A Zimbabwe high court this week delivered a landmark ruling that now gives fathers of children born out of wedlock the same rights as mothers.
The court ruled that the existing common law position discriminates against a child born out of wedlock by treating the child as if he or she had no father, save for the purpose of maintenance. Currently, Zimbabwean law favours women over men when it comes to the custody rights of children.
However, Justice Happias Zhou ruled that the treatment of a father of such a child, like any other third party in matters concerning access, custody and guardianship, shows that the child is regarded as "fatherless", and deserving of no paternal care or attention save for the purposes of maintenance.
The ruling was given in a matter that pitted businessman Frank Buyanga against ex-girlfriend Chantal Muteswa, with whom he had been battling over the custody of their minor son, born in Johannesburg in 2014.
“The applicant [Buyanga] is hereby granted, together with the respondent [Buyanga] joint guardianship and joint custody of the child [name withheld to protect the minor] born on 14 August 2014,” ruled the judge.
“The applicant and respondent shall exercise their rights of guardianship in consultation with each other and if a decision of either parent on any matter relating to guardianship is incompatible with the other parent’s wishes and likely to affect the life, health and morals of the minor child, and the applicant and respondent cannot reach an agreement, either party may apply to a judge of the high court for a determination of the course which is in the best interests of the minor child.”
The flamboyant Sandton-based millionaire has been battling to bring his son back to South Africa after the mother claimed sole custody of the child and denied him shared custody. Buyanga had previously been barred from travelling with the child.
Additionally, the businessman had been seeking the court’s directive to force his former girlfriend to have their son carry his name.
In the judgment, Justice Zhou said: "the common law rule that gives the mother of a child born out of wedlock sole guardianship and sole custody and denies the natural father of such a child parental power is inconsistent with sections 56(1), 56(3), and 81(2) of the constitution of Zimbabwe is invalid."
He ruled that it is unfair discrimination to deny a child the benefits of associating with his or her biological father, which is an aspect of parental care, on the mere ground of marital status of the parents at the time he or she was born.
Justice Zhou added: "The right to family and parental care, which is enshrined in the constitution, includes the child’s right to be cared for by both natural parents. Care means more than just channeling monetary maintenance to the child through the mother."
The Zimbabwe court cited the South African constitutional court ruling in a case Fraser vs Children’s Court, which held that the discrimination against fathers in non-Christian marriages is no longer permitted.