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Fidelis Munyoro Chief Court Reporter
A South African court’s landmark ruling that adultery is no longer part of that country’s law and a “wronged spouse” may no longer sue for damages has sparked outrage and criticism within the legal and social circles in Zimbabwe.

Zimbabwe and SA jurisdictions are founded on Roman and Roman-Dutch law, and hence are similar in legal principles.

While the tradition has been for our courts to follow without hesitation developments coming from across the Limpopo, legal experts who spoke to The Herald yesterday discouraged local courts from upholding “the reasoning of the SA apex court on the grounds of world trends”.

The unanimous decision by that country’s Constitutional Court delivered last week on Friday says that marriage is based on the concept of two willing parties and where the relationship breaks down, it is not appropriate for the law to intervene in the parties’ intimate personal affairs.

It said one could not attach monetary value to marital fidelity while the third party involved could not be sued for damages.

Penned by Justice Mbuyiseli Madlanga, the judgment recognised that, when developing the common law, courts must have regard to societal values, which are based on constitutional norms.

The central question in this case, then, was whether society would still regard it as legally unacceptable for a third party to commit adultery with someone’s spouse.

The court found that the global trend was moving towards the abolition of civil claims based on adultery.

Said Justice Madlanga: “Even in South Africa, it is clear that attitudes towards the legal sanction of adultery have been softening.

“Marriages are founded on love and respect, which are not legal rules and are the responsibility of the spouses themselves.

“In the present case, the breakdown of the marriage was as a result of failure by the spouses themselves to sustain their marriage, and thus it would be inappropriate for the courts to intervene.

“In contrast, maintaining the claim in our law would infringe on various rights of adulterous spouses and the third parties, including the rights to dignity and privacy.

“Accordingly, adultery should no longer be punished through a civil damages claim against a third party.”

Local legal and social commentators described the historic judicial decision as an attack on the sanctity of marriage and a move to decimate cultural and moral values that have kept the society glued for many years.

Advocate Thembinkosi Magwaliba described the judgment as inconsistent with the concept of delictual compensation for injuries for emotional injury.

“While no monetary value could be attached to damages to such emotional pain, the courts have always used their value judgment to arrive at a fair amount commensurate with the level of pain and suffering and other factors including the views of society towards the delict,” he said.

In Zimbabwe, as indeed most African societies, including South Africa, Adv Magwaliba said, society had not developed to accept adultery as permissible.

“The duty to develop common law in line with the constitution does not mean frog marching society and its values to a future which we are not yet ready to embrace,” he said.

“The very fact that marriage is based on the consent of both parties is the reason why the adulterer must be made to pay adultery damages.

“He or she knows almost always that the partner is married and all the same goes ahead with the relationship.”

Analyst Mrs Sithembile Mpofu viewed the judgment by the South African apex court as a clear reflection of the futility of legislating on issues of morality.

She said the local courts had not been as bold as the South African courts, but have demonstrated that they do not regard adultery as a heinous transgression deserving of harsh sanction as seen in the low quantum of damages they usually award.

“As we go forward and with this precedent having been set by our sister jurisdiction, it is, however, likely that our own common law shall soon follow suit,” she said.

“The onus will then fall on members of society to deal with these issues within their own personal spaces and according to their own moral standards.”

Harare-based legal expert Mr Vote Muza said: “Our Constitutional Court must not rush to uphold the reasoning of the SA apex court on the grounds of world trends.

“Most of these developments are coming from Western jurisdictions that have been abandoning morality in preference of such debauchery as homosexuality, and legalised prostitution.”

Mr Muza said the sanctity of marriage should be protected, hence adultery must remain punishable civilly.

“If we are to build a strong society, the starting point is to use the law to protect certain good morals. Hence our court should not be swayed by pro-Western judicial interpretations whose effect is to proliferate our society with dangerous moral habits,” he said.

Bulawayo-based social commentator Mr Teddy Ncube said the family as a unit is a strategic institution which should be protected.

“Like every other institution, it should be treated using modern indicators of value.

“The collapse or failure of civil partnerships has a levy on the state,” he said.

To this end, Mr Ncube said, the act of attaching monetary value was a deterrent measure seeking to discourage deliberate acts of savagery in civil relationships.

“It is good to be outward looking in policy making, but the outward is not a source of legitimacy,” he said.

“It’s, therefore, not enough to site cultural practices abroad to justify the appropriateness of cultural transformation at home.”

Mr Ncube pointed out that social transformation was a good thing, but as African countries, there was need to always look into “our culture and history for guidance”.