KUDYA
J:
On
19 September 2008, the plaintiff issued summons out of this court
seeking $50 million for adultery damages against the defendant. The
defendant denied the allegations in his plea filed of record on 17
December 2008.
At
the pre-trial conference held on 19 May 2009, the amount claimed was
amended by consent to US$5,000-00.
The
matter was referred to trial on the following issues:
1.
Was there an adulterous relationship between the defendant and
plaintiff's wife?
2.
Did the plaintiff suffer the damages claimed?
3.
If, so the quantum thereof.
The
plaintiff testified and called the evidence of two other witnesses.
The defendant also gave evidence and called the evidence of one
further witness.
A
single documentary exhibit, the marriage certificate of the plaintiff
and his wife, was produced in evidence.
It
was common cause that the plaintiff was married in terms of civil
rites on 6 September 1997. No children were born of the marriage. The
plaintiff's wife first worked as an intern with the Zimbabwe
Broadcasting Corporation in January 2000 before joining the
corporation on a full-time basis in October 2003 on completion of her
studies at the Harare Polytechnic.
She
worked in the same department with the defendant until he left
employment in 2005 to join the Postal and Telecommunications
Regulations Authority of Zimbabwe.
The
plaintiff averred in his evidence that his wife introduced him to the
defendant during a football match between Sporting Lions and CAPS
United during the 2004-2005 football season.
In
his declaration the plaintiff averred that the adulterous
relationship occurred between 2004 and July 2007.
In
his summary of evidence he averred that it commenced in 2000.
In
evidence the plaintiff stated that he left to work in South Africa in
2007 where his wife joined him later that year. When she came to
South Africa, she was emaciated and sickly. She was diagnosed with
tuberculosis and put on treatment. She did not respond to treatment.
She was tested for and found with the HIV virus.
She
voluntarily confessed to him that she had contracted the virus from
the defendant and detailed the adulterous relationship with him over
the course of the eight years beginning from 2000.
She
described his flat where most of the trysts were performed and
revealed that they also had sexual trysts at a lodge in Harare and in
a car. She described to him some intimate parts of the defendant's
anatomy which he revealed in his testimony.
He
was tested HIV positive both in Zimbabwe and South Africa. He was
devastated by the change in his health status.
He
left his employment as a driver in South Africa because he could not
mentally come to terms with his new status. He became a danger while
behind the wheel as he was troubled by the turn of events. He toyed
with the idea of committing suicide.
He
was satisfied that his wife told him the truth after he phoned the
number that appeared in her diary under a woman's name and it was
answered by the defendant who also confirmed it was his.
As
a result of the adulterous liaison, he separated from his wife.
His
privacy was invaded, his dignity and reputation ruined. He was
emotional and cried during his testimony. He felt belittled amongst
his kith and kin by the adultery as his wife had been a model wife.
He
sought damages for the hurt in the sum of US$2,500-00. He lost the
comfort, society and services of his wife as a result of the adultery
and sought damages for the loss of consortium in an equal amount.
He
was asked ineffectual questions during cross examination, which left
his testimony unscathed.
His
wife testified.
She
gave detailed evidence of her adulterous relationship with the
defendant from January 2000 to December 2006. She had sexual
intercourse with him at his flat from January 2000 until his
marriage. Thereafter they continued to do so at a lodge along Herbert
Chitepo Avenue in Harare and in Room 40 at their workplace.
She
related one incident in which she had sexual intercourse with the
defendant in the presence of his wife at his flat; where the two
women took turns to sexual entertain the defendant.
She
also referred to another incident when they did so in a car at a bus
stop along the Seke road as he was driving her to her matrimonial
home.
She
stated that she advised him of her marital status from the very
beginning when he proposed love to her. He was undeterred by her
marital status.
She
confirmed that she introduced him to her husband one Sunday afternoon
at Rufaro Stadium during the BP Cup final between Motor Action
Football Club and CAPS United Football Club.
She
at all times wore her wedding ring on the appropriate finger on her
left hand.
She
stated that she was the one who revealed to her husband about the
affair in order to expiate the error of her ways. She stated that she
gave the defendant's two e-mail addresses and cell number, which
was recorded in her diary under a female pseudonym, to the plaintiff.
She
was cross-examined by the defendant.
He
heaved a huge sigh before he commenced cross examination. She did not
recall the various dates and times on which the incidences took place
as she had not diarized them. In any event she never anticipated that
she would at some future date confess her error to her husband. She
maintained her evidence in chief and described the sexual anatomy of
the defendant in detail.
She
gave her evidence well. It was detailed. It was consistent with what
she told her husband. The two discrepancies on the description of the
defendant's testes and the name of the team which played CAPS
United on the date that she introduced her husband to the defendant
were insufficient to dent her credibility.
Her
version as to the existence of a love affair between her and the
defendant was confirmed by Memory James, who was her best friend and
room mate at the Harare Polytechnic in 2000.
I
was satisfied from her demeanor and forthrightness that she knew the
defendant back then as a boyfriend of the plaintiff's wife.
Memory's
testimony that the plaintiff's wife wore a wedding ring at the time
was confirmed by Mugove Gada, a witness called by the defendant. I
believed her story in full.
The
defendant baldly denied any knowledge of the marital status of the
plaintiff's wife.
