MWAYERA
J:
The
applicant instituted action proceedings against the defendant
claiming adultery damages being $4,000-00 for contumelia and $7,000
for consortuium.
The
defendant did not enter an appearance to defendant and the dies
inducie having expired the applicant filed the current unopposed
application.
The
background to the matter as outlined by the applicant is that the
defendant engaged in an adulterous relationship with his wife Sharon
Margaret Makururu well knowing that the latter was married to the
applicant in terms of the Marriage Act [Chapter 5:11]. The defendant
and the applicant's wife would arrange to meet for intimate
escapades during the time that the applicant would be working out of
Harare. The intimate relationship just like arrangements for the
meetings would be communicated via social media called “whatsapp”.
The
applicant had to quit his Chairmanship of a Legal Aid Trust where his
wife worked because at one point he was introduced by his wife's
workmate to the defendant as her relative. The applicant pointed out
that the explicit and graphic sexual messages between the defendant
and his wife traumatized him extensively. This culminated in him
issuing out summons for divorce and separating from his wife who has
since moved to her parent's home.
The
applicant in his founding affidavit narrated that his marriage to his
wife and mother of his minor child was stable only to be disturbed by
the adulterous relationship.
The
defendant did not defend the claim for adultery damages. The
inference is that adultery was committed occasioning contumelia that
is injury, hurt insult and indignity. Further the adultery caused
loss of the spouse's consortium that is loss of comfort and
society.
The
pain, injury and suffering occasioned on an innocent spouse because
of the adulterous relationship should not be understated. The loss
and injury and humiliation cannot be measured in money since an award
cannot in any way be equated to the value of a happy marriage eroded
by an adulterous relationship. In the case of Khumalo v Mandishona
1996 (3) ZLR 737 the court stated that:
“It
is of course, always a daunting task for a court to try and place
monetary value on the pain and suffering inflicted on the plaintiff
by adultery. What is important is that the innocent spouse has to be
compensated for the injury, pain and discomfort occasioned”.
I
subscribe to the sentiments of the court in Fuller v Fuller 1949 (3)
SA 852 which sentiments have been echoed now and again in similar
cases of adultery. The judge there stated:
“It
is clear that the plaintiff has suffered intensely from the conduct
of his wife and the defendant. Of course no amount of money can
compensate the plaintiff for the mental distress which he suffered.
He will understand my judgment does not mean that in my opinion the
sum which I shall award to him can be regarded as making up for what
he has suffered.”
The
award of necessity has to be made and the court has to rely on other
decided cases and also consider the circumstances of the case. It is
not possible to convert with any exactitude the damages suffered
through contumelia and loss of consortium but in assessing the
appropriate quantum of damages the general trend is that in the
absence of mitigating factors and where the adulterous relationship
has led to divorce a higher award of damages should fallow. In the
case of Sikhuphakile Mpofu v Irene Munyore HB63/05 at p 6 of the
cyclostyled judgment Bere J held that:
“The
defendant appears in my view to have displayed lot of arrogance and
her actions as explained by the plaintiff calculated to demean and
inflict pain on the part of the plaintiff. The conduct by the
defendant inevitably requires to be censored by this court. It is
clear the plaintiff was indeed subjected to grave and humiliating
iniquity”.
In
this case the applicant was mocked and insulted at the hands of the
defendant when his wife's workmate at the Legal Aid Clinic where
the applicant was a Chairman. The applicant was introduced to the
defendant as a relative of the wife's workmate. The applicant had
to bear the pain of reading messages of intimacy of his wife and the
defendant. The defendant and applicant's wife even discussed on
phone texts the applicant's wife menstrual cycle. The defendant has
been shown to have intruded sexually upon the applicant's marriage
and has contributed to the breach of duty of marital fidelity which
spouses owe each other by committing adultery with the applicant's
wife. Such conduct ought to be visited with an award of adultery
damages.
In
the case of Katsumbe v Buyanga 1991 (2) ZLR 256 H at 258- 259,
Robinson J in awarding adultery damages remarked:
“The
court should ensure, as far as is reasonably possible, that an
aggrieved spouse who approaches them is not made to feel, after their
award of damages, that the adulterer or adulteress has been the
winner and that it would have been better for the aggrieved spouses
to have taken the law into their own hands.”
It
is important in assessing the appropriate quantum of damages for one
to underscore the reason behind adultery damages which is the
protection of the sanctity of the marriage institution. The
Zimbabwean courts have in their pronouncement frowned at the
wrongfulness of adultery in so far as it is a threat to the marriage
institution. Mapuranga v Mungate 1997 (1) ZLR 164 Malaba J (as he
then was) held:
“Adultery
is still prohibited by public opinion as on act of sexual
incontinence.”
See
also Katsumbe v Buyanga supra were Robinson J spoke strongly against
adultery as an intrusion into the marriage institution.
Adultery
is still a recognised ground of divorce in the Matrimonial Causes
Act. Section 5(2)(b) reads:
“Subject
to subsection (1) and without prejudice to any other facts or
circumstances which may show the irretrievable breakdown of a
marriage, an appropriate court may have regard to the fact that;
(b)
the defendant has committed adultery which the plaintiff regards as
incompatible with the continuation of a normal marriage
relationship.”
The
Constitution of Zimbabwe Amendment (No.20) Act 2013, section 78
thereof, recognises the marriage institution and thus further shows
any intrusion, with knowledge into the marriage institution by a
third party is wrong and unlawful.
It
ought to be visited with an award of damages so as to compensate the
innocent spouse.
In
the present case the defendant made effort to intrude on the
applicant's spouse when the applicant would be out working for his
family, showing he had knowledge of the marriage. In an insensitive
manner he discussed the intimate escapes on social media thereby
inflicting pain, humiliation and indignity to the applicant. In
coming up with an award from damages I am guided by the fairly
settled factors as ably pronounced by the courts. Khumalo v
Mandishona 1996 (1) ZLR 434; Nyakudya v Washaya 2000 (1) ZLR 65;
Chenesai Rutawa v Tsistsi Venge HB152/11; and Muhwati v Nyama
HH17-11.
The
following factors have to be considered in coming up with an award.
1.
The social and economic status of the plaintiff and the defendant.
2.
The character of the spouse involved.
3.
Whether or not the defendant has shown contrition.
4.
The need for deterring measures against the adulterer to protect the
innocent spouse against contracting HIV from errant spouse.
5.
The level of award in similar cases.
The
applicant, a lawyer by profession, must have suffered on discovery of
the fact that his wife was committing adultery with a music artist.
The adulterous relationship has led to institution of divorce
proceedings to the detriment of the once happy marriage. In addition
to the injury, the applicant has suffered loss of consortium. Due
regard has been had to all circumstances of this case and an award
for damages for contumelia and loss of consortium has to be made as a
way of compensating the innocent spouse.
It
is also my considered view that given the increase in crimes of
passion brought about by the evil associated with adultery for
deterrence purposes, meaningful awards which do not appear to mock
the aggrieved innocent spouse are called for.
Accordingly
it is ordered that:
1.
The defendant shall pay a total of $6,000; (being $4,000 for
contumelia and $2,000 for loss of consortium), together with interest
thereon at the prescribed rate calculated from the date of the
summons to the date of payment in full.
2.
The defendant shall pay the costs of suit.
Musoni
Masasire Law Chambers, applicant's legal practitioners
