Adultery Damages
CHEDA J: This is an
application for a default judgment for adultery damages.
On the 26th
November 2008 plaintiff sued for adultery damages in the sum of
US$50,000-00. I granted the application for default but amended the
claim to US$500-00 with an undertaking to give my reasons for the
reduction of the said sum later. The following are my reasons.
Plaintiff and her husband entered
into a monogamous marriage under the Marriages Act [Chapter 5:11] the
then [Chapter 37] on the 17th
August 1974 and the said marriage still subsists. From 1988 and on
diverse occasions plaintiff's husband and defendant illicitly
engaged and associated in an adulterous sexual relationship which
resulted in the birth of four children, the last one been born in
December 1996.
Plaintiff sued defendant for
adultery damages which action defendant defended, but, later failed
to file a plea and hence an application for default judgment was
applied for. Nothing turns on this matter other than the question of
quantum.
Plaintiff's husband has been committing adultery with defendant for
21 years. Plaintiff according to the papers, did nothing about it
until 2009. Plaintiff is indeed legally entitled to damages, but, I
doubt if the circumstances surrounding this case justifies the claim
made, namely, that of US$50,000-00. It is clear that defendant
intruded into plaintiff's marriage and for that misdemeanour she
should be punished.
There are, however, two issues which I must deal with.
(a) Firstly, plaintiff claimed
US$50,000-00 for damages without stating what amount is for the
injury she has suffered or contumelia
and which one is for the loss of society and comfort or consortium.
The correct legal position is that adultery damages are claimable on
two entirely separate and distinct grounds;
(i) Firstly on the ground of the
injury or contumelia
inflicted upon the plaintiff; and
(ii) Secondly on the ground of
the loss of comfort, society and services of her husband
(consortium).
See Viviers
v Kilian 1927 AD 449.
It was therefore wrong for
plaintiff to lump her claims in one, mixing both damages contumelia
injury and consortium.
(b) Secondly, the quantum
should be reflective of all the circumstances surrounding the
occurrence of the adultery, inclusive of plaintiff's own conduct in
the matter.
Defendant has been having this
illicit relationship with plaintiff's husband for over 20 years,
which resulted in four off-springs. Surely, she cannot say that she
was not aware of his sexual escapades, and at least, she does not
shed light on this aspect of her knowledge or otherwise thereof. In
the absence of her denial of this knowledge, with all due respect to
her, it is reasonable to assume that she must have known of this at
some point bearing in mind the length of time of the existence of the
adulterous relationship between her husband and defendant. She,
however, chose to ignore it.
By her inaction, therefore, she condoned the adultery thereby
allowing it to continue.
To claim adultery damages for a
large sum of money for a relationship which has been in existence for
over 20 years later, is in my view, to remove the sting the effect of
the adultery usually has on the offended party. In addition thereto,
she seems not to have sued for divorce, which is normally is the case
in adultery cases. She is, however, entitled to either sue the
adulterer alone or/and at the same time sue her spouse for divorce.
If she had sued her husband for divorce then this would go to show
that she has indeed lost consortium
of her husband and thus her claim for a higher sum would have been
justified. In Biccard
v Biccard and Fryer
1892 SC 473 at 476 where De Villers, CJ ably stated:-
“Unless the breach between a
husband and his adulterous wife is final, I should not be inclined to
award damages to the husband for two reasons. There is not that
complete loss of the wife's society which constitutes the main
element in the estimation of damages, and there remains the strong
probability that the husband may be trading upon his wife's
dishonour.”
It is the position of our law
that loss of consortium
is a main element in the estimation of damages for adultery. See also
Bruwer v Joubert
1966 (3) SA 334.
In Calleta
Gwatiringa v Anastasia Matake
HB119/09 (cyclostyled) I dealt with this issue. I still hold the
same view that the fact that plaintiff with full knowledge of the
adulterous relationship of defendant with her husband still chooses
to keep the marriage but sues for adultery damages, only, her choice
should therefore influence the
quantum.
It is for the above reasons that
I reduced the quantum
from US$50,000-00 to US$500-00 as I feel that by awarding plaintiff
her claim as prayed would amount to allowing her trade on her
husband's dishonour.
The circumstances surrounding this case in my view do not justify the
claim made.
It is ordered that:-
(1) An order for payment in the
sum of US$500-00 (Five hundred United Stated Dollars) being damages
for adultery against defendant be and is hereby granted.
(2) Defendant pays interest at
the prescribed rate on the sum of US$500 mentioned in (1) above from
the date of service of summons to date of full and final payment.
(3) An order for payment of costs
of suit at an attorney and client scale.
Dube-Banda, Nzarayapenga and partners, plaintiff's legal
practitioners
