Married businessman seeks visiting rights of two children born out of wedlock with married “mistress”

Peter Matika, [email protected]
In a story reminiscent of a dramatic African movie script, a married businessman from Bulawayo has taken his married ‘mistress’ to court in a bid to secure visitation rights for two children they reportedly had out of wedlock.
The matter came to light when Mr Sifiso Moyo hauled Ms Nokuthula Ncube to court on allegations of denying him the right to see the two minor children.
The case was heard at the Western Commonage courts where Mr Mehluli Moyo presided over the matter, before dismissing the claims, due to lack of substantive evidence.
According to the State’s case as presented by the Prosecutor Ms Metellia Sibanda, Moyo claimed that Ncube was in contempt of a court ruling allowing him to visit the children.
“The accused (Ncube) stands charged for contempt of court as defined in section 182 (1) as read with section (2) (e) of the Criminal Law Codification and Reform Act, (chapter 9:23). The facts of the matter are that during the month of April 2024, the accused disobeyed an order of the juvenile court issued under case number JC 145/21 by refusing the complainant access to two minor children,” said Ms Sibanda.
It was stated that Mr Moyo was involved in an illicit love affair with Ms Ncube, which resulted in the birth of two children.
“…during happier times, Ncube would grant Mr Moyo access to the children with the hope that someday he would marry her. When Ncube realised that the complainant had no intentions of marrying her, she started denying the complainant access to the two minor children. This made the complainant approach the juvenile court with an application for access; which application was granted in 2021.”
“After the granting of the order, the complainant accessed the minors through his relatives. It was not until the school holiday of April 2024, when the complainant failed to access the children, after visiting the accused’s residence. When he enquired from the accused why, he was told that it is her husband who was refusing with the children,” Ms Sibanda said.
However Mr Moyo’s bid to litigate Ncube was thrown out of court, as at the close of the case the court found no evidence against Ms Ncube.
In facts leading to the judgement it was stated that Mr Moyo was granted an access order to see the children and at the same time one of the minor children had a birth certificate; having been issued on 18 December 2018.
In passing his judgement the magistrate said Ms Ncube is customarily married to one Mr Nelson Jele, who is based in South Africa.
The children bear Mr Jele’s surname on their birth certificates.
“That the person who is refusing the complainant access to the children is Nelson Jele,” he said.
The magistrate said Ms Ncube admitted that an access order was granted against her by a competent court and that the order is still extant.
Ms Ncube, who was represented by Mr Tinashe Dzipe of Morris-Davies and Company, denied being contemptuous.
“The question begging for an answer now is whether the evidence of the State is supportive of the charge. The complainant conceded under cross examination that eight school holidays have since lapsed after the granting of the order. He further admitted that prior to the April 2024 school holiday, he would access the children. What then triggered the report was his failure to access the children in the month of April 2024, which failure he attributes to the refusal by the accused’s husband,” said Moyo.
He said what sticks out like a sore thumb is that the State did not manage to prove the element of intention.
“This ingredient of the offence cannot therefore be inferred on the basis that there is an existing order binding the accused. Section 13 of the Criminal Law Codification and Reform Act reads: “Where intention is the element of any crime, the test is subjective and is whether or not the person whose conduct is in issue intended to engage in the conduct or to produce the consequence he or she did,” said Moyo.
He said for a charge of criminal contempt to arise, the element of intention must be proven without equivocation.
“What looms large from the testimony of Sifiso Moyo is that his evidence absolves the accused. He failed to give evidence to show that the accused acted with intention,” said Moyo.