The brief facts of the matter may be summarised as
follows:
The plaintiff (now the applicant) issued summons out of
this court on 12 March 2010 seeking adultery damages in the sum of US$20,000=
against the defendant (now the respondent). The plaintiff's prayer, as captured
in the declaration, paragraph 9, is as follows:
“Whereof the plaintiff claims for:
(a) Loss of contumelia US$5,000=.
(b) Loss of consortium US$5,000=.
(c) Emotional stress US$3,000=.
(d) Embarrassment US$2,000=.
(e) Breakdown of marriage US$5,000=.
(f) Costs of suit.” (sic)
The plaintiff's prayer is couched differently in the
affidavit of evidence, paragraph 19, as follows:
“19 Wherefore I pray the following:
(a) Damages for loss of contumelia US$5,000=.
(b) Damages for loss of consortium US$5,000=.
(c) Damages for emotional stress and embarrassment
US$5,000=.
(d) Breakdown of marriage and loss of support US$5,000=.”
(sic)…..,.
I am…., not persuaded that the plaintiff is entitled to
adultery damages in the sum of US$20,000=.
As already stated, there is some confusion and/or lack of
clarity in the plaintiff's prayer both in the declaration and the affidavit of
evidence. The heads of argument filed by the plaintiff are very detailed and
useful. I am indebted to counsel for the plaintiff in that regard. Be that as
it may, the plaintiff could not still justify the claim of damages in the sum
of US$20,000= - even from the cases referred to.
I am satisfied that the plaintiff's marriage has been
virtually destroyed. She had lost her husband of 24 years to the defendant. Her
dignity and self-esteem has been lowered in the eyes of her peers, workmates,
fellow church members and the public at large. The plaintiff's children, though
majors, have lost a father and all the financial support. I am in no doubt that
the defendant's conduct has caused immense emotional stress and embarrassment
to the plaintiff. It is, however, not an easy task to quantify all these
findings into financial terms.
A claim for adultery damages is generally premised on two
aspects, which are, damages for contumelia and damages for loss of consortium.
See Khumalo v Mandishona 1996 (1) ZLR 434. There is no basis, therefore, for
the plaintiff to split her claim into other aspects like “emotional stress,
embarrassment, breakdown of marriage” which all fall under the ambit of
contumelia and loss of consortium. By adopting this approach alone, the
plaintiff's claim is reduced to US$10,000= from US$20,000=.
In the case of Timothy Chinyadza v Melton Phiri HH76-09
KUDYA J…, defined contumelia as follows:
“Contumelia is equated to the injury, hurt, insult and
indignity inflicted upon a plaintiff by the adultery commuted by a defendant
with his or her spouse.”
The learned judge made reference to a number of cases
which includes Doyle v Salgo (1) 1957 R & N 840 of 844 A; Katsume v Buyanga
1991 (2) ZLR 256 (H)…,.; Takadini v Maimba 1996 (2) ZLR 737 (S)…,; Nyandoro v
Tizirai HH12-06; and Gombakomba v
Bhudhuyo HH118-06.
In Khumalo v Mandishona 1996 (1) ZLR 434 (H) MALABA J…,
outlined factors the court should take into account in arriving at an estimate
of the damages due to the plaintiff for contumelia. Let me proceed to list them
and highlight their relevance in the present case:
(a) The character of the spouse involved:
From the facts of the matter it would appear that both
the plaintiff and her husband were devout Christians and they had lived in
happy matrimony for 19 years before the defendant intruded into their marital
relationship.
(b) The social and economic status of the plaintiff and
defendant:
The defendant chose not to defend this claim and the
court is inhibited in assessing any other factors which may be mitigatory and/or
in her favour. I have already referred to the plaintiff's social and economic
status and how all this have been ruined.
(c) Whether the defendant has shown contrition:
There is nothing to show that the defendant is contrite.
In fact, the defendant in her wisdom decided to disregard the court
proceedings. The inference one may draw is that the defendant is oblivious to
the consequences of her conduct and would careless in that regard. Such an
attitude should be considered by the court and properly assessed as an
aggravating factor.
(d) The need for deterrent measures against the adulterer
to protect the innocent spouse against contracting HIV from the errant spouse.
There is always the inherent danger that the plaintiff is exposed to the risk
of contracting the HIV virus as a result of her husband's promiscuous conduct
of engaging in extra marital sex with the defendant. The courts play a vital
role in preserving the institution of marriage and should punish, accordingly,
those who find pleasure in promiscuity.
(e) The level of awards in similar cases:
All the cases cited in the heads of argument indicate
that the level of awards made both for damages for contumelia and loss of
consortium do not amount to US10,000=. These include Mtungwazi v Sibanda HB61-90;
Nyandoro v Tizirai HH12-06; Timothy Chinyadza v Melton Phiri HH76-09; Chipo
Dera v Cynthia Kambeza HH175-10. The award in respect of damages for contumelia
range from US800= to US$5,000=.
I am satisfied that an estimate of US$2,500= is adequate
to compensate the plaintiff for contumelia.
Consortium relates to loss of comfort, society and
service of wife or husband as a result of the adultery committed by the
defendant. See Timothy Chinyadza v Melton Phiri HH76-09.
I have already referred to the plaintiff's evidence in
that regard. Counsel for the plaintiff, in the heads of arguments, did not
refer to specific awards made by this court in relation to damages for loss of
consortium. In Timothy Chinyadza v Melton Phiri HH76-09 an award of US$500= was
made for loss of consortium. In the case of Chipo Dera v Cythia Kambeza
HH175-10 the court granted damages in the sum of US$400= for loss of
consortium.
In casu, the defendant chose not to defend the claim and
the plaintiff's averments are not controverted. In the exercise of my
discretion after weighing all the factors as outlined in the plaintiff's
evidence I estimate damage for loss of consortium to be US$2,500=.
In the result, it is ordered that the defendant
shall pay the plaintiff the sum of US$5,000= as damages for adultery with
interest thereon at the prescribed rate from the date of judgment to the date
of full payment and costs of suit.
