The
appeal was occasioned by an award of adultery damages of $2,200= or delivery of
5 herd of cattle by Chivi Magistrates Court on 14 March 2013. The court a quo upheld the determination of the Chivi Chief on award
of adultery damages. Irked by the confirmation of the quantum of damages,
the appellant approached this court and highlighted the following grounds of
appeal;
1.
The learned magistrate misdirected himself in making a finding of fact that the
respondent had established or proved, on a balance of probabilities, that he is
entitled to such an amount of damages and that the woman in question was
married to the respondent despite the fact that they were living separately for
more than two years.
2.
The court a quo further erred in awarding such a
windfall of damages to the respondent without at all any justification for
doing so. In any event, damages for two consenting adults can only be
exemplary not punitive. In this particular instance, the court failed to
take into consideration the fact that the two parties were living apart for
more than two years and the respondent had neglected her. The appellant
prayed that the appellant be directed to pay $200= or 1 herd of cattle….,.
We
are alive to the argument by the appellant that there was no breakdown as to contumelia and loss of consortium but that does not change
the complexion of adultery damages. Adultery damages are, without debate,
for injury, hurt, insult, inquity and loss of comfort and companionship.
Adultery damages were granted together with costs in the total sum of $2,200=. Failure
to use the term contumelia and loss of
consortium does not in any way hamper proof of claim for adultery damages.
In
coming up with a reasonable quantum of damages, the court has to look at, among
other things, the harm occasioned which would encompass the marriage status,
the character of the woman involved, the status, social and economic, of the
plaintiff; the character of the defendant, on whether he has shown remorse or
contrition, also comes under scrutiny; the manner in which adultery was
committed in the wake of the AIDS pandemic; and to uphold the social moral
fabric; and the need to instil discipline and a civil way of interaction among
humans also fall for consideration. The list is inexhaustive but baseline
parameters can easily be formulated across the board. In the case of Katsumbe v Buyanga 1991 (2) ZLR
256 H…, ROBISON J highlighted factors relevant to assessment of adultery
damages and he aptly remarked on the need to uphold the moral fabric which
remarks I subscribe to. He remarked;
“Before
addressing myself to the quantum of damages to be awarded to the plaintiff, I
wish to say that, in my view, where a third party is shown to have intruded,
sexually, upon a marriage, and to have contributed to the breach of the duty of
marital fidelity, which each spouse owes the other, by committing adultery with
the one spouse, the court, in the absence of mitigatory circumstances, should
be seen, in their award of damages, to come down hard on the adulterer or
adulteress as opposed to treating him or her with kid gloves for a variety of
expedient reasons. The courts should ensure, as far as is reasonably
possible, that aggrieved the spouse who approaches them is not made to feel,
after the award of damages, that the adulterer or adulteress has been the
winner and that it would have been better for the aggrieved spouse to have
taken the law into his or her own hands….,. Hopefully, we have not
reached the stage where we have to be told that adultery is not something to be
eschewed and condemned. Accordingly, unless they are prepared to take a
strong and principled stand in this regard in support of the vital institution
of marriage, the courts will only be party to society's further slide down the
slippery slope to the unlicensed promiscuity which scoffs at the spiritual
prohibitions against pre-marital and extra marital sex and which has landed the
world in the sexual morass over which the monster, AIDS, now presides in all
frightening aspects.”
In casu, the appellant did not
show any remorse or contrition by apologising to his uncle but exhibited some
indifference and sought to blame the adultery on the long distance relationship
between the respondent and the wife occasioned by economic needs to work in
South Africa.
The
pain and suffering occasioned cannot be understated given that the
relationship, the breach of trust, the resultant adultery leading to pregnancy
and an offspring. Clearly, the risk of transmission of STI and the deadly
HIV virus is high as evidenced by the pregnancy showing the sexual encounters
were unprotected. That further perpetuates and hightens the pain and
injury. The occurrence of adultery at the respondent's matrimonial home
further compounds the situation as it lowered the respondent's social esteem in
a rural community where his homestead and family was while he was sourcing for
a livelihood in South Africa. The respondent's wife was viewed as a
married woman and she only fell out of virtue when the adultery was committed
and for the obvious pregnancy she had to leave her matrimonial home. When
holistically viewed, these aspects, taken into consideration in conjunction
with the need to maintain the moral fabric, it is clear the quantum of damages
considered by the Chief, and upheld the court a quo,
cannot be held to be outrageous and unreasonable. In fact, counsel for the
appellant conceded the suggested $200= in the circumstances was too little. The
truth of the matter is that no amount of money can replace the pain and
suffering occasioned by adultery but the court has to make a reasonable
assessment in line with the circumstances of the case. Having considered
the circumstances of his case, the pain and humiliation caused, we find no
fault in the courta
quo's findings. In fact, the damages awarded are in sync
with cases of similar nature dealt with by this court. The following cases
are instructive;
(i)
Chipo Dera v Cynthia Kambeza HH175-10,
KUDYA J, after a protracted trial, held that adultery had been proved. He
awarded a total of $1,200= as damages for adultery together with interest.
(ii)
In the case of Martha Muhwati v Yeukai Purity Nyama, MAWADZE J, after consideration of
factors relevant in arriving at an estimate of damages due in an adultery claim,
initially pegged at $20,000=, awarded a total of US$5,000= as damages for
adultery together with interest.
The
judge in Martha Muhwati v Yeukai Purity Nyama considered the levels of awards in
similar cases together with the other relevant factors and observed that the
level of damages for contumelia and loss
of consortium range between US$800= – US$5,000=, depending, of course, on the
circumstances of the case. He cited, among others, cases like Khumalo v Mandishona 1996 (1)
ZLR 434 H; Mtungwazi v Sibanda HB61-90; Nyandoro v
Tizirai HH12-06; Timothy Chinyadza v Melton Phiri HH76-09;
and Chipo Dera v Cynthia Vambeza HH175-10.
Given
the circumstances of this case, in light of precedent, there is no basis
for reading a misdirection in the court a quo's award of
damages.
We
accordingly find no merit in the appeal and, in the result, IT IS ORDERED THAT:
1.
The appeal be and is hereby dismissed.
2. The
appellant shall pay the costs of the suit on the ordinary scale.
