Vice-President Constantino Chiwenga’s dispute over custody of his children took a new turn Monday after it emerged that his estranged wife, Marry Mubaiwa had actually conceded to being mentally unstable while making her application for bail at the High Court.
Apparently, Chiwenga had refused to release the couple’s three children into Marry’s custody on the basis that the latter was a drug addict and unsuitable to take care of the children.
However, when the couple’s custody dispute spilled into the Supreme Court on appeal Monday, it then emerged that High Court judge, Justice Christopher Dube-Banda, who deliberated over the matter, did not deal with the application that was placed before him when he ruled in favour of Marry.
This was revealed when Chiwenga, through his lawyers, submitted before Deputy Chief Justice Elizabeth Gwaunza and Justices Paddington Garwe and Chinembiri Bhunu that Justice Dube-Banda misdirected himself when he granted Marry what purported to have been a spoliation order, which she had not applied for.
During interaction with the court, Marry’s lawyer Advocate Taona Nyamakura, who was being assisted by Advocate Sylvester Hashiti, also made a concession that Justice Dube-Banda granted a spoliation order which had not been sought by his client but urged the court to correct and make an amendment to the High Court order.
The VP’s lawyers, Advocate Lewis Uriri, who was instructed by Wilson Manase, said the judgment by Justice Dube-Banda was not supposed to have granted Marry custody of the couple’s three minor children.
They said when she approached the High Court for relief, she simply challenged Chiwenga’s decision barring her from accessing their official home, number 614 Nick Prince Drive, Borrowdale Brooke, Harare.
Advocate Uriri further said Marry would not have sought custody of the minor children given that she had previously submitted a letter from the doctor, during her bail application, saying she needed constant monitoring by a psychiatrist.
Uriri said the letter was confirmation that she could not take care of her children because of her mental condition. He said it was, therefore, wrong for Justice Dube-Banda to order Chiwenga to release the children into her custody.
“When she was arrested, there was a duty of protection and a duty of care for the children. Whilst she was in custody she filed an affidavit that she needed attention of a psychiatrist,” Advocate Uriri said.
“She openly stated that she could not be trusted with her own children. She did not apply to the court for custody and, as far as we are concerned, that custody matter is still pending.”
As if that was not enough, Nyamakura was also grilled by Justice Bhunu, who wanted him to explain how Chiwenga was alleged to have abducted his children who had been in his custody when Marry was behind bars on allegations of money-laundering, externalisation and attempted murder.
“If he (Chiwenga) already had the children while she was in custody, how did he then abduct the children?” Justice Bhunu asked.
Nyamakura responded: “Appellant (Chiwenga) did not restore custody of the children soon after the mother was released from prison.”
The judge then further asked: “Respondent (Marry) being a psychiatric patient, was she the best parent to stay with the children? Does that not cast doubt on her mental capacity?”
And Nyamakura answered: “Nowhere did she say she was not able to stay with her children.”
After a lengthy interaction with the lawyers, Justice Gwaunza reserved judgment on the matter.
Meanwhile, the extra-territorial investigations into Marry’s attempted murder allegations filed by Chiwenga have been completed and the prosecution is waiting for exhibits and evidence to be brought before the Prosecutor-General for perusal, the magistrates court heard yesterday.
Magistrate Chrispen Mberewere remanded Marry to May 8 and her lawyer, Wellington Musengwa consented to the postponement, but filed a notice to apply for refusal of further remand on May 8 if the trial date is not provided.
The State, represented by Tinashe Makiya, said investigations of the attempted murder charge and money-laundering were almost complete and a trial date will be provided.