Adultery

HH29-08 : STEWART MUNGOFA vs WILLIAM SANDE and DRUSILLA MUNGOFA
Ruled By: CHATUKUTA J

The second respondent instituted proceedings for divorce and ancillary relief in case No. HC1195/04 against the applicant.

The applicant filed a counter-claim in which he cited the first respondent as the second defendant in that matter. He claimed, from the first respondent, adultery damages alleging that the first respondent was the man with whom the second respondent had committed adultery.

During the pre-trial conference, the court queried the propriety of joining the first respondent in a counter claim.

The applicant now seeks, in terms of Order 13 Rule 87 of the High Court Rules, to join the first respondent to HC1195/04.

Counsel for the applicant submitted, that, it was proper and convenient to join the first respondent to the proceedings in Case. No. HC1195/04 for the avoidance of multiplicity of actions. This would be cost-saving.

Counsel for the applicant submitted, that, a counterclaim stands as summons and declaration. Therefore, the applicant was dominus litis in respect of the counter-claim.

He submitted that such a joinder was consistent with Rule 276 of the High Court Rules which allows for the service of summons, and any pleadings, upon a paramour who is cited in the summons and pleadings.

The applicant further submitted that the first respondent did not proceed by way of exception but made a request for further particulars. He filed a plea and a counterclaim claiming defamation damages. It was contended, that, this was an indication that the first respondent had not objected to being joined to the proceedings.

Counsel for the first respondent submitted, that, the first respondent had not been properly joined and it still was not proper to join him to HC1195/04 in a counter application.

He submitted, that, the applicant did not institute proceedings in Case No. HC1195/04, and, therefore, he could not be the dominus litus in that case.

The applicant was attempting to clothe a wrong joinder with legality without having withdrawn the claim against the first respondent first.

It was further submitted, that, the first respondent did not have any interest in the divorce proceedings and did not want to be part of proceedings. He would therefore be inconvenienced by being required to sit in during the divorce proceedings.

The first respondent submitted, that, he filed pleadings in the main action out of an abundance of caution.

The first respondent prayed for costs on a high scale against the applicant.

It was submitted, that, the propriety of joining the first respondent in the action by the second respondent was first raised by the first respondent in his plea to the main action. It was again raised by the court during the pre-trial conference. The applicant still persisted with his application.

The main issue for determination is, therefore, whether it is competent for the applicant to join the first respondent as a co-defendant by way of a counter-claim.

Order 13 Rule 87(2) of the High Court Rules permits the joinder of any person to any proceedings. Rule 87(2)(b) provides:

“(2) At any stage of the proceedings, in any cause or matter, the court may, on such terms as it thinks just, and either of its own motion or on application -

(a) Order any person who has been improperly or unnecessarily made a party or who has, for any reason, ceased to be a proper or necessary party, cease to be a party;

(b) Order any person who ought to have been joined as a party or whose presence before the court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, to be added as a party;”…,

The joinder envisaged in Rule 87 of the High Court Rules is a joinder to the main claim.

In other words, the cause of action remains the same, but, there is an addition of either the plaintiff or the defendant.

In this case, the joinder of a co-defendant would be to “ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon.”

The applicant was emphatic, that, he did not seek an order to join the first respondent to the main claim but as a co-defendant to the counterclaim.

It was difficult for this court to fathom how the first respondent can be a co-defendant to either the main claim or the counter claim.

In relation to the counter-claim, Rule 120 of the High Court Rules makes clear the effect of a counterclaim or claim in reconvention. The Rule provides:

“(1) The defendant in an action may set up, by way of claim in reconvention, any right or claim he may have against the plaintiff, and such claim in reconvention shall have the same effect as a cross-action, so as to enable the court to pronounce a final judgment in the same action both on the original claim and on the claim in reconvention.”

The effect of the counter-claim is that it becomes a cross-action, where the plaintiff in the main matter becomes the defendant and the defendant who has counter-claimed becomes the plaintiff.

The general principle on whether or not the applicant can counter claim as he has done is set out in NATHAN and BARNETT, Rules and Practice in the Supreme Court of South Africa, 1st ed. It is stated at p49 that:

“A defendant cannot claim in reconvention against any other party ((e.g) a defendant) than the plaintiff in the action.”

This is premised on the understanding, that, a reconventional claim is dependent upon allegation which would defeat plaintiff's claim in convention.

Therefore, in order for the applicant to be able to join the first respondent as a co-defendant, the first respondent must have a basis for defending the claim for divorce that was brought by the second respondent.

The present matter is on all fours with the case of Soundprops 1160 CC and Another v Karlshavn Farm Partnership and Others 1996 (3) SA 1026 (N).

In that case, the applicants, as plaintiffs, had issued summons against the first respondent, a partnership comprising 20 individuals, who included the second and third respondents, as defendants, for the payment of moneys which had been advanced as loans to the partnership. Only the second and third respondents and one other partner of the first respondent defended the action. The second and third respondents filed a joint plea, and, together with their plea, they had filed a document in which they claimed certain relief from the remaining partners. The document cited the second and third respondents as the first and second defendants and the remaining partners as the third to twentieth defendants.

The court held, that, the claim in reconvention, by the second and third respondents, was irregular because it was directed, not against the plaintiff, but by two defendants against their co-defendants. PAGE J had this to say at p1031B-G:

“In support of the application, counsel for the applicants has correctly pointed out, that, the claim is not a claim in reconvention since it is directed, not against a plaintiff, but by two defendants against their co-defendants. The weight of authority was that it was not competent for one defendant to join a co-defendant as a defendant in a claim in reconvention; but this matter is now regulated by Rule 24, which deals with claims in reconvention in general. Rule 24(2) provides the following:

'If the defendant is entitled to take action against any other person and the plaintiff, whether jointly, jointly and severally, separately, or in the alternative, he may, with the leave of the Court, proceed in such action by way of a claim in reconvention against the plaintiff and such other persons, in such manner and on such terms as the Court may direct.'

It is apparent, on a proper reading of this Rule, that, it is limited to a claim in reconvention against the plaintiff and the other person, and cannot be invoked where there is no claim in reconvention against the plaintiff. It also requires the leave of the Court.

It seems clear, that, the only means whereby the respondents could permissibly bring a claim against their co-defendants in the action in the absence of any counterclaim against the plaintiff would be by virtue of the provisions of Rule 13, which regulates third party procedure. Rule 13(1) provides the following:

'Where a party in any action claims -

(a) As against any other person not a party to the action (in this Rule called "a third party") that such party is entitled, in respect of any relief claimed against him, to a contribution or indemnification from such third party; or

(b) Any question or issue in the action is substantially the same as a question or issue which has arisen or will arise between such party and the third party, and should properly be determined not only as between any parties to the action but also as between such parties and the third party or between any of them; such party may issue a notice, hereinafter referred to as a third party notice, as near as may be in accordance with Form 7 of the First Schedule, which notice shall be served by the Sheriff.'”

Whilst the South African Rule permits a defendant to file a cross application against the plaintiff, and any other person, the equivalent Rule in our jurisdiction, Rule 120 of the High Court Rules, cited above, does not provide for a claim in reconvention on other persons other than the plaintiff.

Although Soundprops 1160 CC and Another v Karlshavn Farm Partnership and Others 1996 (3) SA 1026 (N) dealt with the joinder of defendants who were already co-defendants, the general principle enunciated in that case apply to the present case, and more particularly so where the applicant seeks to introduce a third party.

The applicant filed a counter-offer against the second respondent, in relation to the claim raised for divorce and ancillary relief against the applicant. The counter-claim, which seeks to introduce the first respondent as a defendant, cannot be considered as a counter-offer to the first respondent's on the grounds, that, the applicant does not seek any relief against the first respondent.

In any event, it should be noted, that, the applicant's counterclaim for divorce on the basis of adultery cannot be strictly termed a counter claim in light of the Matrimonial Causes Act [Chapter 5:13].

Prior to amendment of that Act in 1985, fault and misconduct were relevant to the existence of grounds for divorce. Therefore, it was possible to counter-claim for divorce on the basis of a different fault cited by the plaintiff in her or his claim for divorce.

The relevance of the fault factor is adequately dealt with in Marimba v Marimba 1999 (1) ZLR 87. At p91G-92C GILLESPIE J observed as follows:

“Certainly, it is not relevant to the existence of grounds for divorce. Once evidence establishes the irretrievable breakdown of the marriage, then, it is neither helpful nor proper to enquire further into whether those grounds constitute misconduct by, or disclose the fault of, either party unless the existence of misconduct is relevant to some issue other than grounds for divorce.

For instance, the alleged misconduct of one or other party might be advanced in support of the proposition, that, that party is not fit to be a custodian of minors. Reluctant as the courts are to delve into the general issue of marital misconduct, they will not shrink from the task if it will assist in determining the best interests of children.

The related principle is more difficult to formulate when it is suggested, that, the conduct of a party is such that it should have a bearing on a property distribution order.

Mindful of the move away from the fault system of divorce, judges in this jurisdiction have set their faces against any invitation to delve into the 'minutiae of ancient domestic grievances': GIBSON J in Kassim v Kassim 1989 (3) ZLR 234 (H) at 239C.

They have declined to permit counsel 'to resurrect the old spectre of guilt and innocence and drag the judge to hear their mutual recriminations and go into their petty squabbles of days on end, as he used to do in the old days': per KORSAH JA in Ncube v Ncube 1993 (1) ZLR 39 (S) at 41C.

And rightly so.

Nevertheless, the relevant legislation specifically preserves the potential relevance of marital misbehaviour to the question of a division of property. The court is enjoined to –

'endeavour as far as is reasonable and practicable, and, having regard to their conduct, is just to do so, to place the spouses…, in the position they would have been in had a normal marriage relationship continued…,.' (Section 7(3)).”

The applicant also sought to justify the relief claimed by relying on Rule 273 of the High Court Rules.

Subrule (1) clearly relates to a situation where the plaintiff, who is dominus litus, is making allegations of adultery against the defendant and another person in the summons and declaration.

Going back to the general principle stated above, that, a defendant cannot claim, in reconvention, against any other party other than the plaintiff in the action where it has not filed a claim against the plaintiff, it is my view, that, Rule 273, therefore, does to take the matter any further.

As submitted by the first respondent, the applicant did not advance any meaningful authority in support of his submissions.

It has been pronounced, in a number of matrimonial cases, that, a claim for divorce against a spouse where allegations of adultery are made can be heard together with a claim for adultery damages against the paramour.

In Baker v Baker 1930 CPD 230…, GARDINER JP held, that, it was proper for an action for divorce against a wife and an action for adultery damages against a co-defendant be heard at the same time.

In that case, the plaintiff brought an action against his wife and co-defendant in which he claimed against the wife a decree of divorce and against the second defendant damages for his adultery with his wife. The wife did not enter an appearance to defend and was accordingly barred. The second defendant had entered an appearance to defend. The plaintiff sought to have the matter heard against the second defendant.

In Eorfino v de Pretto (Eorfino Intervening) 1959 (3) SA 787 (W) the court ruled in favour of hearing a claim for divorce against one defendant and a claim for adultery damages be heard at the same time.

In that case, the plaintiff sued for damages for adultery alleged to have been committed by the defendant with the plaintiff's wife. In a separate case, which was pending between the plaintiff and his wife, the plaintiff claimed a divorce against his wife on the grounds of adultery with the defendant in the present action, and the defendant's wife counter-claimed for a divorce on the ground of the husband's adultery with another woman and also on the ground of constructive malicious desertion. The defendant's wife intervened in the action against Pretto seeking a consolidation of the two cases.

What is apparent from these cases is the fact, that, it was the plaintiff who brought the action against both the spouse and the paramour.

In Baker v Baker 1930 CPD 230, the spouse and the paramour were the co-defendants in the one action. In Eorfino v de Pretto (Eorfino Intervening) 1959 (3) SA 787 (W), there were two separate actions initiated by the same plaintiff against his spouse and the paramour.

As rightly submitted by counsel for the first respondent, the first respondent was misjoined to the main action in HC No.11961/06.

This was not a proper case for the exercise of judicial discretion to condone or permit a mis-joinder of the first respondent as sought by the applicant.

The application is accordingly dismissed with costs.

HB119-09 : CALLETA GWATIRINGA vs ANASTASIA MATAKE
Ruled By: CHEDA J

This is an action for adultery damages which was unopposed. The plaintiff issued out summons against the defendant for adultery damages. Summons were duly served but the defendant did not enter an appearance to defend. Therefore, the plaintiff applied for default judgment as per the procedure. The plaintiff in..., her declaration stated the following - “As a result of ...

HH175-10 : CHIPO DERA vs CYNTHIA KAMBEZA
Ruled By: KUDYA J

The plaintiff issued summons out of this court on 4 June 2009 seeking US$10,000= adultery damages against the defendant. On 3 February 2010 she reduced the amount to US$5,500= being US$3,000= for loss of consortium and US$2,500= for contumelia. The defendant contested the trial. At the pre-trial conference held on 23 April 2010 two issues were ...

The defendant contested the trial.

