Israel Gwati v Abigail Gwati

The applicant and respondent had three children together. The respondent applied for maintenance for the children in the sum of $2,000.00 per month. The magistrate's court awarded maintenance of $600.00 per month, finding that the respondent earned $75.00 per month and collected rentals of $150.00 from a Marondera house (totaling $225.00). After subtracting this from $600.00, the court ordered the applicant to pay $380.00 per month. The applicant was self-employed with a horticultural project and tractor hire business, and was also a pensioner. The respondent worked in Harare while the children resided at house number 1279 Nyatsine Circle Marondera.

• Whether a maintenance order can be granted to a non-custodial parent
• Whether the magistrate erred in not providing adequate reasons for the maintenance amount of $600.00
• Whether the magistrate properly investigated the applicant's earnings and the respondent's needs in determining maintenance
• Whether the magistrate erred in making a blanket maintenance order for three children without apportioning amounts to each child

The matter was remitted to the same magistrate (or any other magistrate if the trial magistrate was unavailable) for a proper enquiry to be made on the income and expenditure of the applicant and respondent. In the interim, the applicant was ordered to continue paying the set maintenance of $380.00 per month.

A magistrate presiding over maintenance proceedings must conduct a proper investigation into the earnings and needs of both parties in terms of sections 5 and 13 of the Maintenance Act. The magistrate has the power and obligation to call for production of books or documents and examine witnesses on oath, particularly where a party is self-employed. The formula applied in arriving at the final maintenance figure must be apparent from the judgment and based on clear and convincing evidence, not mere assertions or speculation. When maintenance is awarded for multiple children, the magistrate must apportion amounts to each child individually as their needs differ. A maintenance order that lacks adequate reasoning or evidentiary basis constitutes a misdirection warranting review and remittal for proper enquiry.

The court observed that a custodial parent is defined as the parent who is responsible for the minor child, designates where the child will live, and makes decisions for the child's welfare. The custodial parent need not physically reside at the same place as the child. The court noted that where an applicant claims specific sums to support alleged expenditures and a certain lifestyle, these should be supported by clear evidence and cannot be based on mere assertions from which the magistrate draws his or her own conclusions. The court referenced guidelines set out in cases such as Hova v Tafamba 1992 (2) ZLR 348 and Gwachiwa v Gwachiwa (S) 134-86 as appropriate formulas for magistrates to apply in maintenance matters.

This case reinforces the investigative duties of magistrates in maintenance proceedings under the Maintenance Act [Chapter 5:09]. It emphasizes that maintenance orders must be based on clear and convincing evidence of both parties' earnings and needs, particularly where a party is self-employed. The judgment underscores that magistrates cannot simply estimate maintenance amounts without proper factual basis, and must apportion maintenance individually to each child based on their different needs. The case is important for clarifying procedural requirements in maintenance enquiries and the standard of reasoning required in maintenance judgments.