CHITAKUNYE
J:
On
24 April 2012 the plaintiff issued summons against the defendant
claiming adultery damages in a total sum of USD25,000-00 and costs of
suit.
The
plaintiff alleged that the defendant committed adultery with the
plaintiff's husband, Major Mejasi Tikiwa, leading to the plaintiff
suffering damages in the sums of USD15,000-00 for loss of consortium
and USD10,000-00 for contumelia. The brief facts of the case were
that:
In
1994 the plaintiff and Major Mejasi Tikiwa married each other under
customary law. Their marriage was apparently unregistered. On 6
December 2001 their marriage was solemnised in terms of the Marriages
Act [Cap 5:11]. The marriage was blessed with 3 children whose ages
were given as 17, 15 and 9 years respectively.
During
the formative years of the marriage the plaintiff was employed as a
secretary/receptionist. She later left employment in agreement with
her husband so that she takes care of the family as a full time
housewife.
In
her declaration the plaintiff alleged that in November 2011 she
discovered a love message on her husband's phone from the
defendant. She reacted by replying to the message and advising the
defendant that she was married to Major Mejasi Tikiwa in terms of the
Marriages Act [Cap 5:11] and that they had three children so could
the defendant stop the relationship with her husband. Despite this
response the defendant proceeded to commit adultery with the
plaintiff's husband. This adultery has continued to date. In fact,
in January 2012 the plaintiff's husband left the matrimonial home
to go and cohabit with the defendant at Stand 1776 Area D Westgate.
This is her husband's property which he had apparently acquired
without her knowledge.
As
a result of the adulterous relationship the plaintiff alleged that
she has suffered loss of consortium by the reason of the loss of
comfort, society, love, companionship and assistance provided by her
husband. She pegged her damages for loss of consortium at
USD15,000-00. The plaintiff further alleged that by virtue of the
continued adulterous relationship, she has suffered damages by way of
the contumelia inflicted upon her by the defendant in the sum of
USD10,000-00. That contumelia is aggravated by the flagrant conduct
of the defendant who has openly portrayed a picture of being married
to the plaintiff's husband and even borne a child out of that
relationship.
In
her plea, the defendant denied committing adultery. She contended
that at the time she went into a relationship with the plaintiff's
husband she was not aware that he was married and more so in a
monogamous marriage. She further contended that in any case she
understood that the plaintiff's marriage to her husband had gone
sour; their marriage had irretrievably broken down when she came onto
the scene. The defendant denied that she was cohabiting with the
plaintiff's husband. She at the same time contended that the
plaintiff literally drove her husband out of the matrimonial home and
straight into the solace of the defendant's arms. As a consequence
of this the plaintiff did not suffer any loss of consortium. No
damages are therefore due to the plaintiff.
The
parties' positions were crystallised in a joint Pre-Trial
Conference minute. In that minute the parties agreed that:-
1.
The plaintiff's husband is legally married in terms of the
Marriages Act [Cap 5:11].
2.
The plaintiff's husband issued summons for divorce in February
2012.
3.
A child was born out of the relationship.
4.
When the defendant is in Zimbabwe, she stays with plaintiff's
husband at No. 1776 Westgate, Harare.
Issues
for determination were captured as follows:-
1.
Whether the defendant knew that the plaintiff's husband was married
to the plaintiff at the same time she was engaged in an intimate
relationship with him.
2.
Whether the plaintiff suffered any damages due to the adultery and
the quantum thereof.
Though
both parties had indicated that they would be calling two witnesses
each, only the plaintiff and defendant testified.
1.
WHETHER THE DEFENDANT KNEW THAT THE PLAINTIFF'S HUSBAND WAS MARRIED
TO THE PLAINTIFF AT THE TIME SHE WAS ENGAGED IN AN INTIMATE
RELATIONSHIP WITH HIM
The
plaintiff's evidence was basically a confirmation of how she got
married to Major Mejasi Tikiwa, firstly under customary law and
subsequently in terms of the Marriages Act [Cap 5:11]. She alluded to
the lifestyle they led as a family and the fact that before the
defendant came onto the scene they lived happily together as a family
with her husband.