At the pre-trial conference held on 23 April 2010 two issues were referred to trial. These were -

1. Whether or not the defendant had a sexual relationship with the plaintiff's husband.

2. If so, what quantum of damages is the plaintiff entitled to?

It was common cause that the plaintiff and her husband contracted a customary law union in May 2004. The union was blessed with a minor child born on 31 August 2004. On 31 March 2006 they contracted a civil marriage. The married couple took residence in a cottage in Budiriro at the premises owned by the husband's father. The defendant, a single lady, came and rented the main house at the premises. The plaintiff alleged that after the defendant took residence, her husband's behaviour changed. He no longer came home after work. He stopped sleeping at home. When she enquired with him he was flippant and angry with her. In May 2008, she found the defendant's bank card in his wallet. She confronted the defendant and her husband over the bank card. She was dissatisfied by the explanation they gave. Her husband's behaviour did not change. One day she forced her way into the defendant's bedroom and found her husband's clothes in the defendant's wardrobe. She went and reported her discovery to the police. Her discovery and report did not bring about the required change in behaviour. One morning, in November 2008, after the defendant's maid opened the main door to the main house, acting on a tip off, she barged into the main house and proceeded to the defendant's bedroom. While she was in the passage she saw her husband emerge from the defendant's bedroom. He was naked save for a pair of floral under pants. She had a glimpse of the purple silk sleeveless night dress that the defendant wore before she hurriedly closed her bedroom door. She had a scuffle with her husband in the passage. She formed the opinion that the two had been sexually intimate from the state of near undress that her husband was in and from the fact that he had not spent the night at home....,. She alleged that her happy marital union was destroyed by the defendant. She was a church-going respectable wife. She was demeaned by the conduct of the defendant to her fellow church-mates and the surrounding community including the police. She was at risk of contracting HIV and Aids. She treated the defendant as a younger sister before she discovered her love affair with her husband. Her husband would assault her in the defendant's presence.

In her evidence, the defendant denied engaging in a love or sexual relationship with the plaintiff's husband. She became aware, even on the first day that she commenced to lease the main house, that the plaintiff and her husband had a discordant and quarrelsome relationship. At first she was in good books with the plaintiff but the relationship deteriorated over housekeeping and gardening issues which came with sharing the grounds and washing lines. She recalled one incident in which the plaintiff dumped her husband's clothes at her door shouting that he was now her husband. She left the clothes on the ground on the advice of the plaintiff's father–in- law. She intimated that she rarely telephoned the plaintiff's husband and did so over rentals as he was the landlord's agent. She disputed being the owner of 0912 810 886 and 0915 124 200. Under cross examination, she reluctantly acknowledged that her relationship with the plaintiff deteriorated because she harboured the suspicion that she was having a love and sexual relationship with her husband. She revealed, for the first time, pushing the plaintiff out of her bedroom when she came in search of her husband. She admitted she attended Glen View police station where she was counselled over the plaintiff's suspicions. She visited the police station at least twice.

She fared badly over the frequency and intensity of the telephonic communication between the plaintiff's husband and herself. Her explanations were contrived falsehoods.

Adultery is proved, amongst other ways, either through circumstantial evidence. See R.H. HAHLO: The South African Law of Husband and Wife 3^rd ed...,. or by direct evidence of a party to that adultery. See NORMAN SCOBLE: Law of Evidence 3^rd ed. In Smit v Arthur 1976 (3) SA 378 (AD) the headnote reads -

“In an action for damages on the grounds of the defendant's adultery with the plaintiff's wife, where there is no direct evidence of such adultery the issues must be resolved, not by appraising each incident pointing to adultery simply on its own circumscribed facts, but by a careful survey of the whole of the history of the relationship of the parties, of their behaviour at all relevant times. All the relevant facts must necessarily go into the melting pot and the essence must finally be extracted therefrom. While the triad of desire, opportunity and willingness will often be sufficient to justify the inference of adultery, it does not follow that each of those elements must be independently proved depending on the circumstances; proof of the first two of those elements might justify an inference that the third, too, was present.”

HB01-10 : CHIPO JHAMBA vs ALETA V. MUGWISI
Ruled By: CHEDA J

This is an application for a default judgment for adultery damages.

On the 26th of November 2008, the plaintiff sued for adultery damages in the sum of US$50,000. I granted the application for default but amended the claim to US$500 with an undertaking to give my reasons for the reduction of the said sum later. The following are my reasons:

The plaintiff and her husband entered into a monogamous marriage under the Marriages Act [Chapter 5:11] the then [Chapter 37] on the 17th of August 1974 and the said marriage still subsists. From 1988, and, on diverse occasions, the plaintiff's husband and the defendant illicitly engaged and associated in an adulterous sexual relationship which resulted in the birth of four children, the last one being born in December 1996.

The plaintiff sued the defendant for adultery damages which action the defendant defended, but, later failed to file a plea and hence an application for default judgment was applied for.

Nothing turns on this matter other than the question of quantum.

The plaintiff's husband has been committing adultery with the defendant for 21 years. The plaintiff, according to the papers, did nothing about it until 2009. The plaintiff is indeed legally entitled to damages, but, I doubt if the circumstances surrounding this case justifies the claim made, namely, that of US$50,000. It is clear that the defendant intruded into the plaintiff's marriage, and, for that misdemeanour, she should be punished.

There are, however, two issues which I must deal with:

(a) Firstly, the plaintiff claimed US$50,000 for damages without stating what amount is for the injury she has suffered or contumelia and which one is for the loss of society and comfort or consortium.

The correct legal position is that adultery damages are claimable on two entirely separate and distinct grounds;

(i) Firstly, on the ground of the injury or contumelia inflicted upon the plaintiff; and

(ii) Secondly, on the ground of the loss of comfort, society, and services of her husband (consortium).

See Viviers v Kilian 1927 AD 449.

It was therefore wrong for the plaintiff to lump her claims in one, mixing both damages, contumelia injury and consortium.

(b) Secondly, the quantum should be reflective of all the circumstances surrounding the occurrence of the adultery - inclusive of the plaintiff's own conduct in the matter.

The defendant has been having this illicit relationship with the plaintiff's husband for over 20 years, which resulted in four off-springs. Surely, she cannot say that she was not aware of his sexual escapades, and, at least, she does not shed light on this aspect of her knowledge or otherwise thereof. In the absence of her denial of this knowledge, with all due respect to her, it is reasonable to assume that she must have known of this at some point bearing in mind the length of time of the existence of the adulterous relationship between her husband and the defendant. She, however, chose to ignore it.

By her inaction, therefore, she condoned the adultery thereby allowing it to continue.

To claim adultery damages for a large sum of money for a relationship which has been in existence for over 20 years, later, is, in my view, to remove the sting the effect of the adultery usually has on the offended party. In addition thereto, she seems not to have sued for divorce, which normally is the case in adultery cases. She is, however, entitled to either sue the adulterer alone or/and at the same time sue her spouse for divorce. If she had sued her husband for divorce then this would go to show that she has indeed lost consortium of her husband and thus her claim for a higher sum would have been justified.

In Biccard v Biccard and Fryer 1892 SC 473…, De VILLERS CJ ably stated:-

“Unless the breach between a 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 upon his wife's dishonour.”

It is the position of our law that loss of consortium is a main element in the estimation of damages for adultery. See also Bruwer v Joubert 1966 (3) SA 334.

In Calleta Gwatiringa v Anastasia Matake HB119-09 I dealt with this issue.

I still hold the same view that the fact that the plaintiff, with full knowledge of the adulterous relationship of the defendant with her husband, still chooses to keep the marriage but sues for adultery damages only, her choice should therefore influence the quantum.

It is for the above reasons that I reduced the quantum from US$50,000 to US$500 as I feel that by awarding the plaintiff her claim, as prayed, would amount to allowing her to trade on her husband's dishonour.

The circumstances surrounding this case, in my view, do not justify the claim made.

It is ordered that:-

(1) An order for payment in the sum of US$500 (five hundred United Stated Dollars) being damages for adultery against the defendant be and is hereby granted.

(2) The defendant pays interest at the prescribed rate on the sum of US$500 mentioned in (1) above from the date of service of summons to date of full and final payment.

(3) An order for payment of costs of suit at an attorney and client scale.

HH06-11 : RITA SEKESAI CHIWANDAMIRA vs JOSEPHINE MUPANDAWANA
Ruled By: CHATUKUTA J

The basis of the claim was that the defendant committed adultery with her husband Stanley Chiwandamira from 1981 to the date of summons. As a result of the adultery, the plaintiff lost the love, affection, society and companionship and services of her husband. She also suffered pain and indignity during that period at the ...

The defendant admitted having a relation with the plaintiff's husband between 1981 and 1982 but denied being aware at the time that the plaintiff was married to Stanley. She pleaded that the relationship was resuscitated in 2006 when Stanley assured her that he had divorced the plaintiff. She further pleaded that the plaintiff had, in fact, condoned the adultery.

The plaintiff testified that on 12 July 1975 she married Stanley in terms of the Marriages Act [Chapter 5:11] - and the marriage still subsists. They were blessed with six children. The last three children were born in 1982, 1984 and 1988 respectively. The adulterous relationship between the defendant and Stanley started in 1981 resulting in the birth of a child, Blessing. The defendant was fully aware of the existence of the marriage between the plaintiff and Stanley. In 1983, Stanley forced her to reside at their rural home. He would visit her now and then at the rural home. The defendant moved in with Stanley at their Highfield home in Harare. Stanley deserted their matrimonial home permanently in 2004. He went to reside with some prophetess in Budiriro Township, Harare. He then moved in with the defendant sometime in 2006.

Before 1981, when the defendant came into the picture, her marriage was blissful. During the period from 1981 to 2006, Stanley was normally resident at their Highfield home. During the same period, Stanley sired two children with two different women. She later heard that Stanley had resumed his relationship with the defendant and moved in with her in 2006. In 2007, Stanley filed for divorce. She testified that she was willing to save and preserve her marriage for the sake of her children and grandchildren despite the fact that Stanley has transgressed for the greater part of their marriage.

The defendant testified that she first met Stanley in 1981. She did not, at the time, know that Stanley was married. She only became aware of the marriage after she became pregnant and went to Highfield where Stanley resided with the plaintiff. The relationship ended in 1982 after the birth of Blessing. During the period from 1982 to 2005, she communicated with Stanley only in connection with the payment of maintenance for Blessing or when the child visited his father. At the end of 2005, Stanley started phoning her indicating that he had separated with the plaintiff. In 2006, she accepted him back as the father of her child. After a week of staying together he took her to his rural home. The plaintiff was at the rural home. Stanley told her that the plaintiff was refusing to go back to her parents' home although they were now divorced. She believed the explanation because the plaintiff and Stanley did not greet each other during that visit. She, however, refused to be married to Stanley until he produced proof of the divorce. When the plaintiff sued her for adultery damages, she tendered, through her legal practitioners, a total sum of Z$400 billion in full and final settlement of the plaintiff's claim. She produced a copy of the letter to the plaintiff's legal practitioners dated 28 July 2008 reflecting the tender. The money was not returned to her and she assumed that the matter had been concluded. She was surprised when she was summoned to appear in court for trial.

HH137-11 : MARTHA MUHWATI vs YEUKAI PURITY NYAMA
Ruled By: MAWADZE J

The facts of this case, as can be gleaned from both the plaintiff's declaration and affidavit of evidence, is as follows: The plaintiff married Moses Muhwati on either 7 February or 7 March 1987 (the marriage certificate is not clear) in terms of the Marriages Act [Chapter 5:11]. The marriage was blessed with two ...

The facts of this case, as can be gleaned from both the plaintiff's declaration and affidavit of evidence, is as follows:

The plaintiff married Moses Muhwati on either 7 February or 7 March 1987 (the marriage certificate is not clear) in terms of the Marriages Act [Chapter 5:11]. The marriage was blessed with two children, Vimbai and Kudzai, who are now both majors. The adulterous relationship between the defendant and the plaintiff's husband started in 2006. By then the plaintiff had been married for about 19 years. This adulterous relationship has continued unabated to date. It has therefore been in existence for about 6 years. In fact a child, Tinotenda, was born out of this relationship in 2008.

It is not clear as to when the plaintiff confronted the defendant and advised her of the marital status of her husband Moses Muhwati. It is the plaintiff's case that at all material times the defendant engaged in sexual intercourse with her husband the defendant was aware of Moses Muhwati's marital status hence the adulterous nature of the relationship. The plaintiff stated that she even approached the defendant's mother and aunt at the defendant's residence at Number 33 Mwambi Street, Mbare, Harare to register her disapproval of the adulterous relationship between the defendant and her husband. The plaintiff said the defendant had ignored her initial attempt to dissuade the defendant from the relationship. According to the plaintiff the defendant's mother and aunt assured her that they would prevail upon the defendant and cause her to desist from such a relationship with the plaintiff's husband. Apparently nothing positive came out of this promise. Instead, the adulterous affair between the defendant and the plaintiff's husband blossomed resulting in the birth of a child in 2008. The plaintiff's husband has since moved out of the matrimonial home in Bluff Hill Harare and is now cohabiting with the defendant and their child. The plaintiff's marriage, which had hitherto been stable and strong for 19 years, has been wrecked. She has now lost the love, comfort, society and companionship she used to have with her husband. Most importantly, she has lost the conjugal rights. The plaintiff makes it clear that she has now lost all other services she used to get from her husband as her marriage now exists on paper only.

It is the plaintiff's case that she has now lost all financial support she used to get from her husband. Her husband is a Director and Shareholder of two companies, Demotive (Pvt) Ltd and Demotors (Pvt) Ltd. The companies generated financial resources to support the family. The plaintiff said her husband owns a farm in the District of Umtali, being subdivision 2 of the remaining extent of Essex measuring 57 hectares, where they grow various cash crops realising substantial income. According to the plaintiff, she used to receive US$3,500- from the income generated from the companies and the farm which she used to buy food for the family and pay school fees for the children. All this is now history as the defendant and her child are now the sole beneficiaries of all the fruits reaped from the business concerns and farming activities. The plaintiff has been banished from the farm.

