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HH668-14 - ELIZABETH TANYANYIWA vs LINDIWE HUCHU

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Procedural Law-viz default judgment re unopposed proceedings.
Law of Delict-viz adultery.
Damages-viz adultery damages.
Constitutional Law-viz constitutional rights re marriage rights.
Constitutional Law-viz constitutional rights re protection of societal values.
Constitutional Law-viz constitutional rights re protection of societal norms.
Procedural Law-viz default judgement re failure to file opposing papers.
Procedural Law-viz service of court process re proof of service iro person upon whom process is served.
Procedural Law-viz service of process re manner of service iro person upon whom process is served.
Procedural Law-viz default judgment re Rule 58 of the High Court Rules.
Procedural Law-viz rules of evidence re character evidence.
Procedural Law-viz rules of evidence re charachter evidence.
Constitutional Law-viz constitutional rights re marriage rights iro section 26 of the Constitution.
Procedural Law-viz rules of evidence re onus iro burden of proof.
Procedural Law-viz rules of evidence re onus iro standard of proof.
Constitutional Law-viz constitutional rights re protection of societal values iro moral rights.

Decree of Divorce re: Customary Law Union iro Arrear Lobola and the Customary Law Approach to Infidelity


Adultery is defined as "sexual intercourse between two persons of whom one or both are married but who are not married to each other":

Sapsford v Sapsford and Furtado (1954) 2 All ER 373; P.M. BROMLEY and N.V. LOWE, Family Law, London, 7th ed. 1987…,; see also S.A. ADESANYA, Laws of Matrimonial Causes, Ibadan University Press, 1973…,; E.I. NWOGUGU, Family Law in Nigeria, Ibadan, 1974…,.

Zimbabweans pride themselves on being a conservative nation that upholds the institution of marriage, and traditional family values. A lot of Zimbabweans are God-fearing Christians. Some of them are traditionalists who practice polygamy. Most Zimbabweans of black descent believe in paying lobola, or bride price, irrespective of their Christian or traditionalist beliefs.

The entitlement to damages as compensation for the commission of adultery in traditional black culture in Zimbabwe is recognized in customary law as the right of a man who will have paid lobola for his wife.

Back in the village, the Chief may fine the third party, the adulterous man, to pay a beast or two as compensation to the woman's husband.

There is no corresponding right that accrues to a married woman to sue her husband's consort for damages if they engage in a sexual relationship in our customary law.

The rationale for that appears to be rooted in the fact that the man “marries” the woman when he pays lobola, not the other way round.

The Christian concept of marriage is based on an ideal that both the man and the woman leave their respective parents, appear before God as equals, and “cleave” to each other. They are equals before God....,.

In other jurisdictions, the question of whether adultery should continue to be regulated by the law has spanned widespread debate. There are proponents for and against the award of damages to the injured spouse. Different countries have adopted different views, based on cultural or religious considerations.

In Nigeria, it has been said that:

“Adultery is one of the cardinal sins in the Ten Commandments, and, despite the modern apparently relaxed attitude towards sexual intercourse, it has remained one of the main reasons for marriage breakdowns. Its seriousness as a matrimonial offence is clearly reflected in the fact that originally it was the only permitted ground for divorce under English Law.

Of particular gravity was adultery by a wife which was described as being unforgivable by a husband. For while, a husband could divorce his wife on the sole basis of her adultery; a wife had to prove other material facts in addition to her husband's adultery in order to obtain a similar relief. Even under customary law, adultery, particularly by a wife, was treated as a sin against the ancestral gods and required the performance of certain rituals to appease them and the husband and to cleanse the violated woman.” See Judicial Concepts of Adultery, Intolerability and Damages in Nigeria E.N.U. UZODIKE.

In the United States, it has been said that:

“According to the 'godmother of infidelity research,' Shirley Glass, the United States is currently experiencing a 'crisis of unfaithfulness.' The most reputable social science surveys reveal that at least twenty to fifty percent of American adults admit to committing adultery, and some studies estimate the adultery rate to be as high as seventy percent. Pro-marriage activists and feminists are leading a war against decisions such as Koestler. Pro-marriage activists usually attack rejections of adultery claims by emphasizing the importance of marriage and family. Feminists favoring adultery claims emphasize the negative consequences of adultery on women”. See 2003:1013 1015 Wisconsin Law Review at page 1012 of the Wisconsin Law Review: 20.03 Wis. L. Rev. 1013 2003.

The debate appears to be fuelled by the fact that those who are pro-marriage, advocate for the compensation of an injured spouse, by an errant spouse, for emotional and mental distress that is accepted to be a by-product of an adulterous relationship.

Adultery is almost always debilitating for victimized spouses. They can suffer tremendous emotional damage, loss of trust, troubling mental insecurities, decreased job performance, and financial insecurity (especially when adultery leads to divorces involving children).

What is even more tragic is that, currently, most law in the United States does little to remedy the mental damage caused by unfaithful spouses.” See The State's Perpetual Protection of Adultery: Examining Koestler v Pollard and Wisconsin's Faded Adultery Torts, NEHAL A. PATEL.

Closer to home, in South Africa, the debate, on whether adultery damages should remain an area that is regulated by the law, was taken up in the recent case of RH v DE (594/2013) (2014) ZASCA 133 (25 September 2014).

It was a delictual claim for damages based on adultery between the defendant and the plaintiff's wife on the law as it stands.

The court found, that, the award had been rightly made for contumelia but that the award for loss of consortium was not justified. The court considered whether the action should be maintained as part of South African law and concluded that its continued existence no longer justified.

In this case, the plaintiff's cause of action relied on the actio iniuriarum in the form of adultery and adultery only.

Although he claimed damages under the two headings of contumelia (i.e. insult or injury to his self-esteem) and loss of consortium (i.e. the loss of comfort and society of his wife), the court considered the question for determination to be: what are the consequences of adultery?

It followed that the court considered that it need only consider the question of the quantum of damages. The court said the following:

“The context in which the question arises is the recognition by our courts, that, while the major engine for law reform lies with the legislature, the courts are nonetheless obliged on occasion to develop the common law in an incremental way. These occasions are dictated;

Firstly, by section 39(2) of the Constitution which imposes the duty on the courts to develop the common law so as to promote the spirit, purport, and objectives of the Bill of Rights.

Secondly, by the acceptance that the courts can and should adapt the common law to reflect the changing social, moral, and economic fabric of society; that we cannot perpetuate legal rules that have lost their social substratum (see for example Du Plessis v De Klerk 1996 (3) SA 850 (CC) para 61; Carmichele v Minister of Safety and Security & Another (Centre for Applied Legal Studies Intervening) 2001 (4) SA 938 (CC) para 36).

The boni mores of society or the legal convictions of the community, which in effect constitute expressions of considerations of legal and public policy, are of particular significance in determining wrongfulness, which is an essential element of delictual liability in our law, both under the lex Aquilia and the actio iniuriarum.

In Le Roux v Dey (Freedom of Expression Institute and Restorative Justice Centre as amici curiae) 2011 (3) SA 274 (CC) para 122 the principle was formulated thus:

'In the more recent past, our courts have come to recognise, however, that in the context of the law of delict:

(a) The criterion of wrongfulness ultimately depends on a judicial determination of whether, assuming all the other elements of delictual liability to be present, it would be reasonable to impose liability on a defendant for the damages flowing from specific conduct; and

(b) That the judicial determination of that reasonableness would, in turn, depend on considerations of public and legal policy in accordance with constitutional norms.'

This means, that, especially in determining whether conduct should be regarded as wrongful, i.e. whether delictual liability should follow, courts are more sensitive to have regard to the dynamic and changing nature of the norms of our society.”…,.

The South African court acknowledged, that, the main advantage of the claim was that it protects the institution of marriage which our society holds dear as one of the most important bases for family life and which is recognised and protected as such by the Constitution.

In Zimbabwe, if we are to take the approach adopted by the South African court, we should consider whether our society's views regarding the institution of marriage have changed.

In my view, they have not.

If we give effect to our national objectives, as enshrined in our Constitution, we will find that the institution of marriage, and family values, is protected, and enshrined, in the Constitution.

In South Africa, their Constitution protects and enshrines a myriad of other institutions which are not necessarily compatible with marriage.

It is my view, that, the dicta in the following case, which was decided more than ten years ago, still applies in this country, and that, it reflects the views of our society: Katsumbe v Buyanga 1991 (2) ZLR 256 (H)…, :

“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 its frightening aspects.”

In my view, this country is not ready to follow our South African counterparts down the slippery slope.

Our Constitution, which came about as a result of widespread consultations with grassroots Zimbabweans, declares one of our national objectives to be that the State must take appropriate measures to ensure that there is equality of rights and obligations of spouses during marriage: section 26(c) of the Constitution of Zimbabwe Amendment (No.20) 2013.

My interpretation of this clause is that there is nothing in our Constitution which may be interpreted as precluding a wife from being entitled to damages from a third party who will have destabilized her marriage knowing full well that she was married to her husband in terms of the Marriages Act, as opposed to the African Marriages Act.

Constitutional Rights re: Equal Protection of the Law, Non-Discrimination, Positive Discrimination and Classification


Adultery is defined as "sexual intercourse between two persons of whom one or both are married but who are not married to each other":

Sapsford v Sapsford and Furtado (1954) 2 All ER 373; P.M. BROMLEY and N.V. LOWE, Family Law, London, 7th ed. 1987…,; see also S.A. ADESANYA, Laws of Matrimonial Causes, Ibadan University Press, 1973…,; E.I. NWOGUGU, Family Law in Nigeria, Ibadan, 1974…,.

Zimbabweans pride themselves on being a conservative nation that upholds the institution of marriage, and traditional family values. A lot of Zimbabweans are God-fearing Christians. Some of them are traditionalists who practice polygamy. Most Zimbabweans of black descent believe in paying lobola, or bride price, irrespective of their Christian or traditionalist beliefs.

The entitlement to damages as compensation for the commission of adultery in traditional black culture in Zimbabwe is recognized in customary law as the right of a man who will have paid lobola for his wife.

Back in the village, the Chief may fine the third party, the adulterous man, to pay a beast or two as compensation to the woman's husband.

There is no corresponding right that accrues to a married woman to sue her husband's consort for damages if they engage in a sexual relationship in our customary law.

The rationale for that appears to be rooted in the fact that the man “marries” the woman when he pays lobola, not the other way round.

The Christian concept of marriage is based on an ideal that both the man and the woman leave their respective parents, appear before God as equals, and “cleave” to each other. They are equals before God....,.

In other jurisdictions, the question of whether adultery should continue to be regulated by the law has spanned widespread debate. There are proponents for and against the award of damages to the injured spouse. Different countries have adopted different views, based on cultural or religious considerations.

In Nigeria, it has been said that:

“Adultery is one of the cardinal sins in the Ten Commandments, and, despite the modern apparently relaxed attitude towards sexual intercourse, it has remained one of the main reasons for marriage breakdowns. Its seriousness as a matrimonial offence is clearly reflected in the fact that originally it was the only permitted ground for divorce under English Law.

Of particular gravity was adultery by a wife which was described as being unforgivable by a husband. For while, a husband could divorce his wife on the sole basis of her adultery; a wife had to prove other material facts in addition to her husband's adultery in order to obtain a similar relief. Even under customary law, adultery, particularly by a wife, was treated as a sin against the ancestral gods and required the performance of certain rituals to appease them and the husband and to cleanse the violated woman.” See Judicial Concepts of Adultery, Intolerability and Damages in Nigeria E.N.U. UZODIKE.

In the United States, it has been said that:

“According to the 'godmother of infidelity research,' Shirley Glass, the United States is currently experiencing a 'crisis of unfaithfulness.' The most reputable social science surveys reveal that at least twenty to fifty percent of American adults admit to committing adultery, and some studies estimate the adultery rate to be as high as seventy percent. Pro-marriage activists and feminists are leading a war against decisions such as Koestler. Pro-marriage activists usually attack rejections of adultery claims by emphasizing the importance of marriage and family. Feminists favoring adultery claims emphasize the negative consequences of adultery on women”. See 2003:1013 1015 Wisconsin Law Review at page 1012 of the Wisconsin Law Review: 20.03 Wis. L. Rev. 1013 2003.

The debate appears to be fuelled by the fact that those who are pro-marriage, advocate for the compensation of an injured spouse, by an errant spouse, for emotional and mental distress that is accepted to be a by-product of an adulterous relationship.

Adultery is almost always debilitating for victimized spouses. They can suffer tremendous emotional damage, loss of trust, troubling mental insecurities, decreased job performance, and financial insecurity (especially when adultery leads to divorces involving children).

What is even more tragic is that, currently, most law in the United States does little to remedy the mental damage caused by unfaithful spouses.” See The State's Perpetual Protection of Adultery: Examining Koestler v Pollard and Wisconsin's Faded Adultery Torts, NEHAL A. PATEL.

Closer to home, in South Africa, the debate, on whether adultery damages should remain an area that is regulated by the law, was taken up in the recent case of RH v DE (594/2013) (2014) ZASCA 133 (25 September 2014).

It was a delictual claim for damages based on adultery between the defendant and the plaintiff's wife on the law as it stands.

