Daniel Nemukuyu Senior Court Reporter—
ADULTERY damages are a legal claim meant to protect the sanctity of marriage and they remain part of our laws, a High Court judge has ruled in a direct challenge to the status in neighbouring South Africa.
South African courts last year outlawed adultery damages, a decision that was celebrated by Zimbabweans. Dismissing a constitutional application by a Harare nurse who was contesting a suit against a third party over the breakdown of a marriage, Justice Hlekani Mwayera said decisions of the South African court or other foreign courts to declare such damages unconstitutional were not binding on Zimbabwe.
Justice Mwayera said in terms of Zimbabwean policy and values, adultery remains wrongful and the claim for damages was justified as it serves to compensate the injured party. Ms Lorraine Matione, a nurse at Harare Central Hospital, wanted adultery to be abolished saying it violated the third party’s rights to privacy and equality before the law.
The nurse is accused of knowingly having an adulterous affair with Mr Lawrence Muzvondiwa that resulted in the birth of a son. Harare lawyer Mr Nyasha Munyuru of Muvingi and Mugadza law firm, on behalf of Mr Muzvondiwa’s wife, Ms Georgina Njodzi, issued out summons claiming adultery damages to the tune of $25 000 from Ms Matione.
In the middle of the adultery hearing, Ms Matione, through her lawyer Mr Wellington Pasipanodya of Manase & Manase Legal Practitioners, raised constitutional issues. Justice Mwayera said there was nothing unconstitutional about adultery damages.
“The marriage institution is founded upon morals and the Constitution, which is the supreme law of the country that protects the very morality, underpinned relationship,” ruled Justice Mwayera.
“Intrusion in the marriage institution by adultery therefore remains wrongful and there is nothing unconstitutional about an adultery damages claim,” he said. “Accordingly, it is ordered that the application to have adultery damages claim declared unconstitutional is dismissed with costs. The plaintiff’s claim for adultery damages is properly before the court,” said Justice Mwayera.
He said while a person could not sue his or her spouse at law, the third party or intruder must not get away with an offence. “Whereas the innocent party cannot sue their spouse for adultery for the obvious reason (underlying the marriage relationship), they also have an option to divorce or condone and move on, the fundamental question is what should happen to the third party who would have intruded?
“It is the law which ought to retain a legal outlet to the aggrieved spouse,” he said. “The third party who, with knowledge, intrudes into the marriage institution, ought to compensate the innocent spouse for the injury occasioned,” said Justice Mwayera. “It goes without saying that adultery is almost always debilitating for the victimised spouse who suffers indignity and hurt because of the adultery.”
Justice Mwayera said foreign judgments on adultery had no binding force because the issue must be analysed in the Zimbabwean context. “Whereas it is important to take note and appreciate what is going on in other jurisdictions, it is of paramount importance to apply the principle in the context of our nation as a constitutional democracy,” he said.
Added Justice Mwayera: “It is my considered view that the society which was involved in the constitution-making process still views adultery negatively. “The legal convictions of our society have not changed so much that adultery could objectively be regarded as reasonable and thus it remains unlawful. The Zimbabwean Constitution and subservient laws still permit redress by claims for adultery damages.”
During the hearing, Mr Pasipanodya submitted that having an affair with a married man was not legally wrong but only wrong on moral grounds. He said it was the duty of the married couples to protect and safeguard their unions and not third parties. He said if a spouse was aggrieved by infidelity or adultery, the only two remedies were divorce or reconciliation.
Mr Pasipanodya told the court that adultery was not the cause of divorce in the case of his client but instead, it was a result of divorce. He said the law must be amended to make it clear that spouses should be responsible for protecting and safeguarding their marriages.
Mr Munyuru opposed the application saying Ms Matione was fully aware of the marriage between Mr Muzvondiwa and Ms Njodzi and must be sued. He said Zimbabwe must not be guided by decisions of courts in other countries as situations and circumstances were different.
Mr Munyuru said in most cases, adultery was the cause of breakdown of marriages and the perpetrators should be punished. He said granting the constitutional challenge would have the effect of opening the floodgates of promiscuity in these days of HIV and Aids.
Mr Munyuru said Zimbabwe was a country dominated by Christianity and a decision legalising adultery would be against Christian values. Mr Muzvondiwa and Ms Njodzi married in 1996 under the Marriages Act.
The marriage still subsists. It is alleged that in 2012, Mr Muzvondiwa entered into an adulterous relationship with Ms Matione which resulted in the birth of a child on April 9 2014. Since then, Mr Muzvondiwa and Ms Matione have been living together as husband and wife.