It is the plaintiff's contention that her self-esteem has been severely lowered to the point of ultimate humiliation. The plaintiff is a Banker and Head of Operations at Interfin Bank. Her job commands respect but this is no longer the case as her marital tribulations are now an open secret at her work place where she has obviously lost all respect. The plaintiff's social and religious life has not been spared either. She is a devout Christian belonging to the ZAOGA Church where her father-in-law is a Bishop. Her husband and the defendant, through their adulterous affair, have embarrassed her even at church. She can no longer enjoy her freedom of worship. According to the plaintiff, her husband is a Shareholder and Organising Secretary of Gunners Football Club and she used to attend soccer matches and other related social functions as “very important persons” in the company of her husband. Her role in this regard has been taken over by the defendant. She is now even ashamed to be seen at such social gatherings.

I am satisfied that the plaintiff, in both her affidavit of evidence and heads of argument, has addressed the issues pertaining to the basis for the claim and the quantum of adultery damages.

HH152-11 : CHENESAI RATEIWA vs TSITSI SHAME VENGE
Ruled By: BERE J

The background to this case can be summarised as follows:- The plaintiff and her husband are married in terms of the Marriage Act [Chapter 5:11]; the marriage having been solemnised on 9 December 2003. The marriage still subsists. In 2004, barely a year after her marriage, the plaintiff became aware that the defendant was involved ...

The background to this case can be summarised as follows:-

The plaintiff and her husband are married in terms of the Marriage Act [Chapter 5:11]; the marriage having been solemnised on 9 December 2003. The marriage still subsists. In 2004, barely a year after her marriage, the plaintiff became aware that the defendant was involved in an adulterous relationship with her husband. It was not until 11 September 2008 that the plaintiff instructed her legal practitioner to write a letter of demand to the defendant threatening legal action if the defendant persisted with her adulterous conduct. The letter of demand appeared to have done little to end the defendant's resolve to continue with her relationship with the plaintiff's husband. To demonstrate her brazen courage to continue with the immoral relationship, the defendant added another child with the plaintiff's husband with the result that she has now two children as a result of her relationship with the plaintiff's husband.

The evidence, which cannot be controverted, is that the defendant has shown no respect at all for the plaintiff whom she has continued to subject to numerous forms of embarrassment and humiliation. The defendant has been sending insulting text messages boasting about holiday trips she has enjoyed with the plaintiff's husband. These incessant insulting messages led to the plaintiff being granted a peace order against the defendant on 27 November 2008. The defendant has visited the plaintiff's business premises and homestead just to pour scorn at her. The defendant has tried to literally force the plaintiff to assume custody over one of her children with the plaintiff's husband; when she could not derive some satisfaction with the frustration she caused to the plaintiff she decided to stay in Budiriro 2 - at a house co-owned by the plaintiff and her husband. She is staying there as the “second wife” of the plaintiff's husband. The frustrations and humiliation to which the plaintiff has been subjected to are endless.

The plaintiff reckons she is entitled to the amount of claim with costs as outlined in her declaration.

HH276-14 : JOHN GORE vs SIMON CHIWARE
Ruled By: UCHENA J and MWAYERA J

There are common knowledge aspects worth noting for ease flow of the judgment. It is clear from the record that both the appellant and the respondent's wife, Molyne, admitted having an adulterous relationship which resulted in a child being born. It is not in dispute that when the adulterous relationship commenced, the lady, Molyne, was actually ...

HH174-16 : BASIL MAKURURU vs DERICK VORI
Ruled By: MWAYERA J

The applicant instituted action proceedings against the defendant claiming adultery damages being $4,000= for contumelia and $7,000 for consortuium.

The defendant did not enter an appearance to defendant and the dies inducie having expired the applicant filed the current unopposed application.

The background to the matter, as outlined by the applicant, is that the defendant engaged in an adulterous relationship with his wife, Sharon Margaret Makururu, well knowing that the latter was married to the applicant in terms of the Marriage Act [Chapter 5:11]. The defendant and the applicant's wife would arrange to meet for intimate escapades during the time that the applicant would be working out of Harare. The intimate relationship, just like arrangements for the meetings, would be communicated via social media called “whatsapp”.

The applicant had to quit his Chairmanship of a Legal Aid Trust where his wife worked because at one point he was introduced by his wife's workmate to the defendant as her relative. The applicant pointed out that the explicit and graphic sexual messages between the defendant and his wife traumatized him extensively. This culminated in him issuing out summons for divorce and separating from his wife who has since moved to her parent's home.

The applicant, in his founding affidavit, narrated that his marriage to his wife, and mother of his minor child, was stable only to be disturbed by the adulterous relationship.

The defendant did not defend the claim for adultery damages. The inference is that adultery was committed occasioning contumelia, that is, injury, hurt insult, and indignity. Further, the adultery caused loss of the spouse's consortium that is loss of comfort and society.

The pain, injury, and suffering occasioned on an innocent spouse because of the adulterous relationship should not be understated. The loss and injury and humiliation cannot be measured in money since an award cannot, in any way, be equated to the value of a happy marriage eroded by an adulterous relationship. In the case of Khumalo v Mandishona 1996 (3) ZLR 737 the court stated that:

“It is, of course, always a daunting task for a court to try and place monetary value on the pain and suffering inflicted on the plaintiff by adultery. What is important is that the innocent spouse has to be compensated for the injury, pain, and discomfort occasioned.”

I subscribe to the sentiments of the court in Fuller v Fuller 1949 (3) SA 852 which sentiments have been echoed now and again in similar cases of adultery. The judge there stated:

“It is clear that the plaintiff has suffered intensely from the conduct of his wife and the defendant. Of course, no amount of money can compensate the plaintiff for the mental distress which he suffered. He will understand my judgment does not mean that, in my opinion, the sum which I shall award to him can be regarded as making up for what he has suffered.”

The award, of necessity, has to be made and the court has to rely on other decided cases and also consider the circumstances of the case. It is not possible to convert, with any exactitude, the damages suffered through contumelia and loss of consortium, but, in assessing the appropriate quantum of damages the general trend is that in the absence of mitigating factors, and, where the adulterous relationship has led to divorce, a higher award of damages should follow. In the case of Sikhuphakile Mpofu v Irene Munyore HB63-05…, BERE J held that:

“The defendant appears, in my view, to have displayed lot of arrogance, and, her actions, as explained by the plaintiff, calculated to demean and inflict pain on the part of the plaintiff. The conduct by the defendant inevitably requires to be censored by this court. It is clear the plaintiff was indeed subjected to grave and humiliating iniquity.”

In this case, the applicant was mocked and insulted at the hands of the defendant when his wife's workmate at the Legal Aid Clinic where the applicant was a Chairman. The applicant was introduced to the defendant as a relative of the wife's workmate. The applicant had to bear the pain of reading messages of intimacy of his wife and the defendant. The defendant and the applicant's wife even discussed, on phone texts, the applicant's wife menstrual cycle. The defendant has been shown to have intruded sexually upon the applicant's marriage and has contributed to the breach of duty of marital fidelity which spouses owe each other by committing adultery with the applicant's wife. Such conduct ought to be visited with an award of adultery damages.

In the case of Katsumbe v Buyanga 1991 (2) ZLR 256 (H)…, ROBINSON J, in awarding adultery damages, remarked:

“The court should ensure, as far as is reasonably possible, that an aggrieved spouse who approaches them is not made to feel, after their award of damages, that the adulterer or adulteress has been the winner and that it would have been better for the aggrieved spouses to have taken the law into their own hands.”

It is important, in assessing the appropriate quantum of damages, for one to underscore the reason behind adultery damages - which is the protection of the sanctity of the marriage institution. The Zimbabwean courts have, in their pronouncement, frowned at the wrongfulness of adultery in so far as it is a threat to the marriage institution. In Mapuranga v Mungate 1997 (1) ZLR 164 MALABA J…, held:

“Adultery is still prohibited by public opinion as an act of sexual incontinence.”

See also Katsumbe v Buyanga 1991 (2) ZLR 256 (H) where ROBINSON J spoke strongly against adultery as an intrusion into the marriage institution.

Adultery is still a recognised ground of divorce in the Matrimonial Causes Act. Section 5(2)(b) reads:

“Subject to subsection (1) and without prejudice to any other facts or circumstances which may show the irretrievable breakdown of a marriage, an appropriate court may have regard to the fact that;

(b) The defendant has committed adultery which the plaintiff regards as incompatible with the continuation of a normal marriage relationship.”

The Constitution of Zimbabwe Amendment (No.20) Act 2013, section 78 thereof, recognizes the marriage institution and thus further shows any intrusion, with knowledge into the marriage institution by a third party, is wrong and unlawful.

It ought to be visited with an award of damages so as to compensate the innocent spouse.

In the present case, the defendant made effort to intrude on the applicant's spouse when the applicant would be out working for his family, showing he had knowledge of the marriage. In an insensitive manner he discussed the intimate escapades on social media thereby inflicting pain, humiliation, and indignity to the applicant.

In coming up with an award for damages I am guided by the fairly settled factors as ably pronounced by the courts; Khumalo v Mandishona 1996 (1) ZLR 434; Nyakudya v Washaya 2000 (1) ZLR 65; Chenesai Rutawa v Tsistsi Venge HH152-11; and Muhwati v Nyama HH137-11.

The following factors have to be considered in coming up with an award:

1. The social and economic status of the plaintiff and the defendant.

2. The character of the spouse involved.

3. Whether or not the defendant has shown contrition.

4. The need for deterring measures against the adulterer to protect the innocent spouse against contracting HIV from the errant spouse.

5. The level of award in similar cases.

The applicant, a lawyer by profession, must have suffered on discovery of the fact that his wife was committing adultery with a music artist. The adulterous relationship has led to the institution of divorce proceedings to the detriment of the once happy marriage. In addition to the injury, the applicant has suffered loss of consortium. Due regard has been had to all the circumstances of this case, and, an award for damages for contumelia and loss of consortium has to be made as a way of compensating the innocent spouse.

It is also my considered view that given the increase in crimes of passion brought about by the evil associated with adultery, for deterrence purposes, meaningful awards which do not appear to mock the aggrieved innocent spouse are called for.

Accordingly, it is ordered that:

1. The defendant shall pay a total of $6,000; (being $4,000 for contumelia and $2,000 for loss of consortium), together with interest thereon at the prescribed rate calculated from the date of the summons to the date of payment in full.

2. The defendant shall pay the costs of suit.

HH399-18 : AMON MAPIYE vs INNOCENT MUDYIWA
Ruled By: NDEWERE J

The background of the case is that the plaintiff, Amon Mapiye, got into a customary union with his wife, Nomsa Faith Mapiye (nee Mwazha), in 1999. Their union was initially blessed with two children, in May 2001 and 15 October 2005.

On 24 April 2007, the plaintiff and his wife solemnised their marriage in terms of the Marriage Act [Chapter 5:11]. On 3 September 2008, they were blessed with a third male child.

By all standards, the marriage was stable and happy up to 2008, as evidenced by the solemnisation of the customary union on 24 April 2007, followed by the birth of a son on 3 September 2008. Then came a third party, in the name of Innocent Mudyiwa, the defendant, to intrude upon this marriage sometime in 2008.

The plaintiff was alerted, in 2009, by some suggestive text messages which were being exchanged between Innocent, the defendant, and his wife, which he saw on his wife's mobile phone. The plaintiff confronted both the defendant and his wife about the text messages. In particular, he alerted the defendant to the fact that Nomsa Faith Mapiye was married to him in a monogamous union. Both the defendant and the plaintiff's wife denied having an adulterous relationship. The plaintiff accepted the denial and let the matter rest.

About four years later, on 23 February 2013, the plaintiff's wife delivered a fourth male child.

In the first week of October 2014, the plaintiff issued summons for divorce from his wife in HC8879/14. He said their marriage had irretrievably broken down. The particulars of the breakdown which he gave were:

(a) That the defendant no longer loved him and was falsely accusing him of adultery.

(b) That the defendant had moved out of the matrimonial bedroom for the past one year and eight months, thereby denying him conjugal rights.

(c) That the defendant had abandoned the family business, donated her 5% shares to her last child, obtained an exit package, and was now working at her father's surgery.

(d) That the defendant had sent her aunt to collect a divorce token from the plaintiff's father as confirmation that she was no longer interested in the marriage.

If the defendant had been out of the matrimonial bedroom for one year and eight months on 2 October 2014, when the plaintiff signed the divorce summons, it means she moved out twenty months before 2 October. Therefore, she moved out of the matrimonial bedroom in 2013, shortly after delivering the last child because twenty months from 2 October 2014 takes us back to March 2013.

The plaintiff's wife continued to stay at the matrimonial house, but, she was effectively on separation from her husband since March 2013, when she moved out of the matrimonial bedroom, resigned from the family business, and donated her shares to the last child.

Her message was clear - she no longer wanted anything to do with the plaintiff or his business. Hence, the plaintiff responded by issuing summons for divorce.

While the divorce matter was still in progress, in February 2017, the plaintiff overheard a telephone conversation between his wife and the defendant, and, from what he heard, it appeared there was an argument between the defendant and his wife over her last child. The defendant was claiming the last born child from the plaintiff's wife, Nomsa Faith Mapiye, saying the child was his child.

The plaintiff confronted his wife, Nomsa Faith Mapiye, who confessed about the adultery with the defendant since 2008 and stated that her last child was a product of that adulterous relationship with the defendant.

After his wife's confession, the two agreed to go for DNA tests to check the paternity of the child. They went for the tests on 13 February 2017. The results were that there was a 0% chance of the plaintiff being the father of the last born child.

An uncontested Divorce Order was finally granted on 12 October 2017 by this court. In the Divorce Order, the plaintiff was absolved from maintenance and access obligations towards the last child.

Following his wife's confession of adultery with the defendant, the plaintiff issued summons against the defendant for adultery damages on 22 February 2017, which is the case I am seized with.

The defendant filed an appearance to defend on 28 February 2017. The defendant did not file any plea and, on 4 April 2017, the plaintiff filed a notice to plead and intention to bar and gave the defendant five days to deliver his plea or get barred. No plea was filed, and, on 4 May 2017, the defendant was barred.