The court found, that, the award had been rightly made for contumelia but that the award for loss of consortium was not justified. The court considered whether the action should be maintained as part of South African law and concluded that its continued existence no longer justified.

In this case, the plaintiff's cause of action relied on the actio iniuriarum in the form of adultery and adultery only.

Although he claimed damages under the two headings of contumelia (i.e. insult or injury to his self-esteem) and loss of consortium (i.e. the loss of comfort and society of his wife), the court considered the question for determination to be: what are the consequences of adultery?

It followed that the court considered that it need only consider the question of the quantum of damages. The court said the following:

“The context in which the question arises is the recognition by our courts, that, while the major engine for law reform lies with the legislature, the courts are nonetheless obliged on occasion to develop the common law in an incremental way. These occasions are dictated;

Firstly, by section 39(2) of the Constitution which imposes the duty on the courts to develop the common law so as to promote the spirit, purport, and objectives of the Bill of Rights.

Secondly, by the acceptance that the courts can and should adapt the common law to reflect the changing social, moral, and economic fabric of society; that we cannot perpetuate legal rules that have lost their social substratum (see for example Du Plessis v De Klerk 1996 (3) SA 850 (CC) para 61; Carmichele v Minister of Safety and Security & Another (Centre for Applied Legal Studies Intervening) 2001 (4) SA 938 (CC) para 36).

The boni mores of society or the legal convictions of the community, which in effect constitute expressions of considerations of legal and public policy, are of particular significance in determining wrongfulness, which is an essential element of delictual liability in our law, both under the lex Aquilia and the actio iniuriarum.

In Le Roux v Dey (Freedom of Expression Institute and Restorative Justice Centre as amici curiae) 2011 (3) SA 274 (CC) para 122 the principle was formulated thus:

'In the more recent past, our courts have come to recognise, however, that in the context of the law of delict:

(a) The criterion of wrongfulness ultimately depends on a judicial determination of whether, assuming all the other elements of delictual liability to be present, it would be reasonable to impose liability on a defendant for the damages flowing from specific conduct; and

(b) That the judicial determination of that reasonableness would, in turn, depend on considerations of public and legal policy in accordance with constitutional norms.'

This means, that, especially in determining whether conduct should be regarded as wrongful, i.e. whether delictual liability should follow, courts are more sensitive to have regard to the dynamic and changing nature of the norms of our society.”…,.

The South African court acknowledged, that, the main advantage of the claim was that it protects the institution of marriage which our society holds dear as one of the most important bases for family life and which is recognised and protected as such by the Constitution.

In Zimbabwe, if we are to take the approach adopted by the South African court, we should consider whether our society's views regarding the institution of marriage have changed.

In my view, they have not.

If we give effect to our national objectives, as enshrined in our Constitution, we will find that the institution of marriage, and family values, is protected, and enshrined, in the Constitution.

In South Africa, their Constitution protects and enshrines a myriad of other institutions which are not necessarily compatible with marriage.

It is my view, that, the dicta in the following case, which was decided more than ten years ago, still applies in this country, and that, it reflects the views of our society: Katsumbe v Buyanga 1991 (2) ZLR 256 (H)…, :

“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 its frightening aspects.”

In my view, this country is not ready to follow our South African counterparts down the slippery slope.

Our Constitution, which came about as a result of widespread consultations with grassroots Zimbabweans, declares one of our national objectives to be that the State must take appropriate measures to ensure that there is equality of rights and obligations of spouses during marriage: section 26(c) of the Constitution of Zimbabwe Amendment (No.20) 2013.

My interpretation of this clause is that there is nothing in our Constitution which may be interpreted as precluding a wife from being entitled to damages from a third party who will have destabilized her marriage knowing full well that she was married to her husband in terms of the Marriages Act, as opposed to the African Marriages Act.

Constitutional Rights re: Women's Rights


Adultery is defined as "sexual intercourse between two persons of whom one or both are married but who are not married to each other":

Sapsford v Sapsford and Furtado (1954) 2 All ER 373; P.M. BROMLEY and N.V. LOWE, Family Law, London, 7th ed. 1987…,; see also S.A. ADESANYA, Laws of Matrimonial Causes, Ibadan University Press, 1973…,; E.I. NWOGUGU, Family Law in Nigeria, Ibadan, 1974…,.

Zimbabweans pride themselves on being a conservative nation that upholds the institution of marriage, and traditional family values. A lot of Zimbabweans are God-fearing Christians. Some of them are traditionalists who practice polygamy. Most Zimbabweans of black descent believe in paying lobola, or bride price, irrespective of their Christian or traditionalist beliefs.

The entitlement to damages as compensation for the commission of adultery in traditional black culture in Zimbabwe is recognized in customary law as the right of a man who will have paid lobola for his wife.

Back in the village, the Chief may fine the third party, the adulterous man, to pay a beast or two as compensation to the woman's husband.

There is no corresponding right that accrues to a married woman to sue her husband's consort for damages if they engage in a sexual relationship in our customary law.

The rationale for that appears to be rooted in the fact that the man “marries” the woman when he pays lobola, not the other way round.

The Christian concept of marriage is based on an ideal that both the man and the woman leave their respective parents, appear before God as equals, and “cleave” to each other. They are equals before God....,.

In other jurisdictions, the question of whether adultery should continue to be regulated by the law has spanned widespread debate. There are proponents for and against the award of damages to the injured spouse. Different countries have adopted different views, based on cultural or religious considerations.

In Nigeria, it has been said that:

“Adultery is one of the cardinal sins in the Ten Commandments, and, despite the modern apparently relaxed attitude towards sexual intercourse, it has remained one of the main reasons for marriage breakdowns. Its seriousness as a matrimonial offence is clearly reflected in the fact that originally it was the only permitted ground for divorce under English Law.

Of particular gravity was adultery by a wife which was described as being unforgivable by a husband. For while, a husband could divorce his wife on the sole basis of her adultery; a wife had to prove other material facts in addition to her husband's adultery in order to obtain a similar relief. Even under customary law, adultery, particularly by a wife, was treated as a sin against the ancestral gods and required the performance of certain rituals to appease them and the husband and to cleanse the violated woman.” See Judicial Concepts of Adultery, Intolerability and Damages in Nigeria E.N.U. UZODIKE.

In the United States, it has been said that:

“According to the 'godmother of infidelity research,' Shirley Glass, the United States is currently experiencing a 'crisis of unfaithfulness.' The most reputable social science surveys reveal that at least twenty to fifty percent of American adults admit to committing adultery, and some studies estimate the adultery rate to be as high as seventy percent. Pro-marriage activists and feminists are leading a war against decisions such as Koestler. Pro-marriage activists usually attack rejections of adultery claims by emphasizing the importance of marriage and family. Feminists favoring adultery claims emphasize the negative consequences of adultery on women”. See 2003:1013 1015 Wisconsin Law Review at page 1012 of the Wisconsin Law Review: 20.03 Wis. L. Rev. 1013 2003.

The debate appears to be fuelled by the fact that those who are pro-marriage, advocate for the compensation of an injured spouse, by an errant spouse, for emotional and mental distress that is accepted to be a by-product of an adulterous relationship.

Adultery is almost always debilitating for victimized spouses. They can suffer tremendous emotional damage, loss of trust, troubling mental insecurities, decreased job performance, and financial insecurity (especially when adultery leads to divorces involving children).

What is even more tragic is that, currently, most law in the United States does little to remedy the mental damage caused by unfaithful spouses.” See The State's Perpetual Protection of Adultery: Examining Koestler v Pollard and Wisconsin's Faded Adultery Torts, NEHAL A. PATEL.

Closer to home, in South Africa, the debate, on whether adultery damages should remain an area that is regulated by the law, was taken up in the recent case of RH v DE (594/2013) (2014) ZASCA 133 (25 September 2014).

It was a delictual claim for damages based on adultery between the defendant and the plaintiff's wife on the law as it stands.

The court found, that, the award had been rightly made for contumelia but that the award for loss of consortium was not justified. The court considered whether the action should be maintained as part of South African law and concluded that its continued existence no longer justified.

In this case, the plaintiff's cause of action relied on the actio iniuriarum in the form of adultery and adultery only.

Although he claimed damages under the two headings of contumelia (i.e. insult or injury to his self-esteem) and loss of consortium (i.e. the loss of comfort and society of his wife), the court considered the question for determination to be: what are the consequences of adultery?

It followed that the court considered that it need only consider the question of the quantum of damages. The court said the following:

“The context in which the question arises is the recognition by our courts, that, while the major engine for law reform lies with the legislature, the courts are nonetheless obliged on occasion to develop the common law in an incremental way. These occasions are dictated;

Firstly, by section 39(2) of the Constitution which imposes the duty on the courts to develop the common law so as to promote the spirit, purport, and objectives of the Bill of Rights.

Secondly, by the acceptance that the courts can and should adapt the common law to reflect the changing social, moral, and economic fabric of society; that we cannot perpetuate legal rules that have lost their social substratum (see for example Du Plessis v De Klerk 1996 (3) SA 850 (CC) para 61; Carmichele v Minister of Safety and Security & Another (Centre for Applied Legal Studies Intervening) 2001 (4) SA 938 (CC) para 36).

The boni mores of society or the legal convictions of the community, which in effect constitute expressions of considerations of legal and public policy, are of particular significance in determining wrongfulness, which is an essential element of delictual liability in our law, both under the lex Aquilia and the actio iniuriarum.

In Le Roux v Dey (Freedom of Expression Institute and Restorative Justice Centre as amici curiae) 2011 (3) SA 274 (CC) para 122 the principle was formulated thus:

'In the more recent past, our courts have come to recognise, however, that in the context of the law of delict:

(a) The criterion of wrongfulness ultimately depends on a judicial determination of whether, assuming all the other elements of delictual liability to be present, it would be reasonable to impose liability on a defendant for the damages flowing from specific conduct; and

(b) That the judicial determination of that reasonableness would, in turn, depend on considerations of public and legal policy in accordance with constitutional norms.'

This means, that, especially in determining whether conduct should be regarded as wrongful, i.e. whether delictual liability should follow, courts are more sensitive to have regard to the dynamic and changing nature of the norms of our society.”…,.

The South African court acknowledged, that, the main advantage of the claim was that it protects the institution of marriage which our society holds dear as one of the most important bases for family life and which is recognised and protected as such by the Constitution.

In Zimbabwe, if we are to take the approach adopted by the South African court, we should consider whether our society's views regarding the institution of marriage have changed.

In my view, they have not.

If we give effect to our national objectives, as enshrined in our Constitution, we will find that the institution of marriage, and family values, is protected, and enshrined, in the Constitution.

In South Africa, their Constitution protects and enshrines a myriad of other institutions which are not necessarily compatible with marriage.

It is my view, that, the dicta in the following case, which was decided more than ten years ago, still applies in this country, and that, it reflects the views of our society: Katsumbe v Buyanga 1991 (2) ZLR 256 (H)…, :

“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 its frightening aspects.”

In my view, this country is not ready to follow our South African counterparts down the slippery slope.

Our Constitution, which came about as a result of widespread consultations with grassroots Zimbabweans, declares one of our national objectives to be that the State must take appropriate measures to ensure that there is equality of rights and obligations of spouses during marriage: section 26(c) of the Constitution of Zimbabwe Amendment (No.20) 2013.

My interpretation of this clause is that there is nothing in our Constitution which may be interpreted as precluding a wife from being entitled to damages from a third party who will have destabilized her marriage knowing full well that she was married to her husband in terms of the Marriages Act, as opposed to the African Marriages Act.

Constitutional Rights re: Marriage Rights, Gender Equality, Parental or Guardianship Rights & Institution of the Family


Adultery is defined as "sexual intercourse between two persons of whom one or both are married but who are not married to each other":

Sapsford v Sapsford and Furtado (1954) 2 All ER 373; P.M. BROMLEY and N.V. LOWE, Family Law, London, 7th ed. 1987…,; see also S.A. ADESANYA, Laws of Matrimonial Causes, Ibadan University Press, 1973…,; E.I. NWOGUGU, Family Law in Nigeria, Ibadan, 1974…,.

Zimbabweans pride themselves on being a conservative nation that upholds the institution of marriage, and traditional family values. A lot of Zimbabweans are God-fearing Christians. Some of them are traditionalists who practice polygamy. Most Zimbabweans of black descent believe in paying lobola, or bride price, irrespective of their Christian or traditionalist beliefs.

The entitlement to damages as compensation for the commission of adultery in traditional black culture in Zimbabwe is recognized in customary law as the right of a man who will have paid lobola for his wife.

Back in the village, the Chief may fine the third party, the adulterous man, to pay a beast or two as compensation to the woman's husband.

There is no corresponding right that accrues to a married woman to sue her husband's consort for damages if they engage in a sexual relationship in our customary law.

The rationale for that appears to be rooted in the fact that the man “marries” the woman when he pays lobola, not the other way round.

The Christian concept of marriage is based on an ideal that both the man and the woman leave their respective parents, appear before God as equals, and “cleave” to each other. They are equals before God.

In this modern society, does the law still have a place in regulating what may appear to be matters of morality and of the heart? Should these matters not be best left to be regulated by religion and by the custodians of our culture back in the village?

