By Mary Taruvinga
VICE President Constantino Chiwenga has told the Supreme Court that his estranged wife, Marry Mubaiwa cannot get custody of their three minor children after she admitted she was mentally ill and in need of urgent psychiatric treatment.
Chiwenga said this through his lawyer, Advocate Lewis Uriri during the hearing of his appeal against a High Court judgement granting Mubaiwa access to the couple’s matrimonial home and children.
The matter was heard before a Supreme Court bench led by Deputy Chief Justice Elizabeth Gwaunza alongside Justices Paddington Garwe and Chinembiri Bhunu.
“My Lords and lady the applicant (Chiwenga) is worried that respondent (Mubaiwa) wants to have the children but she personally submitted medical affidavit that stated that she was mentally unfit and needed to visit the doctor frequently which may not be prudent under the circumstances. The doctor concluded that Mubaiwa should be under the care of a physician, a surgeon and a psychiatrist,” said Uriri.
As the saga continues, Chiwenga also argued that the judge who handed down the ruling, Justice Christopher Dube-Banda erred in coming up with the ruling.
He argued that he failed to address the issue of spoliation which Mubaiwa sought and went on to brag about the rule of law which had nothing to do with the order sought.
“The appellant is the father of the children. His duty is to look after the children and there was nothing like abduction or forceful dispossession as alleged. He only embarked on sole custody because the other part, the respondent was not there,” said Uriri.
“Spoliation means to give back possession, but the judge went beyond spoliation and that was the misdirection,” he added.
“The court aquo erred and misdirected itself on the facts and evidence in holding that the respondent had been despoiled,” argued Chiwenga.
But Mubaiwa’s lawyer Advocate Zvikomborero Nyamakura argued that his client had a right to reside at her matrimonial home including access to her children.
The lawyer said Mubaiwa was not claiming ownership of the property but that the home remains hers as well regardless of the fact that she was facing criminal charges.
The ex-model was granted access to the feuding couple’s minor children and her matrimonial home in Harare’s upmarket Borrowdale suburb in January this year.
This was after Marry ran to the courts claiming the once feared military boss had deployed soldiers at the family home to bar her from getting inside the premises.
Marry had been released from remand prison on bail following her arrest on accusations she attempted to kill Chiwenga when the latter was battling for life in a South African hospital sometime in July last year.
She also faces fraud, money laundering and externalisation charges.
Chiwenga argued that Justice Banda erred in granting his estranged wife relief suspending the order until it is heard and determined.
As regards the children, Chiwenga said the court erred and misdirected itself in finding that the respondent had been unlawfully disposed of the children.
Banda had ruled Marry, despite having been in prison or on remand, has the right to the couple’s three children because they are still minors.
He said Chiwenga should have followed the law in barring Marry from getting back to her matrimonial home and having access to their children.
The judge said Chiwenga wrongfully took the law into his hands.