Tatyana Shamhu vs Ancercaria Taderera HMA 01-23

Case name: Tatyana Shamhu vs Ancercaria Taderera HMA 01-23

High Court of Zimbabwe, Zisengwe J, Masvingo, Hearing: 12 & 26 September 2021 & Decision: 25 January, 2023.

Introduction

The case addressed the controversial issue of the validity of the claim of adultery damages post the new Marriages Act [hereinafter, the Act]. This Act in section 41(5) recognised civil partnerships where one of the civil partners is a party to a civil monogamous marriage with another person for purposes of property sharing. Although this relationship is an adulterous union, the Act expressly states that such a civil partnership will not constitute the crime of bigamy. Thus, the court had to address the submission that this legislative provision indirectly abolishes adultery damages.

Facts of the case

The plaintiff sued the defendant for adultery damages spurning for a decade and claimed an aggregate amount of US$50 000.  The claim of adultery damages was split with US$30 000 for contumelia and US$20 000 for loss of consortium. The claimant averred that the defendant continued in an adulterous relationship with her husband despite confronting her and being assured that she will terminate the affair. The plaintiff averred that there were two children sired in the adulterous relationship with her husband

The plaintiff submitted that as a result of this alleged affair, she had become depressed, her dignity and reputation in the community was tarnished. The defendant admitted the alleged adulterous relationship with plaintiff’s husband from 2012-2019 but claimed ignorance of the fact that plaintiff’s husband was in a civil monogamous marriage. She highlighted that she had given the plaintiff an amount of USD5 000.

Legal Issues

The identified issues to be resolved by the court were couched as follows:

Issue 1: whether the adulterous relationship between the defendant and the plaintiff’s husband still subsisted.

Issue 2: whether the defendant paid plaintiff US$5 000 as compromise for damages

Issue 3: what should be the quantum of damages in this case

Significantly, the court had to first address the question whether the claim of adultery damages is still constitutionally tenable in light of section 41(5) of the new Marriages Act recognising the co-existence of a civil monogamous marriage with a civil partnership.

Arguments presented

Plaintiff’s arguments

The plaintiff argued that the relationship between defendant and her husband still subsisted despite defendant’s knowledge of their existing civil monogamous marriage, because of messages exchanged on the WhatsApp platform as defendant had promised not only to end the affair, but to stop any communication with her husband. She averred that the timing of their communication (always around midnight), the tone and language used (warm and romantic) and the sudden end of their communications when her husband saw her confirmed its existence. Also, the pictures in defendant’s phone with defendant, plaintiff’s husband and their children together in a park, and the stand bought and developed by her husband to defendant’s brother where defendant was residing proved the continued existence of the illicit affair.

Consequently, plaintiff contented that the illicit affair made her endure humiliation in the face of a small community they resided in, she endured trauma and stress leading to a diagnosis of depression. She also claimed that such insult about the affair was exacerbated by the fact that the defendant was gifted a car and a house which she did not get as the wife.

Defendant’s arguments

Defendant claimed ignorance of the marital status of plaintiff’s husband alleging that when she became aware of his marriage to the plaintiff in 2019, she terminated their relationship. She disputed having had two children with plaintiff’s husband and she admitted to residing in the house bought by plaintiff’s husband to her brother, and she claimed not to be aware of the nitty gritties leading to the donation as she resided in the house as a caretaker on her brother’s behalf.

Defendant submitted that the time has come for the courts to declare that the delict of adultery no longer serves any useful purpose and is divorced from reality. The arguments brought before the court in support of the argument that the common law delict of adultery must be declared as unconstitutional were that;

• Adultery is between two consenting adults and it should not be the business of the law to police social morality.
• The delict is discriminatory and illogical as it punishes a third party only and not the adulterous spouse with whom the adultery is committed.
• Several countries have abolished the delict of adultery.
• Provisions in the New Marriages Act, which recognises civil partnerships for purposes of sharing of property between partners who may otherwise be in a classical adulterous relationship are a clear indication that things have changed and that adultery is no longer as loathsome as it was years ago.

Judgment and Ratio Decidendi

In relation to the argument of declaring adultery damages unconstitutional, Zisengwe J acknowledged that although the current society may arguably be more permissive and forbearing with adultery compared to the olden days, there remains several factors in favour of the retention of the delict. It was decided that adultery damages have not been abrogated by disuse. Admitting that the general populace’s viewpoint may have changed on sexual morality and marital fidelity, the court persistently upheld that the majority of people in Zimbabwe do not merely despise adulterous conduct, but they accept that paramours should be penalised for the wrong. Thus, the court upheld that the general community still frowns upon a person who knowingly interferes in the marriage of the other and such a person should be slapped with damages.

