BERE J: For purposes of this
judgment I will refer to the applicant as the plaintiff and to the respondent
as the defendant.
The
plaintiff issued summons out of this court seeking adultery damages of $20
000-00 (twenty thousand dollars) and cost of suit on a legal practitioner and
client scale. The amount of claim was broken down as follows:-
“(a) Contumelia
inflicted upon the plaintiff …. $10 000-00
(b) The loss of the comfort, society and
services …$10 000-00”
The
defendant did not respond to the summons and this prompted the plaintiff
to apply for default judgment.
The
background to this case can be summarised as follows:-
The
plaintiff and her husband are married in terms of the Marriage Act, [Cap 5:11], the marriage having been
solemnised on 9 December 2003. The marriage still subsists.
In
2004, barely a year after her marriage, the plaintiff became aware that the
defendant was involved in an adulterous relationship with her husband. It was
not until 11 September 2008 that the plaintiff instructed her legal
practitioner to write a letter of demand to the defendant threatening legal
action if the defendant persisted with her adulterous conduct.
The
letter of demand appeared to have done little to end the defendant's resolve to
continue with her relationship with the plaintiff's husband. To demonstrate her
brazen courage to continue with the immoral relationship the defendant added
another child with the plaintiff's husband with the result that she has now two
children as a result of her relationship with the plaintiff's husband.
The
evidence which cannot be controverted is that the defendant has shown no
respect at all for the plaintiff whom she has continued to subject to numerous
forms of embarrassment and humiliation.
The
defendant has been sending insulting text messages boasting about holiday trips
she has enjoyed with the plaintiff's husband. These incessant insulting
messages led to the plaintiff being granted a peace order against the defendant
on 27 November 2008. The defendant has visited the plaintiff's business
premises and homestead just to pour scorn at her.
The
defendant has tried to literally force the plaintiff to assume custody over one
of her children with the plaintiff's husband when she could not derive some
satisfaction with the frustration she caused to the plaintiff, she decided to
stay in Budiriro 2 at a house co-owned by the plaintiff and her husband. She is
staying there as the “second wife” of the plaintiff's husband.
The
frustrations and humiliation to which the plaintiff has been subjected to are
endless. Plaintiff reckons she is entitled to the amount of claim with costs as
outlined in her declaration.
It
is trite and as correctly noted by my brother judge MAWADZE J, that “a claim
for adultery damages is generally premised on two aspects, which are damages
for contumelia and damages for loss
of consortium”
Authorities
are agreed that it is extremely difficult to accurately come up with figures
that would adequately satisfy claims for these damages. The learned judge
COLMAN J remarked in Muller v Vinkas
follows:
“These
losses and humiliation cannot be truly measured in money, and the practice of
our courts has been to make rough and ready assessments whose amounts vary
according to circumstances of particular cases. In no sense can the award, in
any case, be regarded even approximately as an assessment of the value of a
happy marriage which has been broken up or the value of the faithless wife”.
In
the case of Khumalo vs Mandishona
MALABA J (as he then was) set out factors which should assist the court in its
effort to determine the amount of damages to be awarded. These factors are
listed as being;
(a) the
character of the woman (or man); involved
(b) the
social and economic status of the plaintiff (and the defendant);
(c) whether
the defendant has shown contrition and has apologised;
(d) the need
for deterrent measures against the adulterer to protect the innocent spouse
against contracting HIV from the errant spouse; and
(e) the
level of awards in similar cases.
There is no doubt in my mind that the
list set out is not exhaustive. They are other
factors
which come into play and each case must to a large extend depend on its perculiar
circumstances.
I now turn to consider what I
perceive to be the appropriate award in this matter.
Contumelia
It is not my intention to try and
re-invent the wheel by attempting to define contumelia
but suffice it to say that in this regard the court tries to estimate and put
in monetary terms the cumulative effect of the indignity, humiliation, lowered
self esteem, frustration and so forth suffered by the plaintiff as a result of
the adulterous conduct of the defendant.
In the instant case the defendant
has been conducting herself in a manner calculated to ensure the plaintiff was
sufficiently hurt and driving her to the point of almost destroying her
marriage. The idea of forcing her first child into the plaintiff's custody and
tormenting the plaintiff by persistently sending her insulting text messages
went too far in demonstrating the defendant's un-shameful, provocative and
belligerent attitude. The defendant does not seem to regret her conduct, she is
not apologetic at all and the only way the court can register its displeasure
is through the award of damages it deems reasonable enough to discourage her
from continuing with her conduct which is a serious threat to the plaintiff's
monogamous marriage.
Relying on the perculiar facts of
this matter and guided by the awards made in similar matters I would estimate
an award of $4500-00 under this heading.
Loss
of Consortium
Evidence
abounds that the defendant has literally imposed herself as the plaintiff's
husband's second wife despite the prohibitive nature of the plaintiff's
marriage.
The defendant now has two children
as a result of this adulterous relationship. The defendant has been boastful to
the plaintiff about going on holiday with the plaintiff's husband. The
cumulative effect of all these is that the plaintiff has been deprived of the
expected comfort, society and service of her husband by the defendant.
For this I would estimate $1 500-00
as damages for loss of consortium.
Costs
The defendant has deliberately
chosen not to defend herself and by so doing she has deprived herself of the
opportunity to counter the amount of costs desired by the plaintiff. It should
not be the function of the court to protect those who deliberately and with
their eyes wide open choose not to protect themselves. The defendant has
exhibited a stout determination to hurt the plaintiff. She is determined to
continue with her deplorable conduct despite the plaintiff's effort to keep her
distance.
Having regard to all the
circumstances of this case, I consider that it would be appropriate to award
the plaintiff as damages for adultery:-
(a) $4500
in respect of the contumelia, and
(b) $1500
in respect of the loss of consortium.
It
is ordered:
(a) That
the defendant pays the plaintiff $6000-00 damages with interest from13 July
2011 to date of full payment.
(b) Costs
of suit on Attorney-client scale.
Mutetwa & Nyambirai, plaintiff's legal practitioners