These questions are causing vexation in most of the world these days, yet, it appears to me as if there is still a strong case to be made for remaining conservative in this area in this country....,.

In other jurisdictions, the question of whether adultery should continue to be regulated by the law has spanned widespread debate. There are proponents for and against the award of damages to the injured spouse. Different countries have adopted different views, based on cultural or religious considerations.

In Nigeria, it has been said that:

“Adultery is one of the cardinal sins in the Ten Commandments, and, despite the modern apparently relaxed attitude towards sexual intercourse, it has remained one of the main reasons for marriage breakdowns. Its seriousness as a matrimonial offence is clearly reflected in the fact that originally it was the only permitted ground for divorce under English Law.

Of particular gravity was adultery by a wife which was described as being unforgivable by a husband. For while, a husband could divorce his wife on the sole basis of her adultery; a wife had to prove other material facts in addition to her husband's adultery in order to obtain a similar relief. Even under customary law, adultery, particularly by a wife, was treated as a sin against the ancestral gods and required the performance of certain rituals to appease them and the husband and to cleanse the violated woman.” See Judicial Concepts of Adultery, Intolerability and Damages in Nigeria E.N.U. UZODIKE.

In the United States, it has been said that:

“According to the 'godmother of infidelity research,' Shirley Glass, the United States is currently experiencing a 'crisis of unfaithfulness.' The most reputable social science surveys reveal that at least twenty to fifty percent of American adults admit to committing adultery, and some studies estimate the adultery rate to be as high as seventy percent. Pro-marriage activists and feminists are leading a war against decisions such as Koestler. Pro-marriage activists usually attack rejections of adultery claims by emphasizing the importance of marriage and family. Feminists favoring adultery claims emphasize the negative consequences of adultery on women”. See 2003:1013 1015 Wisconsin Law Review at page 1012 of the Wisconsin Law Review: 20.03 Wis. L. Rev. 1013 2003.

The debate appears to be fuelled by the fact that those who are pro-marriage, advocate for the compensation of an injured spouse, by an errant spouse, for emotional and mental distress that is accepted to be a by-product of an adulterous relationship.

Adultery is almost always debilitating for victimized spouses. They can suffer tremendous emotional damage, loss of trust, troubling mental insecurities, decreased job performance, and financial insecurity (especially when adultery leads to divorces involving children).

What is even more tragic is that, currently, most law in the United States does little to remedy the mental damage caused by unfaithful spouses.” See The State's Perpetual Protection of Adultery: Examining Koestler v Pollard and Wisconsin's Faded Adultery Torts, NEHAL A. PATEL.

Closer to home, in South Africa, the debate, on whether adultery damages should remain an area that is regulated by the law, was taken up in the recent case of RH v DE (594/2013) (2014) ZASCA 133 (25 September 2014).

It was a delictual claim for damages based on adultery between the defendant and the plaintiff's wife on the law as it stands.

The court found, that, the award had been rightly made for contumelia but that the award for loss of consortium was not justified. The court considered whether the action should be maintained as part of South African law and concluded that its continued existence no longer justified.

In this case, the plaintiff's cause of action relied on the actio iniuriarum in the form of adultery and adultery only.

Although he claimed damages under the two headings of contumelia (i.e. insult or injury to his self-esteem) and loss of consortium (i.e. the loss of comfort and society of his wife), the court considered the question for determination to be: what are the consequences of adultery?

It followed that the court considered that it need only consider the question of the quantum of damages. The court said the following:

“The context in which the question arises is the recognition by our courts, that, while the major engine for law reform lies with the legislature, the courts are nonetheless obliged on occasion to develop the common law in an incremental way. These occasions are dictated;

Firstly, by section 39(2) of the Constitution which imposes the duty on the courts to develop the common law so as to promote the spirit, purport, and objectives of the Bill of Rights.

Secondly, by the acceptance that the courts can and should adapt the common law to reflect the changing social, moral, and economic fabric of society; that we cannot perpetuate legal rules that have lost their social substratum (see for example Du Plessis v De Klerk 1996 (3) SA 850 (CC) para 61; Carmichele v Minister of Safety and Security & Another (Centre for Applied Legal Studies Intervening) 2001 (4) SA 938 (CC) para 36).

The boni mores of society or the legal convictions of the community, which in effect constitute expressions of considerations of legal and public policy, are of particular significance in determining wrongfulness, which is an essential element of delictual liability in our law, both under the lex Aquilia and the actio iniuriarum.

In Le Roux v Dey (Freedom of Expression Institute and Restorative Justice Centre as amici curiae) 2011 (3) SA 274 (CC) para 122 the principle was formulated thus:

'In the more recent past, our courts have come to recognise, however, that in the context of the law of delict:

(a) The criterion of wrongfulness ultimately depends on a judicial determination of whether, assuming all the other elements of delictual liability to be present, it would be reasonable to impose liability on a defendant for the damages flowing from specific conduct; and

(b) That the judicial determination of that reasonableness would, in turn, depend on considerations of public and legal policy in accordance with constitutional norms.'

This means, that, especially in determining whether conduct should be regarded as wrongful, i.e. whether delictual liability should follow, courts are more sensitive to have regard to the dynamic and changing nature of the norms of our society.”…,.

The South African court acknowledged, that, the main advantage of the claim was that it protects the institution of marriage which our society holds dear as one of the most important bases for family life and which is recognised and protected as such by the Constitution.

In Zimbabwe, if we are to take the approach adopted by the South African court, we should consider whether our society's views regarding the institution of marriage have changed.

In my view, they have not.

If we give effect to our national objectives, as enshrined in our Constitution, we will find that the institution of marriage, and family values, is protected, and enshrined, in the Constitution.

In South Africa, their Constitution protects and enshrines a myriad of other institutions which are not necessarily compatible with marriage.

It is my view, that, the dicta in the following case, which was decided more than ten years ago, still applies in this country, and that, it reflects the views of our society: Katsumbe v Buyanga 1991 (2) ZLR 256 (H)…, :

“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 its frightening aspects.”

In my view, this country is not ready to follow our South African counterparts down the slippery slope.

Our Constitution, which came about as a result of widespread consultations with grassroots Zimbabweans, declares one of our national objectives to be that the State must take appropriate measures to ensure that there is equality of rights and obligations of spouses during marriage: section 26(c) of the Constitution of Zimbabwe Amendment (No.20) 2013.

My interpretation of this clause is that there is nothing in our Constitution which may be interpreted as precluding a wife from being entitled to damages from a third party who will have destabilized her marriage knowing full well that she was married to her husband in terms of the Marriages Act, as opposed to the African Marriages Act.

Constitutional Rights re: Socio-Economic Rights, Protection of Societal Values and Norms, Good Governance and Social Trust


Adultery is defined as "sexual intercourse between two persons of whom one or both are married but who are not married to each other":

Sapsford v Sapsford and Furtado (1954) 2 All ER 373; P.M. BROMLEY and N.V. LOWE, Family Law, London, 7th ed. 1987…,; see also S.A. ADESANYA, Laws of Matrimonial Causes, Ibadan University Press, 1973…,; E.I. NWOGUGU, Family Law in Nigeria, Ibadan, 1974…,.

Zimbabweans pride themselves on being a conservative nation that upholds the institution of marriage, and traditional family values. A lot of Zimbabweans are God-fearing Christians. Some of them are traditionalists who practice polygamy. Most Zimbabweans of black descent believe in paying lobola, or bride price, irrespective of their Christian or traditionalist beliefs.

The entitlement to damages as compensation for the commission of adultery in traditional black culture in Zimbabwe is recognized in customary law as the right of a man who will have paid lobola for his wife.

Back in the village, the Chief may fine the third party, the adulterous man, to pay a beast or two as compensation to the woman's husband.

There is no corresponding right that accrues to a married woman to sue her husband's consort for damages if they engage in a sexual relationship in our customary law.

The rationale for that appears to be rooted in the fact that the man “marries” the woman when he pays lobola, not the other way round.

The Christian concept of marriage is based on an ideal that both the man and the woman leave their respective parents, appear before God as equals, and “cleave” to each other. They are equals before God.

In this modern society, does the law still have a place in regulating what may appear to be matters of morality and of the heart? Should these matters not be best left to be regulated by religion and by the custodians of our culture back in the village?

These questions are causing vexation in most of the world these days, yet, it appears to me as if there is still a strong case to be made for remaining conservative in this area in this country....,.

In other jurisdictions, the question of whether adultery should continue to be regulated by the law has spanned widespread debate. There are proponents for and against the award of damages to the injured spouse. Different countries have adopted different views, based on cultural or religious considerations.

In Nigeria, it has been said that:

“Adultery is one of the cardinal sins in the Ten Commandments, and, despite the modern apparently relaxed attitude towards sexual intercourse, it has remained one of the main reasons for marriage breakdowns. Its seriousness as a matrimonial offence is clearly reflected in the fact that originally it was the only permitted ground for divorce under English Law.

Of particular gravity was adultery by a wife which was described as being unforgivable by a husband. For while, a husband could divorce his wife on the sole basis of her adultery; a wife had to prove other material facts in addition to her husband's adultery in order to obtain a similar relief. Even under customary law, adultery, particularly by a wife, was treated as a sin against the ancestral gods and required the performance of certain rituals to appease them and the husband and to cleanse the violated woman.” See Judicial Concepts of Adultery, Intolerability and Damages in Nigeria E.N.U. UZODIKE.

In the United States, it has been said that:

“According to the 'godmother of infidelity research,' Shirley Glass, the United States is currently experiencing a 'crisis of unfaithfulness.' The most reputable social science surveys reveal that at least twenty to fifty percent of American adults admit to committing adultery, and some studies estimate the adultery rate to be as high as seventy percent. Pro-marriage activists and feminists are leading a war against decisions such as Koestler. Pro-marriage activists usually attack rejections of adultery claims by emphasizing the importance of marriage and family. Feminists favoring adultery claims emphasize the negative consequences of adultery on women”. See 2003:1013 1015 Wisconsin Law Review at page 1012 of the Wisconsin Law Review: 20.03 Wis. L. Rev. 1013 2003.

The debate appears to be fuelled by the fact that those who are pro-marriage, advocate for the compensation of an injured spouse, by an errant spouse, for emotional and mental distress that is accepted to be a by-product of an adulterous relationship.

Adultery is almost always debilitating for victimized spouses. They can suffer tremendous emotional damage, loss of trust, troubling mental insecurities, decreased job performance, and financial insecurity (especially when adultery leads to divorces involving children).

What is even more tragic is that, currently, most law in the United States does little to remedy the mental damage caused by unfaithful spouses.” See The State's Perpetual Protection of Adultery: Examining Koestler v Pollard and Wisconsin's Faded Adultery Torts, NEHAL A. PATEL.

Closer to home, in South Africa, the debate, on whether adultery damages should remain an area that is regulated by the law, was taken up in the recent case of RH v DE (594/2013) (2014) ZASCA 133 (25 September 2014).

It was a delictual claim for damages based on adultery between the defendant and the plaintiff's wife on the law as it stands.

The court found, that, the award had been rightly made for contumelia but that the award for loss of consortium was not justified. The court considered whether the action should be maintained as part of South African law and concluded that its continued existence no longer justified.

In this case, the plaintiff's cause of action relied on the actio iniuriarum in the form of adultery and adultery only.

Although he claimed damages under the two headings of contumelia (i.e. insult or injury to his self-esteem) and loss of consortium (i.e. the loss of comfort and society of his wife), the court considered the question for determination to be: what are the consequences of adultery?

It followed that the court considered that it need only consider the question of the quantum of damages. The court said the following:

“The context in which the question arises is the recognition by our courts, that, while the major engine for law reform lies with the legislature, the courts are nonetheless obliged on occasion to develop the common law in an incremental way. These occasions are dictated;

Firstly, by section 39(2) of the Constitution which imposes the duty on the courts to develop the common law so as to promote the spirit, purport, and objectives of the Bill of Rights.

Secondly, by the acceptance that the courts can and should adapt the common law to reflect the changing social, moral, and economic fabric of society; that we cannot perpetuate legal rules that have lost their social substratum (see for example Du Plessis v De Klerk 1996 (3) SA 850 (CC) para 61; Carmichele v Minister of Safety and Security & Another (Centre for Applied Legal Studies Intervening) 2001 (4) SA 938 (CC) para 36).

The boni mores of society or the legal convictions of the community, which in effect constitute expressions of considerations of legal and public policy, are of particular significance in determining wrongfulness, which is an essential element of delictual liability in our law, both under the lex Aquilia and the actio iniuriarum.

In Le Roux v Dey (Freedom of Expression Institute and Restorative Justice Centre as amici curiae) 2011 (3) SA 274 (CC) para 122 the principle was formulated thus:

'In the more recent past, our courts have come to recognise, however, that in the context of the law of delict:

(a) The criterion of wrongfulness ultimately depends on a judicial determination of whether, assuming all the other elements of delictual liability to be present, it would be reasonable to impose liability on a defendant for the damages flowing from specific conduct; and

(b) That the judicial determination of that reasonableness would, in turn, depend on considerations of public and legal policy in accordance with constitutional norms.'

This means, that, especially in determining whether conduct should be regarded as wrongful, i.e. whether delictual liability should follow, courts are more sensitive to have regard to the dynamic and changing nature of the norms of our society.”…,.

