Bertha Kakono v Herbert Kakono

On 18 March 2010, a magistrate granted a contributory maintenance order requiring the respondent (father) to pay US$150 per month for two minor children, meet half the school fees termly, buy casual wear twice a year, and contribute to medical aid. On 14 June 2010, the appellant (mother) applied for upward variation of the maintenance order from US$150 to US$300 per month and for discharge of her obligation to contribute half of school fees. She claimed she had proof the respondent earned more income than disclosed at the initial hearing and that she was unemployed and unable to contribute to school fees. The respondent opposed, arguing the appellant had dirty hands for non-compliance with the original order and that she was earning US$300-400 monthly from renting rooms in the matrimonial home. On 1 July 2010, the magistrate dismissed the variation application stating 'no changed circumstances' without providing reasons. The appellant requested reasons for the ruling to appeal but received no response. She noted an appeal on 9 July 2010.

• Whether the magistrate erred in failing to provide reasons for dismissing the variation application
• Whether the magistrate erred in finding there were no changed circumstances warranting variation of the maintenance order under section 8 of the Maintenance Act
• Whether the court a quo erred in failing to conduct a proper inquiry where there were material disputes of fact
• Whether the procedural irregularities warranted setting aside the order and remitting the matter for proper inquiry

1. The appeal is allowed. 2. The decision by the lower court dismissing the appellant's application for variation is hereby set aside. 3. The matter is referred back to the lower court for a proper inquiry to be held. 4. The original maintenance order remains in force. 5. No order as to costs.

1. Courts of record are required to give reasons for their decisions to enable proper appellate review. The failure to provide reasons for dismissing a maintenance variation application constitutes a serious misdirection. 2. Where material disputes of fact exist in maintenance variation proceedings under section 8 of the Maintenance Act, the court must conduct a proper inquiry allowing parties to lead evidence in chief and through cross-examination. 3. An appellate court cannot grant substantive relief (such as upward variation of maintenance) where insufficient evidence exists on record, even if the respondent is in default on appeal. The proper remedy in such circumstances is to set aside the defective order and remit the matter for proper inquiry. 4. The burden is on the applicant for variation to prove changed circumstances under section 8(7)(b) of the Maintenance Act, but the court must afford proper procedural opportunity to discharge this burden.

The court cited with approval the principle from S v Ndebele 1988 (2) ZLR 249 at 254 regarding the necessity for courts to keep full comprehensive records of proceedings, stating: 'All courts are courts of record and are required to keep full comprehensive records of proceedings.... the need to do so is obvious. In the absence of such record how is the review or the Appellate Tribunal to assess the correctness and validity of any proceedings placed before it for adjudication?' The court also observed that the appellant's request for reasons for the ruling was simply ignored, suggesting this was improper administrative practice that should not occur.

This case establishes important procedural safeguards in maintenance variation proceedings in Zimbabwe. It reinforces the fundamental principle that courts of record must provide reasons for their decisions, particularly in family law matters affecting children's welfare. The judgment emphasizes the need for proper inquiries under the Maintenance Act where material disputes of fact exist, requiring evidence to be led through examination and cross-examination rather than brief exchanges. The case demonstrates that even where a respondent defaults on appeal, appellate courts cannot grant substantive relief without sufficient evidence on record. It serves as a reminder to lower courts of their duty to conduct thorough inquiries in maintenance matters and to provide reasoned judgments that enable meaningful appellate review.