TSITSI SHAME VENGE
HIGH COURT OF ZIMBABWE
HARARE, 6 and 13 July 2011
F.K. Maenzanise, for the applicant
The Respondent in default
BERE J: For purposes of this judgment I will refer to the applicant as the plaintiff and to the respondent as the defendant.
The plaintiff issued summons out of this court seeking adultery damages of $20 000-00 (twenty thousand dollars) and cost of suit on a legal practitioner and client scale. The amount of claim was broken down as follows:-
“(a) Contumelia inflicted upon the plaintiff …. $10 000-00
(b) The loss of the comfort, society and services …$10 000-00”
The defendant did not respond to the summons and this prompted the plaintiff to apply for default judgment.
The background to this case can be summarised as follows:-
The plaintiff and her husband are married in terms of the Marriage Act, [Cap 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. Plaintiff reckons she is entitled to the amount of claim with costs as outlined in her declaration.
It is trite and as correctly noted by my brother judge MAWADZE J, that “a claim for adultery damages is generally premised on two aspects, which are damages for contumelia and damages for loss of consortium”
Authorities are agreed that it is extremely difficult to accurately come up with figures that would adequately satisfy claims for these damages. The learned judge COLMAN J remarked in Muller v Vinkas follows:
“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 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 the faithless wife”.
In the case of Khumalo vs Mandishona MALABA J (as he then was) set out factors which should assist the court in its effort to determine the amount of damages to be awarded. These factors are listed as being;
the character of the woman (or man); involved
the social and economic status of the plaintiff (and the defendant);
whether the defendant has shown contrition and has apologised;
the need for deterrent measures against the adulterer to protect the innocent spouse against contracting HIV from the errant spouse; and
the level of awards in similar cases.
There is no doubt in my mind that the list set out is not exhaustive. They are other
factors which come into play and each case must to a large extend depend on its perculiar circumstances.
I now turn to consider what I perceive to be the appropriate award in this matter.
It is not my intention to try and re-invent the wheel by attempting to define contumelia but suffice it to say that in this regard the court tries to estimate and put in monetary terms the cumulative effect of the indignity, humiliation, lowered self esteem, frustration and so forth suffered by the plaintiff as a result of the adulterous conduct of the defendant.
In the instant case the defendant has been conducting herself in a manner calculated to ensure the plaintiff was sufficiently hurt and driving her to the point of almost destroying her marriage. The idea of forcing her first child into the plaintiff’s custody and tormenting the plaintiff by persistently sending her insulting text messages went too far in demonstrating the defendant’s un-shameful, provocative and belligerent attitude. The defendant does not seem to regret her conduct, she is not apologetic at all and the only way the court can register its displeasure is through the award of damages it deems reasonable enough to discourage her from continuing with her conduct which is a serious threat to the plaintiff’s monogamous marriage.
Relying on the perculiar facts of this matter and guided by the awards made in similar matters I would estimate an award of $4500-00 under this heading.
Loss of Consortium
Evidence abounds that the defendant has literally imposed herself as the plaintiff’s husband’s second wife despite the prohibitive nature of the plaintiff’s marriage.
The defendant now has two children as a result of this adulterous relationship. The defendant has been boastful to the plaintiff about going on holiday with the plaintiff’s husband. The cumulative effect of all these is that the plaintiff has been deprived of the expected comfort, society and service of her husband by the defendant.
For this I would estimate $1 500-00 as damages for loss of consortium.
The defendant has deliberately chosen not to defend herself and by so doing she has deprived herself of the opportunity to counter the amount of costs desired by the plaintiff. It should not be the function of the court to protect those who deliberately and with their eyes wide open choose not to protect themselves. The defendant has exhibited a stout determination to hurt the plaintiff. She is determined to continue with her deplorable conduct despite the plaintiff’s effort to keep her distance.
Having regard to all the circumstances of this case, I consider that it would be appropriate to award the plaintiff as damages for adultery:-
$4500 in respect of the contumelia, and
$1500 in respect of the loss of consortium.
It is ordered:
That the defendant pays the plaintiff $6000-00 damages with interest from13 July 2011 to date of full payment.
Costs of suit on Attorney-client scale.
Mutetwa & Nyambirai,plaintiff’s legal practitioners
Martha Muhwati vs Yeukai Purity Nyama HH 137/11
Muller vs Vink 1972(1) PGB2
Khumalo vs Mandishona 1996(1) ZLR 434(H)