On 25 November 2011, the appellant was ordered by consent to pay maintenance of $30.00 per month for a minor child he sired with the respondent. On 3 September 2013, the respondent applied for variation of the maintenance order from $30.00 to $150.00 per month, stating she needed to employ a maid, buy groceries, and cover medication costs. She claimed she had enrolled at Foundation College and needed the maid to care for the child. The appellant opposed the application, stating his net income was only $178.00 per month plus $30.00 for transport. He explained that when the initial order was made, he was attending school on cadetship and his brother paid on his behalf. He now needed to repay his brother and pay outstanding fees. He had also married and was expecting a child. The magistrate's court varied the maintenance to $66.00 per month, finding that neither party had proved their claims about college enrollment or marriage, and therefore the appellant's income should be shared between him and the child. The appellant appealed against this determination.
The appeal was allowed. The order of $66.00 per month by the magistrate's court was set aside and substituted with an order requiring the appellant to pay maintenance of $45.00 per month for the upkeep of the minor child until the child attains the age of 18 years or becomes self-supporting, whichever is earlier. The payments were to be made into the respondent's account as per the initial order.
When considering an application for variation of a maintenance order under section 8 of the Maintenance Act [Cap 5:09], the court must: (1) be satisfied that there has been a genuine change in the means or circumstances of the parties since the making of the original order; (2) conduct a proper investigative inquiry into the financial circumstances of both parties, as the magistrate serves as the upper guardian of the child and not merely an umpire; (3) ascertain the respondent's ability to contribute towards the child's needs; (4) apply a methodical approach to calculating maintenance rather than relying on arbitrary figures or gut feeling; and (5) ensure the child receives reasonable financial support without placing an unfair burden on either parent. The onus of proving a change in circumstances warranting variation rests on the party seeking the variation.
The court commended the five-step method outlined in Gwachiwa v Gwachiwa S-134-86 and reiterated in Hora v Tafamba 1992 (2) ZLR 348(S) as a useful starting point for calculating maintenance, though not a rigid formula. The court emphasized that this method should be adjusted up or down to account for innumerable variable factors and special features of each case. The court also implored magistrates to adopt a methodical approach in their assessment of reasonable maintenance awards rather than relying on subjective assessments. The judges noted that despite the procedural deficiencies in the lower court's inquiry, they were able to determine the appeal without remitting it for further inquiries by conducting their own detailed questioning of the parties during the appeal hearing.
This case is significant in Zimbabwean family law jurisprudence as it reinforces the principles governing variation of maintenance orders and the investigative role of magistrates in maintenance proceedings. It emphasizes that courts must conduct proper inquiries into the financial circumstances of both parties and cannot rely on gut feeling or arbitrary calculations. The judgment underscores the importance of the five-step methodical approach established in Gwachiwa v Gwachiwa for calculating maintenance awards, ensuring fairness to both the child's needs and the parent's ability to pay. It also clarifies that the onus is on the party seeking variation to prove a change in circumstances justifying interference with an existing order. The case serves as a guide for magistrates on their duties as upper guardians of children in maintenance matters.