The South African court acknowledged, that, the main advantage of the claim was that it protects the institution of marriage which our society holds dear as one of the most important bases for family life and which is recognised and protected as such by the Constitution.

In Zimbabwe, if we are to take the approach adopted by the South African court, we should consider whether our society's views regarding the institution of marriage have changed.

In my view, they have not.

If we give effect to our national objectives, as enshrined in our Constitution, we will find that the institution of marriage, and family values, is protected, and enshrined, in the Constitution.

In South Africa, their Constitution protects and enshrines a myriad of other institutions which are not necessarily compatible with marriage.

It is my view, that, the dicta in the following case, which was decided more than ten years ago, still applies in this country, and that, it reflects the views of our society: Katsumbe v Buyanga 1991 (2) ZLR 256 (H)…, :

“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 its frightening aspects.”

In my view, this country is not ready to follow our South African counterparts down the slippery slope.

Our Constitution, which came about as a result of widespread consultations with grassroots Zimbabweans, declares one of our national objectives to be that the State must take appropriate measures to ensure that there is equality of rights and obligations of spouses during marriage: section 26(c) of the Constitution of Zimbabwe Amendment (No.20) 2013.

My interpretation of this clause is that there is nothing in our Constitution which may be interpreted as precluding a wife from being entitled to damages from a third party who will have destabilized her marriage knowing full well that she was married to her husband in terms of the Marriages Act, as opposed to the African Marriages Act.

Adultery


Adultery is defined as "sexual intercourse between two persons of whom one or both are married but who are not married to each other":

Sapsford v Sapsford and Furtado (1954) 2 All ER 373; P.M. BROMLEY and N.V. LOWE, Family Law, London, 7th ed. 1987…,; see also S.A. ADESANYA, Laws of Matrimonial Causes, Ibadan University Press, 1973…,; E.I. NWOGUGU, Family Law in Nigeria, Ibadan, 1974…,.

Zimbabweans pride themselves on being a conservative nation that upholds the institution of marriage, and traditional family values. A lot of Zimbabweans are God-fearing Christians. Some of them are traditionalists who practice polygamy. Most Zimbabweans of black descent believe in paying lobola, or bride price, irrespective of their Christian or traditionalist beliefs.

The entitlement to damages as compensation for the commission of adultery in traditional black culture in Zimbabwe is recognized in customary law as the right of a man who will have paid lobola for his wife.

Back in the village, the Chief may fine the third party, the adulterous man, to pay a beast or two as compensation to the woman's husband.

There is no corresponding right that accrues to a married woman to sue her husband's consort for damages if they engage in a sexual relationship in our customary law.

The rationale for that appears to be rooted in the fact that the man “marries” the woman when he pays lobola, not the other way round.

The Christian concept of marriage is based on an ideal that both the man and the woman leave their respective parents, appear before God as equals, and “cleave” to each other. They are equals before God.

In this modern society, does the law still have a place in regulating what may appear to be matters of morality and of the heart? Should these matters not be best left to be regulated by religion and by the custodians of our culture back in the village?

These questions are causing vexation in most of the world these days, yet, it appears to me as if there is still a strong case to be made for remaining conservative in this area in this country.

This matter came before me on the unopposed roll. Judgment was reserved despite the fact that the respondent has never bothered to defend herself against the applicant's claims.

The reason for such a course of action was the desire to do justice to the issue at hand by writing a full judgment.

The applicant issued summons against the respondent on 15 September 2010, claiming payment of the sum of USD$10,000 being damages for injured feelings, loss of love, affection, and support by the applicant's husband, towards her, as a result of adultery committed by the applicant's husband and the respondent; interest on that sum at the prescribed rate, calculated from the date of the summons to the date of payment in full; plus costs of suit.

In the declaration to the summons, the applicant averred that she is married to Richard Tanyanyiwa in terms of the Marriages Act [Chapter 5:11], and has been so married since 14 April 1989. The couple has four children from their marriage, and, at the time that summons was issued, two of those children were still minors.

The applicant averred, further, that, at the time that summons was issued, her husband and the respondent had two minor children, aged 9 years and 4 years, as a result of their adulterous relationship.

She averred, that, the respondent had been provided with accommodation at the applicant's husband's brother's house in Kambuzuma Township, where he frequently visits the respondent at night until the early hours of the morning.

The applicant is aggrieved at this blatant deprivation of her husband's company, love, and support, and at her husband's increasing failure to support her and the children of their marriage because of his financial commitment to the respondent and her children.

The applicant maintained that her husband now exhibited cold feelings towards her, thereby hurting her and causing her injured feelings as a result of his adulterous relationship with the respondent.

The respondent has not defended herself against the applicant's claims since summons was served on her daughter Maggie, on 20 September 2010. As a result, the applicant applied for default judgment on 17 March 2011, in terms of Order 9 Rule 58(2) of the Rules of the High Court 1971.

The chamber application for default judgment was referred to the unopposed roll for consideration of the quantum of damages....,.

In other jurisdictions, the question of whether adultery should continue to be regulated by the law has spanned widespread debate. There are proponents for and against the award of damages to the injured spouse. Different countries have adopted different views, based on cultural or religious considerations.

In Nigeria, it has been said that:

“Adultery is one of the cardinal sins in the Ten Commandments, and, despite the modern apparently relaxed attitude towards sexual intercourse, it has remained one of the main reasons for marriage breakdowns. Its seriousness as a matrimonial offence is clearly reflected in the fact that originally it was the only permitted ground for divorce under English Law.

Of particular gravity was adultery by a wife which was described as being unforgivable by a husband. For while, a husband could divorce his wife on the sole basis of her adultery; a wife had to prove other material facts in addition to her husband's adultery in order to obtain a similar relief. Even under customary law, adultery, particularly by a wife, was treated as a sin against the ancestral gods and required the performance of certain rituals to appease them and the husband and to cleanse the violated woman.” See Judicial Concepts of Adultery, Intolerability and Damages in Nigeria E.N.U. UZODIKE.

In the United States, it has been said that:

“According to the 'godmother of infidelity research,' Shirley Glass, the United States is currently experiencing a 'crisis of unfaithfulness.' The most reputable social science surveys reveal that at least twenty to fifty percent of American adults admit to committing adultery, and some studies estimate the adultery rate to be as high as seventy percent. Pro-marriage activists and feminists are leading a war against decisions such as Koestler. Pro-marriage activists usually attack rejections of adultery claims by emphasizing the importance of marriage and family. Feminists favoring adultery claims emphasize the negative consequences of adultery on women”. See 2003:1013 1015 Wisconsin Law Review at page 1012 of the Wisconsin Law Review: 20.03 Wis. L. Rev. 1013 2003.

The debate appears to be fuelled by the fact that those who are pro-marriage, advocate for the compensation of an injured spouse, by an errant spouse, for emotional and mental distress that is accepted to be a by-product of an adulterous relationship.

Adultery is almost always debilitating for victimized spouses. They can suffer tremendous emotional damage, loss of trust, troubling mental insecurities, decreased job performance, and financial insecurity (especially when adultery leads to divorces involving children).

What is even more tragic is that, currently, most law in the United States does little to remedy the mental damage caused by unfaithful spouses.” See The State's Perpetual Protection of Adultery: Examining Koestler v Pollard and Wisconsin's Faded Adultery Torts, NEHAL A. PATEL.

Closer to home, in South Africa, the debate, on whether adultery damages should remain an area that is regulated by the law, was taken up in the recent case of RH v DE (594/2013) (2014) ZASCA 133 (25 September 2014).

It was a delictual claim for damages based on adultery between the defendant and the plaintiff's wife on the law as it stands.

The court found, that, the award had been rightly made for contumelia but that the award for loss of consortium was not justified. The court considered whether the action should be maintained as part of South African law and concluded that its continued existence no longer justified.

In this case, the plaintiff's cause of action relied on the actio iniuriarum in the form of adultery and adultery only.

Although he claimed damages under the two headings of contumelia (i.e. insult or injury to his self-esteem) and loss of consortium (i.e. the loss of comfort and society of his wife), the court considered the question for determination to be: what are the consequences of adultery?

It followed that the court considered that it need only consider the question of the quantum of damages. The court said the following:

“The context in which the question arises is the recognition by our courts, that, while the major engine for law reform lies with the legislature, the courts are nonetheless obliged on occasion to develop the common law in an incremental way. These occasions are dictated;

Firstly, by section 39(2) of the Constitution which imposes the duty on the courts to develop the common law so as to promote the spirit, purport, and objectives of the Bill of Rights.

Secondly, by the acceptance that the courts can and should adapt the common law to reflect the changing social, moral, and economic fabric of society; that we cannot perpetuate legal rules that have lost their social substratum (see for example Du Plessis v De Klerk 1996 (3) SA 850 (CC) para 61; Carmichele v Minister of Safety and Security & Another (Centre for Applied Legal Studies Intervening) 2001 (4) SA 938 (CC) para 36).

The boni mores of society or the legal convictions of the community, which in effect constitute expressions of considerations of legal and public policy, are of particular significance in determining wrongfulness, which is an essential element of delictual liability in our law, both under the lex Aquilia and the actio iniuriarum.

In Le Roux v Dey (Freedom of Expression Institute and Restorative Justice Centre as amici curiae) 2011 (3) SA 274 (CC) para 122 the principle was formulated thus:

'In the more recent past, our courts have come to recognise, however, that in the context of the law of delict:

(a) The criterion of wrongfulness ultimately depends on a judicial determination of whether, assuming all the other elements of delictual liability to be present, it would be reasonable to impose liability on a defendant for the damages flowing from specific conduct; and

(b) That the judicial determination of that reasonableness would, in turn, depend on considerations of public and legal policy in accordance with constitutional norms.'

This means, that, especially in determining whether conduct should be regarded as wrongful, i.e. whether delictual liability should follow, courts are more sensitive to have regard to the dynamic and changing nature of the norms of our society.”…,.

The South African court acknowledged, that, the main advantage of the claim was that it protects the institution of marriage which our society holds dear as one of the most important bases for family life and which is recognised and protected as such by the Constitution.

In Zimbabwe, if we are to take the approach adopted by the South African court, we should consider whether our society's views regarding the institution of marriage have changed.

In my view, they have not.

If we give effect to our national objectives, as enshrined in our Constitution, we will find that the institution of marriage, and family values, is protected, and enshrined, in the Constitution.

In South Africa, their Constitution protects and enshrines a myriad of other institutions which are not necessarily compatible with marriage.

It is my view, that, the dicta in the following case, which was decided more than ten years ago, still applies in this country, and that, it reflects the views of our society: Katsumbe v Buyanga 1991 (2) ZLR 256 (H)…, :

“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 its frightening aspects.”

In my view, this country is not ready to follow our South African counterparts down the slippery slope.

Our Constitution, which came about as a result of widespread consultations with grassroots Zimbabweans, declares one of our national objectives to be that the State must take appropriate measures to ensure that there is equality of rights and obligations of spouses during marriage: section 26(c) of the Constitution of Zimbabwe Amendment (No.20) 2013.

My interpretation of this clause is that there is nothing in our Constitution which may be interpreted as precluding a wife from being entitled to damages from a third party who will have destabilized her marriage knowing full well that she was married to her husband in terms of the Marriages Act, as opposed to the African Marriages Act.

Default Judgment re: Default Judgment and Snatching at a Judgment iro Approach and Unopposed Proceedings


Adultery is defined as "sexual intercourse between two persons of whom one or both are married but who are not married to each other":

Sapsford v Sapsford and Furtado (1954) 2 All ER 373; P.M. BROMLEY and N.V. LOWE, Family Law, London, 7th ed. 1987…,; see also S.A. ADESANYA, Laws of Matrimonial Causes, Ibadan University Press, 1973…,; E.I. NWOGUGU, Family Law in Nigeria, Ibadan, 1974…,.

Zimbabweans pride themselves on being a conservative nation that upholds the institution of marriage, and traditional family values. A lot of Zimbabweans are God-fearing Christians. Some of them are traditionalists who practice polygamy. Most Zimbabweans of black descent believe in paying lobola, or bride price, irrespective of their Christian or traditionalist beliefs.

The entitlement to damages as compensation for the commission of adultery in traditional black culture in Zimbabwe is recognized in customary law as the right of a man who will have paid lobola for his wife.

Back in the village, the Chief may fine the third party, the adulterous man, to pay a beast or two as compensation to the woman's husband.

There is no corresponding right that accrues to a married woman to sue her husband's consort for damages if they engage in a sexual relationship in our customary law.

The rationale for that appears to be rooted in the fact that the man “marries” the woman when he pays lobola, not the other way round.

The Christian concept of marriage is based on an ideal that both the man and the woman leave their respective parents, appear before God as equals, and “cleave” to each other. They are equals before God.

In this modern society, does the law still have a place in regulating what may appear to be matters of morality and of the heart? Should these matters not be best left to be regulated by religion and by the custodians of our culture back in the village?

These questions are causing vexation in most of the world these days, yet, it appears to me as if there is still a strong case to be made for remaining conservative in this area in this country.

This matter came before me on the unopposed roll. Judgment was reserved despite the fact that the respondent has never bothered to defend herself against the applicant's claims.

