A legal battle over child maintenance and disputed paternity has been escalated to Zimbabwe’s highest court, where judges are now expected to decide whether imprisonment for non-payment is lawful in the absence of confirmed biological parentage.
The referral was made by Western Commonage magistrate Bethel Negato, who ruled on Tuesday that the case brought by Sinini Ndlovu raises substantive constitutional questions.
Ndlovu is contesting an order requiring him to financially support two children he insists are not his. He is represented by Meluleki Bothwell Lunga of Tsara and Associates, in proceedings against Nomalanga Tshuma.
The dispute originates from a maintenance ruling issued on September 5, 2025. While the order obliges Ndlovu to provide support, he has challenged its basis, maintaining that paternity has never been proven.
Although DNA testing was directed to resolve the matter, the process has stalled, with Tshuma allegedly not presenting the child for testing despite multiple requests.
Even so, enforcement measures remain a possibility.
Under Section 23 of the Maintenance Act [Chapter 5:09], failure to comply with maintenance obligations can result in imprisonment a prospect Ndlovu argues is unconstitutional in his circumstances.
In his court challenge, he contends that depriving someone of liberty without first establishing biological parentage violates fundamental rights.
Magistrate Negato agreed that the issues required constitutional interpretation.
“The constitutional questions raised by the applicant concerning the constitutionality of Section 23 of the Maintenance Act [Chapter 5:09] are not frivolous or vexatious,” Negato said.
He then formally framed the issues for determination by the Constitutional Court.
“In terms of Section 175 (4) of the Constitution of Zimbabwe, the following constitutional questions are referred to the Constitutional Court for determination: Whether Section 23 of the Maintenance Act [Chapter 5:09], in so far as it permits imprisonment for default in payment of maintenance without requiring mandatory scientific proof of paternity where paternity is disputed, violates Section 49 of the Constitution of Zimbabwe.
“Whether the practice of presuming paternity without scientific proof is consistent with Sections 49 and 70(1)(a) of the Constitution of Zimbabwe,” he noted.
The magistrate also ordered a halt to any enforcement or committal proceedings linked to the maintenance order until the Constitutional Court delivers its ruling.
The forthcoming judgment is expected to clarify how courts should balance child support enforcement with constitutional protections, particularly in cases where paternity is contested.
The issue has also drawn attention beyond the courts.
In September last year, Kadoma-based legal reform advocate Believe Guta made submissions before the Parliamentary Portfolio Committee on Justice, Legal and Parliamentary Affairs, calling for changes to the law.
He urged lawmakers to amend Section 23 to require DNA confirmation before imprisonment for maintenance defaults.
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