NDEWERE
J:
The
background of the case is that the plaintiff Amon Mapiye got into a
customary union with his wife Nomsa Faith Mapiye (Nee Mwazha) in
1999. Their union was initially blessed with two children in May 2001
and in 15 October 2005.
On
24 April 2007, the plaintiff and his wife solemnised their marriage
in terms of the Marriage Act [Chapter 5:11]. On 3 September 2008,
they were blessed with a third male child.
By
all standards, the marriage was stable and happy up to 2008, as
evidenced by the solemnisation of the customary union on 24 April
2007, followed by the birth of a son on 3 September 2008. Then came a
third party in the name of Innocent Mudyiwa, the defendant, to
intrude upon this marriage sometime in 2008.
The
plaintiff was alerted in 2009 by some suggestive text messages which
were being exchanged between Innocent, the defendant and his wife
which he saw on his wife's mobile phone. The plaintiff confronted
both the defendant and his wife about the text messages. In
particular, he alerted the defendant to the fact that Nomsa Faith
Mapiye was married to him in a monogamous union. Both the defendant
and the plaintiff's wife denied having an adulterous relationship.
The plaintiff accepted the denial and let the matter rest.
About
four years later, on 23 February 2013, the plaintiff's wife
delivered a fourth male child.
In
the first week of October 2014, the plaintiff issued summons for
divorce from his wife in HC8879/14. He said their marriage had
irretrievably broken down. The particulars of the breakdown which he
gave were:
(a)
that the defendant no longer loved him and was falsely accusing him
of adultery.
(b)
that the defendant had moved out of the matrimonial bedroom for the
past one year and eight months, thereby denying him conjugal rights.
(c)
that the defendant had abandoned the family business, donated her 5%
shares to her last child, obtained an exit package and was now
working at her father's surgery.
(d)
that the defendant had sent her aunt to collect a divorce token from
the plaintiff's father as confirmation that she was no longer
interested in the marriage.
If
the defendant had been out of the matrimonial bedroom for one year
and eight months on 2 October 2014, when the plaintiff signed the
divorce summons, it means she moved out twenty months before 2
October. Therefore she moved out of the matrimonial bedroom in 2013,
shortly after delivering the last child because twenty months from 2
October 2014 takes us back to March 2013.
The
plaintiff's wife continued to stay at the matrimonial house, but
she was effectively on separation from her husband since March 2013,
when she moved out of the matrimonial bedroom, resigned from the
family business and donated her shares to the last child.
Her
message was clear, she no longer wanted anything to do with the
plaintiff or his business. Hence the plaintiff responded by issuing
summons for divorce.
While
the divorce matter was still in progress, in February 2017, the
plaintiff overheard a telephone conversation between his wife and the
defendant and from what he heard, it appeared there was an argument
between the defendant and his wife over her last child. The defendant
was claiming the last born child from the plaintiff's wife, Nomsa
Faith, saying the child was his child.
The
plaintiff confronted his wife Nomsa Faith who confessed about the
adultery with the defendant since 2008 and stated that her last child
was a product of that adulterous relationship with the defendant.
After
his wife's confession, the two agreed to go for DNA tests to check
the paternity of the child. They went for the tests on 13 February
2017. The results were that there was a 0% chance of the plaintiff
being the father of the last born child.
An
uncontested divorce order was finally granted on 12 October 2017 by
this court. In the divorce order, the plaintiff was absolved from
maintenance and access obligations towards the last child.
Following
his wife's confession of adultery with the defendant, the plaintiff
issued summons against the defendant for adultery damages on 22
February 2017, which is the case I am seized with.
The
defendant filed an appearance to defend on 28 February 2017. The
defendant did not file any plea and on 4 April 2017 the plaintiff
filed a notice to plead and intention to bar and gave the defendant
five days to deliver his plea or get barred. No plea was filed and on
4 May, 2017, the defendant was barred.
The
plaintiff applied for default judgment and this being a damages
claim, the matter was referred to the unopposed roll.
The
plaintiff filed Heads of Argument in support of his claim. He also
filed an affidavit of evidence.
