M v V

HIGH COURT, HARARE

[Unopposed Application HH 174-16]

February 18 and March 3, 2016

MWAYERA J

Family law  –  Damages  –  Assessment  –  Delictual  –  Adultery  –  Principles  –  Basis of a claim for adultery  –  Contumelia and loss of consortium  –  What each consists of  –  Estimate of damages due to plaintiff for each.

The applicant sought adultery damages.

Held, that the following factors have to be considered in coming up with an award of damages for adultery:

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 deterrent measures against the adulterer to protect the innocent spouse against contracting HIV from errant spouse.

5. The level of award in similar cases.

Cases cited:

Katsumbe v Buyanga 1991 (2) ZLR 256 (H), applied

Khumalo v Mandishona 1996 (1) ZLR 434 (H), applied

Mapuranga v Mungate 1997 (1) ZLR 64 (H), referred to

Mpofu v Munyore HB 63-05 (unreported), referred to

Muhwati v Nyama 2011 (1) ZLR 634 (H), applied

Nyakudya v Washaya 2000 (1) ZLR 653 (H), applied

Rateiwa v Venge HH 152-11 (unreported), applied

Legislation considered:

Constitution of Zimbabwe Amendment (No 20) Act, 2013, s 78

Marriage Act [Chapter 5:11]

Matrimonial Causes Act [Chapter 5:13], s 5 (2)(b)

A Muzvaba, for the plaintiff

MWAYERA J:

The applicant instituted action proceedings against the defendant claiming adultery damages being US$ 4 000 for contumelia and US$ 7 000 for consortium. The defendant did not enter an appearance to defend and the dies induciae 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 SMM 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 traumatised 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.

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