A HARARE magistrate, Peter Kumbawa, this week refused to hear an appeal by Kuda Madyara who wants to secure the custody of his nephew from High Court judge, Justice Charles
Kumbawa on Tuesday ruled that Madyara had approached the court without “clean hands” because he had not surrendered custody of Hungwe’s eight-year-old son.
It is claimed the child was born out of wedlock with Madyara’s sister Susan.
Hungwe last month won a provisional order to take custody of the minor but Madyara, brother to the late Susan with whom Hungwe had an extra-marital affair that resulted in the birth of the child, appealed against the ruling.
Madyara, who is represented by Thembinkosi Magwaliba of Magwaliba, Matutu & Kwirira legal practitioners, is appealing to the High Court against Kumbawa’s ruling.
In the notice of appeal presented in the High Court, Magwaliba argued: “The honourable magistrate erred and misdirected himself by raising mero motu the ‘clean hands’ doctrine to the prejudice of the appellant (Madyara).
The honourable magistrate fundamentally misdirected himself in holding as he did that the status quo ante had to be restored without investigating the risk of grave harm to the physical and spiritual wellbeing of the minor child and his best interest.”
According to the outline submitted by Madyara, Hungwe took custody of the child from the Madyara family after the mother’s death in April this year with the connivance of a headmaster at the school attended by the minor in Harare.