The
matter was initially set down for 6 September 2017. On 31 August
2017, the plaintiff's lawyers wrote to the Registrar of the High
Court indicating that the parties were making efforts to settle the
matter out of court. No settlement ensued thereafter so the matter
was eventually set down as unopposed for 10 January 2018.
When
the case was called the plaintiff appeared in person although up to
the filing of his Heads of Argument he was represented.
I
indicated that I needed time to go through the plaintiff's Heads of
Argument and check previously decided cases before coming to a
decision on the appropriate amount of damages to be awarded. I have
since gone through the plaintiff's Heads of Argument and done
further research on the approach taken on the issue of adultery
damages in previously decided cases.
As
correctly pointed out by Tredgold CJ in Doyle v Salgo 1957 R & N
840 (FSC) at 841 B-C or 1958 (1) SA 36 (FSC) at 37 B in an undefended
case involving a claim for adultery damages which was quoted with
approval by ROBINSON J on p 257 of Katsumbe v Buyanga 1991 (2) ZLR
256, “the fact that an action for damages is undefended does not
relieve the judge from the obligation of scrutinising the evidence
closely”.
To
begin with, let me start by saying that I agree with the sentiments
expressed in Katsumbe v Buyanga 1991 (2) ZLR 256 (HC) on p 258 that:
“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 courts in the absence of mitigating circumstances, should
be seen, in their award of damages, to come down hard on the
adulterer or adulteress … The courts 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 spouse to have taken the law into his or her own
hands.”
Indeed
in our jurisdiction, we have had several cases where aggrieved
spouses took the law into their own hands and injured or killed the
adulterer or the spouse. It is therefore needful for the courts to
give meaningful damages when approached, to discourage aggrieved
spouses from taking the law into their own hands.
The
plaintiff issued summons claiming $30,000-00 for loss of consortium
and $30,000-00 for contumelia plus interest at the prescribed rate
from the date of the summons and costs of suit on an attorney and
client scale.
The
plaintiff's claims are supported by our law on adultery damages. In
Khumalo v Mandishona 1996 (1) ZLR 434 (H), on p 442, it was stated
thus:
“Contumelia
incorporates the injury, insult and indignity suffered by the
plaintiff whilst loss of consortium relates to the loss of comfort,
society and service of the wife as a result of the adultery committed
by the defendant.”
I
will start by dealing with the plaintiff's claim for contumelia.
In
2009, the plaintiff came across suggestive text messages between his
wife and the defendant. He confronted both of them and confirmed to
the defendant that his wife was married to him and owed him fidelity.
Both his wife and the defendant denied the adulterous relationship.
However, the confrontation by the plaintiff did not make them stop
the adultery. They continued the adulterous relationship for five
years, leading to the birth of a child.
The
continuation of the adultery after warning from the plaintiff for the
long period of five years aggravated the injury and insult to the
plaintiff when he later found them out. The birth of the child is
also aggravatory. More aggravatory is the fact that defendant did not
come out clean and apologise after the birth of the child. In
collusion with plaintiff's wife, he passed on his child as
plaintiff's child, well knowing that to be false. As a result of
this fraud, plaintiff took care of defendant's pregnancy and child
from the period of conception till the child was four years old
spending several thousands of dollars on the child's care. Had he
not overheard the defendant's argument with his wife by chance, the
fraud on him by the defendant and his wife would have continued. This
fraud aggravates the injury and insult.
However,
adultery damages are not about compensating the plaintiff for looking
after the defendant's child. The plaintiff is at liberty to
institute compensation proceedings against the defendant if he so
wishes.
So
my award shall concern itself with the adultery itself.
After
his wife's confession, DNA tests had to be done to confirm
paternity. The fact that the child was confirmed to have 0% chance of
being plaintiff's child worsened the plaintiff's injury. Indeed,
I cannot think of a worse case of adultery than the present one.
Consequently, a high award of damages for contumelia is called for in
the present case.
Even
the manner in which the plaintiff came to know about the adultery was
very traumatic. Imagine the plaintiff having a four year old son whom
he was nurturing as his own, then he suddenly overhears an argument
between his wife and another man who was claiming to be the father.