The plaintiff applied for default judgment, and, this being a damages claim, the matter was referred to the unopposed roll.

The plaintiff filed Heads of Argument in support of his claim. He also filed an affidavit of evidence.

The matter was initially set down for 6 September 2017. On 31 August 2017, the plaintiff's lawyers wrote to the Registrar of the High Court indicating that the parties were making efforts to settle the matter out of court. No settlement ensued thereafter so the matter was eventually set down as unopposed for 10 January 2018.

When the case was called, the plaintiff appeared in person although, up to the filing of his Heads of Argument, he was represented.

I indicated that I needed time to go through the plaintiff's Heads of Argument and check previously decided cases before coming to a decision on the appropriate amount of damages to be awarded.

I have since gone through the plaintiff's Heads of Argument and done further research on the approach taken on the issue of adultery damages in previously decided cases.

As correctly pointed out by TREDGOLD CJ in Doyle v Salgo 1957 R & N 840 (FSC)…, or 1958 (1) SA 36 (FSC)…, in an undefended case involving a claim for adultery damages which was quoted with approval by ROBINSON J on p257 of Katsumbe v Buyanga 1991 (2) ZLR 256 “the fact that an action for damages is undefended does not relieve the judge from the obligation of scrutinising the evidence closely.”

To begin with, let me start by saying that I agree with the sentiments expressed in Katsumbe v Buyanga 1991 (2) ZLR 256 (HC)…, that:

“Where a third party is shown to have intruded, sexually, upon a marriage and to have contributed to the breach of the duty of marital fidelity which each spouse owes the other by committing adultery with the one spouse, the courts, in the absence of mitigating circumstances, should be seen, in their award of damages, to come down hard on the adulterer or adulteress…,. The courts should ensure, as far as is reasonably possible, that an aggrieved spouse who approaches them is not made to feel, after their award of damages, that the adulterer or adulteress has been the winner and that it would have been better for the aggrieved spouse to have taken the law into his or her own hands.”

Indeed, in our jurisdiction, we have had several cases where aggrieved spouses took the law into their own hands and injured or killed the adulterer or the spouse. It is therefore needful for the courts to give meaningful damages, when approached, to discourage aggrieved spouses from taking the law into their own hands.

The plaintiff issued summons claiming $30,000 for loss of consortium and $30,000 for contumelia plus interest at the prescribed rate from the date of the summons and costs of suit on an attorney and client scale.

The plaintiff's claims are supported by our law on adultery damages. In Khumalo v Mandishona 1996 (1) ZLR 434 (H)…, it was stated thus:

“Contumelia incorporates the injury, insult and indignity suffered by the plaintiff whilst loss of consortium relates to the loss of comfort, society, and service of the wife as a result of the adultery committed by the defendant.”

I will start by dealing with the plaintiff's claim for contumelia.

In 2009, the plaintiff came across suggestive text messages between his wife and the defendant. He confronted both of them and confirmed to the defendant that his wife was married to him and owed him fidelity. Both his wife and the defendant denied the adulterous relationship. However, the confrontation by the plaintiff did not make them stop the adultery. They continued the adulterous relationship for five years, leading to the birth of a child.

The continuation of the adultery, after warning from the plaintiff, for the long period of five years aggravated the injury and insult to the plaintiff when he later found them out. The birth of the child is also aggravatory. More aggravatory is the fact that the defendant did not come out clean and apologise after the birth of the child. In collusion with the plaintiff's wife, he passed on his child as the plaintiff's child, well-knowing that to be false. As a result of this fraud, the plaintiff took care of the defendant's pregnancy and child from the period of conception till the child was four years old spending several thousands of dollars on the child's care. Had he not overheard the defendant's argument with his wife, by chance, the fraud on him by the defendant and his wife would have continued. This fraud aggravates the injury and insult.

However, adultery damages are not about compensating the plaintiff for looking after the defendant's child. The plaintiff is at liberty to institute compensation proceedings against the defendant if he so wishes.

So, my award shall concern itself with the adultery itself.

After his wife's confession, DNA tests had to be done to confirm paternity. The fact that the child was confirmed to have 0% chance of being the plaintiff's child worsened the plaintiff's injury. Indeed, I cannot think of a worse case of adultery than the present one. Consequently, a high award of damages for contumelia is called for in the present case.

Even the manner in which the plaintiff came to know about the adultery was very traumatic. Imagine, the plaintiff having a four year old son whom he was nurturing as his own, then he suddenly overhears an argument between his wife and another man who was claiming to be the father. Then he finds out that the man is the same one he confronted five years previously but he denied having an adulterous affair. The plaintiff must have experienced intense shock from that discovery. In fact, it is commendable that the plaintiff remained in control of his senses and did not take the law into his hands when he overhead his wife's discussion and when she confessed to him.

The plaintiff's claim for $30,000 damages for contumelia is therefore understandable in the circumstances.

The next issue is for the court to determine the appropriate quantum.

In Nyakudya v Washaya 2000 (1) ZLR 653, the factors to be considered in determining the amount of damages to be awarded against a third party for adultery were summarised as follows;

“(a) The character of the woman (or man) involved;

(b) The social and economic status of the plaintiff (and the defendant);

(c) Whether the defendant has shown contrition and has apologized;

(d) The need for deterrent measures against the adulterer to protect the innocent spouse against contracting HIV from the errant spouse; and

(e) The level of awards in similar cases.

In addition to the above, the court should also take into account whether the plaintiff has suffered lack of consortium as well as contumelia, or just the latter, and the decrease in the value of money.”

As aforesaid, a high award is called for in the circumstances of this case; an award which will recognize the serious injuria inflicted upon the plaintiff.

In Smith v Arthur 1976 (3) SA 378, the court said, in looking at awards made in the past, there is need to consider the decreased value of money. This principle was reiterated in Nyakudya v Washaya 2000 (1) ZLR 653…, where the learned judge had this to say;

“The court cannot disregard the horrendous decline in the value and purchasing power of the Zimbabwe dollar over the last two years.”

In Chinamasa v Jongwe Printing and Publishing Co (Pvt) Ltd & Another 1994 (1) ZLR 133 (H)…, a defamation case, the learned judge stated the following;

“…,. The fall in the value of money is a fact which should be taken into account in terms of purchasing power, but not with such an adherence to mathematics which may lead to an unreasonable result.”

The above principle applies to adultery damages as well.

On the AIDS factor, as correctly pointed out by MALABA J…, in Khumalo v Mandishona 1996 (1) ZLR 434, the factor of AIDS needs to be considered in the assessment of damages for contumelia…,.;

”Damages are awarded for the factor of AIDS as a deterrent measure to protect the innocent spouse from the risk of contracting the virus form the errant partner.”

On the issue of the unrepentant defendant, it was held, in Chapman v Chapman and Anor 1977 (4) SA (NC) 142…, that if the co-respondent is grossly impudent and un-repentant, that will aggravate the damages.

In the present case, we have a defendant who was warned, in 2009, by the plaintiff, but he carried on. In fact, he was boastful about his adulterous escapades, spreading the news of his adulterous relationship with the plaintiff's wife to some members of the plaintiff's community. That aggravates the amount of damages. In Khumalo v Mandishona 1996 (1) ZLR 434…, the court said;

“Where the defendant shows contrition and tenders an apology to the plaintiff for the injury inflicted, the apology constitutes a balm for the plaintiff's injured soul. The plaintiff's feelings are, however, not assuaged by an impertinent seducer who does not show any contrition and forces him to go to court and relive the traumatic experience when giving evidence to prove adultery.”

The above quotation summarizes the facts of the current case.

The defendant was never apologetic. He continued the adultery for four years after being warned by the plaintiff. Even after being found out, he did not seriously attempt to settle the case out of court. The plaintiff had to come to court with his claim and endure the bad publicity that comes with public court hearings. This situation aggravates the contumelia.

On the character of the woman involved, we do not have much by way of evidence since the claim was not defended. All we know is that until 2008, when the defendant intruded into the marriage, the plaintiff and his wife had a stable and peaceful relationship. On the character of the plaintiff, we are told he was an emerging businessman. We have nothing on the character of the defendant since he chose not to defend.

As correctly pointed out in Chinamasa v Jongwe Printing and Publishing Co (Pvt) Ltd & Another 1994 (1) ZLR 133 (H) the fall in the value of money is a factor which should be taken into account.

Despite dollarization, it is a fact that the purchasing power of money has declined over the years. It has been declining since 2009 when Zimbabwe adopted multi-currency. Prices of goods and services have continuously gone up unabated. A higher award than in the previously decided cases is therefore called for in view of the declining value of money.

In Smith v Arthur 1976 (3) SA 378…, MILLER A.J.A said;

“Because, in my view, the courts have tended to pay only lip service to their condemnation of adultery, their awards of damages have been relatively low…,.”

Given the aggravating factors outlined above, I do not intend to pay lip service to the condemnation of the adultery in the present case. I shall give an award which reflects the aggravated injury suffered by the plaintiff.

Loss of Consortium

Consortium has been defined as the totality of a number of rights, duties, and advantages accruing to spouses of a marriage. In Best v Samuel Fox Co. Ltd [1951] 2 KB 639…, the Lord Justice described consortium as follows:

“Companionship, love, affection, comfort, mutual services, sexual intercourse – all belong to the married state. Taken together, they make up the consortium.”

In Place v Searle [1932] 2 KB 497…, it was held that a husband has a right to the consortium of his wife and the wife to the consortium of her husband.

In Pearce v Kevan 1954 (3) SA 910 (N), the learned judge said;

“It is the duty of a wife to reside and consort with her husband and any third person who intentionally causes her to violate this duty commits a wrong against the husband for which the latter is entitled to recover damages.”

The above principle would equally apply if the husband was the adulterer because the duty, as indicated in Place v Searle [1932] 2 KB 497 is to both parties.

However, before a claim for loss of consortium can succeed, there should be proof of actual loss of consortium. In other words, there must be proof that the wife stopped consorting with the husband as a result of the adultery.

In the present case, the wife remained at home from 2008 to February 2013 when she delivered the baby conceived out of her adulterous union so there is no evidence of loss of consortium from 2008 to February 2013 when the last child was born.

Soon after delivery, within less than a month from the date of delivery, according to the plaintiff's declaration in the divorce action, the plaintiff's wife moved out of the matrimonial bedroom. She resigned from the family business, claimed an exit package and donated her share to the newly born child. She told her aunt to seek a divorce token from the plaintiff's father.

So, clearly, from about March 2013, the plaintiff lost his wife's consortium.

Looking at the list in Best v Samuel Fox Co. Ltd [1951] 2 KB 639 the plaintiff lost companionship, love, affection, comfort, mutual services, and sexual intercourse. This loss is linked to his wife's adultery with the defendant because her actions occurred soon after delivery of the defendant's baby. Probably, the birth of the child confirmed the irreversible situation which her adultery with the defendant had caused and she could not continue to live a lie as she had done for the previous five years. So, the plaintiff's claim for loss of consortium has merit.

The next question is: what is the appropriate quantum of this type of damages in the circumstances of the present case?

To start with, I do not subscribe to the idea expressed in Muller v Vink 1972 (1) PH B2 which was referred to in Khumalo v Mandishona 1996 (1) ZLR 434, that the recognition of women as free agents rather than chattels means that damages for loss of consortium should be on the lower side. This is because consortium has nothing to do with gender. It applies to both male and female spouses. Consortium is about the reciprocal rights, duties, and obligations of spouses to each other. This means that damages for loss of consortium are about supporting and strengthening the institution of marriage - they are not about gender. In this regard, I will do no more than quote ROBINSON J in Katsumbe v Buyanga 1991 ZLR 256…, when he stated the following;

“…, unless they are prepared to take a strong principled stand in this regard in support of the vital institution of marriage, the courts will only be party to society's further slide down the slippery slope to the unlicensed promiscuity which scoffs at the spiritual prohibitions against pre-martial and extra marital sex and which has landed the world in the sexual morass over which the monster, AIDS, now presides in all its frightening aspects.”

In addition, we have a Constitution which protects the institution of the family. Section 25 of the Constitution of Zimbabwe Amendment (No.20) of 2013 provides as follows:

“The State and all institutions and agencies of Government, at every level, must protect and foster the institution of the family…,..”

The judiciary is one such State institution which is called upon by our Constitution to “protect and foster the institution of the family.”

It goes without saying that the marital state is the beginning of the family institution. Section 78 of the Constitution, on marriage rights, states that every adult person has the right to found a family, thus confirming that marriage is the foundation of the family institution which State institutions are being called upon to protect and foster. So, the courts must be seen to be protecting the family institution by protecting marriages.

Our Constitution upholds marriages, as indicated in section 78.

Consequently, in assessing the quantum of damages for loss of consortium, it has been held that where the adultery leads to the breakup of the marriage, the damages are aggravated.

In the present case, a Divorce Order was issued, on 12 October 2017 by this court. This means the plaintiff lost his wife's consortium for four years, from February 2013 to 12 October 2017. Although the plaintiff was not aware of his wife's adultery when he issued summons, it is clear, from paragraph 7 of his divorce declaration, that loss of consortium is what made him seek divorce. His reasons, as given in paragraph 7, were;

(a) That the defendant no longer loves the plaintiff and falsely accuses him of having an extra-marital affair with her cousin.

Going by the list in Best v Samuel Fox Co. Ltd [1951] 2 KB 639, ground (a) for divorce above confirmed the loss of love, affection and companionship.

(b) That the defendant has moved out of the matrimonial bedroom for the past one year and eight months, thereby denying the plaintiff his conjugal rights;

Ground (b) confirmed the loss of sexual intercourse and comfort.