The reason for such a course of action was the desire to do justice to the issue at hand by writing a full judgment.

The applicant issued summons against the respondent on 15 September 2010, claiming payment of the sum of USD$10,000 being damages for injured feelings, loss of love, affection, and support by the applicant's husband, towards her, as a result of adultery committed by the applicant's husband and the respondent; interest on that sum at the prescribed rate, calculated from the date of the summons to the date of payment in full; plus costs of suit.

In the declaration to the summons, the applicant averred that she is married to Richard Tanyanyiwa in terms of the Marriages Act [Chapter 5:11], and has been so married since 14 April 1989. The couple has four children from their marriage, and, at the time that summons was issued, two of those children were still minors.

The applicant averred, further, that, at the time that summons was issued, her husband and the respondent had two minor children, aged 9 years and 4 years, as a result of their adulterous relationship.

She averred, that, the respondent had been provided with accommodation at the applicant's husband's brother's house in Kambuzuma Township, where he frequently visits the respondent at night until the early hours of the morning.

The applicant is aggrieved at this blatant deprivation of her husband's company, love, and support, and at her husband's increasing failure to support her and the children of their marriage because of his financial commitment to the respondent and her children.

The applicant maintained that her husband now exhibited cold feelings towards her, thereby hurting her and causing her injured feelings as a result of his adulterous relationship with the respondent.

The respondent has not defended herself against the applicant's claims since summons was served on her daughter Maggie, on 20 September 2010. As a result, the applicant applied for default judgment on 17 March 2011, in terms of Order 9 Rule 58(2) of the Rules of the High Court 1971.

The chamber application for default judgment was referred to the unopposed roll for consideration of the quantum of damages.

Delictual Damages re: Bodily, Personal Injury or Contumelia and Non-Patrimonial Loss iro Approach


In both Nyandoro v Tizirai HH12-06 and Gombakomba v Bhudhiyo HH118-06 the court adopted the definition of contumelia set out in Doyle v Salgo (1) 1957 R & N 840…,; Katsumbe v Buyanga 1991 (2) ZLR 256 (H)…,; and Takadini v Maimba 1996 (2) ZLR 737 (S)…,.

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.

Delictual Damages re: Adultery Damages


Adultery is defined as "sexual intercourse between two persons of whom one or both are married but who are not married to each other":

Sapsford v Sapsford and Furtado (1954) 2 All ER 373; P.M. BROMLEY and N.V. LOWE, Family Law, London, 7th ed. 1987…,; see also S.A. ADESANYA, Laws of Matrimonial Causes, Ibadan University Press, 1973…,; E.I. NWOGUGU, Family Law in Nigeria, Ibadan, 1974…,.

Zimbabweans pride themselves on being a conservative nation that upholds the institution of marriage, and traditional family values. A lot of Zimbabweans are God-fearing Christians. Some of them are traditionalists who practice polygamy. Most Zimbabweans of black descent believe in paying lobola, or bride price, irrespective of their Christian or traditionalist beliefs.

The entitlement to damages as compensation for the commission of adultery in traditional black culture in Zimbabwe is recognized in customary law as the right of a man who will have paid lobola for his wife.

Back in the village, the Chief may fine the third party, the adulterous man, to pay a beast or two as compensation to the woman's husband.

There is no corresponding right that accrues to a married woman to sue her husband's consort for damages if they engage in a sexual relationship in our customary law.

The rationale for that appears to be rooted in the fact that the man “marries” the woman when he pays lobola, not the other way round.

The Christian concept of marriage is based on an ideal that both the man and the woman leave their respective parents, appear before God as equals, and “cleave” to each other. They are equals before God.

In this modern society, does the law still have a place in regulating what may appear to be matters of morality and of the heart? Should these matters not be best left to be regulated by religion and by the custodians of our culture back in the village?

These questions are causing vexation in most of the world these days, yet, it appears to me as if there is still a strong case to be made for remaining conservative in this area in this country.

This matter came before me on the unopposed roll. Judgment was reserved despite the fact that the respondent has never bothered to defend herself against the applicant's claims.

The reason for such a course of action was the desire to do justice to the issue at hand by writing a full judgment.

The applicant issued summons against the respondent on 15 September 2010, claiming payment of the sum of USD$10,000 being damages for injured feelings, loss of love, affection, and support by the applicant's husband, towards her, as a result of adultery committed by the applicant's husband and the respondent; interest on that sum at the prescribed rate, calculated from the date of the summons to the date of payment in full; plus costs of suit.

In the declaration to the summons, the applicant averred that she is married to Richard Tanyanyiwa in terms of the Marriages Act [Chapter 5:11], and has been so married since 14 April 1989. The couple has four children from their marriage, and, at the time that summons was issued, two of those children were still minors.

The applicant averred, further, that, at the time that summons was issued, her husband and the respondent had two minor children, aged 9 years and 4 years, as a result of their adulterous relationship.

She averred, that, the respondent had been provided with accommodation at the applicant's husband's brother's house in Kambuzuma Township, where he frequently visits the respondent at night until the early hours of the morning.

The applicant is aggrieved at this blatant deprivation of her husband's company, love, and support, and at her husband's increasing failure to support her and the children of their marriage because of his financial commitment to the respondent and her children.

The applicant maintained that her husband now exhibited cold feelings towards her, thereby hurting her and causing her injured feelings as a result of his adulterous relationship with the respondent.

The respondent has not defended herself against the applicant's claims since summons was served on her daughter Maggie, on 20 September 2010. As a result, the applicant applied for default judgment on 17 March 2011, in terms of Order 9 Rule 58(2) of the Rules of the High Court 1971.

The chamber application for default judgment was referred to the unopposed roll for consideration of the quantum of damages.

The issue that falls for determination before me is therefore this: In what circumstances is an award of USD$10,000 justifiable in a claim for damages for injured feelings, loss of love, affection, and support, resulting from an adulterous relationship?

The applicant filed heads of argument on 5 January 2011 in support of her claim.

She submitted, that, the respondent knew, at the time of the sexual intercourse with the applicant's husband, of his marital status, and submitted the following dicta in support of her contention that this knowledge justified the quantum of damages that she is seeking: Forrester v Forrester 1963 SC 662, where the following passage by LORD ADLERSON was cited with approval:

“I think it is essential that before a co-defender can be penalized, in expenses, it must be established that he was aware, when he misconducted himself with the woman, that she was a married woman. The underlying principle whereby the court penalizes a co defender is just this - that he knew, when he was having…, with the woman, that he was wronging a husband.”

It was submitted, on behalf of the applicant, that this dicta is equally applicable to the converse circumstances; in this case, the respondent knew that she was wronging a wife.

In both Nyandoro v Tizirai HH12-06 and Gombakomba v Bhudhiyo HH118-06 the court adopted the definition of contumelia set out in Doyle v Salgo (1) 1957 R & N 840…,; Katsumbe v Buyanga 1991 (2) ZLR 256 (H)…,; and Takadini v Maimba 1996 (2) ZLR 737 (S)…,.

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…, 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;

Equally, in Nyakudya v Washaya, SMITH J noted the need to also consider the need for deterrent measures against the adulterer to protect the innocent spouse against contracting HIV from the errant spouse.

In other jurisdictions, the question of whether adultery should continue to be regulated by the law has spanned widespread debate. There are proponents for and against the award of damages to the injured spouse. Different countries have adopted different views, based on cultural or religious considerations.

In Nigeria, it has been said that:

“Adultery is one of the cardinal sins in the Ten Commandments, and, despite the modern apparently relaxed attitude towards sexual intercourse, it has remained one of the main reasons for marriage breakdowns. Its seriousness as a matrimonial offence is clearly reflected in the fact that originally it was the only permitted ground for divorce under English Law.

Of particular gravity was adultery by a wife which was described as being unforgivable by a husband. For while, a husband could divorce his wife on the sole basis of her adultery; a wife had to prove other material facts in addition to her husband's adultery in order to obtain a similar relief. Even under customary law, adultery, particularly by a wife, was treated as a sin against the ancestral gods and required the performance of certain rituals to appease them and the husband and to cleanse the violated woman.” See Judicial Concepts of Adultery, Intolerability and Damages in Nigeria E.N.U. UZODIKE.

In the United States, it has been said that:

“According to the 'godmother of infidelity research,' Shirley Glass, the United States is currently experiencing a 'crisis of unfaithfulness.' The most reputable social science surveys reveal that at least twenty to fifty percent of American adults admit to committing adultery, and some studies estimate the adultery rate to be as high as seventy percent. Pro-marriage activists and feminists are leading a war against decisions such as Koestler. Pro-marriage activists usually attack rejections of adultery claims by emphasizing the importance of marriage and family. Feminists favoring adultery claims emphasize the negative consequences of adultery on women”. See 2003:1013 1015 Wisconsin Law Review at page 1012 of the Wisconsin Law Review: 20.03 Wis. L. Rev. 1013 2003.

The debate appears to be fuelled by the fact that those who are pro-marriage, advocate for the compensation of an injured spouse, by an errant spouse, for emotional and mental distress that is accepted to be a by-product of an adulterous relationship.

Adultery is almost always debilitating for victimized spouses. They can suffer tremendous emotional damage, loss of trust, troubling mental insecurities, decreased job performance, and financial insecurity (especially when adultery leads to divorces involving children).

What is even more tragic is that, currently, most law in the United States does little to remedy the mental damage caused by unfaithful spouses.” See The State's Perpetual Protection of Adultery: Examining Koestler v Pollard and Wisconsin's Faded Adultery Torts, NEHAL A. PATEL.

Closer to home, in South Africa, the debate, on whether adultery damages should remain an area that is regulated by the law, was taken up in the recent case of RH v DE (594/2013) (2014) ZASCA 133 (25 September 2014).

It was a delictual claim for damages based on adultery between the defendant and the plaintiff's wife on the law as it stands.

The court found, that, the award had been rightly made for contumelia but that the award for loss of consortium was not justified. The court considered whether the action should be maintained as part of South African law and concluded that its continued existence no longer justified.

In this case, the plaintiff's cause of action relied on the actio iniuriarum in the form of adultery and adultery only.

Although he claimed damages under the two headings of contumelia (i.e. insult or injury to his self-esteem) and loss of consortium (i.e. the loss of comfort and society of his wife), the court considered the question for determination to be: what are the consequences of adultery?

It followed that the court considered that it need only consider the question of the quantum of damages. The court said the following:

“The context in which the question arises is the recognition by our courts, that, while the major engine for law reform lies with the legislature, the courts are nonetheless obliged on occasion to develop the common law in an incremental way. These occasions are dictated;

Firstly, by section 39(2) of the Constitution which imposes the duty on the courts to develop the common law so as to promote the spirit, purport, and objectives of the Bill of Rights.

Secondly, by the acceptance that the courts can and should adapt the common law to reflect the changing social, moral, and economic fabric of society; that we cannot perpetuate legal rules that have lost their social substratum (see for example Du Plessis v De Klerk 1996 (3) SA 850 (CC) para 61; Carmichele v Minister of Safety and Security & Another (Centre for Applied Legal Studies Intervening) 2001 (4) SA 938 (CC) para 36).

The boni mores of society or the legal convictions of the community, which in effect constitute expressions of considerations of legal and public policy, are of particular significance in determining wrongfulness, which is an essential element of delictual liability in our law, both under the lex Aquilia and the actio iniuriarum.

In Le Roux v Dey (Freedom of Expression Institute and Restorative Justice Centre as amici curiae) 2011 (3) SA 274 (CC) para 122 the principle was formulated thus:

'In the more recent past, our courts have come to recognise, however, that in the context of the law of delict:

(a) The criterion of wrongfulness ultimately depends on a judicial determination of whether, assuming all the other elements of delictual liability to be present, it would be reasonable to impose liability on a defendant for the damages flowing from specific conduct; and

(b) That the judicial determination of that reasonableness would, in turn, depend on considerations of public and legal policy in accordance with constitutional norms.'

This means, that, especially in determining whether conduct should be regarded as wrongful, i.e. whether delictual liability should follow, courts are more sensitive to have regard to the dynamic and changing nature of the norms of our society.”…,.

The South African court acknowledged, that, the main advantage of the claim was that it protects the institution of marriage which our society holds dear as one of the most important bases for family life and which is recognised and protected as such by the Constitution.

In Zimbabwe, if we are to take the approach adopted by the South African court, we should consider whether our society's views regarding the institution of marriage have changed.

In my view, they have not.

If we give effect to our national objectives, as enshrined in our Constitution, we will find that the institution of marriage, and family values, is protected, and enshrined, in the Constitution.

In South Africa, their Constitution protects and enshrines a myriad of other institutions which are not necessarily compatible with marriage.

It is my view, that, the dicta in the following case, which was decided more than ten years ago, still applies in this country, and that, it reflects the views of our society: Katsumbe v Buyanga 1991 (2) ZLR 256 (H)…, :

“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 its frightening aspects.”

In my view, this country is not ready to follow our South African counterparts down the slippery slope.

Our Constitution, which came about as a result of widespread consultations with grassroots Zimbabweans, declares one of our national objectives to be that the State must take appropriate measures to ensure that there is equality of rights and obligations of spouses during marriage: section 26(c) of the Constitution of Zimbabwe Amendment (No.20) 2013.

