ZIMBABWE EZEKIEL GUTI UNIVERSITY

FACULTY OF LAW
BACHELLOR OF LAWS (HONOURS) DEGREE

STUDENT NAME REG NUMBER

SALMA MUTUDZA R220402L

TARIRO MAZAMBANI R220398L

BRYAN MANDIKISI R220391L

RUTH MATARE R220465L

SIIMBARASHE G MALOMBOLA R220380L

SALEM MUKAZI R220460L

KAREN MANYIKA R220390L

SHAWN MATSANURA R220L39l

KUDAKWASHE MUSARARA R220439L

COURSE FAMILY LAW

COURSE CODE LLB 121

LECTURER’S NAME MRS. MACHAKA

MR. KOZANAI
Definition Of Terms
A ‘delic’t may be defined as a wrong committed against a person for
which damages may be claimed as compensation. 1

‘Adultery’ refers to is the consensual sexual intercourse between a married person and
someone other than the married person’s spouse.

‘Seduction’ is defined as a causal connection of a man with a woman who is a virgin

which gives rise to a claim for compensation in damage against the former by the
father or the loco parentis.2

INTRODUCTION
Admittedly the disdain against adultery and seduction damages is no-longer as it used
to be before. Society no-longer frown at adultery the same way it used to in the past.
It must be emphasized that adultery was long decriminalized and it’s now a private
matter between the parties involved.. Since the law is dynamic and ever evolving,
various laws have been promulgated and their effect on adultery and seduction is felt.
Such laws include the Legal Age of Majority Act and the Marriage Act
[Chapter5.15].
This essay serves to evaluate the relevancy of the delicts of seduction and adultery in
light of the new marriage laws in Zimbabwe.

SEDUCTION
Father lost his locus standi to claim for seduction damages completely and therefore
seduction lost its relevancy. Section 15 of the General Laws amendment Act endowed
women with majority status upon attaining the age of 18years.3This had the effect of
taking away the father’s locus standi to claim for seduction damages for his daughter
over the age of 18 years. In a judgement handed down on September 7, 1984
Dumbutshena C J held that, as a result of Legal Age of Majority Act 15 of 1982(now
incorporated into the general laws amendment act), an African father had lost the right

1
G Feltoe, A guide to Zimbabwean law of delict (2012) p6
2
Chengeta v Makura see also the case of Musa v Mbunjwa see also Welshman Ncube
3
General Laws Amendment Act [Chapter 8.07]
under customary law to sue for damages for the seduction damages of a daughter who
has attained the age of 18 years at the time of seduction.4 This provision together with
a recent judgement of the Constitutional court in the case of Kawenda v Minister of
Justice, Legal and Parliamentary Affairs5, completely eroded the father’s locus standi
to claim for seduction damages. This is in light of the fact that children below the age
of 18 years can no longer at law consent to have sexual intercourse. Under traditional
customary law, the delict of seduction is defined as sexual intercourse with a woman,
with her consent, but without her guardian’s consent.6 The delict is committed not
against the woman, but against her guardian, who, as the wronged party is entitled to
claim damages and the woman is merely an object through whom the delict is
committed.7 Hence the claim for seduction has is no-longer relevant since its purpose
has been eroded by various provisions i.e the application of the maxim cessante
ratione legis, cessat lex ipsa.

It is justified to argue that the delict of seduction has outlived its usefulness and that
it should be done away with. The action for seduction under general law cannot be
defeated by the volenti non fit injuria (to a willing person injury is not done) rule and
is available to a virgin girl who has been seduced, that is, who has parted with her
virtue at the solicitation of a man, and the presumption is that she fell as a result of the
man’s seductive efforts8. The facta probanda for this claim to succeed are;
 Proof of consensual sexual intercourse, and upon proof two
presumptions arise in her favour i.e.,
 presumption that the girl was seduced
 presumption that she was a virgin until the time of seduction
Once the presumptions arise the onus shifts to the defendant to rebut the presumptions
of seduction and or virginity9,contrary to the ‘he who alleges must prove principle’. It
is apparent from the aforementioned that in terms of this action women are viewed as
adjuncts whose minds are not at parity with those of men so much so that men are