Then he finds out that the man is the same one he confronted five
years previously but he denied having an adulterous affair. The
plaintiff must have experienced intense shock from that discovery. In
fact it is commendable that the plaintiff remained in control of his
senses and did not take the law into his hands when he overhead his
wife's discussion and when she confessed to him.
The
plaintiff's claim for $30,000.00 damages for contumelia is
therefore understandable in the circumstances.
The
next issue is for the court to determine the appropriate quantum.
In
Nyakudya v Washaya 2000 (1) ZLR 653, the factors to be considered in
determining the amount of damages to be awarded against a third party
for adultery were summarised as follows;
“(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 apologized;
(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.
In
addition to the above, the court should also take into account
whether the plaintiff has suffered lack of consortium as well as
contumelia, or just the latter, and the decrease in the value of
money.”
As
aforesaid, a high award is called for in the circumstances of this
case; an award which will recognize the serious injuria inflicted
upon the plaintiff.
In
Smith v Arthur 1976 (3) SA 378, the court said in looking at awards
made in the past, there is need to consider the decreased value of
money. This principle was reiterated in Nyakudya v Washaya supra, at
page 658 where the learned judge had this to say;
“the
court cannot disregard the horrendous decline in the value and
purchasing power of the Zimbabwe dollar over the last two years.”
In
Chinamasa v Jongwe Printing and Publishing Co (Pvt) Ltd & Another
1994 (1) ZLR 133 (H) at 170 a defamation case, the learned judge
stated the following;
“….
The fall in the value of money is a fact which should be taken into
account in terms of purchasing power, but not with such an adherence
to mathematics which may lead to an unreasonable result.”
The
above principle applies to adultery damages as well.
On
the AIDS factor, as correctly pointed out by MALABA J (as he then
was) in Khumalo v Mandishona 1996 (1) ZLR 434, the factor of AIDS
needs to be considered in the assessment of damages for
contumelia….;” damages are awarded for the factor of AIDS as a
deterrent measure to protect the innocent spouse from the risk of
contracting the virus form the errant partner.”
On
the issue of the unrepentant defendant, it was held in Chapman v
Chapman and Anor 1977 (4) SA (NC) 142 at p 144 that if the
co-respondent is grossly impudent and unrepentant, that will
aggravate the damages.
In
the present case, we have a defendant who was warned in 2009 by the
plaintiff, but he carried on. In fact, he was boastful about his
adulterous escapades, spreading the news of his adulterous
relationship with plaintiff's wife to some members of plaintiff's
community. That aggravates the amount of damages. In the Khumalo v
Mandishona case, supra, at page 446, the court said;
“where
the defendant shows contrition and tenders an apology to the
plaintiff for the injury inflicted, the apology constitutes a balm
for the plaintiff's injured soul. The plaintiff's feelings are
however, not assuaged by an impertinent seducer who does not show any
contrition and forces him to go to court and relive the traumatic
experience when giving evidence to prove adultery.”
The
above quotation summarises the facts of the current case.
The
defendant was never apologetic. He continued the adultery for four
years after being warned by the plaintiff. Even after being found
out, he did not seriously attempt to settle the case out of court.
The plaintiff had to come to court with his claim and endure the bad
publicity that comes with public court hearings. This situation
aggravates the contumelia.
On
the character of the woman involved, we do not have much by way of
evidence since the claim was not defended. All we know is that until
2008 when defendant intruded into the marriage, the plaintiff and his
wife, had a stable and peaceful relationship. On the character of the
plaintiff we are told he was an emerging businessman. We have nothing
on the character of the defendant since he chose not to defend.
As
correctly pointed out in Chinamasa v Jongwe Printing Publishing Co.
(Pvt) Ltd & Anor supra the fall in the value of money is a factor
which should be taken into account.
Despite
dollarization, it is a fact that the purchasing power of money has
declined over the years. It has been declining since 2009 when
Zimbabwe adopted multicurrency. Prices of goods and services have
continuously gone up unabated. A higher award than in the previously
decided cases is therefore called for in view of the declining value
of money.
In
Smith v Arthur 1976 (3) SA 378 at 387, MILLER A.J.A said;
“Because
in my view the courts have tended to pay only lip service to their
condemnation of adultery, their awards of damages have been
relatively low,…..”