The
plaintiff's evidence on this issue was to the effect that in
November 2011 she discovered a love message sent by the defendant to
her husband on her husband's mobile phone. When she saw the message
she reacted by replying using the same mobile phone advising the
sender that Major Tikiwa was married to her in terms of the Marriages
Act and so the sender should stay away from him. This is how she
hoped the defendant, as the sender, would know about the marriage.
After this she never saw similar messages on her husband's phone
again.
The
defendant on the other hand contended that she never saw any message
advising her of the marital status of Major Tikiwa and telling her to
stay away from him. She thus continued with the relationship and
would phone Major Tikiwa at anytime of the day and night without any
hindrance. Each time they phoned each other they would talk for long
on the phone. This tended to confirm to her that her lover was not
married.
The
circumstances of this case are such that the issue of whether the
defendant knew that her lover was married to the plaintiff at the
time she was engaged in an intimate relationship with him is no
longer crucial. Even if one were to accept the defendant's story
that at the inception of the relationship she was not aware of the
marriage, it is common cause that even after being fully aware of the
marriage and being served with summons in this matter, she has
continued with the relationship. The defendant was heard to say she
cannot stop the relationship because there is now a child between
them and that in any case the plaintiff's husband has sued for
divorce and so the plaintiff's marriage is all but over.
Adultery
is basically the act of sexual intercourse between a married person
and someone other than their legal partner.
If
at the inception the defendant was not aware that her lover was
married, when she became aware that he was in fact married to the
plaintiff in terms of the Marriages Act [Cap 5:11] she did not stop
the relationship. She has continued being intimate with a man she
knows is married in terms of the Marriages Act. She in fact said that
she cohabits with him as man and wife whenever she is in Zimbabwe.
Clearly the defendant has no regard to the sanctity of marriage.
Accordingly, the defendant did commit adultery with the plaintiff's
husband and continues to do so to date with impunity.
2.
WHETHER THE PLAINTIFF SUFFERED ANY DAMAGES AS A RESULT OF THAT
ADULTERY AND THE QUANTUM THEREOF
The
contentious issue is thus whether plaintiff suffered any damages as a
result of that adultery and the quantum thereof.
The
plaintiff's evidence was to the effect that she suffered damages as
a result of the adulterous relationship the defendant had and still
has with her husband. The damages consisted of loss of consortium and
contumelia. It was her evidence that for about 17 years she lived
well with her husband. However, from the time she discovered that the
defendant was having a relationship with her husband things changed.
From about December 2011 the husband started sleeping out which
conduct he never used to do except when he was out of the country on
duty. He was no longer eating from home. The husband began denying
the plaintiff her conjugal rights in the home.
Whilst
previously they would go on holidays as a family, this ceased. In
December 2011 they did not go on holiday as had become the norm. For
the first time they had a miserable December festival period in their
family. The husband left for Malawi leaving the family with
inadequate money for a decent meal at Crown Plaza Hotel.
As
things unfolded she was alerted to a picture on facebook which
depicted her husband, the defendant and two other women. Inscribed on
it was a message to the effect that the defendant had 'caught' a
wealthy man for herself and she would not let go. The fact of this
publication made her feel hurt and humiliated. After this publication
she received numerous phone calls from friends and relatives
concerning that publication and this added onto the pangs of hurt and
humiliation.
In
January 2012 the plaintiff's husband deserted the matrimonial home
without explaining himself. On 1 February 2012 the husband issued
summons for divorce. Upon being served with the divorce summons the
plaintiff began her own investigation to ascertain what was
happening. It was during this investigation that she discovered that
her husband was staying at 1776 Westgate and was cohabiting with the
defendant. She also discovered that the property they were cohabiting
at belonged to her husband. The husband had apparently not disclosed
to her his acquisition of this property.
