HORA v TAFAMBA 1992 (2) ZLR 348 (S)

Flynote

Family law — maintenance — duties of magistrate in maintenance case — suggested method of calculation of maintenance

Headnote

The aim in a case concerning maintenance for a child is to give the child reasonable financial support without placing an undue burden on either parent. The magistrate dealing with the case must act as the upper guardian of the child. Magistrates who preside over maintenance courts, where the parties usuallyappear without legal representation, have a duty to carry out the fullest investigation into the relevant facts. Especially where the parties are unrepresented the magistrate must adopt an investigative role. He is not merely an umpire in a dispute between two sides. He is must protect the interests of the child who is the most important person involved in thedispute. He must seek out the relevant facts and ask necessary questions.

If a party incurs further financial commitments to the detriment of that person's prior responsibilities to a child, the court may decide to disregard those further commitments when assessing the party's disposable income.

An approximate method of calculating the amount of maintenance which is particularly useful where the parties are not wealthy has been suggested in the case of Gwachiwa v Gwachiwa S-134-86. This approach can be used as a starting point but is subject to such adjustment as the particular facts suggest.

This method, however, may not be suitable in all cases and it must not be slavishly adhered to. This method entails the following steps:

1. Ascertain and add together the total net income of the father's household and the mother's household. The total gives the total money available per month.

2. Calculate what claims there are on that income by allocating two shares to each adult in the two households and one share to each child in the two households.

3. Divide the total amount of money available each month by the total number of shares. One share will be a child's share and two shares will represent an adult share.

4. Calculate how much money (if any) should be paid by the father to the mother as maintenance in order to ensure that the child who is the subject of the dispute receives a child's share.

5. Adjust the figure arrived at in step 4 up or down to allow for the innumerable variable factors and special features which may arise in the case under consideration.