyanga from changing the minor’s surname until after a judicial review.
The Children’s Court ruled that Buyanga could have his name appear on the child’s birth certificate.
In her High Court urgent application Muteswa argues that registration of the little boy in his mother’s surname was in the minor child’s best interests.
By Margaret Matibiri