4
Katekwe v Muchabaiwa 1984(2) ZLR 112(HH) see also the case of Magaya v Magaya 1999(1) ZLR
100 (SC)
5
See Kawenda v Min of Justice & Others CCC3/22.
6
Welshman Ncube, Family law in Zimbabwe, Legal resources Foundation
7
Ibid , the position was also reiterated in Musa v Mbunjiwa(supra note 4)
8
Ncube W (1989) Family Law in Zimbabwe Legal Resources Foundation, Harare p27. See also Bull v
Taylor 1965 (4) SA 29 (AD) p34. Also cited in Katekwe v Muchabaiwa SC 87/84.
9
Ncube W (1989) Family Law in Zimbabwe.
viewed as having the ability to sweet talk women into losing their virginity and that
women should be paid for having consensual sexual intercourse with men. This action
appears to offer more protection of the law, if not all, to women compared to men
since it ignores the fact that women also have the ability to seduce men, initiate and
enjoy sexual intercourse. This action is not in harmony with s56 of the Constitution of
Zimbabwe which guarantees the right to equal protection and benefit of the law to all
person irrespective of gender.

Under customary law the delict of seduction is committed by a man who has sexual
intercourse with an unmarried woman who is under her father or other relatives’
guardianship without the father or guardian’s consent10. The delict is not committed
against the woman but against the woman’s father or guardian, the father or guardian
being the wronged party. The woman is merely regarded as an object through which
the delict is committed and hence customary law does not recognise a woman’s right
to claim damages for her own seduction11. Over and above the argument that the delict
of seduction under general law appears biased towards women as such has outlived its
usefulness, under customary law women’s right to claim for seduction is stripped off.
While a father whose daughter is seduced after she has attained 18years of age later
on lost the right of action or locus standi to sue for damages12, the delict of seduction
remained available in relation to minor girls below 18years of age13. It is therefore
clear that this action under customary law violates the Constitution as sexual
intercourse with a person below 18 years of age was deemed
unconstitutional.14Furthermore, one of the requirements for this action under
customary law is occurrence of sexual intercourse without the guardian’s
consent15.This is in huge contrast with the law in the sense that sexual intercourse in
the case of a person under 18yrs is unlawful16 and it is an individual’s discretion on
whether or not to engage in it in the case of a person of 18 years and above. In view of
10
See Muza v Mbunjwa 1943 SRN 17. Also cited in Ncube W (1989) Family Law in Zimbabwe
11
See Ncube “The Decision in Katekwe v Muchabaiwa: A Critique”, ZL Rev. Vol 1and2, 1983-4,
p220; Storry, p59. See also Nira v Marete and Ngando 1947 SRN 175. See also Katekwe v
Muchabaiwa (supra) p18.
12
See Katekwe v Muchabaiwa (Supra)
13
Supra ibid.
14
See Kawenda v Min of Justice & Others CCC3/22. The court however suspended its order for 12
months from the date it was passed to allow the respondents to enact a law that protects all children
from sexual exploitation in accordance with section 81 (1) (e) of the Constitution of Zimbabwe.
15
Ncube W (1989) Family Law in Zimbabwe Legal Resources Foundation, Harare p34.
16
See Kawenda v Min of Justice & Others (Supra note 14).
the above, it is a justified assertion that delict of seduction has outlived its usefulness
and that it should be done away with.

The delict of seduction is a concept which focuses on stipulating compensation for the
unmarried woman with whom the man would have had sexual intercourse with.
Under customary law, the delict of seduction is based on the assumption that it
diminishes a woman's chances of marriage as well as the amount of lobola a man can
pay in order to marry her. Damages would be awarded to compensate a guardian for
these losses. 17 The provisions of section 41 of the new Marriages Act acknowledge
civil partnerships which is a factor which renders the delict of seduction irrelevant.18
In a civil partnership the parties concerned would have consented to cohabitation,
harnessing property together and sharing conjugal rights. It therefore becomes
pointless for the accused male on any case to pay for seduction charges as the
statutory provision clearly acknowledges the cohabitation of a man and a woman
who share conjugal rights without having to be married. The initial prospects of the
delict have undoubtedly been foregone by the provisions of the new Marriages Act.
This is so because things like the promulgation of promiscuous acts, protection of an
individual’s privacy and dignity are no longer of much importance when read in
context of the new law. The delict of seduction therefore becomes an archaic law
which needs to be phased out.

