N v M

HIGH COURT, HARARE

[Civil Trial HH 37-16]

September 17, 2015 and January 14, 2016

MWAYERA J

Family law  – Adultery  – Constitutionality of adultery damages.

In a claim for adultery damages, the defendant challenged the constitutionality of the common law delictual claim for adultery damages.

Held, that the protection of the family and marriage institutions is encapsulated in the Constitution. Zimbabwean society still views adultery negatively. 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.

Cases cited:

Chinyadza v Phiri HH 76-09 (unreported), referred to

Cosgrow v Cosgrow SCA 12-92 (unreported) (Seychelles), referred to

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 (CC); 2000 (8) BCLR 837 (CC), applied

Du Plessis and Others v De Klerk and Another [1966] ZACC 10; 1996 (3) SA 850 (CC); 1996 (5) BCLR 658 (CC), referred to

H v Fetal Assessment Centre [2014] ZACC 34; 2015 (2) SA 193 (CC), referred to

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

Khumalo v Mandishona 1996 (1) ZLR 434 (H), referred to

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

Nyakudya v Washaya 2000 (1) ZLR 653 (H), referred to

R v Salituro (1992) 8 CRR (2d) 173; [1991] 3 SCR 654, referred to

Rateiwa v Venge HH 152-11 (unreported), referred to

RH v DE [2014] ZASCA 133; 2014 (6) SA 436 (SCA), referred to

Rose v Valentine [1999] SCSC 8; 1999 SLR 99, referred to

Tanyanyiwa v Huchu 2014 (1) ZLR 758 (H), referred to

Zimnat Insurance Co Ltd v Chawanda 1990 (2) ZLR 143 (S), referred to

Legislation considered:

Constitution of Zimbabwe Amendment (No 20) Act, 2013, ss 2 (1), 3, 56, 78, 86 (1), (2)

Maintenance Act [Chapter 5:09], s 10

Marriage Act [Chapter 5:11]

Matrimonial Causes Act [Chapter 5:13], ss 5 (1) and (2)(b), 6

Book cited:

Ncube W Family Law in Zimbabwe (Legal Resources Foundation, Harare, 1997)

LB Munyuru, for the plaintiff

WT Pasipanodya, for the defendant

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 LM in terms of the Marriage 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 US$ 25 000 broken down as follows:

(a) Contumelia  – US$ 15 000

(b) Loss of consortium  – US$ 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. The applicant (defendant) argued that it is improper to sue the defendant to the exclusion of the respondent’s (plaintiff) 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.

Secondly, the applicant argued that the claim amounted to infringement into the 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 Argument 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 judgments 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 Chinyadza v Phiri HH 76-09 (unreported) KUDYA J at p 4 of the cyclostyled judgment 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 scrutinise 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 v DE 2014 (6) SA 436 (SCA) 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.

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