Prepared by: Clayton Mutseneki

Prepared for: Family Law tutorials

Adultery Damages
Main Discussion points:
Is the delict of adultery still relevant for our society if we speak of equality and non-
discrimination?
The Constitutionality test of adultery damages in Zimbabwe in light of the South African case
of DE v RH [2015] ZACC
Key cases to note:
Georgina Njodzi V Lorraine Matione HH 37-16 HC 11253/14.
Amiya Nyakudya v Moreblessing Chabvonga HH 559-19 HC 10584/14 (Constitutionality of
adultery damages).
South African case of DE v RH [2015] ZACC (validity of adultery damages.

Adultery is sexual intercourse between two people where one of the parties or both are
married to someone else at the time of the intercourse. The cuckolded party can sue the 3rd
party who would have committed adultery with their spouse for adultery damages. a third
party who infringed the spouses’ consortium by committing adultery with one of them could
be sued for damages resulting from contumelia (that is, insult) and loss of consortium.

In the case of Georgina Njodzi V Lorraine Matione HH 37-16 HC 11253/141the court

outlines that ,it is important to look at the delictual claim of adultery and the mischief that the
law seeks to protect by the remedies available. It is settled that adultery is an injury
occasioned to the innocent spouse because of the adulterous relationship. The spouse
can recover damages for loss of a spouse’s consortium as well as any patrimonial loss
suffered and also personal injury or contumelia suffered by the innocent spouse,
inclusive of loss of comfort, society and services. Once contumelia is established then the
next issue would be whether or not there is loss of consortium, that is loss of comfort and
society. The basis of such a claim being the defilement and corruption of the innocent
spouse’s matrimonial bed. It is my considered view that adultery damages, whether classified

1
Georgina Njodzi V Lorraine Matione HH 37-16 HC 11253/14
as falling under contumelia or on the other hand, consortium, are delictual damages arising
from a delictual wrong occasioned to an innocent married party. To this extent the distinction
is fallacious.2

In the case of Timothy Chinyadza v Melton Phiri HH 76-093 Kudya J at p 4 of the

cyclostyled judgement defined contumelia as follows: “Contumelia is equated to the injury,
hurt, insult and indignity inflicted upon a plaintiff by adultery committed by a
defendant with his or her spouse”. One does not require a magnifying glass to scrutinize
and come up with a conclusion that contumelia, that is injury, hurt, insult and indignity
occurs, to an innocent spouse where the other commits adultery. The injury is so obvious that
there would be no justification in not seeking legal redress for the wrongful hurt occasioned.
The Supreme Court of South Africa decision in the case of RH and DE (C594/2013) [2014]
ZA SCA 133.4 confirmed that the award for contumelia was rightly made even though there
was a finding that the adultery was committed at a time when the marriage had already
irretrievably broken down.

On the basis of Adultery Damages

Common Law basis
It is important to understand the basis of such a delictual claim in the context of a marriage
institution. A marriage is defined as a sugeneris contract entered into by two willing parties
(see Ncube, Family Law in Zimbabwe 1987]. 5The sanctity of this anomalous contract is
what an adultery damages claim seeks to protect. The claim should not be viewed in isolation
but from the view point of its purpose, being to protect the sanctity of marriage. If it is for
this purpose then the argument that it is improper to sue one party to the adulterous
relationship does not hold water. This is because given the nature of a marriage, it would
amount to suing one self. Whereas in suing the third party, the claimant will be seeking a
personal remedy for hurt, injury, iniquity of company and comfort occasioned by the third
party’s association with the married party. The historic background to adultery claims should
not be ignored upon considering whether or not the delict no longer has space in our legal
system.

2
Ibid (n 1) above , HH 37-16 HC 11253/14.
3
Timothy Chinyadza v Melton Phiri HH 76-09.
4
(C594/2013) [2014] ZA SCA 133.
5
Ncube, Family Law in Zimbabwe 1987.
Constitutional Law basis

Sect. 2: Supremacy of the Constitution

Sect. 3: Founding values-

Sect. 17(2): (2) The State must take positive measures to rectify gender discrimination and
imbalances resulting from past practices and policies> acceptable for men to commit adultery
under cultural norms???

