Parents Hwata v Caroline Zvingwe

In 2009, the appellant and respondent began living together as husband and wife. Their union produced two minor children born on 11 March 2009 and 16 November 2011. In January 2014, the respondent left the matrimonial home and took the minor children with her. On 29 January 2014, the respondent issued summons in the maintenance court under section 4(1) of the Maintenance Act [Cap 5:09] seeking maintenance of US$220 for the two children. The appellant denied neglecting his family, contended he had been providing to the best of his abilities, claimed he could not afford the amount claimed, and offered US$40 per month. The trial magistrate at Rusape maintenance court ordered the appellant to pay US$75 per child (total US$150 per month). The appellant appealed, claiming he was not fully employed and could not afford the sum awarded.

• Whether the trial magistrate erred in assessing the appellant's income and ability to pay maintenance
• Whether the magistrate properly conducted the investigative inquiry required under section 5(1) of the Maintenance Act
• Whether the maintenance order was based on adequate evidence
• What constitutes reasonable maintenance taking into account the responsible person's ability to pay and the children's standard of living

The appeal succeeded. The order of the magistrate's court was set aside and substituted with an order that the appellant pay maintenance of US$50 per month per child (total US$100 per month for two children) with effect from February 2014 until each child attains the age of 18 years or becomes self-supporting, whichever is earlier. The maintenance amount shall be deposited into the respondent's bank account.

In maintenance proceedings under the Maintenance Act [Cap 5:09], the magistrate has a duty to conduct a proper investigative inquiry under section 5(1) to obtain adequate evidence on both the income and ability to pay of the responsible person and the reasonable needs of the children. A maintenance order must be based on credible evidence, not bald assertions. The magistrate must actively seek out relevant facts, particularly where parties are unrepresented, including inquiring into the parties' standard of living when together and the veracity of income and expenditure claims. A maintenance order must provide reasonable financial support for children without placing an unfair burden on either parent, taking into account the responsible person's actual ability to pay and the children's established standard of living. Maintenance orders are not punitive in nature.

The court noted that a magistrate in maintenance applications acts as the upper guardian of the most important party, the child, and is not merely an umpire in a dispute between two sides. The court observed that the appellant did not appear to be someone who was stubborn and willing to go to prison despite being able to pay, as evidenced by his two incarcerations for non-payment and the fact he had to be bailed out by relatives on each occasion. The court commented that the standard of living the respondent wanted for the children was not the standard the family actually had when living together.

This case reinforces the important principle in Zimbabwean family law that magistrates in maintenance proceedings have an investigative duty and cannot merely accept bald assertions from parties. It emphasizes that maintenance orders must be based on proper evidence of both the responsible person's actual ability to pay and the children's reasonable needs based on their established standard of living. The judgment clarifies that maintenance orders must not be punitive in nature but must balance adequate provision for children with the realistic financial capacity of the paying parent. It serves as a reminder that where parties are unrepresented, the magistrate has an enhanced duty to actively inquire into the relevant facts.