(c) That the defendant has abandoned the family business to which she was a minority shareholder and donated 5% shares to the last child, took an exit package, and was working at her father's surgery.

Ground (c) confirmed the loss of mutual services.

(d) That the defendant sent her aunt to the plaintiff's father to collect a token of divorce as a sign that she is no longer interested in the marriage.

Ground (d) confirmed the loss of love, companionship and affection.

So, the loss of consortium in the present case is what led to the breakup of the marriage thus aggravating the loss of consortium damages which are payable.

In Pearce v Kevan 1954 (3) SA 910 (N), the court stated the following;

“It is obvious that there must be a causative connection between the conduct of the third person and the dereliction by the wife of the duties she owes her husband…,.”

In the present case, there is a causative connection between the defendant's adultery and the loss of consortium to the plaintiff. Nomsa Faith Mapiye denied conjugal rights to her husband for one year and eight months because she was committing adultery with the defendant, Innocent Mudyiwa. She stopped having sexual intercourse with him because she was having it with Innocent. Innocent Mudyiwa betrayed the meaning of his name and was not innocent in this case. He enticed the plaintiff's wife away from the marriage. He would go to the plaintiff's house as if he wanted to buy water which the couple sold in their business. Despite being confronted by the plaintiff, in 2009, he did not stop the adultery. He persisted in enticing this married woman away from the duties and obligations of her marriage till he succeeded in breaking up the marriage. As stated in Pearce v Kevan 1954 (3) SA 910 (N);

“…, the law, as I endeavoured to state it, potentially embraces the conduct of a man who, whatever his immediate objects may be, perseveres in behaving towards another man's wife in a way which he realises is having the effect of alienating her affection from her husband and which ultimately produces that result and brings about an estrangement.”

Indeed, in the present case, the defendant, Innocent Mudyiwa, “persevered” in this adulterous behaviour for a good five years, till the marriage broke. This aggravates the damages payable.

Given the further decline in the purchasing power of money in recent years, I find no reason to give an award of damages for adultery which are lower than in any of the previously decided cases. I will, however, rely on the quantums awarded from 2009 in view of dollarization.

In Chenesai Rateiwa v Tsitsi Venge HB152-11, US$4,500 was awarded for contumelia and $1,500 for loss of consortium.

In Monica Muerudza v Ropafadzo C Magora HC6334/13, US$8,500 was granted for both contumelia and loss of consortium.

In Muhwati v Nyama 2011 (1) ZLR 634 US$5,000 was granted for both contumelia and loss of consortium.

In Judith Tikiwa v Makomborero Adiyolah Charlie HH488-14, $3,000 was awarded for loss of consortium and $3,500 for contumelia.

In Makururu v Vori HH174-16, $4,000 was awarded for contumelia $2,000 for loss of consortium.

It is therefore ordered as follows:

(a) The defendant shall pay the plaintiff $6,000 damages for contumelia.

(b) The defendant shall pay the plaintiff $4,000 damages for loss of consortium.

(c) The defendant shall pay interest at the prescribed rate from the date of the summons to the date of final payment.

(d) The defendant shall pay costs on an attorney and client scale.

HH488-14 : JUDITH TIKIWA vs MAKOMBORERO A CHARLIE
Ruled By: CHITAKUNYE J

On 24 April 2012, the plaintiff issued summons against the defendant claiming adultery damages in a total sum of USD25,000 and costs of suit.

The plaintiff alleged that the defendant committed adultery with the plaintiff's husband, Major Mejasi Tikiwa, leading to the plaintiff suffering damages in the sums of USD15,000 for loss of consortium and USD10,000 for contumelia.

The brief facts of the case were that:

In 1994, the plaintiff and Major Mejasi Tikiwa married each other under customary law. Their marriage was apparently unregistered. On 6 December 2001 their marriage was solemnised in terms of the Marriages Act [Chapter 5:11]. The marriage was blessed with three (3) children whose ages were given as 17, 15 and 9 years respectively.

During the formative years of the marriage the plaintiff was employed as a secretary/receptionist. She later left employment, in agreement with her husband, so that she takes care of the family as a full time housewife.

In her declaration, the plaintiff alleged that in November 2011 she discovered a love message on her husband's phone from the defendant. She reacted by replying to the message and advising the defendant that she was married to Major Mejasi Tikiwa in terms of the Marriages Act [Chapter 5:11] and that they had three children so could the defendant stop the relationship with her husband. Despite this response, the defendant proceeded to commit adultery with the plaintiff's husband. This adultery has continued to date. In fact, in January 2012, the plaintiff's husband left the matrimonial home to go and cohabit with the defendant at Stand 1776 Area D, Westgate. This is her husband's property which he had apparently acquired without her knowledge.

As a result of the adulterous relationship, the plaintiff alleged that she has suffered loss of consortium by the reason of the loss of comfort, society, love, companionship, and assistance provided by her husband. She pegged her damages for loss of consortium at USD15,000. The plaintiff further alleged that by virtue of the continued adulterous relationship, she has suffered damages by way of the contumelia inflicted upon her by the defendant in the sum of USD10,000. That contumelia is aggravated by the flagrant conduct of the defendant who has openly portrayed a picture of being married to the plaintiff's husband and even borne a child out of that relationship.

In her plea, the defendant denied committing adultery. She contended that at the time she went into a relationship with the plaintiff's husband she was not aware that he was married, and, moreso, in a monogamous marriage. She further contended that in any case she understood that the plaintiff's marriage to her husband had gone sour; their marriage had irretrievably broken down when she came onto the scene. The defendant denied that she was cohabiting with the plaintiff's husband. She, at the same time, contended that the plaintiff literally drove her husband out of the matrimonial home and straight into the solace of the defendant's arms. As a consequence of this the plaintiff did not suffer any loss of consortium. No damages are therefore due to the plaintiff.

The parties' positions were crystallised in a joint pre-trial conference minute. In that minute the parties agreed that:-

1. The plaintiff's husband is legally married in terms of the Marriages Act [Chapter 5:11].

2. The plaintiff's husband issued summons for divorce in February 2012.

3. A child was born out of the relationship.

4. When the defendant is in Zimbabwe, she stays with the plaintiff's husband at No.1776 Westgate, Harare.

Issues for determination were captured as follows:-

1. Whether the defendant knew that the plaintiff's husband was married to the plaintiff at the same time she was engaged in an intimate relationship with him.

2. Whether the plaintiff suffered any damages due to the adultery and the quantum thereof.

Though both parties had indicated that they would be calling two witnesses each, only the plaintiff and defendant testified.

1. WHETHER THE DEFENDANT KNEW THAT THE PLAINTIFF'S HUSBAND WAS MARRIED TO THE PLAINTIFF AT THE TIME SHE WAS ENGAGED IN AN INTIMATE RELATIONSHIP WITH HIM

The plaintiff's evidence was basically a confirmation of how she got married to Major Mejasi Tikiwa, firstly, under customary law, and, subsequently, in terms of the Marriages Act [Chapter 5:11]. She alluded to the lifestyle they led as a family and the fact that before the defendant came onto the scene they lived happily together as a family with her husband.

The plaintiff's evidence on this issue was to the effect that in November 2011 she discovered a love message sent by the defendant to her husband on her husband's mobile phone. When she saw the message she reacted by replying, using the same mobile phone, advising the sender that Major Tikiwa was married to her in terms of the Marriages Act and so the sender should stay away from him. This is how she hoped the defendant, as the sender, would know about the marriage. After this she never saw similar messages on her husband's phone again.

The defendant, on the other hand, contended that she never saw any message advising her of the marital status of Major Tikiwa and telling her to stay away from him. She thus continued with the relationship and would phone Major Tikiwa at anytime of the day and night without any hindrance. Each time they phoned each other they would talk for long on the phone. This tended to confirm to her that her lover was not married.

The circumstances of this case are such that the issue of whether the defendant knew that her lover was married to the plaintiff at the time she was engaged in an intimate relationship with him is no longer crucial. Even if one were to accept the defendant's story that at the inception of the relationship she was not aware of the marriage, it is common cause that even after being fully aware of the marriage and being served with summons in this matter, she has continued with the relationship. The defendant was heard to say she cannot stop the relationship because there is now a child between them and that, in any case, the plaintiff's husband has sued for divorce and so the plaintiff's marriage is all but over.

Adultery is basically the act of sexual intercourse between a married person and someone other than their legal partner.

If, at the inception, the defendant was not aware that her lover was married, when she became aware that he was in fact married to the plaintiff in terms of the Marriages Act [Chapter 5:11] she did not stop the relationship. She has continued being intimate with a man she knows is married in terms of the Marriages Act. She, in fact, said that she cohabits with him as man and wife whenever she is in Zimbabwe. Clearly, the defendant has no regard to the sanctity of marriage. Accordingly, the defendant did commit adultery with the plaintiff's husband and continues to do so to date with impunity.

2. WHETHER THE PLAINTIFF SUFFERED ANY DAMAGES AS A RESULT OF THAT ADULTERY AND THE QUANTUM THEREOF

The contentious issue is thus whether the plaintiff suffered any damages as a result of that adultery and the quantum thereof.

The plaintiff's evidence was to the effect that she suffered damages as a result of the adulterous relationship the defendant had, and still has, with her husband. The damages consisted of loss of consortium and contumelia. It was her evidence that for about 17 years she lived well with her husband. However, from the time she discovered that the defendant was having a relationship with her husband things changed. From about December 2011 the husband started sleeping out, which conduct he never used to do except when he was out of the country on duty. He was no longer eating from home. The husband began denying the plaintiff her conjugal rights in the home.

Whilst previously they would go on holidays as a family, this ceased. In December 2011 they did not go on holiday as had become the norm. For the first time, they had a miserable December festival period in their family. The husband left for Malawi leaving the family with inadequate money for a decent meal at Crown Plaza Hotel.

As things unfolded she was alerted to a picture on facebook which depicted her husband, the defendant, and two other women. Inscribed on it was a message to the effect that the defendant had 'caught' a wealthy man for herself and she would not let go. The fact of this publication made her feel hurt and humiliated. After this publication she received numerous phone calls from friends and relatives concerning that publication and this added onto the pangs of hurt and humiliation.

In January 2012, the plaintiff's husband deserted the matrimonial home without explaining himself. On 1 February 2012, the husband issued summons for divorce. Upon being served with the divorce summons the plaintiff began her own investigation to ascertain what was happening. It was during this investigation that she discovered that her husband was staying at 1776 Westgate and was cohabiting with the defendant. She also discovered that the property they were cohabiting at belonged to her husband. The husband had apparently not disclosed to her his acquisition of this property.

It was after the investigation that, in April 2012, the plaintiff issued summons in this case seeking adultery damages against the defendant.

The plaintiff testified that as a result of the adultery relationship she lost love, care, support, companionship, and assistance of her husband. The motor vehicle she was using was taken by the husband on the pretext of taking it for service and never to be returned. She now had to use public transport. That, in itself, was a form of humiliation for one who had gotten used to driving her car for so many years of the marriage. She also testified that her husband stopped supporting her financially and she had to sue him for maintenance of which she was granted a sum of USD1,200 per month. The husband also began neglecting the couple's children. The plaintiff had to sue for the maintenance of the children. A Maintenance Order was granted in the sum of USD1,800 per month for the three children.

It was the plaintiff's testimony that these difficulties were all as a result of the defendant having intruded into her marriage and the husband now concentrating on providing for the defendant at the expense of his family.

The defendant's evidence, on the other hand, was to the effect that the plaintiff's marriage had broken down before she came onto the scene and so she should not be held accountable.

She, however, could not deny that her coming onto the scene had its own consequences in that for the first time in the plaintiff's marriage she had to sue for maintenance both for herself and for the children. The plaintiff was also relieved of the car she had been using as Mrs Tikiwa.

The question of conjugal rights is incontrovertible in that it is only the plaintiff who could credibly testify as to when she began to be denied of these rights.

Equally, the fact of now suffering from hypertension was not disputed. The stress and anguish the plaintiff underwent as a result of the husband's neglect of the family could not be denied.

The defendant also contended that the plaintiff's husband had been in love with one Tendai and so she could not be held accountable for the loss of consortium and contumelia as clearly the plaintiff's husband was already looking for sexual satisfaction somewhere else because of the plaintiff's shortcomings.

It is my view that the contention that Tendai had also been in love with the plaintiff's husband could not be a defence. The plaintiff clearly admitted that but went on to say Tendai apologised and stopped the relationship. Tendai's relationship did not result in the plaintiff being denied what she had become accustomed to as the wife to Mr Tikiwa. Mr. Tikiwa was also said to have apologized to his wife for his indiscretion with Tendai. The defendant could not rebut this evidence. It is clear that whatever state the marriage was in, prior to the defendant's intrusion, it was such that the plaintiff still enjoyed the companionship, society, and services of her husband. She was still provided for by the husband. There was no loss of consortium.

Consortium is basically the association between husband and wife which embraces companionship, love, affection, comfort, mutual services, and enjoyment of conjugal rights.

A wife has a right to the consortium et servitium of her husband; that is, to his society and services.

In casu, there is no doubt that the plaintiff has lost the companionship, society, and services of her husband. The husband has abandoned the plaintiff and the children to go and cohabit with the defendant. The defendant has, with impunity, encouraged that by clinging onto the plaintiff's husband and vowing not to let go.

Whilst before the defendant's intrusion the plaintiff's husband may have been unfaithful he never abandoned his family. Indeed, that infidelity on his part is frowned upon but it did not lead to actual loss of consortium. It is the relationship with the defendant that led to actual loss of consortium being complained of here.