It
was after the investigation that in April 2012 the plaintiff issued
summons in this case seeking adultery damages against the defendant.
The
plaintiff testified that as a result of the adultery relationship she
lost love, care, support, companionship and assistance of her
husband. The motor vehicle she was using was taken by the husband on
the pretext of taking it for service and never to be returned. She
now had to use public transport. That in itself was a form of
humiliation for one who had gotten used to driving her car for so
many years of the marriage. She also testified that her husband
stopped supporting her financially and she had to sue him for
maintenance of which she was granted a sum of USD1,200-00 per month.
The husband also began neglecting the couple's children. The
plaintiff had to sue for the maintenance of the children. A
Maintenance Order was granted in the sum of USD1,800-00 per month for
the three children.
It
was the plaintiff's testimony that these difficulties were all as a
result of the defendant having intruded into her marriage and the
husband now concentrating on providing for the defendant at the
expense of his family.
The
defendant's evidence on the other hand was to the effect that the
plaintiff's marriage had broken down before she came onto the scene
and so she should not be held accountable.
She
however, could not deny that her coming onto the scene had its own
consequences in that for the first time in the plaintiff's marriage
she had to sue for maintenance both for herself and for the children.
The plaintiff was also relieved of the car she had been using as Mrs
Tikiwa.
The
question of conjugal rights is incontrovertible in that it is only
the plaintiff who could credibly testify as to when she began to be
denied of these rights.
Equally
the fact of now suffering from hypertension was not disputed. The
stress and anguish the plaintiff underwent as a result of the
husband's neglect of the family could not be denied.
The
defendant also contended that the plaintiff's husband had been in
love with one Tendai and so she could not be held accountable for the
loss of consortium and contumelia as clearly the plaintiff's
husband was already looking for sexual satisfaction somewhere else
because of the plaintiff's shortcomings.
It
is my view that the contention that Tendai had also been in love with
the plaintiff's husband could not be a defence. The plaintiff
clearly admitted that but went on to say Tendai apologised and
stopped the relationship. Tendai's relationship did not result in
the plaintiff being denied what she had become accustomed to as the
wife to Mr Tikiwa. Mr. Tikiwa was also said to have apologised to his
wife for his indiscretion with Tendai. The defendant could not rebut
this evidence. It is clear that whatever state the marriage was in
prior to the defendant's intrusion, it was such that the plaintiff
still enjoyed the companionship, society and services of her husband.
She was still provided for by the husband. There was no loss of
consortium.
Consortium
is basically the association between husband and wife which embraces
companionship, love, affection, comfort, mutual services and
enjoyment of conjugal rights.
A
wife has a right to the consortium et servitium of her husband; that
is to his society and services.
In
casu, there is no doubt that the plaintiff has lost the
companionship, society and services of her husband. The husband has
abandoned the plaintiff and the children to go and cohabit with the
defendant. The defendant has with impunity encouraged that by
clinging onto the plaintiff's husband and vowing not to let go.
Whilst
before the defendant's intrusion the plaintiff's husband may have
been unfaithful he never abandoned his family. Indeed, that
infidelity on his part is frowned upon but it did not lead to actual
loss of consortium. It is the relationship with the defendant that
led to actual loss of consortium being complained of here.
In
Khumalo v Mandishona 1996 (1) ZLR 434 at p 448-449 MALABA J had this
to say on damages for loss of consortium:-
“I
now turn to assess damages for the loss of consortium. The most
important factor under this head is that there should be proof of
actual loss of consortium. In other words, the wife should be shown
to have left the matrimonial home as a result of the adultery.
Damages for loss of consortium are aggravated where the adultery has
led to the breakup of the marriage. The plaintiff should not only
show loss of consortium. He should also show that the loss was a
result of the adultery the defendant committed with his wife and that
he suffered damages as a result of the loss of consortium.