Given
the aggravating factors outlined above; I do not intend to pay lip
service to the condemnation of the adultery in the present case. I
shall give an award which reflects the aggravated injury suffered by
the plaintiff.
Loss
of Consortium
Consortium
has been defined as the totality of a number of rights, duties and
advantages accruing to spouses of a marriage. In Best v Samuel Fox
Co. Ltd [1951] 2 KB 639 at p 663, the Lord Justice described
consortium as follows:
“Companionship,
love, affection, comfort, mutual services, sexual intercourse – all
belong to the married state. Taken together they make up the
consortium.”
In
Place v Searle [1932] 2 KB 497 at 512; it was held that a husband has
a right to the consortium of his wife and the wife to the consortium
of her husband.
In
Pearce v Kevan 1954 (3) SA 910 (N), the learned judge said;
“It
is the duty of a wife to reside and consort with her husband and any
third person who intentionally causes her to violate this duty
commits a wrong against the husband for which the latter is entitled
to recover damages.”
The
above principle would equally apply if the husband was the adulterer
because the duty, as indicated in Place v Searle is to both parties.
However,
before a claim for loss of consortium can succeed, there should be
proof of actual loss of consortium. In other words there must be
proof that the wife stopped consorting with the husband as a result
of the adultery.
In
the present case, the wife remained at home from 2008 to February
2013 when she delivered the baby conceived out of her adulterous
union so there is no evidence of loss of consortium from 2008 to
February 2013 when the last child was born.
Soon
after delivery, within less than a month from the date of delivery
according to plaintiff's declaration in the divorce action, the
plaintiff's wife moved out of the matrimonial bedroom. She resigned
from the family business, claimed an exit package and donated her
share to the newly born child. She told her aunt to seek a divorce
token from plaintiff's father.
So,
clearly, from about March 2013, the plaintiff lost his wife's
consortium.
Looking
at the list in Best v Samuel Fox Co. Ltd, supra the plaintiff lost
companionship, love, affection, comfort, mutual services and sexual
intercourse. This loss is linked to his wife's adultery with the
defendant because her actions occurred soon after delivery of the
defendant's baby. Probably, the birth of the child confirmed the
irreversible situation which her adultery with the defendant had
caused and she could not continue to live a lie as she had done for
the previous five years. So plaintiff's claim for loss of
consortium has merit.
The
next question is what is the appropriate quantum of this type of
damages in the circumstances of the present case?
To
start with, I do not subscribe to the idea expressed in Muller v Vink
1972 (1) PH B2 which was referred to in Khumalo v Mandishona supra,
that the recognition of women as free agents rather than chattels
means that damages for loss of consortium should be on the lower
side. This is because consortium has nothing to do with gender. It
applies to both male and female spouses. Consortium is about the
reciprocal rights, duties and obligations of spouses to each other.
This means that damages for loss of consortium are about supporting
and strengthening the institution of marriage; they are not about
gender. In this regard, I will do no more than quote ROBINSON J in
Katsumbe v Buyanga 1991 ZLR 256 at 258 when he stated the following;
“…
unless
they are prepared to take a strong 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-martial and extra marital sex and which has landed the
world in the sexual morass over which the monster, AIDS, now presides
in all its frightening aspects.”
In
addition, we have a Constitution which protects the institution of
the family. Section 25 of the Constitution of Zimbabwe Amendment
(No.20) of 2013 provides as follows:
“The
State and all institutions and agencies of government at every level
must protect and foster the institution of the family….”
The
judiciary is one such State institution which is called upon by our
Constitution to “protect and foster the institution of the family.”
It
goes without saying that the marital state is the beginning of the
family institution. Section 78, of the Constitution, on marriage
rights states that every adult person has the right to found a
family, thus confirming that marriage is the foundation of the family
institution which State institutions are being called upon to protect
and foster. So the courts must be seen to be protecting the family
institution by protecting marriages.
Our
Constitution upholds marriages, as indicated in section 78.
Consequently,
in assessing the quantum of damages for loss of consortium, it has
been held that where the adultery leads to the breakup of the
marriage, the damages are aggravated.
