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 commit 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!