My interpretation of this clause is that there is nothing in our Constitution which may be interpreted as precluding a wife from being entitled to damages from a third party who will have destabilized her marriage knowing full well that she was married to her husband in terms of the Marriages Act, as opposed to the African Marriages Act.

Applying the principles that are to be taken into consideration in considering an application for damages for adultery in Zimbabwe will show that there is no evidence in the papers filed of record, of the character of the spouse involved, other than an averment that he spends most of his time with the respondent, and is “cold, to the applicant, which she finds hurtful.

The American study showed that adultery “is almost always debilitating for victimized spouses. They can suffer tremendous emotional damage, loss of trust, troubling mental insecurities, decreased job performance, and financial insecurity.”

The applicant averred, in the summons, that, the respondent no longer takes care of the family, the social and economic status of the plaintiff and the defendant.

There is no evidence, in the papers, of whether or not the respondent showed contrition or of the parties HIV status.

The level of awards in similar cases is set out below:

A comparison of past awards for adultery damages -

1. Ala Frank Walker v Kevin Taylor HB35-08: ZWD$ Fifty million.

2. Pauline Muyambo v Eunice Bere HH30-07: ZWD$1,500,000.

3. Timothy Chinyadza v Melton Phiri HH76-09:USD$1,500.

4. Calletta Gwatiringa v Annastacia Matake HB119-09: USD$500.

After taking into consideration the circumstances of this case, it is hereby ordered, that, the respondent pay to the plaintiff, damages in the sum of USD$1,500, together with interest thereon at the prescribed rate calculated from the date of the summons to the date of payment in full, as well as costs of suit.

Default Judgment re: Default Judgment and Snatching at a Judgment iro Claim for Damages


Adultery is defined as "sexual intercourse between two persons of whom one or both are married but who are not married to each other":

Sapsford v Sapsford and Furtado (1954) 2 All ER 373; P.M. BROMLEY and N.V. LOWE, Family Law, London, 7th ed. 1987…,; see also S.A. ADESANYA, Laws of Matrimonial Causes, Ibadan University Press, 1973…,; E.I. NWOGUGU, Family Law in Nigeria, Ibadan, 1974…,.

Zimbabweans pride themselves on being a conservative nation that upholds the institution of marriage, and traditional family values. A lot of Zimbabweans are God-fearing Christians. Some of them are traditionalists who practice polygamy. Most Zimbabweans of black descent believe in paying lobola, or bride price, irrespective of their Christian or traditionalist beliefs.

The entitlement to damages as compensation for the commission of adultery in traditional black culture in Zimbabwe is recognized in customary law as the right of a man who will have paid lobola for his wife.

Back in the village, the Chief may fine the third party, the adulterous man, to pay a beast or two as compensation to the woman's husband.

There is no corresponding right that accrues to a married woman to sue her husband's consort for damages if they engage in a sexual relationship in our customary law.

The rationale for that appears to be rooted in the fact that the man “marries” the woman when he pays lobola, not the other way round.

The Christian concept of marriage is based on an ideal that both the man and the woman leave their respective parents, appear before God as equals, and “cleave” to each other. They are equals before God.

In this modern society, does the law still have a place in regulating what may appear to be matters of morality and of the heart? Should these matters not be best left to be regulated by religion and by the custodians of our culture back in the village?

These questions are causing vexation in most of the world these days, yet, it appears to me as if there is still a strong case to be made for remaining conservative in this area in this country.

This matter came before me on the unopposed roll. Judgment was reserved despite the fact that the respondent has never bothered to defend herself against the applicant's claims.

The reason for such a course of action was the desire to do justice to the issue at hand by writing a full judgment.

The applicant issued summons against the respondent on 15 September 2010, claiming payment of the sum of USD$10,000 being damages for injured feelings, loss of love, affection, and support by the applicant's husband, towards her, as a result of adultery committed by the applicant's husband and the respondent; interest on that sum at the prescribed rate, calculated from the date of the summons to the date of payment in full; plus costs of suit.

In the declaration to the summons, the applicant averred that she is married to Richard Tanyanyiwa in terms of the Marriages Act [Chapter 5:11], and has been so married since 14 April 1989. The couple has four children from their marriage, and, at the time that summons was issued, two of those children were still minors.

The applicant averred, further, that, at the time that summons was issued, her husband and the respondent had two minor children, aged 9 years and 4 years, as a result of their adulterous relationship.

She averred, that, the respondent had been provided with accommodation at the applicant's husband's brother's house in Kambuzuma Township, where he frequently visits the respondent at night until the early hours of the morning.

The applicant is aggrieved at this blatant deprivation of her husband's company, love, and support, and at her husband's increasing failure to support her and the children of their marriage because of his financial commitment to the respondent and her children.

The applicant maintained that her husband now exhibited cold feelings towards her, thereby hurting her and causing her injured feelings as a result of his adulterous relationship with the respondent.

The respondent has not defended herself against the applicant's claims since summons was served on her daughter Maggie, on 20 September 2010. As a result, the applicant applied for default judgment on 17 March 2011, in terms of Order 9 Rule 58(2) of the Rules of the High Court 1971.

The chamber application for default judgment was referred to the unopposed roll for consideration of the quantum of damages.

The issue that falls for determination before me is therefore this: In what circumstances is an award of USD$10,000 justifiable in a claim for damages for injured feelings, loss of love, affection, and support, resulting from an adulterous relationship?

The applicant filed heads of argument on 5 January 2011 in support of her claim.

She submitted, that, the respondent knew, at the time of the sexual intercourse with the applicant's husband, of his marital status, and submitted the following dicta in support of her contention that this knowledge justified the quantum of damages that she is seeking: Forrester v Forrester 1963 SC 662, where the following passage by LORD ADLERSON was cited with approval:

“I think it is essential that before a co-defender can be penalized, in expenses, it must be established that he was aware, when he misconducted himself with the woman, that she was a married woman. The underlying principle whereby the court penalizes a co defender is just this - that he knew, when he was having…, with the woman, that he was wronging a husband.”

It was submitted, on behalf of the applicant, that this dicta is equally applicable to the converse circumstances; in this case, the respondent knew that she was wronging a wife.

In both Nyandoro v Tizirai HH12-06 and Gombakomba v Bhudhiyo HH118-06 the court adopted the definition of contumelia set out in Doyle v Salgo (1) 1957 R & N 840…,; Katsumbe v Buyanga 1991 (2) ZLR 256 (H)…,; and Takadini v Maimba 1996 (2) ZLR 737 (S)…,.

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…, 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;

Equally, in Nyakudya v Washaya, SMITH J noted the need to also consider the need for deterrent measures against the adulterer to protect the innocent spouse against contracting HIV from the errant spouse.

In other jurisdictions, the question of whether adultery should continue to be regulated by the law has spanned widespread debate. There are proponents for and against the award of damages to the injured spouse. Different countries have adopted different views, based on cultural or religious considerations.

In Nigeria, it has been said that:

“Adultery is one of the cardinal sins in the Ten Commandments, and, despite the modern apparently relaxed attitude towards sexual intercourse, it has remained one of the main reasons for marriage breakdowns. Its seriousness as a matrimonial offence is clearly reflected in the fact that originally it was the only permitted ground for divorce under English Law.

Of particular gravity was adultery by a wife which was described as being unforgivable by a husband. For while, a husband could divorce his wife on the sole basis of her adultery; a wife had to prove other material facts in addition to her husband's adultery in order to obtain a similar relief. Even under customary law, adultery, particularly by a wife, was treated as a sin against the ancestral gods and required the performance of certain rituals to appease them and the husband and to cleanse the violated woman.” See Judicial Concepts of Adultery, Intolerability and Damages in Nigeria E.N.U. UZODIKE.

In the United States, it has been said that:

“According to the 'godmother of infidelity research,' Shirley Glass, the United States is currently experiencing a 'crisis of unfaithfulness.' The most reputable social science surveys reveal that at least twenty to fifty percent of American adults admit to committing adultery, and some studies estimate the adultery rate to be as high as seventy percent. Pro-marriage activists and feminists are leading a war against decisions such as Koestler. Pro-marriage activists usually attack rejections of adultery claims by emphasizing the importance of marriage and family. Feminists favoring adultery claims emphasize the negative consequences of adultery on women”. See 2003:1013 1015 Wisconsin Law Review at page 1012 of the Wisconsin Law Review: 20.03 Wis. L. Rev. 1013 2003.

The debate appears to be fuelled by the fact that those who are pro-marriage, advocate for the compensation of an injured spouse, by an errant spouse, for emotional and mental distress that is accepted to be a by-product of an adulterous relationship.

Adultery is almost always debilitating for victimized spouses. They can suffer tremendous emotional damage, loss of trust, troubling mental insecurities, decreased job performance, and financial insecurity (especially when adultery leads to divorces involving children).

What is even more tragic is that, currently, most law in the United States does little to remedy the mental damage caused by unfaithful spouses.” See The State's Perpetual Protection of Adultery: Examining Koestler v Pollard and Wisconsin's Faded Adultery Torts, NEHAL A. PATEL.

Closer to home, in South Africa, the debate, on whether adultery damages should remain an area that is regulated by the law, was taken up in the recent case of RH v DE (594/2013) (2014) ZASCA 133 (25 September 2014).

It was a delictual claim for damages based on adultery between the defendant and the plaintiff's wife on the law as it stands.

The court found, that, the award had been rightly made for contumelia but that the award for loss of consortium was not justified. The court considered whether the action should be maintained as part of South African law and concluded that its continued existence no longer justified.

In this case, the plaintiff's cause of action relied on the actio iniuriarum in the form of adultery and adultery only.

Although he claimed damages under the two headings of contumelia (i.e. insult or injury to his self-esteem) and loss of consortium (i.e. the loss of comfort and society of his wife), the court considered the question for determination to be: what are the consequences of adultery?

It followed that the court considered that it need only consider the question of the quantum of damages. The court said the following:

“The context in which the question arises is the recognition by our courts, that, while the major engine for law reform lies with the legislature, the courts are nonetheless obliged on occasion to develop the common law in an incremental way. These occasions are dictated;

Firstly, by section 39(2) of the Constitution which imposes the duty on the courts to develop the common law so as to promote the spirit, purport, and objectives of the Bill of Rights.

Secondly, by the acceptance that the courts can and should adapt the common law to reflect the changing social, moral, and economic fabric of society; that we cannot perpetuate legal rules that have lost their social substratum (see for example Du Plessis v De Klerk 1996 (3) SA 850 (CC) para 61; Carmichele v Minister of Safety and Security & Another (Centre for Applied Legal Studies Intervening) 2001 (4) SA 938 (CC) para 36).

The boni mores of society or the legal convictions of the community, which in effect constitute expressions of considerations of legal and public policy, are of particular significance in determining wrongfulness, which is an essential element of delictual liability in our law, both under the lex Aquilia and the actio iniuriarum.

In Le Roux v Dey (Freedom of Expression Institute and Restorative Justice Centre as amici curiae) 2011 (3) SA 274 (CC) para 122 the principle was formulated thus:

'In the more recent past, our courts have come to recognise, however, that in the context of the law of delict:

(a) The criterion of wrongfulness ultimately depends on a judicial determination of whether, assuming all the other elements of delictual liability to be present, it would be reasonable to impose liability on a defendant for the damages flowing from specific conduct; and

(b) That the judicial determination of that reasonableness would, in turn, depend on considerations of public and legal policy in accordance with constitutional norms.'

This means, that, especially in determining whether conduct should be regarded as wrongful, i.e. whether delictual liability should follow, courts are more sensitive to have regard to the dynamic and changing nature of the norms of our society.”…,.

The South African court acknowledged, that, the main advantage of the claim was that it protects the institution of marriage which our society holds dear as one of the most important bases for family life and which is recognised and protected as such by the Constitution.

In Zimbabwe, if we are to take the approach adopted by the South African court, we should consider whether our society's views regarding the institution of marriage have changed.

In my view, they have not.

If we give effect to our national objectives, as enshrined in our Constitution, we will find that the institution of marriage, and family values, is protected, and enshrined, in the Constitution.

In South Africa, their Constitution protects and enshrines a myriad of other institutions which are not necessarily compatible with marriage.

It is my view, that, the dicta in the following case, which was decided more than ten years ago, still applies in this country, and that, it reflects the views of our society: Katsumbe v Buyanga 1991 (2) ZLR 256 (H)…, :

“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 its frightening aspects.”

In my view, this country is not ready to follow our South African counterparts down the slippery slope.

Our Constitution, which came about as a result of widespread consultations with grassroots Zimbabweans, declares one of our national objectives to be that the State must take appropriate measures to ensure that there is equality of rights and obligations of spouses during marriage: section 26(c) of the Constitution of Zimbabwe Amendment (No.20) 2013.

My interpretation of this clause is that there is nothing in our Constitution which may be interpreted as precluding a wife from being entitled to damages from a third party who will have destabilized her marriage knowing full well that she was married to her husband in terms of the Marriages Act, as opposed to the African Marriages Act.

Applying the principles that are to be taken into consideration in considering an application for damages for adultery in Zimbabwe will show that there is no evidence in the papers filed of record, of the character of the spouse involved, other than an averment that he spends most of his time with the respondent, and is “cold, to the applicant, which she finds hurtful.