Where
the defendant is not shown to have enticed the errant spouse to
abandon his or her duties of providing the plaintiff with comfort,
society and services the damages reduce. The damages will also be low
where the marriage is shown to have broken down in all but name at
the time the adultery was committed……. This is because the
damages awarded constitute an estimated value of the comfort, society
and services the guilty spouse would have continued to give to the
plaintiff but for the adultery with the defendant.
That
award of damages seeks to put the plaintiff in monetary recompense as
near as is reasonably practicable to the position he would have been
had his wife not left him as a result of the defendant's adultery
with her.”
In
casu, it was only after the adultery had commenced that the
plaintiff's husband abandoned his family and has not returned. It
was also after he begun cohabiting with the defendant that he issued
summons for divorce. The coincidence whereby the husband sued for
divorce only after commencing cohabiting with the defendant and the
defendant's bragging that she had 'caught' a wealthy man and
she will not let go clearly confirms the influence the adultery
relationship has had on the plaintiff's marriage. The impunity with
which the defendant has continued with the relationship served to
confirm her determination not to lose her wealthy man.
I
am of the view that the plaintiff certainly suffered damages for loss
of consortium. Such damages must however be assessed taking into
account all the circumstances of the case.
I
shall return to the factors after considering the issue of
contumelia.
The
question may be asked whether plaintiff has suffered contumelia.
Contumelia
pertains to the injury, hurt, insult and indignity inflicted upon the
plaintiff by the defendant as a result of the latter's adultery
with the plaintiff's spouse.
The
circumstances of the case show that plaintiff suffered contumelia as
a result of the defendant's conduct. Apart from the facebook
publication already alluded to, she also suffered the ignominy of
being ostracised by her in-laws as a result of the defendant's
intrusion. The defendant has waded into and ingratiated herself with
the plaintiff's in-laws to an extent whereby the plaintiff is now
viewed by some members of that family negatively despite the 17 years
she lived in harmony with her husband. She is now not able to enjoy
the fruits of the 17 years of working for the family.
The
defendant has brazenly continued with the adulterous relationship
despite becoming aware that her lover was in fact married. The
defendant further exhibited her contemptuous attitude towards the
plaintiff by not being remorseful or apologetic. Instead she seemed
boastful in her stance of continuing with the adulterous
relationship. The defendant gave the impression of someone
celebrating the demise of the plaintiff's marriage and very eager
to rub salt to injury.
It
is my view that clearly the plaintiff has suffered contumelia. She
has been hurt, treated with contempt and made to feel worthless by
the defendant.
The
assessment of damages in adultery cases is not an easy one. No sum of
monetary value can be adequate to translate into the pain and anguish
the plaintiff has suffered. The breakup of a marriage cannot be
adequately compensated. As said by Colman in Muller v Vink 1972 (1)
PH B2:-
“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 the 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 a faithless wife.”
Over
the passage of time some basic factors have emerged as important in
the assessment of damages. These include:-
(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;
(e)
the level of awards in similar cases; and, one may add
(f)
whether the plaintiff has suffered lack of consortium as well as
contumelia, or just the latter.
In
this case a marriage of 17 years standing was ruined by the adultery.
Had the plaintiff not been a worthy wife the marriage could not have
lasted for so long. Clearly there was some harmony and happiness in
the family hence the longevity. The plaintiff impressed me as a woman
of virtue dedicated to her family and Christian values.
The
defendant on the other hand gave the impression of a carefree woman
who did not value the sanctity of marriage. To her it seemed a
relationship with the plaintiff's husband was not an opportunity to
miss despite his marital status. She had no regrets whatsoever about
the consequences of her relationship with the plaintiff's husband
on the plaintiff and the plaintiff's family.
Clearly,
she is selfish.
Further
the defendant never showed any remorsefulness for her conduct. If
anything she seemed to look at the plaintiff with scorn.
