Legal Perspectives: Adultery Damages in Zimbabwe

with Fidelicy Nyamukondiwa

Adultery is the consensual
sexual intercourse between a married person and someone other than the person’s
spouse. Thou shall not commit adultery is God’s seventh Commandment. Biblical
David was chastised for committing adultery with Uriah’s wife. Culturally,
adultery is regarded as ploughing into someone’s field and those who commits it
are shunned and condemned. The term damages refers to a
sum of money awarded by a court as compensation for loss or injury.

It
is a known fact that society no-longer frown at adultery the same way it used
to in the past. For that reason, South Africa outlawed adultery damages in 2014
through the case of RH v DE. Botswana
followed suit on May 02, 2018 through the Kgale
v Mhotsha case. This article
briefly explores the concept and current status of adultery damages in
Zimbabwe.

A
year after adultery damages were thrown in the South African rubbish bin, an attempt
was made to have adultery damages declared unconstitutional in Zimbabwe. This
was through the case of Njodzi v Matione.
The court found that the reasoning adopted in South Africa and some other
countries was inapplicable in Zimbabwe. It went on to conclude that adultery remains
wrongful in Zimbabwe and that there is nothing unconstitutional about an
adultery damages claim.

Whilst adultery claims
are still part of our law, it must be emphasized that it was long
decriminalised. This means that adultery is only civil and a person cannot be
arrested by the police for committing it.

Adultery
damages are claimable on two distinct grounds. The first ground is the injury, hurt, insult
and indignity inflicted upon an innocent spouse. This is known as ‘contumelia’. Loss of ‘consortium’ is the second ground upon
which adultery damages are claimable. It is the loss of love, comfort, society
and services of the other spouse as a result of the adulterous relationship.

In
determining the quantum of damages (the sum of money to be awarded) in a claim,
the factors to be taken into account by the court includes; character of the
woman or the man involved, social and economic status of the parties, whether
the perpetrator has shown contrition and has apologised, the decrease in the
value of money and the level of awards in similar cases.

A
spouse cannot claim adultery damages from his/her own spouse. This is regarded
as suing oneself. Only the third party can be sued. A male or female in a ‘Chapter 37’ marriage (now
Marriages Act, Chapter 5:11) may
sue the third party for adultery. There are two factors that must
be proved in an adultery claim. The plaintiff must first prove that defendant
was in an adulterous affair with his/her spouse. Plaintiff must also prove on a balance of
probabilities that defendant knew of the existence of plaintiff’s a marriage.

It should be noted that a
man in a traditional ‘marriage’ (without a marriage certificate) can sue another
man who engages in an adulterous relationship with his customary wife.
Regrettably, this right is only for customarily married men and not women. A customary
women cannot claim adultery damages

Adultery
amounts to corruption of an innocent spouse’s matrimonial bed. Its damages are
underpinned on the preservation of sanctity of the marriage institution
encapsulated in section 78 of the Constitution. Whilst other countries have
outlawed the delict of adultery, it remains part of our law to protect the
sacrosanct marriage institutions and to compensate the innocent spouse for
injury, hurt, insult, indignity, loss of love and comfort caused by the
adulterer.

Fiat
Justitia Ruat Caelum!