Daniel Nemukuyu Senior Court Reporter—
The legality of adultery damage claims has spilled into the Constitutional Court, which is set to rule on whether or not people can still be sued for the vice in terms of the new supreme law of the country. A Harare-based nurse accused of dating a married man to the detriment of a long-time marriage, Ms Lorraine Matione, is contesting Justice Hlekani Mwayera’s judgment dismissing her interlocutory constitutional application.
Justice Mwayera recently ruled that adultery damages are a legal claim meant to protect the sanctity of marriage and they remain part of the local laws. The judge threw out the challenge by Ms Matione who was seeking to be cleared of adultery on the basis that suing a third party was unconstitutional.
Justice Mwayera’s judgment came at a time when some Zimbabweans were excited about the recent South African judgment outlawing adultery damages, hoping the local courts would follow suit.
Ms Matione 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.
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.
Justice Mwayera then dismissed the application, prompting Ms Matione to approach the Constitutional Court with an appeal.
In the notice of appeal filed on Thursday last week, Ms Matione argued that the High Court erred in dismissing her challenge.
“The court a quo erred and grossly misdirected itself in holding that common law delictual claim for adultery damages is not archaic and is still constitu- tional.
“The court a quo erred and grossly misdirected itself in failing to uphold the point that the delict of adultery damages’ continued existence in the Zimbabwean context was no longer justified,” read the notice of appeal.
She wants the High Court judgment to be overturned.
Ms Matione wants the Constitutional Court to declare adultery damages unconstitutional.
Justice Hlekani Mwayera said decisions of the South African court or other foreign courts outlawing such damages and declaring them 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 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.
Justice Mwayera said there was nothing unconstitutional about adultery damages.
She 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.
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.