The American study showed that adultery “is almost always debilitating for victimized spouses. They can suffer tremendous emotional damage, loss of trust, troubling mental insecurities, decreased job performance, and financial insecurity.”

The applicant averred, in the summons, that, the respondent no longer takes care of the family, the social and economic status of the plaintiff and the defendant.

There is no evidence, in the papers, of whether or not the respondent showed contrition or of the parties HIV status.

The level of awards in similar cases is set out below:

A comparison of past awards for adultery damages -

1. Ala Frank Walker v Kevin Taylor HB35-08: ZWD$ Fifty million.

2. Pauline Muyambo v Eunice Bere HH30-07: ZWD$1,500,000.

3. Timothy Chinyadza v Melton Phiri HH76-09:USD$1,500.

4. Calletta Gwatiringa v Annastacia Matake HB119-09: USD$500.

After taking into consideration the circumstances of this case, it is hereby ordered, that, the respondent pay to the plaintiff, damages in the sum of USD$1,500, together with interest thereon at the prescribed rate calculated from the date of the summons to the date of payment in full, as well as costs of suit.

Default Judgment re: Default Judgment and Snatching at a Judgment iro Approach and Unopposed Proceedings


Adultery is defined as "sexual intercourse between two persons of whom one or both are married but who are not married to each other":

Sapsford v Sapsford and Furtado (1954) 2 All ER 373; P.M. BROMLEY and N.V. LOWE, Family Law, London, 7th ed. 1987…,; see also S.A. ADESANYA, Laws of Matrimonial Causes, Ibadan University Press, 1973…,; E.I. NWOGUGU, Family Law in Nigeria, Ibadan, 1974…,.

Zimbabweans pride themselves on being a conservative nation that upholds the institution of marriage, and traditional family values. A lot of Zimbabweans are God-fearing Christians. Some of them are traditionalists who practice polygamy. Most Zimbabweans of black descent believe in paying lobola, or bride price, irrespective of their Christian or traditionalist beliefs.

The entitlement to damages as compensation for the commission of adultery in traditional black culture in Zimbabwe is recognized in customary law as the right of a man who will have paid lobola for his wife.

Back in the village, the Chief may fine the third party, the adulterous man, to pay a beast or two as compensation to the woman's husband.

There is no corresponding right that accrues to a married woman to sue her husband's consort for damages if they engage in a sexual relationship in our customary law.

The rationale for that appears to be rooted in the fact that the man “marries” the woman when he pays lobola, not the other way round.

The Christian concept of marriage is based on an ideal that both the man and the woman leave their respective parents, appear before God as equals, and “cleave” to each other. They are equals before God.

In this modern society, does the law still have a place in regulating what may appear to be matters of morality and of the heart? Should these matters not be best left to be regulated by religion and by the custodians of our culture back in the village?

These questions are causing vexation in most of the world these days, yet, it appears to me as if there is still a strong case to be made for remaining conservative in this area in this country.

This matter came before me on the unopposed roll. Judgment was reserved despite the fact that the respondent has never bothered to defend herself against the applicant's claims.

The reason for such a course of action was the desire to do justice to the issue at hand by writing a full judgment.

The applicant issued summons against the respondent on 15 September 2010, claiming payment of the sum of USD$10,000 being damages for injured feelings, loss of love, affection, and support by the applicant's husband, towards her, as a result of adultery committed by the applicant's husband and the respondent; interest on that sum at the prescribed rate, calculated from the date of the summons to the date of payment in full; plus costs of suit.

In the declaration to the summons, the applicant averred that she is married to Richard Tanyanyiwa in terms of the Marriages Act [Chapter 5:11], and has been so married since 14 April 1989. The couple has four children from their marriage, and, at the time that summons was issued, two of those children were still minors.

The applicant averred, further, that, at the time that summons was issued, her husband and the respondent had two minor children, aged 9 years and 4 years, as a result of their adulterous relationship.

She averred, that, the respondent had been provided with accommodation at the applicant's husband's brother's house in Kambuzuma Township, where he frequently visits the respondent at night until the early hours of the morning.

The applicant is aggrieved at this blatant deprivation of her husband's company, love, and support, and at her husband's increasing failure to support her and the children of their marriage because of his financial commitment to the respondent and her children.

The applicant maintained that her husband now exhibited cold feelings towards her, thereby hurting her and causing her injured feelings as a result of his adulterous relationship with the respondent.

The respondent has not defended herself against the applicant's claims since summons was served on her daughter Maggie, on 20 September 2010. As a result, the applicant applied for default judgment on 17 March 2011, in terms of Order 9 Rule 58(2) of the Rules of the High Court 1971.

The chamber application for default judgment was referred to the unopposed roll for consideration of the quantum of damages.

The issue that falls for determination before me is therefore this: In what circumstances is an award of USD$10,000 justifiable in a claim for damages for injured feelings, loss of love, affection, and support, resulting from an adulterous relationship?

The applicant filed heads of argument on 5 January 2011 in support of her claim.

She submitted, that, the respondent knew, at the time of the sexual intercourse with the applicant's husband, of his marital status, and submitted the following dicta in support of her contention that this knowledge justified the quantum of damages that she is seeking: Forrester v Forrester 1963 SC 662, where the following passage by LORD ADLERSON was cited with approval:

“I think it is essential that before a co-defender can be penalized, in expenses, it must be established that he was aware, when he misconducted himself with the woman, that she was a married woman. The underlying principle whereby the court penalizes a co defender is just this - that he knew, when he was having…, with the woman, that he was wronging a husband.”

It was submitted, on behalf of the applicant, that this dicta is equally applicable to the converse circumstances; in this case, the respondent knew that she was wronging a wife.

In both Nyandoro v Tizirai HH12-06 and Gombakomba v Bhudhiyo HH118-06 the court adopted the definition of contumelia set out in Doyle v Salgo (1) 1957 R & N 840…,; Katsumbe v Buyanga 1991 (2) ZLR 256 (H)…,; and Takadini v Maimba 1996 (2) ZLR 737 (S)…,.

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…, 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;

Equally, in Nyakudya v Washaya, SMITH J noted the need to also consider the need for deterrent measures against the adulterer to protect the innocent spouse against contracting HIV from the errant spouse.

In other jurisdictions, the question of whether adultery should continue to be regulated by the law has spanned widespread debate. There are proponents for and against the award of damages to the injured spouse. Different countries have adopted different views, based on cultural or religious considerations.

In Nigeria, it has been said that:

“Adultery is one of the cardinal sins in the Ten Commandments, and, despite the modern apparently relaxed attitude towards sexual intercourse, it has remained one of the main reasons for marriage breakdowns. Its seriousness as a matrimonial offence is clearly reflected in the fact that originally it was the only permitted ground for divorce under English Law.

Of particular gravity was adultery by a wife which was described as being unforgivable by a husband. For while, a husband could divorce his wife on the sole basis of her adultery; a wife had to prove other material facts in addition to her husband's adultery in order to obtain a similar relief. Even under customary law, adultery, particularly by a wife, was treated as a sin against the ancestral gods and required the performance of certain rituals to appease them and the husband and to cleanse the violated woman.” See Judicial Concepts of Adultery, Intolerability and Damages in Nigeria E.N.U. UZODIKE.

In the United States, it has been said that:

“According to the 'godmother of infidelity research,' Shirley Glass, the United States is currently experiencing a 'crisis of unfaithfulness.' The most reputable social science surveys reveal that at least twenty to fifty percent of American adults admit to committing adultery, and some studies estimate the adultery rate to be as high as seventy percent. Pro-marriage activists and feminists are leading a war against decisions such as Koestler. Pro-marriage activists usually attack rejections of adultery claims by emphasizing the importance of marriage and family. Feminists favoring adultery claims emphasize the negative consequences of adultery on women”. See 2003:1013 1015 Wisconsin Law Review at page 1012 of the Wisconsin Law Review: 20.03 Wis. L. Rev. 1013 2003.

The debate appears to be fuelled by the fact that those who are pro-marriage, advocate for the compensation of an injured spouse, by an errant spouse, for emotional and mental distress that is accepted to be a by-product of an adulterous relationship.

Adultery is almost always debilitating for victimized spouses. They can suffer tremendous emotional damage, loss of trust, troubling mental insecurities, decreased job performance, and financial insecurity (especially when adultery leads to divorces involving children).

What is even more tragic is that, currently, most law in the United States does little to remedy the mental damage caused by unfaithful spouses.” See The State's Perpetual Protection of Adultery: Examining Koestler v Pollard and Wisconsin's Faded Adultery Torts, NEHAL A. PATEL.

Closer to home, in South Africa, the debate, on whether adultery damages should remain an area that is regulated by the law, was taken up in the recent case of RH v DE (594/2013) (2014) ZASCA 133 (25 September 2014).

It was a delictual claim for damages based on adultery between the defendant and the plaintiff's wife on the law as it stands.

The court found, that, the award had been rightly made for contumelia but that the award for loss of consortium was not justified. The court considered whether the action should be maintained as part of South African law and concluded that its continued existence no longer justified.

In this case, the plaintiff's cause of action relied on the actio iniuriarum in the form of adultery and adultery only.

Although he claimed damages under the two headings of contumelia (i.e. insult or injury to his self-esteem) and loss of consortium (i.e. the loss of comfort and society of his wife), the court considered the question for determination to be: what are the consequences of adultery?

It followed that the court considered that it need only consider the question of the quantum of damages. The court said the following:

“The context in which the question arises is the recognition by our courts, that, while the major engine for law reform lies with the legislature, the courts are nonetheless obliged on occasion to develop the common law in an incremental way. These occasions are dictated;

Firstly, by section 39(2) of the Constitution which imposes the duty on the courts to develop the common law so as to promote the spirit, purport, and objectives of the Bill of Rights.

Secondly, by the acceptance that the courts can and should adapt the common law to reflect the changing social, moral, and economic fabric of society; that we cannot perpetuate legal rules that have lost their social substratum (see for example Du Plessis v De Klerk 1996 (3) SA 850 (CC) para 61; Carmichele v Minister of Safety and Security & Another (Centre for Applied Legal Studies Intervening) 2001 (4) SA 938 (CC) para 36).

The boni mores of society or the legal convictions of the community, which in effect constitute expressions of considerations of legal and public policy, are of particular significance in determining wrongfulness, which is an essential element of delictual liability in our law, both under the lex Aquilia and the actio iniuriarum.

In Le Roux v Dey (Freedom of Expression Institute and Restorative Justice Centre as amici curiae) 2011 (3) SA 274 (CC) para 122 the principle was formulated thus:

'In the more recent past, our courts have come to recognise, however, that in the context of the law of delict:

(a) The criterion of wrongfulness ultimately depends on a judicial determination of whether, assuming all the other elements of delictual liability to be present, it would be reasonable to impose liability on a defendant for the damages flowing from specific conduct; and

(b) That the judicial determination of that reasonableness would, in turn, depend on considerations of public and legal policy in accordance with constitutional norms.'

This means, that, especially in determining whether conduct should be regarded as wrongful, i.e. whether delictual liability should follow, courts are more sensitive to have regard to the dynamic and changing nature of the norms of our society.”…,.

The South African court acknowledged, that, the main advantage of the claim was that it protects the institution of marriage which our society holds dear as one of the most important bases for family life and which is recognised and protected as such by the Constitution.

In Zimbabwe, if we are to take the approach adopted by the South African court, we should consider whether our society's views regarding the institution of marriage have changed.

In my view, they have not.

If we give effect to our national objectives, as enshrined in our Constitution, we will find that the institution of marriage, and family values, is protected, and enshrined, in the Constitution.

In South Africa, their Constitution protects and enshrines a myriad of other institutions which are not necessarily compatible with marriage.

It is my view, that, the dicta in the following case, which was decided more than ten years ago, still applies in this country, and that, it reflects the views of our society: Katsumbe v Buyanga 1991 (2) ZLR 256 (H)…, :

“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 its frightening aspects.”

In my view, this country is not ready to follow our South African counterparts down the slippery slope.

Our Constitution, which came about as a result of widespread consultations with grassroots Zimbabweans, declares one of our national objectives to be that the State must take appropriate measures to ensure that there is equality of rights and obligations of spouses during marriage: section 26(c) of the Constitution of Zimbabwe Amendment (No.20) 2013.

My interpretation of this clause is that there is nothing in our Constitution which may be interpreted as precluding a wife from being entitled to damages from a third party who will have destabilized her marriage knowing full well that she was married to her husband in terms of the Marriages Act, as opposed to the African Marriages Act.

Applying the principles that are to be taken into consideration in considering an application for damages for adultery in Zimbabwe will show that there is no evidence in the papers filed of record, of the character of the spouse involved, other than an averment that he spends most of his time with the respondent, and is “cold, to the applicant, which she finds hurtful.

The American study showed that adultery “is almost always debilitating for victimized spouses. They can suffer tremendous emotional damage, loss of trust, troubling mental insecurities, decreased job performance, and financial insecurity.”

The applicant averred, in the summons, that, the respondent no longer takes care of the family, the social and economic status of the plaintiff and the defendant.

There is no evidence, in the papers, of whether or not the respondent showed contrition or of the parties HIV status.