His
denials sounded hollow for a man who worked with the plaintiff's
wife for seven years. He was adamant that he never saw the wedding
ring on her. He was her supervisor and took part in interviewing her
for the job she landed after her training.
His
denials painted him as an untruthful witness.
In
my view, he denied any knowledge of her marital status in a bid to
distance himself from the love affair he pursued with her. He falsely
denied that he was living positively with the HIV virus in his
pleadings and when he cross examined the plaintiff and his wife.
He
was an untruthful witness. I did not believe his version of events
where it differed with that of the plaintiff's wife.
I
am satisfied from the evidence that was led that the defendant
committed adultery over a seven year period with the plaintiff's
wife. In the process he infected her with the HIV virus and she in
turn infected the plaintiff.
I
answer the first issue that was referred to trial in the affirmative.
The
two issues that follow the first one concern the quantum of damages
that the plaintiff suffered as a result of the adulterous
relationship between his wife and the defendant.
He
claimed the sum of $US2,500.00 for contumelia and a further
US$2,500.00 for the loss of consortium.
In
both Nyandoro v Tizirai HH12 /06 and Gombakomba v Bhudhiyo HH118/06 I
adopted the definition of contumelia set out in Doyle v Salgo (1)
1957 R & N 840 at 844A, Katsumbe v Buyanga 1991 (2) ZLR 256 (H)
at 258C and Takadini v Maimba 1996 (2) ZLR 737 (S) at 738F.
Contumelia
is equated to the injury, hurt, insult and indignity inflicted upon a
plaintiff by the adultery committed by a defendant with his or her
spouse.
In
Khumalo v Mandishona 1996 (1) ZLR 434 (H) MALABA J, as he then was,
set out the five factors that a court considers in arriving at an
estimate of the damages due to a plaintiff for contumelia. These are:
(a)
the character of the spouse involved;
(b)
the social and economic status of the plaintiff and the defendant;
(c)
whether the defendant has shown contrition;
(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.
In
the present case, the defendant instigated the love affair with the
plaintiff's spouse. He knew that she was married. The wife was a
religious woman who fell from grace at the hands of the defendant. At
the commencement of the affair her desire to pass her course drove
her to ingratiate herself to the defendant. After she passed she used
the relationship to obtain a job with the defendant's employer and
thereafter to remain in good books with him. She continued with the
affair after he left employment.
It
seems to me that her conduct revealed her as a weak woman of low
morals. Her character would be mitigatory to the defendant.
As
regards the social and economic status of the two protagonists, the
plaintiff had been married for three years when the adulterous union
commenced. He was firstly a teacher, then became an insurance agent
and a self employed businessman before he immigrated to South Africa
where he worked as a driver.
The
defendant was an electronic engineer who was a superior to the
plaintiff's wife. At first he was a bachelor who then married a
classmate of the plaintiff's wife.
From
the evidence of Memory, it was apparent that the defendant had better
financial resources than the plaintiff.
He
rose through the ranks to become chief engineer and manager in his
department during the currency of his love affair with the
plaintiff's wife. He used his social and economic muscle to keep
the plaintiff's wife enthralled by him. He infected her with HIV,
which she passed on to the plaintiff. These are aggravating features
against the defendant.
The
defendant despite the clear evidence against him maintained his
headstrong denial of the wrong he did. He has not apologized or shown
contrition for his conduct. This aggravated the damages against him.
The
fourth factor concerns the protection of the institution of marriage.
The
marital relationship has been curtailed by the transmission of HIV to
the plaintiff by the defendant through the plaintiff's wife. The
plaintiff is understandably troubled and worried by his fate. He lost
his job in South Africa. He is apprehensive about his future
prospects in life and is haunted by the specter of stigma that he
will face. The conduct of the defendant was brazen. He continued to
indulge in unprotected sexual intercourse with the plaintiff's wife
with the knowledge of his health condition. I find this aggravates
the damages.
Lastly,
comparable cases that are available were pegged at a time when
Zimbabwe dollars were in vogue before the advent of the prevailing
multi-currency economic regime.
In
Nyandoro's case, supra, at p.23 of the cyclostyled judgment I set
out the prevailing cross rates between the Zimbabwe dollar and the US
dollar in 1996, 2000 and 2006 as being 9:1; 38:1 and 100,000:1,
respectively.
In
Nyandoro's case the damages I awarded in local currency for
contumelia were equivalent at the time to USD1,000. The facts in the
present case are more serious than those in that case. In the
exercise of my discretion, after weighing the above mentioned
factors, I estimate the damages for contumelia in the sum of
USD1,500.00.
It
is clear from the facts of this case that the defendant has lost
consortium as a result of the adulterous relationship between his
wife and the defendant.
He
separated with his wife on 6 April 2008 after a ten year marriage. He
lost the sexual intimacy, trust, friendship and companionship he used
to have with his wife. He lost all the other services that a husband
receives from his wife in marriage. The marriage was stable for the
plaintiff. The marriage has broken down.
It
is recognised that in those circumstances the damages would be
higher.
In
Nyakudya v Washaya 2000 (1) ZLR 653 (H) the plaintiff was awarded
$13,000 for loss of consortium, then equivalent to approximately
USD340.
The
aggravating features in the present case are higher than in that
case. I would estimate damages for loss of consortium in the present
case to be US$500.
Accordingly,
it is ordered that the defendant shall pay the plaintiff the sum of
US$2,000.00 as damages for adultery; and costs of suit.