Sect. 25: Protection of the family

Sect. 26(c) Equality of rights and obligations of spouses during marriage and at its
dissolution;

Sect. 51 Right to personal dignity: Every person has inherent dignity in their private and
public life, and the right to have that dignity respected and protected.

Sect. 56 on Equality & Non discrimination

Sect. 78 on Marriage Rights:

Sect. 80(1) & (3): Rights of Women:

(1) Every woman has full and equal dignity of the person with men and this includes equal
opportunities in political, economic and social activities.

(3) All laws, customs, traditions and cultural practices that infringe the rights of women
conferred by this Constitution are void to the extent of the infringement.

Evidence requirements for adultery damages

It is a well-known fact that given the secretive nature of an adulterous relationship, evidence
of the same is seldom direct. The parties to an adulterous relationship almost invariably strive
to keep their relationship a secret and their sexual trysts more so. Therefore, direct proof of
sexual intercourse between the paramours is not always required and an inference of such
conduct may be drawn from their conduct. Adultery might be inferred where the evidence
showed that the parties desired one another, had the opportunity of gratifying their desire and
showed willingness to do so. (Kleinwort v Kleinwort, 1927 AD 123; Goodrich v
Goodrich, 1946.
In Smit v Arthur 1976 (3) SA 378.)6Court of appeal in setting aside an order absolving the
respondent from the instance on the basis that insufficient evidence had been placed before
the court to draw an inference of adultery said the following:

“It is clearly correct that no single episode or incident deposed to in evidence could,
considered in isolation, properly give rise to an inference of adultery… But the proper
resolution of the issues in this case must be sought not by appraising each incident simply on
its own circumscribed facts, but by a careful survey of the whole of the history of the
relationship of the parties and of their behaviour at all relevant times. All the relevant facts
must necessarily go into the melting pot and the essence must finally be extracted therefrom.
While the triad of desire, opportunity and willingness will often be sufficient to justify
the inference of adultery, it does not follow that each of those elements must be
independently proved; depending upon the circumstances, proof of the first two of those
elements might justify an inference that the third, too, was present.”

Sight must of course not be lost of the facts that adultery as with any other civil suit needs
only to be proved on a preponderance of probabilities. See Gates v Gates, 1939 A.D, at
p. 155; Ley v Ley's Executors and Others, 1951 (3) SA at p. 192; Van Lutterveld v
Engels, 1959 (2) SA at p. 702C and that adultery can be established in the same manner as
any other fact in a civil case by means of inference from circumstances.

Current position on adultery damages

In the case Tatyana Shamhu v Ancercaria Taderera HMA 01-23 SUM 07-22 it was
observed that:-

“This is a claim based on the controversial and often emotive delict of adultery. Its
controversy stems from the fact that its continued retention on our books has courted support
and opposition alike in almost equal measure. Whereas its proponents justify its retention on
the basis that it is an important safeguard to the sanctity of marriage and resonates with the
nation’s culture and mores, its opponents on the other hand argue that the delict is antiquated
and is completely out of sync with the current permissive and liberal society and above all
discriminatory and therefore no longer serves any useful purpose.”7 The two camps (1)
Abolitionist (Against) views and (2) Conservatives (for adultery).

6
Smit v Arthur 1976 (3) SA 378.)
7
Tatyana Shamhu v Ancercaria Taderera HMA 01-23 SUM 07-22.
Quantification of Adultery Damages

Adultery damages are generally claimable under two separates heads, namely contumelia and
loss of consortium. Contumelia encompasses the injury, insult and indignity suffered by the
plaintiff as a result of the adultery and loss of consortium relates to the loss of comfort
society and service of the wife of husband and as the case may be as a result of the adultery
committed by the defendant (see Khumalo v Mandishona (supra).

In Nyakudya v Washaya 2000 (1) ZLR 653 (H)8 the court referred to the factors listed in
Khumalo v Mandishona (supra)9 in considering the appropriate quantum of damages in a
claim for adultery. These are;

(a) the character of the woman (or man) involved;

(b) the social and economic status of the plaintiff (and the defendant);

(c) whether the defendant has shown contrition and has apologized;

(d) the need for deterrent measures against the adulterer to protect the innocent spouse

against contracting HIV from the errant spouse;

(e) the level of awards in similar cases

8
Nyakudya v Washaya 2000 (1) ZLR 653 (H)
9
Khumalo v Mandishona 1996 (1) ZLR 434 (H).