The
claim was for US$5,000=.
Adultery
damages are claimable on two separate claims, contumelia (injury) and
consortium (loss of comfort).
Upon
perusal of the record, I formed the opinion that the quantum was rather on the
higher side, bearing in mind the circumstances of the matter.
The
question for determination in this matter is that of quantum.
While
there is no mathematical scale, or accurate formula for assessing adultery
damages, our courts are often guided by either aggravating or mitigating
features of each case.
From
the facts, it appears the plaintiff's husband is now unlawfully, and
wrongfully, living with the defendant. This, to me, could mean that the
plaintiff has lost her consortium, but, unfortunately, her claim does not
clearly state what amount is for contumelia and what amount is for loss of consortium,
which makes it difficult to award adequate damages for each separate claim.
There
is no doubt that the plaintiff suffered certain damages.
This,
however, is a unique case in that prior to her husband deserting her he had had
a relationship with the defendant which resulted in three children.
Unfortunately, neither the plaintiff nor the defendant, or at least the
plaintiff's husband, has thrown any light as to the circumstances that led to
him leaving the defendant in the first place when he had children with her. It
may well be that there was a customary law marriage in existence which the
defendant did not convert into a civil law one. This, unfortunately, is mere
speculation which I cannot place any reliance on.
Be
that as it may, the defendant is not legally married to the plaintiff's
husband, and, as such, she is committing adultery.
The
question then is, can it be safely said that the defendant enticed the
plaintiff's husband to herself when they camally knew such other before, and
have children.
Legally
speaking, the answer is yes, but, it is the kind of enticement which is purely
technical. In my view, because of this technicality, the plaintiff's claim must
be reduced considerably.
It
is noteworthy that the plaintiff has not commenced divorce proceedings against
her husband at this stage. This is an indication that she has not lost love and
affection towards her husband.
Both
deprivation of contumelia and consortium, as a result of enticement by a
paramour is an important factor in determining adultery damages. Where one of
them is missing, and is not insisted upon, then, in my view, the quantum should
be affected.
It
appears that the plaintiff is not ready to dissolve her marriage as a result of
this adulterous relationship her husband is involved in. For that reason, I am
of the opinion that the plaintiff's conduct can be deemed as condonation of
this adultery by her husband. This, however, does not bar her from claiming
adultery damages from her husband's paramour – see Viviers v Kilian 1927 AD 449
and Biccard v Biccard and Fryer 1892 SC 473.
In
determining the correct quantum, the following factors should be taken into
account -
(1)
The effect of the adultery on the marriage; and
(2)
The plaintiff's conduct as well.
With
the knowledge of the adultery, the plaintiff can claim for divorce in addition
to a claim for adultery damages. If a claim for divorce is instituted, it
therefore goes to show that the offended party's loss of consortium is final, and
it will therefore aggravate the matter, thereby increasing the quantum. In the
celebrated case of Biccard v Biccard and Fryer 1892 SC 473, DE VILLIERS CJ...,
stated -
“Unless
the breach between husband and his adulterous wife is final, I should not be
inclined to award damages to the husband for two reasons. There is not that
complete loss of the wife's society which constitutes the main element in the
estimation of damages, and there remains the strong probability that the
husband may be trading on his wife's dishonour.”
It
is clear from the papers before me that the plaintiff has not claimed for
divorce. In the absence of any explanation, this may well mean that she has
condoned the adultery. If I am correct in this view, then her conduct should
mitigate her damages – see Viviers v Kilian 1927 AD 449, where SOLOMON CJ...,
stated -
“I
am satisfied, therefore, that under our law condonation of a wife's misconduct
is no bar to an action by a husband for damages against the person who has
committed adultery with his wife, but only goes in mitigation for damages.”
The
plaintiff alleges that the defendant enticed her husband from her, but also
states that the defendant and her husband had three children together before
she came into the scene.
In
my view, this case is distinguishable from the ordinary adultery cases where
the plaintiff's partner would have committed adultery with a defendant with no
history of the parties having had a prior love affair. It is for that reason
that enticement by the defendant is questionable in the circumstances as these
parties had a relationship before. If it was enticement, it is not the kind
which came as a shock to the plaintiff as she had always known of the relationship.
This
is a case where damages should be reduced drastically as the circumstances do
not justify the said claim.
In
view of the fact that only one claim was made, I am inclined to award damages
in a combined formed as prayed.
Order
(1)
Defendant be and is hereby ordered to pay the sum of US$500=as adultery
damages.
(2)
Defendant be and is hereby ordered to vacate Plot 118 CC, Mollina, Kadoma,
within thirty (30) days of this order
(3)
In the event of Defendant failing to comply with (2) above, the Deputy Sheriff,
Kadoma be and is hereby authorized and ordered to evict the Defendant from Plot
118 CC, Mollina, Kadoma.
(4) The costs of this application shall be borne
by the Defendant on the ordinary scale.