In Khumalo v Mandishona 1996 (1) ZLR 434…, MALABA J had this to say on damages for loss of consortium:

“I now turn to assess damages for the loss of consortium. The most important factor under this head is that there should be proof of actual loss of consortium. In other words, the wife should be shown to have left the matrimonial home as a result of the adultery. Damages for loss of consortium are aggravated where the adultery has led to the breakup of the marriage. The plaintiff should not only show loss of consortium. He should also show that the loss was a result of the adultery the defendant committed with his wife and that he suffered damages as a result of the loss of consortium.

Where the defendant is not shown to have enticed the errant spouse to abandon his or her duties of providing the plaintiff with comfort, society, and services the damages reduce. The damages will also be low where the marriage is shown to have broken down in all but name at the time the adultery was committed….,. This is because the damages awarded constitute an estimated value of the comfort, society, and services the guilty spouse would have continued to give to the plaintiff but for the adultery with the defendant.

That award of damages seeks to put the plaintiff in monetary recompense as near as is reasonably practicable to the position he would have been had his wife not left him as a result of the defendant's adultery with her.”

In casu, it was only after the adultery had commenced that the plaintiff's husband abandoned his family and has not returned. It was also after he begun cohabiting with the defendant that he issued summons for divorce. The coincidence whereby the husband sued for divorce only after commencing cohabiting with the defendant, and the defendant's bragging that she had 'caught' a wealthy man and she will not let go, clearly confirms the influence the adultery relationship has had on the plaintiff's marriage. The impunity with which the defendant has continued with the relationship served to confirm her determination not to lose her wealthy man.

I am of the view that the plaintiff certainly suffered damages for loss of consortium. Such damages must however be assessed taking into account all the circumstances of the case. I shall return to the factors after considering the issue of contumelia.

The question may be asked whether the plaintiff has suffered contumelia.

Contumelia pertains to the injury, hurt, insult, and indignity inflicted upon the plaintiff by the defendant as a result of the latter's adultery with the plaintiff's spouse.

The circumstances of the case show that the plaintiff suffered contumelia as a result of the defendant's conduct. Apart from the Facebook publication already alluded to, she also suffered the ignominy of being ostracised by her in-laws as a result of the defendant's intrusion. The defendant has waded into and ingratiated herself with the plaintiff's in-laws to an extent whereby the plaintiff is now viewed by some members of that family negatively despite the 17 years she lived in harmony with her husband. She is now not able to enjoy the fruits of the 17 years of working for the family.

The defendant has brazenly continued with the adulterous relationship despite becoming aware that her lover was in fact married. The defendant further exhibited her contemptuous attitude towards the plaintiff by not being remorseful or apologetic. Instead, she seemed boastful in her stance of continuing with the adulterous relationship. The defendant gave the impression of someone celebrating the demise of the plaintiff's marriage and very eager to rub salt to injury.

It is my view that clearly the plaintiff has suffered contumelia. She has been hurt, treated with contempt, and made to feel worthless by the defendant.

The assessment of damages in adultery cases is not an easy one. No sum of monetary value can be adequate to translate into the pain and anguish the plaintiff has suffered. The breakup of a marriage cannot be adequately compensated. As said by COLMAN in Muller v Vink 1972 (1) PH B2:-

“These losses and humiliation cannot be truly measured in money; and the practice of our courts has been to make rough and ready assessments whose amounts vary according to the circumstances of particular cases. In no sense can the award, in any case, be regarded, even approximately, as an assessment of the value of a happy marriage which has been broken up or the value of a faithless wife.”

Over the passage of time, some basic factors have emerged as important in the assessment of damages. These include:-

(a) The character of the woman (or man) involved;

(b) The social and economic status of the plaintiff (and the defendant);

(c) Whether the defendant has shown contrition and has apologized;

(d) The need for deterrent measures against the adulterer to protect the innocent spouse against contracting HIV from the errant spouse;

(e) The level of awards in similar cases; and, one may add

(f) Whether the plaintiff has suffered lack of consortium as well as contumelia, or just the latter.

In this case, a marriage of 17 years standing was ruined by the adultery. Had the plaintiff not been a worthy wife the marriage could not have lasted for so long. Clearly, there was some harmony and happiness in the family hence the longevity. The plaintiff impressed me as a woman of virtue dedicated to her family and Christian values.

The defendant, on the other hand, gave the impression of a carefree woman who did not value the sanctity of marriage. To her, it seemed a relationship with the plaintiff's husband was not an opportunity to miss despite his marital status. She had no regrets whatsoever about the consequences of her relationship with the plaintiff's husband on the plaintiff and the plaintiff's family.

Clearly, she is selfish.

Further, the defendant never showed any remorsefulness for her conduct. If anything, she seemed to look at the plaintiff with scorn.

Another factor to note is that the prevalence of HIV cannot be overlooked. Acts of promiscuity are making a mockery of efforts to bring the spread of HIV infections under control. It is persons like the defendant who seem to care less about the marital status of their lovers who contribute to this problem. Indeed, the plaintiff's husband is not before me, but, he is as guilty as the defendant in acts of promiscuity. If his attitude, as portrayed by the defendant, is true, he seems to care less about his family hence he had to be sued for maintenance for his family. It is time persons with the propensity for promiscuity were reminded that history will judge them harshly as uncaring spreaders of the deadly HIV virus.

In the assessment of appropriate damages, the court is expected to take into account the levels of awards in other cases. In this regard, the most appropriate levels of awards are those that have been made after the multi currency regime was adopted. In that regard, I have considered some of the cases and circumstances of each case.

I am of the view that whilst the awards range between USD400 to USD8,500 I should not lose sight of the circumstances of this case.

Cases noted included;

Chinyadza v Phiri HH76-09 where a sum of USD500 was awarded for loss of consotiurm;

Dera v Kambeza HH175-10 where a sum of USD400 was awarded for loss of consortium;

In Jhamba v Mugwisi 2010 (1) ZLR 124 where a sum of USD500 was granted for both loss of consortium and contumelia. The court holding that the plaintiff had, by her conduct, impliedly condoned the adultery hence the low figure;

Chenesai Rateiwa v Tsitsi Venge HB152-11 where an award of USD4,500 for contumelia and USD1,500 for loss of consortium was granted; and

Monica Muerudza v Ropafadzo C. Magora HC6334/13 where a sum of USD8,500 was granted.

In Muhwati v Nyama 2011 (1) ZLR 634 damages in the sum of USD5,000 were granted for both contumelia and loss of consortium.

The level of awards that emerges, since dollarization, is of sums between USD400 and USD8,500. That range takes into account the various factors alluded to above in each individual case.

In casu, there is not much to mitigate the defendant's conduct. The plaintiff has lost a well to do husband whose financial status was such that she reasonably expected to lead a good and comfortable life. That has all been deprived of her by the defendant's intrusion. She has virtually lost a lifelong investment in a marriage. No monetary compensation can be adequate to compensate for that. Though effort was made to portray her marriage as having been on the rocks, such effort was not supported by evidence. The marriage may not have been in its blissful years but it was certainly not over and remaining on paper only.

It is also important to realize that no amount of award will dissuade a guilty spouse from promiscuity. This court can only discourage incidences of adultery by awarding damages that take into account the circumstances of each case. The punishment for the defendant must be such as to dissuade her from such conduct without being unduly harsh. I am of the view that this case deserves a high level of award. The arrogance with which the defendant approached the case shows she is little moved by the action. It is only proper that the court expresses its displeasure at such attitude by awarding punitive damages.

After a careful consideration of the circumstances of this case, I am of the view that a fair and reasonable award is a total sum of USD6,500 being USD3,000 for loss of consortium and USD3,500 for contumelia.

The plaintiff asked for costs of suit.

I am of the view that she is entitled to the costs. The plaintiff had become dependent on her husband for support and that husband has been taken away by the defendant who is not apologetic. The defendant, if anything, ought to have admitted adultery from inception and this could have saved the plaintiff a lot of costs.

I am, however, not persuaded to grant such costs on a higher scale as requested by the plaintiff. Costs will thus be on the ordinary scale.

Accordingly, it is hereby ordered that the defendant pays the plaintiff adultery damages in the total sum of USD6,500 with interest at the prescribed rate. The defendant shall pay the costs of suit.

HH37-16 : GEORGINA NJODZI vs LORRAINE MATIONE
Ruled By: MWAYERA J

This matter concerns the status of adultery damages in Zimbabwe in the 21st century. The main issue is whether or not the common law delictual claim for adultery damages is constitutional or unconstitutional.

The plaintiff is married to Lawrence Muzvondiwa in terms of the Marriages Act [Chapter 5:11].

From about 2012, it is alleged, that, the defendant engaged in adulterous relations with the plaintiff's husband. The adulterous relationship culminated in siring a child for the adulterous couple. The plaintiff, irked by this adulterous relationship, issued summons claiming adultery damages for a total of $25,000 broken down as follows;

(a) Contumelia: $15,000.

(b) Loss of consortium: $10,000.

The parties referred the matter for trial on the contentious issues. At the hearing of the trial, the defendant made an application on the constitutionality, or otherwise, of the plaintiff's claim.

It is this constitutional application that I am now seized with and seek to dispose of.

The thrust of the defendant's argument, as presented in heads of argument and orally, can be briefly summed up as follows:

(i) The applicant (defendant) argued, that, it is improper to sue the defendant to the exclusion of the plaintiff's spouse yet he is the main architect of the relationship. This is viewed by the applicant as discriminatory and therefore contrary to the constitutional provisions of equality before the law.

(ii) Secondly, the applicant argued that the claim amounted to infringement into privacy of the applicant's sexual life thus violating not only the right to privacy, but, also, the right to freedom of association.

The applicant argued, that, the claim by the plaintiff has no legal standing as it is archaic and unconstitutional.

The respondent (plaintiff), on the other hand, presented argument, in Heads of Arguments and orally, to the effect, that, the claim was well founded in terms of common law and was also supported by the Constitution. The Constitution, being the supreme law of the country, recognises the marriage institution. Thus, adultery, as argued by the respondent, is a threat to the very existence of the marriage institution which the Constitution of Zimbabwe seeks to protect. As such, the claim for adultery damages by the plaintiff was properly before the court.

I must mention at the outset, that, the applicant placed heavy reliance on foreign judgements to persuade the court to align to the notion that adultery damages are not only archaic but unconstitutional.

I will, in due course, revert to some of the cases referred to as persuasive authority.

At this juncture, it is important to look at the delictual claim of adultery and the mischief that the law seeks to protect by the remedies available.

It is settled, that, adultery is an injury occasioned to the innocent spouse because of the adulterous relationship. The spouse can recover damages for loss of a spouse's consortium as well as any patrimonial loss suffered and also personal injury or contumelia suffered by the innocent spouse, inclusive of loss of comfort, society, and services.

In the case of Timothy Chinyadza v Melton Phiri HH76-09, KUDYA J…, defined contumelia as follows:

“Contumelia is equated to the injury, hurt, insult, and indignity inflicted upon a plaintiff by adultery committed by a defendant with his or her spouse.”

One does not require a magnifying glass to scrutinize and come up with a conclusion that contumelia, that is injury, hurt, insult, and indignity occurs, to an innocent spouse where the other commits adultery. The injury is so obvious that there would be no justification in not seeking legal redress for the wrongful hurt occasioned.

The Supreme Court of South Africa decision in the case of RH and DE (C594/2013) (2014) ZA SCA 133 confirmed that the award for contumelia was rightly made even though there was a finding that the adultery was committed at a time when the marriage had already irretrievably broken down.

What is worth noting is that once there is evidence of injury, hurt, insult, and indignity having been occasioned on an innocent party because of the adulterous relationship, then, the innocent spouse is entitled to damages for contumelia.

Once contumelia is established, then, the next issue would be whether or not there is loss of consortium, that is, loss of comfort and society.

The basis of such a claim being the defilement and corruption of the innocent spouse's matrimonial bed.

It is my considered view, that, adultery damages, whether classified as falling under contumelia, or, on the other hand, consortium, are delictual damages arising from a delictual wrong occasioned to an innocent married party. To this extent, the distinction is fallacious.

It is important to understand the basis of such a delictual claim in the context of a marriage institution.

A marriage is defined as a sui generis contract entered into by two willing parties (see NCUBE, Family Law in Zimbabwe 1987). The sanctity of this anomalous contract is what an adultery damages claim seeks to protect.

The claim should not be viewed in isolation, but, from the view point of its purpose, being to protect the sanctity of marriage.

If it is for this purpose, then, the argument that it is improper to sue one party to the adulterous relationship does not hold water. This is because given the nature of a marriage, it would amount to suing oneself.

Whereas, in suing the third party, the claimant will be seeking a personal remedy for hurt, injury, iniquity of company and comfort occasioned by the third party's association with the married party.

The historic background to adultery claims should not be ignored upon considering whether or not the delict no longer has space in our legal system.

I am alive to the position taken by the Supreme Court of South Africa in the case of RH and DE (C594/2013) (2014) ZA SCA 133, wherein, in relation to the award for consortium, it held that the award was not justified, and further concluded that its continued existence was no longer justified.

The court, in RH and DE (C594/2013) (2014) ZA SCA 133, considered the question for determination to be: what are the consequences of adultery, and, thus, only sought to highlight the quantum of damages.

The court considered the South African constitutional values and also sought to rely on other foreign judgements. It then held, that, the award for contumelia had been rightly made but that the award for consortium was not justified. It held, further, that, the delict's continued existence in the South African context was no longer justified.

The circumstances of that case are that adultery was committed after irretrievable breakdown had occurred. Also, the court relied on decisions from other jurisdictions like Rose v Valentine (1999) SCSC 8; 1999 SLR 99 the Supreme Court of Seychelles, quoting Cosgrow v Cosgrow SCA 12/1992 (New Zealand) that;

“The evolution of law within commonwealth jurisdiction over the last decade or so demonstrates that there is no longer any turpitude attached to adultery.”