Among other notable changes that were brought by the advent of the new marriage act
which makes seduction archaic and outlived is the issue of lobola becoming optional.
The delict of seduction was a tool which was used to protect unmarried woman from
being seduced as this would result in the diminution of prospects of marriage and also
the amount of lobola that was paid when a girl was being married. The bridegroom
would not pay or part with the mombe yechimanda if the girl was not a virgin. The
delict of seduction was put in place to restrain man from sleeping around with
unmarried woman as this had detrimental results on the amount of lobola that was
paid when a girl who had been deflowered of her virginity. However the coming of
the new Marriage Act chapter (5:15) has resulted lobola being optional in other forms
of marriage for instance qualified civil marriage, civil marriage and civil

17
Welshman Ncube, Family law in Zimbabwe, Legal resources Foundation
18
See, Marriages Act [Chapter 5:15]
partnerships.19 This defeats the absolute purpose of delict seduction which was to
serve the interest of the father who would benefit more if the her daughter was a
virgin via a prize of a cow(mombe yechimanda).20 According to the new marriages act
couples in the civil and qualified civil marriage can now tie knots without lobola
payment by the other spouse as long as they are consenting.21 This means marriage
consent now forms the bed rock of a marriage and this is proffered on section 4 of the
Chapter 5:15 of the new marriages act. However on the other hand the element
pertinence of the delict of seduction still suffice as lobola is still regarded mandatory
in other forms of marriages such as the unregistered customary law marriage and the
customary law marriage.

However, it should be noted that the delict of seduction under customary law has not
yet been eliminated by the legislature. At customary law the delict of seduction is
committed when a man induces a woman (whether or not she is a virgin) who is not
his wife to have sexual intercourse with him. The action for damages is at the instance
of the father or guardian of the woman who is entitled to claim damages for
impairment of the bride wealth (roora) value of the woman.. It was laid down in the
case of Katekwe v Muchabaiwa (1984) that, where the woman in question is 18 or
over, under the Legal Age of Majority Act she becomes a major and thus only she can
sue for seduction and her action is under common law in this instance. In other words,
the guardian’s right to sue for seduction under customary law falls away when the girl
attains the age of 18. The fact that the delict of seduction is still existence in some
statutory provisions shows how it has not outlived its purpose ad should not be
ignored.22

ADULTERY
The introduction of a qualified marriage has lessened the relevance of the tort of
seduction through its nature of being potentially polygamous. The civil law marriage
Chapter 5:11 were strictly monogamous in nature. This means that they was only one

19
Marriage Act Chapter 5:15
20
Prof Welshman Ncube, Family law in Zimbabwe, Legal Resources ,1989
21
Webmaster, Marriage Act in Zimbabwe: Marriages Act Chapter 5:15 accessed on 24 November
2022
22
See Gomwe v Chimbwa 1983 (2) ZLR 121 (S); Ketero v Mukarati S-20-84; Katekwe v Muchabaiwa
1984 (2) ZLR 112 (H); Lopez v Nxumalo S-115-85; Mwashita v Simango S-116-87; Chidembo v
Machingambi S-50-87.
me man one wife in a marriage. The advent of the new marriages Act has opened the
doors of acts of adultery to protrude into a civil marriage in the name of a qualified
civil marriage were a spouse can have more than one partner if willing. As a result
this has dissolved the significance the delict of adultery in which a jilted spouse in a
civil marriage could claim for adultery damages for loss of consortium and
contumelia which injured the other party. This is alluded in the case of Njodzi v
Matione23 were the plaintiff was married Lawrence Muzondiwa in terms of Chapter
5:11. The effects of the mischief of adultery is further projected in the case of
Chinyadza v Phiri24 and RH and DE (SCA)25.The delict of adultery was put to protect
a marriage from crumbling as a result of infidelity which was countered by section 25
of the constitution of Zimbabwe, in which the government was given an obligation to
protect a family by all means or measures. The delict is now archaic because what
was sought to be protected from endangering marriages is now being recognised by
the law thus making it lawful. This means partners in the qualified civil marriage can
now be involved in adulterous affairs. Hence lessening the relevancy of adultery
damages.