In
the present case, a divorce order was issued on 12 October, 2017, by
this court. This means the plaintiff lost his wife's consortium for
four years, from February, 2013 to 12 October, 2017. Although the
plaintiff was not aware of his wife's adultery when he issued
summons, it is clear from para 7 of his divorce declaration that loss
of consortium is what made him seek divorce. His reasons as given in
para 7 were;
(a)
That defendant no longer loves the plaintiff and falsely accuses him
of having an extra marital affair with her cousin.
Going
by the list in Best v Samuel supra, ground (a) for divorce above
confirmed the loss of love, affection and companionship.
(b)
That defendant has moved out of the matrimonial bedroom for the past
one year and eight months, thereby denying the plaintiff his conjugal
rights;
Ground
(b) confirmed the loss of sexual intercourse and comfort.
(c)
That the defendant has abandoned the family business to which she was
a minority shareholder and donated 5% shares to the last child, took
an exit package and was working at her father's surgery.
Ground
(c) confirmed the loss of mutual services.
(d)
That defendant sent her aunt to plaintiff's father to collect a
token of divorce as a sign that she is no longer interested in the
marriage.
Ground
(d) confirmed the loss of love, companionship and affection.
So
the loss of consortium in the present case is what led to the breakup
of the marriage; thus aggravating the loss of consortium damages
which are payable.
In
Pearce v Kevan 1954 (3) SA 910 (N), the court stated the following;
“It
is obvious that there must be a causative connection between the
conduct of the third person and the dereliction by the wife of the
duties she owes her husband……”
In
the present case, there is a causative connection between defendant's
adultery and the loss of consortium to plaintiff. Nomsa Faith Mapiye
denied conjugal rights to her husband for one year and eight months
because she was committing adultery with the defendant Innocent
Mudyiwa. She stopped having sexual intercourse with him because she
was having it with Innocent. Innocent betrayed the meaning of his
name and was not innocent in this case. He enticed plaintiff's wife
away from the marriage. He would go to plaintiff's house as if he
wanted to buy water which the couple sold in their business. Despite
being confronted by the plaintiff in 2009, he did not stop the
adultery. He persisted in enticing this married woman away from the
duties and obligations of her marriage till he succeeded in breaking
up the marriage. As stated in Pearce v Kevan supra;
“…
the
law as I endeavoured to state it potentially embraces the conduct of
a man who, whatever his immediate objects may be, perseveres in
behaving towards another man's wife in a way which he realises is
having the effect of alienating her affection from her husband and
which ultimately produces that result and brings about an
estrangement.”
Indeed,
in the present case, the defendant, Innocent Mudyiwa “persevered”
in this adulterous behaviour for a good five years, till the marriage
broke. This aggravates the damages payable.
Given
the further decline in the purchasing power of money in recent years;
I find no reason to give an award of damages for adultery which are
lower than in any of the previously decided cases. I will however,
rely on the quantums awarded from 2009 in view of dollarization.
In
Chenesai Rateiwa v Tsitsi Venge HB152/11, US$4,500 was awarded for
contumelia and $1,500 for loss of consortium.
In
Monica Muerudza v Ropafadzo C Magora HC6334/13, US$8,500-00 was
granted for both contumelia and loss of consortium.
In
Muhwati v Nyama 2011 (1) ZLR 634 US$5,000-00 was granted for both
contumelia and loss of consortium.
In
Judith Tikiwa v Makomborero Adiyolah Charlie HH488/14, $3,000 was
awarded for loss of consortium and $3,500-00 for contumelia.
In
Makururu v Vori HH174/16, $4,000-00 was awarded for contumelia
$2,000-00 for loss of consortium.
It
is therefore ordered as follows:
(a)
The defendant shall pay the plaintiff $6,000-00 damages for
contumelia.
(b)
The defendant shall pay the plaintiff $4,000-00 damages for loss of
consortium.
(c)
The defendant shall pay interest at the prescribed rate from the date
of the summons to the date of final payment.
(d)
The defendant shall pay costs on an attorney and client scale.
Zvinavakobvu
Law Chambers, plaintiff's legal practitioners