The South African Supreme Court was persuaded by that position and also sought to evaluate the socio-economic and legal framework for the South African jurisdiction. As correctly observed in HV Fetal Assessment Centre (2014) ZACC 34; 2015 (2) SA 193 CC;

“In considering the position in other jurisdictions, sight should not be lost of whether similar legal questions would have arisen, and the context in which they would have arisen, so as to come up with an informed decision of the applicability or otherwise of the decision.”

The central question is: in the Zimbabwean context, are these foreign decisions applicable?

In other words, one has to consider whether the reasoning adopted in South Africa, Seychelles, Canada, and New Zealand is possible and applicable in light of the Zimbabwean Constitution's normative framework and our social context.

From case law, it is settled in our jurisdiction, that, in coming up with adultery damages the following factors have to be considered;

1. The social and economic status of the plaintiff and the defendant.

2. The character of the spouse involved.

3. Whether or not the defendant has shown contrition.

4. The need for deterring measures against the adulterer.

5. The level of award in similar cases.

See Khumalo v Mandishona 1996 (1) ZLR 434; Nyakudya v Washaya 2000 (1) ZLR 65 C; Chenesai Rateiwa v Tsistsi Venge HH152-11.

Of course, the circumstances of each case come under scrutiny as the court makes the decision.

The reason behind adultery damages being the protection of the sanctity of the marriage institution.

In Katsimbe v Buyanga 1999 (1) ZLR 256 H…, ROBINSON J affirmed the purpose of adultery damages as the protection of the marriage institution when he remarked as follows:

“Before addressing myself to the quantum of damages to be awarded to the plaintiff, I wish to say, that, in my view, where a third party is shown to have intruded, sexually, upon a marriage and to have contributed to the breach of duty of marital fidelity which each spouse owes the other, by committing adultery with one spouse, the courts, in the absence of mitigating circumstances, should be seen, in their award of damages, to come down hard on the adulterer or adulteress as opposed to treating him or her with kid gloves for a variety of expedient reasons.”

Precedents in the Zimbabwean jurisdiction reveals that adultery damages are underpinned on the preservation of the sanctity of marriage.

The Matrimonial Causes Act [Chapter 5:13] provide sanction issues of divorce and distribution or apportionment of property. Divorce is granted in circumstances where it would have been shown that the marriage has irretrievably broken down.

Adultery is still a recognised ground of divorce, and, as such, it is still part of our law.

Section 5(1) and 2(b) of the Matrimonial Causes Act reads as follows:

“(1) An appropriate court may grant a decree of divorce on the grounds of irretrievable break down of the marriage if it is satisfied that the marriage relationship between the parties has broken down to such an extent that there is no reasonable prospect of restoration of a normal marriage relationship between them.

(2) Subject to subsection (i) and without prejudice to any other facts or circumstances which may show the irretrievable break-down of a marriage, an appropriate court may have regard to the fact that -

(a)…,.

(b) The defendant has committed adultery…,. which the plaintiff regards as incompatible with the continuation of a normal marriage relationship.”

Since adultery is considered as a ground for divorce, then, it would be a contradiction to consider the delictual claim for adultery damages as irrelevant.

The Maintenance Act [Chapter 5:09] also seeks to taint adultery. Section 10 of the Maintenance Act, on adultery, reads:

“Where a spouse is proved to have committed adultery before or after making an order and such adultery has not been condoned, the Maintenance Court may refuse to make an order for maintenance in favour of such spouse or may discharge an order for maintenance made in favour of such spouse.”

Thus, clearly, for all intents and purposes, the legislature, as it currently stands, condemns adultery.

As will later be shown when we look closely at the relevant constitutional provisions adultery damages are still relevant in our societal and legal context.

Worth noting is the fact that superior courts, inclusive of the High Court, have inherent jurisdiction to protect and regulate their own process and develop common law in so far as the interests of justice are maintained: see section 176 of the Constitution.

In the case of Zimnat Insurance Company Limited v Chawanda 1990 (2) ZLR 143 GUBBAY ACJ…, stated that;

“…, law in a developing country cannot afford to remain static…, it must adapt itself to fluid economic and social norms as and values and to altering views of justice.”

In making that pronouncement, he did not seek to usurp the legislature's function of making the law. Rather, he buttressed the need to develop the common law taking into account the societal interests which are the interests of justice.

This observation I make is made clear when one considers the facts of Zimnat Insurance Company Limited v Chawanda 1990 (2) ZLR 143.

The court in that case had to answer the question whether a wife married under an unregistered customary union has a right of support and thus a right to compensation for loss of support.

The court had to do away with discrimination between a customary law marriage and a civil marriage. The court had to protect the interests of widows who are married under customary law by developing customary law to allow widows of customary law marriages to have a claim against third parties for the wrongful death of their spouse.

My understanding of the reasoning in Zimnat Insurance Company Limited v Chawanda 1990 (2) ZLR 143 is that the court, in the interests of justice, can develop common law, but, that this does not amount to usurping the legislature's function of making law.

The same sentiments were echoed by KENTRIDGE AJ…, in Du Plessis and Others v De Klerk and Another (1966) ZACC 10 1996 (3) SA 850 quoting R v Salituro (1992) 8 CRR 2nd 173 when he remarked that:

“Judges can, and should, adapt the common law to reflect the changing, social, moral, and economic fabric of the country. Judges should not be quick to perpetuate rules whose social foundation has long since disappeared. Nonetheless, there are significant constraints on the power of the judiciary to change the law…,. In a constitutional democracy such as ours, it is the legislature, and not the courts, which has the major responsibility for law reform…,. The judiciary should confine itself to these incremental changes which are necessary to keep the common law in step with the dynamic and evolving fabric of our society.”…,.

Clearly, courts have a duty to develop the common law whenever it is warranted and in conformity with the interests of justice.

Having made the observation that adultery is still part of our law, from precedents, and legislative provisions, it is important to turn to the Constitutional provisions which show that adultery claims are very much in sync with the present day social and legal reality in Zimbabwe.

Public policy is now infused with Constitutional values and norms.

It is apparent public policy often represents the legal convictions of the community. It reflects those values that are held dearly by a society.

To that extent, therefore, in deciding whether a delictual claim of adultery damages is constitutional or otherwise, while appreciating and respecting foreign jurisdictions' decisions, the decision should be contextualised to reflect the legal convictions and societal values.

Section 2(1) of the Constitution of Zimbabwe is relevant and speaks volumes in respect of societal values. It reads:

“This Constitution is the supreme law of Zimbabwe and any law, practice, custom or contract inconsistent with it is invalid to the extent of the inconsistency. The obligation imposed by this Constitution are binding on every person, natural or juristic, including the State and all executive, legislative, and judicial institutions, and agencies of Government at every level, and must be fulfilled by them.”

Section 3 of the same Constitution, which is the supreme law of the country, outlines the values and principles on which the Constitution is founded.

A reading of the whole section clearly reveals that the Constitution recognizes and accepts that the Zimbabwean moral fabric is engraved in the country's culture, religion, and traditional values.

Any development of the common law, therefore, ought to be underpinned on the interests of justice, and, of course, in conformity with the Constitution.

The institution of marriage is entrenched deeply in the country's culture, tradition, and religion and its protection has been, in un-ambiguous language, propagated by the courts: see Katsumbe v Buyanga 1991 (2) ZLR 256 and Mapuranga v Mungate 1997 (1) ZLR 64.

In both cases, the courts frowned on the wrongfulness of adultery in so far as it is a threat to the marriage institution.

MALABA J…, in Mapuranga v Mungate 1997 (1) ZLR 64 held:

“Adultery is still prohibited by public opinion as an act of sexual incontinence.”

Given the people-driven Constitution process which took place in Zimbabwe, that observation by MALABA J…, still holds true as confirmed by protection of the marriage institution in the Constitution of Zimbabwe Amendment (No 20) Act 2013.

Section 78 thereof recognizes the marriage institution.

This gives a public complexion to the marriage institution. The nation of Zimbabwe has a duty to protect the marriage institution, and, obviously, third parties encroaching into a marriage are also part of the nation.

This takes me to the purpose of adultery damages, being protection of the marriage institution.

My reading of RH and DE (C594/2013) (2014) ZA SCA 133 reveals, to a great extent, the court proceeded on the premise that the import of the delict is to restore a marriage or to prop it up.

In my view, and with all due respect, this is not the consideration.

This marks a point of departure.

The point which must be made is that the import of the delict, in the interest of protection of the marriage institution, is also of Constitutional interest or national interest given the values under which our Constitution is underpinned.

Adultery damages are to compensate the innocent party to a marriage for their loss of consortium and contumelia. When an award for damages for adultery is made, the innocent party is not precluded from suing for divorce or condoning the wrong by the other spouse and forging ahead with the marriage.

It is accepted marriage and family are social institutions of vital importance. They have more than personal significance, as shown by the constitutional protection of the morally underpinned relationship. The Constitution would not seek to protect the marriage institution if the duty for the sustenance of the institution was wholly for the parties, at least in the Zimbabwean context, given the importance placed by society on the marriage institution.

The argument, that, the delict brings about indignity on the third party and that it infringes on the rights of the third party cannot be sustained when from the perspective of its invasion of the marriage institution.

The marriage institution is protected by the society and the nation in the Constitution.

In circumstances where a third party is prepared to violate the marriage institution, they cannot be seen to complain of their dignity being impaired when they would have violated the very institution they vowed to protect through the constitutional values.

The invasion of a marriage by a third party, in the Zimbabwean context, is an attack on the dignity of the innocent party. The dignity of the adulterer ought not to be more important than that of an innocent party to a marriage.

The dignity and right to privacy of all citizens is not absolute as the Constitution, in section 86, is instructive on limitation of fundamental human rights and freedom. Section 86(1) and (2) is instructive. It reads:

“1. The fundamental rights and freedoms set out in this Chapter must be exercised reasonably and with due regard for the rights and freedoms of other persons….,.

2. The fundamental rights and freedoms set out in this chapter may be limited only in terms of a law of general application and to the extent that the limitation is fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality, and freedom, taking into account all relevant factors including -

(a) The nature of right or freedom concerned;

(b) The purpose of the limitation, in particular, whether it is necessary in the interest of…, public morality…,or the general public interest.”

It is made abundantly clear that rights, as given by the Constitution, have to be responsibly enjoyed. Everyone has the duty to respect the fundamental human rights and freedoms as entrenched in the Constitution.

In casu, the defendant has rights to dignity, privacy, and equality before the law, which are the same rights the plaintiff has. What remains is the balancing act on whether there is an intrusion on the other's rights which would require the delictual sanction.

To argue, that, dealing with an adultery damages claim trial, would infringe on privacy of the defendant as issues of intimacy would be delved into, amounts to barring prosecution of all matters of a sexual nature.

One needs not go further by giving examples of cases of rape which necessarily involve divulging of intimate details of how the sexual violation would have occurred. Even divorce matters, parties seek to prove irretrievable breakdown by divulging lack of sexual intimacy for specified periods.

Adultery entails intrusion into an innocent spouse's intimate relationship without the innocent's spouse's consent. Certainly, that does not mean the intruding party's rights supersede the rights of the innocent spouse.

The investigation into the alleged adultery is to assess if indeed the intrusion is genuine, and, if so, to assess the quantum of damages so as to compensate the wronged innocent spouse.

There is nothing unconstitutional, in my view, in carrying out the investigative part, moreso when one considers the purpose of adultery damages.

The potential infringement of dignity and privacy should not be viewed in isolation of the rights of the innocent spouse in a marriage.

Section 56 of the Constitution is to the effect, that, all persons are equal before the law and have equal protection and benefit of the law.

My reading of that section does not reveal that wrongful conduct is sanctioned by the law.

The Constitution clearly affords protection to all regardless of their social status.

It is not only a fallacy, but also unrealistic, to impute that a claim for adultery damages by an innocent spouse discriminates on the basis of marital status. This is for the obvious reason that adultery damages claims are not only targeted against unmarried persons. The claim is against a third party, married or not married, who is alleged to have intruded into the marriage institution at the expense of the innocent spouse.

The action for adultery damages is, as a matter of fact, not limited to unmarried third parties only.

From the above discussions, it is apparent that the defendant has not managed to prove that the claim for adultery damages offends against the Zimbabwean Constitution.

What is clear is that other jurisdictions have, in part or fully, done away with the delict or tort of adultery.

Whereas, it is important to take note and appreciate what is going on in other jurisdictions, it is of paramount importance to apply the principle in the context of our nation as a constitutional democracy.

Public policy, as reflected in our Constitution, depicts our values as a nation.

The protection of the family and marriage institutions is encapsulated in the Constitution.

It is my considered view, that, society, which was involved in the Constitution-making process, still views adultery negatively. The divorce law in Zimbabwe is based on the irretrievable breakdown principle. Adultery is one of the considerations under section 6 of the Matrimonial Causes Act.

Whereas the innocent party cannot sue their spouse for adultery for the obvious reason they (underlying the marriage relationship) also have an option to divorce or condone and move on: the fundamental question is - what should happen to the third party who would have intruded?

It is the law which ought to retain a legal outlet to the aggrieved spouse. The Zimbabwean Constitution, and subservient law, still permit redress by claims for adultery damages. The damages are meant to compensate for the occasioned contumelia and loss of consortium.

Adultery is still a consideration in our law for divorce, and, as such, given our Constitutional provisions on the rights, freedoms, protection of the marriage and family institution, one cannot just, in the abstract, from foreign jurisdictions with different societal values, declare an otherwise legitimate claim illegitimate.

