Esther Paidamoyo Mhiribidi v Tadiosi Muzoroza

The appellant and respondent were in a relationship that resulted in the birth of a child, Makomborero Setu Andre Mhiribidi, on 23 October 2018. The appellant applied to the magistrates' court for upward variation of child maintenance from ZW$10,000.00 to ZW$50,000.00. The court a quo granted a variation to ZW$25,000.00. The respondent claimed to have lost his employment with the Lands Commission and stated he was responsible for maintaining four other children with other women. Evidence showed that the mother of two of his children, employed as a nurse in England, was contributing to those children's luxurious lifestyle. The respondent's affidavit indicated he earned ZW$40,000.00 salary but had monthly expenses of ZW$98,000.00. There was no clear evidence of the respondent's actual means or source of income to meet his stated obligations.

• Whether the quantum of maintenance awarded by the magistrates' court was adequate in the circumstances
• Whether the magistrates' court conducted a proper inquiry into the respondent's means and ability to pay maintenance
• Whether the court a quo erred in making findings without sufficient evidence on record
• Whether material disputes of fact required evidence in chief and cross-examination
• What is the proper approach when there is insufficient evidence to determine appropriate maintenance

1. The appeal partly succeeds. 2. The decision of the court a quo of 21 April 2022 which varied maintenance payable for the minor child Makomborero Setu Andre Mhiribidi to ZW$25,000.00 per month remains valid in the interim. 3. Either party is granted leave to approach the court a quo for a fresh inquiry under section 8 of the Maintenance Act [Chapter 5:09] into the appropriate level of maintenance payable. 4. There is no order as to costs.

In maintenance variation proceedings, where material disputes of fact exist regarding a parent's means and ability to pay, the court must conduct a proper inquiry that includes allowing parties to lead evidence in chief and be subjected to cross-examination. The court cannot make findings on crucial issues such as a parent's financial capacity based solely on written submissions or counsel's arguments without supporting evidence on record. Both parents are obliged to provide a child with everything it reasonably requires for proper living and upbringing according to their means, standard of living and station in life. When there is insufficient evidence on record due to an inadequate inquiry, the proper course is to maintain the existing order as an interim measure while granting leave for a fresh inquiry under section 8 of the Maintenance Act to establish the appropriate level of maintenance.

The court observed that maintenance proceedings are not trials where one side emerges victorious and the other vanquished, but are inquiries for the benefit of minor children or dependents. The court noted that the ravages of inflation had made the amounts in dispute largely irrelevant by the time of the appeal hearing, as the values had significantly depreciated. The court commented that evidence pointing to a parent having concealed sources of income (such as expenses far exceeding stated salary) requires proper investigation through a thorough inquiry. The court remarked that the question of discrimination against the minor child compared to the respondent's other children could only be properly addressed once a full inquiry into all relevant circumstances, including contributions by other parents, had been conducted.

This case is significant in Zimbabwean family law as it clarifies the procedural requirements for maintenance variation inquiries. It establishes that magistrates' courts must conduct thorough inquiries into a parent's actual means when material disputes of fact exist, and cannot rely solely on written submissions or counsel's arguments without supporting evidence. The judgment reinforces that maintenance proceedings are sui generis inquiries focused on the best interests of children, not ordinary adversarial applications. It provides guidance on the appropriate remedy when inadequate inquiries are conducted - maintaining interim orders while allowing fresh inquiries rather than substituting the appellate court's own assessment. The case also addresses the practical issue of inflation eroding maintenance awards and the need for timely, evidence-based determinations of parental means.