The level of awards in similar cases is set out below:

A comparison of past awards for adultery damages -

1. Ala Frank Walker v Kevin Taylor HB35-08: ZWD$ Fifty million.

2. Pauline Muyambo v Eunice Bere HH30-07: ZWD$1,500,000.

3. Timothy Chinyadza v Melton Phiri HH76-09:USD$1,500.

4. Calletta Gwatiringa v Annastacia Matake HB119-09: USD$500.

After taking into consideration the circumstances of this case, it is hereby ordered, that, the respondent pay to the plaintiff, damages in the sum of USD$1,500, together with interest thereon at the prescribed rate calculated from the date of the summons to the date of payment in full, as well as costs of suit.

Unopposed Application

CHIGUMBA J: Adultery is defined as "sexual intercourse between two persons of whom one or both are married but who are not married to each other".1

Zimbabweans pride themselves on being a conservative nation that upholds the institution of marriage, and traditional family values. A lot of Zimbabweans are God fearing Christians. Some of them are traditionalists who practice polygamy. Most Zimbabweans of black descent believe in paying lobola, or bride price, irrespective of their Christian or traditionalist beliefs.

The entitlement to damages as compensation for the commission of adultery in traditional black culture in Zimbabwe is recognized in customary law as the right of a man who will have paid lobola for his wife.

Back in the village, the Chief may fine the third party, the adulterous man to pay a beast or two as compensation to the woman's husband.

There is no corresponding right that accrues to a married woman to sue her husband's consort for damages if they engage in a sexual relationship, in our customary law.

The rationale for that appears to be rooted in the fact that the man “marries” the woman when he pays lobola, not the other way round.

The Christian concept of marriage is based on an ideal that both the man and the woman leave their respective parents, appear before God as equals, and “cleave” to each other. They are equals before God.

In this modern society, does the law still have a place in regulating what may appear to be, matters of morality, and of the heart? Should these matters not be best left to be regulated by religion, and by the custodians of our culture back in the village?

These questions are causing vexation in most of the world these days, yet, it appears to me as if there is still a strong case to be made for remaining conservative in this area, in this country.

This matter came before me on the unopposed roll. Judgment was reserved despite the fact that the respondent has never bothered to defend herself against the applicant's claims.

The reason for such a course of action was the desire to do justice to the issue at hand by writing a full judgment.

The applicant issued summons against the respondent on 15 September 2010, claiming payment of the sum of USD$10,000-00 being damages for injured feelings loss of love, affection and support by the applicant's husband, towards her, as a result of adultery committed by the applicant's husband and the respondent, interest on that sum at the prescribed rate, calculated from the date of the summons to the date of payment in full, plus costs of suit.

In the declaration to the summons, the applicant averred that she is married to Richard Tanyanyiwa in terms of the Marriages Act [Cap 5:11], and has been so married, since 14 April 1989. The couple has four children from their marriage, and, at the time that summons was issued, two of those children were still minors.

The applicant averred further, that at the time that summons was issued, her husband and the respondent had two minor children aged 9 years and 4 years, as a result of their adulterous relationship.

She averred that respondent had been provided with accommodation at the applicant's husband's brother's house in Kambuzuma Township, where he frequently visits the respondent at night until the early hours of the morning.

The applicant is aggrieved at this blatant deprivation of her husband's company, love and support, and at her husband's increasing failure to support her and the children of their marriage because of his financial commitment to the respondent and her children.

The applicant maintained that her husband now exhibited cold feelings towards her, thereby hurting her and causing her injured feelings as a result of his adulterous relationship with the respondent.

The respondent has not defended herself against the applicant's claims since summons was served on her daughter Maggie, on 20 September 2010. As a result the applicant applied for default judgment on 17 March 2011, in terms of Order 9 r58(2) of the Rules of the High Court 1971.

The chamber application for default judgment was referred to the unopposed roll for consideration of the quantum of damages.

The issue that falls for determination before me is therefore this: In what circumstances is an award of USD$10,000-00 justifiable in a claim for damages for injured feelings, loss of love affection and support, resulting from an adulterous relationship?

The applicant filed heads of argument on 5 January 2011, in support of her claim.

She submitted that the respondent knew, at the time of the sexual intercourse with applicant's husband, of his marital status, and submitted the following dicta in support of her contention that this knowledge justified the quantum of damages that she is seeking. Forrester v Forrester2, where the following passage by LORD ADLERSON was cited with approval:

“I think it is essential that before a co-defender can be penalized- in expenses- it must be established that he was aware when he misconducted himself with the woman that she was a married woman. The underlying principle whereby the court penalizes a co defender is just this -that he knew when he was having…, with the woman that he was wronging a husband”.

It was submitted on behalf of the applicant that this dicta is equally applicable to the converse circumstances, in this case the respondent knew that she was wronging a wife.

In both Nyandoro v Tizirai HH12/06 and Gombakomba v Bhudhiyo HH118/0 the court 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;

Equally in Nyakudya v Washaya (supra) SMITH J noted the need to also consider the need for deterrent measures against the adulterer to protect the innocent spouse against contracting HIV from the errant spouse.

In other jurisdictions, the question of whether adultery should continue to be regulated by the law has spanned widespread debate. There are proponents for and against the award of damages to the injured spouse. Different countries have adopted different views, based on cultural or religious considerations.

In Nigeria, it has been said that:

“Adultery is one of the cardinal sins in the Ten Commandments and, despite the modern apparently relaxed attitude towards sexual intercourse; it has remained one of the main reasons for marriage breakdowns. Its seriousness as a matrimonial offence is clearly reflected in the fact that originally it was the only permitted ground for divorce under English Law. Of particular gravity was adultery by a wife which was described as being unforgivable by a husband. For while a husband could divorce his wife on the sole basis of her adultery, a wife had to prove other material facts in addition to her husband's adultery in order to obtain a similar relief. Even under customary law, adultery, particularly by a wife, was treated as a sin against the ancestral gods and required the performance of certain rituals to appease them and the husband and to cleanse the violated woman.” See3

In the United States, it has been said that:

“According to the 'godmother of infidelity research,' Shirley Glass, the United States is currently experiencing a 'crisis of unfaithfulness.' The most reputable social science surveys reveal that at least twenty to fifty percent of American adults admit to committing adultery, and some studies estimate the adultery rate to be as high as seventy percent. Pro-marriage activists and feminists are leading a war against decisions such as Koestler. Pro-marriage activists usually attack rejections of adultery claims by emphasizing the importance of marriage and family. Feminists favoring adultery claims emphasize the negative consequences of adultery on women”. See4

The debate appears to be fuelled by the fact that those who are pro-marriage, advocate for the compensation of an injured spouse, by an errant spouse, for emotional and mental distress that is accepted to be a by-product of an adulterous relationship.

“Adultery is almost always debilitating for victimized spouses. They can suffer tremendous emotional damage, loss of trust, troubling mental insecurities, decreased job performance, and financial insecurity (especially when adultery leads to divorces involving children).”

“What is even more tragic is that currently, most law in the United States does little to remedy the mental damage caused by unfaithful spouses.”5

Closer to home in South Africa, the debate on whether adultery damages should remain an area that is regulated by the law was taken up in the recent case of RH v DE (594/2013)6.

It was a delictual claim for damages based on adultery between the defendant and the plaintiff's wife on the law as it stands.

The court found that the award had been rightly made for contumelia but that the award for loss of consortium was not justified. The court considered whether the action should be maintained as part of South African law and concluded that its continued existence no longer justified.

In this case the plaintiff's cause of action relied on the actio iniuriarum in the form of adultery and adultery only.

Although he claimed damages under the two headings of contumelia (i.e. insult or injury to his self-esteem) and loss of consortium (i.e. the loss of comfort and society of his wife). The court considered the question for determination to be: what are the consequences of adultery?

It followed that the court considered that it need only consider the question of the quantum of damages. The court said the following:

“The context in which the question arises is the recognition by our courts that, while the major engine for law reform lies with the legislature, the courts are nonetheless obliged on occasion to develop the common law in an incremental way. These occasions are dictated, firstly, by s39(2) of the Constitution which imposes the duty on the courts to develop the common law so as to promote the spirit, purport and objectives of the Bill of Rights.

Secondly, by the acceptance that the courts can and should adapt the common law to reflect the changing social, moral and economic fabric of society; that we cannot perpetuate legal rules that have lost their social substratum (see for example Du Plessis v De Klerk 1996 (3) SA 850 (CC) para 61; Carmichele v Minister of Safety and Security & another (Centre for Applied Legal Studies Intervening) 2001 (4) SA 938 (CC) para 36).

The boni mores of society or the legal convictions of the community, which in effect constitute expressions of considerations of legal and public policy, are of particular significance in determining wrongfulness, which is an essential element of delictual liability in our law, both under the lex Aquilia and the actio iniuriarum.

In Le Roux v Dey (Freedom of Expression Institute and Restorative Justice Centre as amici curiae) 2011 (3) SA 274 (CC) para 122 the principle was formulated thus:

'In the more recent past our courts have come to recognise, however, that in the context of the law of delict:

(a) the criterion of wrongfulness ultimately depends on a judicial determination of whether — assuming all the other elements of delictual liability to be present — it would be reasonable to impose liability on a defendant for the damages flowing from specific conduct; and

(b) that the judicial determination of that reasonableness would in turn depend on considerations of public and legal policy in accordance with constitutional norms.'

This means that, especially in determining whether conduct should be regarded as wrongful, i.e. whether delictual liability should follow, courts are more sensitive to have regard to the dynamic and changing nature of the norms of our society.” (my emphasis)

The South African court acknowledged that the main advantage of the claim was that it protects the institution of marriage which our society holds dear as one of the most important bases for family life and which is recognised and protected as such by the Constitution.

In Zimbabwe, if we are to take the approach adopted by the South African court, we should consider whether our society's views regarding the institution of marriage have changed.

In my view, they have not.

If we give effect to our national objectives, as enshrined in our Constitution, we will find that the institution of marriage, and family values, is protected, and enshrined in the Constitution.

In South Africa, their Constitution protects and enshrines a myriad of other institutions which are not necessarily compatible with marriage.

It is my view, that the dicta in the following case, which was decided more than ten years ago, still applies in this country, and that, it reflects the views of our society: Katsumbe v Buyanga 1991 (2) ZLR 256 (H) at 258H-259A:

“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 its frightening aspects”.

In my view, this country is not ready to follow our South African counterparts down the slippery slope.

Our Constitution, which came about as a result of widespread consultations with grassroots Zimbabweans declares one of our national objectives to be that the state must take appropriate measures to ensure that there is equality of rights and obligations of spouses during marriage7.

My interpretation of this clause is that there is nothing in our Constitution which may be interpreted as precluding a wife from being entitled to damages from a third party who will have destabilized her marriage knowing full well that she was married to her husband in terms of the Marriages Act, as opposed to the African Marriages Act.

Applying the principles that are to be taken into consideration in considering an application for damages for adultery in Zimbabwe will show that there is no evidence in the papers filed of record, of the character of the spouse involved, other than an averment that he spends most of his time with the respondent, and is “cold', to the applicant, which she finds hurtful.

The American study showed that adultery “is almost always debilitating for victimized spouses. They can suffer tremendous emotional damage, loss of trust, troubling mental insecurities, decreased job performance, and financial insecurity”.

Applicant averred in the summons that the respondent no longer takes care of the family the social and economic status of the plaintiff and the defendant.

There is no evidence in the papers, of whether or not the respondent showed contrition, or of the parties HIV status.

The level of awards in similar cases is set out below:

A comparison of past awards for adultery damages -

1. Ala Frank Walker v Kevin Taylor - ZWD$ Fifty million8

2. Pauline Muyambo v Eunice Bere – ZWD$1,500,000-00 9

3. Timothy Chinyadza v Melton Phiri – USD$1,500-0010

4. Calletta Gwatiringa v Annastacia Matake11 - USD$500-00

After taking into consideration the circumstances of this case it is hereby ordered that respondent pay to the plaintiff, damages in the sum of USD$1,500-00, together with interest thereon at the prescribed rate calculated from the date of the summons to the date of payment in full, as well as costs of suit.







P. Takawadiyi & Associates, applicant's legal practitioners

1. 'In Sapsford v Sapsford and Furtado [1954] 2 All E.R. 373 'P.M. Bromley and N.V. Lowe, Family Law, London, 7th ed. 1987 at 176; See also S.A. Adesanya, Laws of Matrimonial Causes, Ibadan University Press, 1973 at 49; E.I. Nwogugu, Family Law in Nigeria, Ibadan, 1974, at 135

2. 1963 SC 662

3. Judicial concepts of adultery, intolerability and damages in Nigeria E.N.U. UZODIKE

4. 2003:1013 1015 Wisconsin Law Review at page 1012 of the Wisconsin Law Review: 20.03 Wis. L. Rev. 1013 2003

5. The State's perpetual protection of Adultery: examining Koestler v Pollard and Wisconsin's Faded adultery torts NEHAL A. PATEL

6. [2014] ZASCA 133 (25 September 2014)

7. Section 26(c) Constitution of Zimbabwe Amendment (No.20) 2013

8. HB35-08

9. HH30-07

10. HH76-09

11. HB119-09

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