Another
factor to note is that the prevalence of HIV cannot be overlooked.
Acts of promiscuity are making a mockery of efforts to bring the
spread of HIV infections under control. It is persons like defendant
who seem to care less about marital status of their lovers who
contribute to this problem. Indeed, the plaintiff's husband is not
before me, but he is as guilty as the defendant in acts of
promiscuity. If his attitude as portrayed by the defendant is true,
he seems to care less about his family hence he had to be sued for
maintenance for his family. It is time persons with the propensity
for promiscuity were reminded that history will judge them harshly as
uncaring spreaders of the deadly HIV virus.
In
the assessment of appropriate damages court is expected to take into
account the levels of awards in other cases. In this regard the most
appropriate levels of awards are those that have been made after the
multicurrency regime was adopted. In that regard I have considered
some of the cases and circumstances of each case.
I
am of the view that whilst the awards range between USD400-00 to
USD8,500-00 I should not lose sight of the circumstances of this
case.
Cases
noted included Chinyadza v Phiri HH76/09 where a sum of USD500-00 was
awarded for loss of consotiurm; Dera v Kambeza HH175/10 where a sum
of USD400-00 was awarded for loss of consortium; In Jhamba v Mugwisi
2010 (1) ZLR 124 where a sum of USD500-00 was granted for both loss
of consortium and contumelia. The court holding that the plaintiff
had by her conduct impliedly condoned the adultery hence the low
figure; Chenesai Rateiwa v Tsitsi Venge HB152/11 where an award of
USD4,500-00 for contumelia and USD1,500-00 for loss of consortium was
granted; and Monica Muerudza v Ropafadzo C. Magora HC6334/13 where a
sum of USD8,500-00 was granted. In Muhwati v Nyama 2011 (1) ZLR 634
damages in the sum of USD5,000-00 were granted for both contumelia
and loss of consortium.
The
level of awards that emerges since dollarization is of sums between
USD400 and USD8,500. That range takes into account the various
factors alluded to above in each individual case.
In
casu, there is not much to mitigate the defendant's conduct. The
plaintiff has lost a well to do husband whose financial status was
such that she reasonably expected to lead a good and comfortable
life. That has all been deprived of her by the defendant's
intrusion. She has virtually lost a lifelong investment in a
marriage. No monetary compensation can be adequate to compensate for
that. Though effort was made to portray her marriage as having been
on the rocks, such effort was not supported by evidence. The marriage
may not have been in its blissful years but it was certainly not over
and remaining on paper only.
It
is also important to realise that no amount of award will dissuade a
guilty spouse from promiscuity. This court can only discourage
incidences of adultery by awarding damages that take into account the
circumstances of each case. The punishment for the defendant must be
such as to dissuade her from such conduct without being unduly harsh.
I am of the view that this case deserves a high level of award. The
arrogance with which the defendant approached the case shows she is
little moved by the action. It is only proper that court expresses
its displeasure at such attitude by awarding punitive damages.
After
a careful consideration of the circumstances of this case I am of the
view that a fair and reasonable award is a total sum of USD6,500-00
being USD3,000-00 for loss of consortium and USD3,500-00 for
contumelia.
The
plaintiff asked for costs of suit.
I
am of the view that she is entitled to the costs. The plaintiff had
become dependent on her husband for support and that husband has been
taken away by the defendant who is not apologetic. The defendant if
anything, ought to have admitted adultery from inception and this
could have saved the plaintiff a lot of costs.
I
am however, not persuaded to grant such costs on a higher scale as
requested by the plaintiff. Costs will thus be on the ordinary scale.
Accordingly,
it is hereby ordered that the defendant pays the plaintiff adultery
damages in the total sum of USD6,500-00 with interest at the
prescribed rate. The defendant shall pay the costs of suit.
Munangati
& Associates, Plaintiff's Legal Practitioners
Messrs
Matipano & Matimba, Defendant's Legal Practitioners