The remarks and sentiments by Hon. ROBINSON J in Katsumbe v Buyanga 1991 (2) ZLR 256 still hold true today. I subscribe to the same sentiments where he remarked;

“Hopefully, we have not reached the stage where we have to be told adultery is not something to be eschewed and condemned. Accordingly, unless they are prepared to take a strong and principled stand in this regard in support of the vital institution of marriage, the court will only be party to society's further slide down the slippery slope to the unlicensed promiscuity which scoffs at the spiritual prohibitions against premarital and extra marital sex and which has landed the world in the sexual moral over which monsters, AIDS, now presides in all its frightening aspects.”

See also the case of Elizabeth Tanyanyiwa v Lindiwe Huchu HH668-14.

I wish to add my voice, that, it must be remembered that marriage and family remains the basic structure of our society, the preservation of which squarely lies on the couple and the nation as per our Constitution.

The third party, who, with knowledge, intrudes into the marriage institution, ought to compensate the innocent spouse for the injury occasioned.

It goes without saying, adultery is almost always debilitating for the victimised spouse who suffers indignity and hurt because of the adultery. The importance of the marriage and family social institutions cannot be underplayed, moreso given that the relationship is not only significant to the individuals concerned but also for the public at large.

In my view, marriage is a human institution which is regulated by law and protected by the Constitution, which, in turn, creates genuine legal duties.

See also the case of Dawood and Another v Minister of Home Affairs and Others, Shalabi and Another v Minister of Home Affairs and Others, Thomas and Another v Minister of Home Affairs and Others (2000) ZACC 8; 2000 (3) SA 936 (OC); 2000 (8) BCLR 837 (CC).

The court therein alluded to the importance of marriage and family institution, and O'REGAN J had this to say;

“Marriage and family are social institutions of vital importance. Entering into and sustaining a marriage is a matter of intense private significance to the parties…,. Such relationships are of profound significance to the individuals concerned. But, such relationships have more than personal significance, at least in part, because, human beings are social beings whose humanity is expressed through their relationships with others. Entering into marriage therefore is to enter into a relationship that has public significance as well…,.”…,.

It can clearly be deduced, therefore, that a marriage institution has both the private and public complexion, hence the need for its protection.

Any deliberate intrusion into the marriage institution is an attack on the dignity of an innocent spouse which ought to be sanctioned by the law.

In my considered view, the bonis mores or legal convictions of our society have not changed so much that adultery could objectively be regarded as reasonable and thus it remains unlawful. The legal and public policy in Zimbabwe are still reflective of adultery as wrongful. This is moreso given our legislative and Constitutional provisions which are inclined towards protection of the marriage and family institution.

The marriage institution is founded upon morals, and the Constitution, which is the supreme law of the country, protects that very morally underpinned relationship. Intrusion in the marriage institution by adultery therefore remains wrongful and there is nothing unconstitutional about an adultery damages claim.

Accordingly, it is ordered that:

1. The application to have adultery damages claim declared unconstitutional is dismissed with costs.

2. The plaintiff's claim for adultery damages is properly before the court.

HH76-09 : TIMOTHY CHINYADZA vs MELTON PHIRI
Ruled By: KUDYA J

On 19 September 2008, the plaintiff issued summons out of this court seeking $50 million for adultery damages against the defendant. The defendant denied the allegations in his plea filed of record on 17 December 2008.

At the pre-trial conference held on 19 May 2009, the amount claimed was amended, by consent, to US$5,000.

The matter was referred to trial on the following issues:

1. Was there an adulterous relationship between the defendant and the plaintiff's wife?...,.

The plaintiff testified and called the evidence of two other witnesses. The defendant also gave evidence and called the evidence of one further witness.

A single documentary exhibit, the marriage certificate of the plaintiff and his wife, was produced in evidence.

It was common cause that the plaintiff was married in terms of civil rites on 6 September 1997. No children were born of the marriage. The plaintiff's wife first worked as an intern with the Zimbabwe Broadcasting Corporation in January 2000 before joining the corporation on a full-time basis in October 2003 on completion of her studies at the Harare Polytechnic.

She worked in the same department with the defendant until he left employment in 2005 to join the Postal and Telecommunications Regulations Authority of Zimbabwe.

The plaintiff averred, in his evidence, that, his wife introduced him to the defendant during a football match between Sporting Lions and CAPS United during the 2004-2005 football season.

In his declaration, the plaintiff averred that the adulterous relationship occurred between 2004 and July 2007.

In his summary of evidence, he averred that it commenced in 2000.

In evidence, the plaintiff stated that he left to work in South Africa in 2007 where his wife joined him later that year. When she came to South Africa, she was emaciated and sickly. She was diagnosed with tuberculosis and put on treatment. She did not respond to treatment. She was tested for and found with the HIV virus.

She voluntarily confessed to him that she had contracted the virus from the defendant and detailed the adulterous relationship with him over the course of the eight years - beginning from 2000.

She described his flat where most of the trysts were performed and revealed that they also had sexual trysts at a lodge in Harare and in a car. She described to him some intimate parts of the defendant's anatomy which he revealed in his testimony.

He was tested HIV positive both in Zimbabwe and South Africa. He was devastated by the change in his health status.

He left his employment as a driver in South Africa because he could not mentally come to terms with his new status. He became a danger while behind the wheel as he was troubled by the turn of events. He toyed with the idea of committing suicide.

He was satisfied that his wife told him the truth after he phoned the number that appeared in her diary under a woman's name and it was answered by the defendant who also confirmed it was his.

As a result of the adulterous liaison, he separated from his wife.

His privacy was invaded, his dignity and reputation ruined. He was emotional and cried during his testimony. He felt belittled amongst his kith and kin by the adultery as his wife had been a model wife.

He sought damages for the hurt in the sum of US$2,500. He lost the comfort, society and services of his wife as a result of the adultery and sought damages for the loss of consortium in an equal amount.

He was asked ineffectual questions during cross examination, which left his testimony unscathed.

His wife testified.

She gave detailed evidence of her adulterous relationship with the defendant from January 2000 to December 2006. She had sexual intercourse with him at his flat from January 2000 until his marriage. Thereafter, they continued to do so at a lodge along Herbert Chitepo Avenue in Harare and in Room 40 at their workplace.

She related one incident in which she had sexual intercourse with the defendant, in the presence of his wife, at his flat, where the two women took turns to sexuallly entertain the defendant.

She also referred to another incident when they did so in a car at a bus stop along the Seke road as he was driving her to her matrimonial home.

She stated that she advised him of her marital status from the very beginning when he proposed love to her. He was undeterred by her marital status.

She confirmed that she introduced him to her husband one Sunday afternoon at Rufaro Stadium during the BP Cup final between Motor Action Football Club and CAPS United Football Club.

She, at all times, wore her wedding ring on the appropriate finger on her left hand.

She stated that she was the one who revealed to her husband about the affair in order to expiate the error of her ways. She stated that she gave the defendant's two e-mail addresses and cell number, which was recorded in her diary under a female pseudonym, to the plaintiff.

She was cross-examined by the defendant.

He heaved a huge sigh before he commenced cross examination. She did not recall the various dates and times on which the incidences took place as she had not diarized them. In any event, she never anticipated that she would, at some future date, confess her error to her husband. She maintained her evidence in chief and described the sexual anatomy of the defendant in detail.

She gave her evidence well. It was detailed. It was consistent with what she told her husband. The two discrepancies on the description of the defendant's testes and the name of the team which played CAPS United on the date that she introduced her husband to the defendant were insufficient to dent her credibility.

Her version, as to the existence of a love affair between her and the defendant, was confirmed by Memory James, who was her best friend and room mate at the Harare Polytechnic in 2000.

I was satisfied, from her demeanor and forthrightness, that she knew the defendant back then as a boyfriend of the plaintiff's wife.

Memory James testimony, that the plaintiff's wife wore a wedding ring at the time, was confirmed by Mugove Gada, a witness called by the defendant. I believed her story in full.

The defendant baldly denied any knowledge of the marital status of the plaintiff's wife.

His denials sounded hollow for a man who worked with the plaintiff's wife for seven years. He was adamant that he never saw the wedding ring on her. He was her supervisor and took part in interviewing her for the job she landed after her training.

His denials painted him as an untruthful witness.

In my view, he denied any knowledge of her marital status in a bid to distance himself from the love affair he pursued with her. He falsely denied that he was living positively with the HIV virus in his pleadings and when he cross-examined the plaintiff and his wife.

He was an untruthful witness. I did not believe his version of events where it differed with that of the plaintiff's wife.

I am satisfied, from the evidence that was led, that, the defendant committed adultery over a seven year period with the plaintiff's wife. In the process he infected her with the HIV virus, and she, in turn, infected the plaintiff.

I answer the first issue that was referred to trial in the affirmative.

HH668-14 : ELIZABETH TANYANYIWA vs LINDIWE HUCHU
Ruled By: 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":

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.

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Zimbabwe

Adultery

HH29-08 : STEWART MUNGOFA vs WILLIAM SANDE and DRUSILLA MUNGOFA
Ruled By: CHATUKUTA J

HB119-09 : CALLETA GWATIRINGA vs ANASTASIA MATAKE
Ruled By: CHEDA J

HH175-10 : CHIPO DERA vs CYNTHIA KAMBEZA
Ruled By: KUDYA J

HB01-10 : CHIPO JHAMBA vs ALETA V. MUGWISI
Ruled By: CHEDA J

HH06-11 : RITA SEKESAI CHIWANDAMIRA vs JOSEPHINE MUPANDAWANA
Ruled By: CHATUKUTA J

HH137-11 : MARTHA MUHWATI vs YEUKAI PURITY NYAMA
Ruled By: MAWADZE J

HH152-11 : CHENESAI RATEIWA vs TSITSI SHAME VENGE
Ruled By: BERE J

HH276-14 : JOHN GORE vs SIMON CHIWARE
Ruled By: UCHENA J and MWAYERA J

HH174-16 : BASIL MAKURURU vs DERICK VORI
Ruled By: MWAYERA J

HH399-18 : AMON MAPIYE vs INNOCENT MUDYIWA
Ruled By: NDEWERE J

HH488-14 : JUDITH TIKIWA vs MAKOMBORERO A CHARLIE
Ruled By: CHITAKUNYE J

HH37-16 : GEORGINA NJODZI vs LORRAINE MATIONE
Ruled By: MWAYERA J

HH76-09 : TIMOTHY CHINYADZA vs MELTON PHIRI
Ruled By: KUDYA J

HH668-14 : ELIZABETH TANYANYIWA vs LINDIWE HUCHU
Ruled By: CHIGUMBA J

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HH29-08 : STEWART MUNGOFA vs WILLIAM SANDE and DRUSILLA MUNGOFA Ruled By: CHATUKUTA J

HB119-09 : CALLETA GWATIRINGA vs ANASTASIA MATAKE Ruled By: CHEDA J

HH175-10 : CHIPO DERA vs CYNTHIA KAMBEZA Ruled By: KUDYA J

HB01-10 : CHIPO JHAMBA vs ALETA V. MUGWISI Ruled By: CHEDA J

HH06-11 : RITA SEKESAI CHIWANDAMIRA vs JOSEPHINE MUPANDAWANA Ruled By: CHATUKUTA J

HH137-11 : MARTHA MUHWATI vs YEUKAI PURITY NYAMA Ruled By: MAWADZE J

HH152-11 : CHENESAI RATEIWA vs TSITSI SHAME VENGE Ruled By: BERE J

HH276-14 : JOHN GORE vs SIMON CHIWARE Ruled By: UCHENA J and MWAYERA J

HH174-16 : BASIL MAKURURU vs DERICK VORI Ruled By: MWAYERA J

HH399-18 : AMON MAPIYE vs INNOCENT MUDYIWA Ruled By: NDEWERE J

HH488-14 : JUDITH TIKIWA vs MAKOMBORERO A CHARLIE Ruled By: CHITAKUNYE J

HH37-16 : GEORGINA NJODZI vs LORRAINE MATIONE Ruled By: MWAYERA J

HH76-09 : TIMOTHY CHINYADZA vs MELTON PHIRI Ruled By: KUDYA J

HH668-14 : ELIZABETH TANYANYIWA vs LINDIWE HUCHU Ruled By: CHIGUMBA J

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Law Portal
Zimbabwe

HH29-08 : STEWART MUNGOFA vs WILLIAM SANDE and DRUSILLA MUNGOFA
Ruled By: CHATUKUTA J

HB119-09 : CALLETA GWATIRINGA vs ANASTASIA MATAKE
Ruled By: CHEDA J

HH175-10 : CHIPO DERA vs CYNTHIA KAMBEZA
Ruled By: KUDYA J

HB01-10 : CHIPO JHAMBA vs ALETA V. MUGWISI
Ruled By: CHEDA J

HH06-11 : RITA SEKESAI CHIWANDAMIRA vs JOSEPHINE MUPANDAWANA
Ruled By: CHATUKUTA J

HH137-11 : MARTHA MUHWATI vs YEUKAI PURITY NYAMA
Ruled By: MAWADZE J

HH152-11 : CHENESAI RATEIWA vs TSITSI SHAME VENGE
Ruled By: BERE J

HH276-14 : JOHN GORE vs SIMON CHIWARE
Ruled By: UCHENA J and MWAYERA J

HH174-16 : BASIL MAKURURU vs DERICK VORI
Ruled By: MWAYERA J

HH399-18 : AMON MAPIYE vs INNOCENT MUDYIWA
Ruled By: NDEWERE J

HH488-14 : JUDITH TIKIWA vs MAKOMBORERO A CHARLIE
Ruled By: CHITAKUNYE J

HH37-16 : GEORGINA NJODZI vs LORRAINE MATIONE
Ruled By: MWAYERA J

HH76-09 : TIMOTHY CHINYADZA vs MELTON PHIRI
Ruled By: KUDYA J

HH668-14 : ELIZABETH TANYANYIWA vs LINDIWE HUCHU
Ruled By: CHIGUMBA J