However, it should be noted that the constitution declares under section 51 that
everyone has the right to human dignity and under section 52(1)26, the right to
freedom from all forms of violence from public and private sources. Adultery is a
violation of the right to dignity and as such adultery damages must persist. Adultery
damages are claimable on two distinct grounds, one of which is contumelia which
involves inter alia the indignity inflicted upon an innocent spouse.27 A third party is
deemed to have infringed the normal flow of marriage and affected the rights and
obligations would have normally accrued to the parties had the infringement not
occurred.28 In the case of Njodzi v Matione29, the court held that:
In circumstances where a third party is prepared to violate the marriage
institution, they cannot be seen to complain of their dignity being impaired
when they would have violated the very institution they vowed to protect
23
Njodzi v Matione HH 37 2016
24
Manyadza v Phiri HH 76-09
25
DH v DE (C594/2013) [2014] ZA SCA 113
26
Constitution of Zimbabwe Amendment (No.20) Act, 2013
27
Chiyadza v Phiri HH 76-09
. see also for a comparison W. Ncube Family Law in Zimbabwe (1989) p.153.
28
Mahachi v Zimba HH ZLR 315/17
29
Njodzi v Maatione HH 37/16
 through the constitutional values. The invasion of a marriage by a third party
in the Zimbabwean context is an attack on the dignity of the innocent party.
The dignity of the adulterer ought not to be more important than that of an
innocent party to a marriage.
Hence this necessitate the action to claim for adultery damages.

There is uncertainty surrounding the status of adultery damages in view of the new
Marriages Act which allows for civil partnerships even in cases where one of the
partners is legally married to someone else. While the law expressly absolves civil
partners from criminal liability in cases where one of them is legally married to
someone else, it is silent on the viability of the claim for adultery damages in that
regard30, that said, there is some sense in the argument that adultery damages have
outlived their usefulness. It is however argued that it seemingly amounts to ‘jumping
the gun’ if such a conclusion is made. While the Supreme Court of Appeal in South
Africa raised mero motu (of its own accord) the question whether the claim for
adultery damages should continue being part of the law and unanimously decided that
the time had come to rid our legal system of this claim31, the Zimbabwean courts take
a different approach. It was held that the action for adultery damages against a third-
party committing adultery with someone’s spouse remains part of the law Zimbabwe
and there is no reason to follow the jurisdictions which have abandoned this remedy32

CONCLUSION
In succinct, the foregoing discussion has been deliberating on the applicability of the
delicts of seduction and adultery in current Zimbabwe. One can draw a conclusion
that the delict of seduction as per customary law is archaic because it is derogatory
towards women and therefore against the Constitutional value of equality. On the
other hand, the new marriage laws are nebulous and they are not clear when it comes
to the issue of adultery damages because of the recognition of civil partnerships which
are adulterous in nature. In this regard, the judiciary must make use of their mandate
to develop common law taking into account the dynamic needs of the society.
BIBLIOGRAPHY

30
See section 41 (6) of the Marriages Act [Chapter 5:15]
31
See DE v RH [2015] ZACC 18.
32
See Tanyanyiwa v Huchu 2014 (2) ZLR 758 H.
BOOKS
G Feltoe, A guide to Zimbabwean law of delict (2012)
Welshman Ncube, Family law in Zimbabwe, Legal resources Foundation

CASE LAW
Bull v Taylor 1965 (4) SA 29
Chidembo v Machingambi S-50-87.
DE v RH [2015] ZACC 18.
Gomwe v Chimbwa 1983 (2) ZLR 121 (S)
Lopez v Nxumalo S-115-85
Ketero v Mukarati S-20-84
Katekwe v Muchabaiwa 1984 (2) ZLR 112 (H)
Mahachi v Zimba HH ZLR 315/17
Mahachi v Zimba HH ZLR 315/17
Mukono vs. Gwenzi 1991 ( 1 ) ZLR 119
Mwashita v Simango S-116-87
Musa v Mbunjwa 1943 SRN 17
Nira v Marete and Ngando 1947 SRN 175
Njodzi v Maatione HH 37/16
Tanyanyiwa v Huchu 2014 (2) ZLR 758 H.

STATUTES
Legal Age of Majority Act
General Laws Amendment Act[Chapter 8.07]
Marriages Act [Chapter 5:15]