The court further held that no sufficient evidence was placed before it to discredit the claim on adultery as unconstitutional, and it was recommended that further research and consultations should be done before this delict is done away with.

Significantly, on the aspect of recognising civil partnerships in the new Marriages Act, even where one of the civil partners is married to another person in a civil marriage, the court pronounced that such a provision was never intended to abolish adultery damages, as it sought to address a completely different social mischief. The damages on adultery were said to have a twofold purpose, namely to act as a deterrent measure to would-be transgressors and to be a form of consolation to the wronged spouse. To conclude on the retention of damages, the court stated that;

“I believe that society is better served by its retention than by its abolition. Its abolition would aid rather than retard moral decay as those that may be inclined to engage in it will not deterred safe in the knowledge that no legal repercussion will befall them for their potentially ruinous conduct”[1]

On the question of whether the illicit relationship continued post 2019 between defendant and plaintiff’s husband, the court was on a balance of probabilities satisfied that the relationship was still extant. The court found it an anomaly and not a coincidence that when there was no longer a relationship between the two, the defendant would reside in a house registered in the name of plaintiff’s husband, and such a house would have been gifted to her brother. This was found to be a disguise. It was found irreconcilable that the defendant and plaintiff’s wife would chat late at night when plaintiff was asleep and would hide conversations when plaintiff stepped into the room with her husband. The picnic photographs were also confirmation of a continued relationship post the knowledge that plaintiff’s husband was a married man. In totality of all evidence led and the demeanour of parties, inferences were drawn that an adulterous relationship between the two parties continued post the 2019 confrontation and assurance to end it.

On the aspect of USD5 000 paid by defendant to plaintiff, it was held that the burden of proving a defence of compromise rests on the defendant. It was found not to be coincidental that this amount of money given to plaintiff equalled the money proven through bank statements to have been expended by plaintiff’s husband on defendant and her relatives. The money was found to be compensation for expenses expended prior to 2019 and not for adultery damages ensuing from 2019.

In the determination of the quantum for adultery damages in the form of contumelia (pain and suffering, indignity, humiliation) and loss of consortium (love, affection, support companionship and exclusive sexual relation), the court highlighted that the determining factors include;

(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

Considering that despite the defendant being an interloper to plaintiff’s marriage,she did not show any remorse about the affair and her resolve to continue with the affair despite her knowledge of their marriage called for an increase in damages thereof. The defendant was ordered to pay an amount of USD13 000 to the plaintiff.

Critical Analysis

This judgment is crucial in many respects insofar as the development of jurisprudence is concerned. Significantly, it resolved the previously uncertain legal question of whether the Marriages Act [Chapter 5:17] indirectly abolished adultery damages in section 41(5) when it recognised civil partnerships, particularly instances where one of the civil partners is married to someone else in a civil monogamous marriage. It has remained clear that the intention of the “civil partnership” provision was to ensure fair and equitable distribution of property as opposed to permitting adulterous relationships.

The judgment clarifies the position that adultery is an act usually done in secret, and two classes of evidence are admissible against the defence, both direct and indirect evidence are equally sufficient. The court can assess the evidence brought before it, draw inferences from the evidence or demeanour of parties and make a value judgment. Inferences of an intimate relationship can as found in this case, be drawn from the tone, language or timeframe in which conversations used to be done between the adulterer and adulteress. This is commendable as it ensures that the claim of the wronged spouse will not be defeated by lack of direct evidence.

This decision aligns with Constitutional and international standards that protect the institution of marriage. The decision resonate with the currently applied law, in the recent case of Masvimbo v Masvimbo HH237-26, it was similarly held that although the delict of adultery may have been abolished in other jurisdictions, it remains relevant in Zimbabwe. The plaintiff in this matter was similar to the case of Shamhu v Taderera granted an aggregate amount of USD8 000 for adultery damages. The court also fortified the same position held in the Shamhu case that adultery is seldom proved through direct evidence and the court can draw inferences from “conduct, surrounding circumstances, cohabitation and public representation, provided that the inference of an adulterous relationship is the most probable inference to be drawn from the facts.”[2] Thus, this case is in concomitant with domestic law upheld in our jurisdiction.

This case in setting out the arguments for and against the retention of adultery damages, and in recommending further research on the fate of this delict has opened discussions on whether this delict still reflect the perceptions and values upheld by the current society. Hence, it contributes in probing measures to be taken in the development of law which will reflect the current values and morals upheld by society.

Conclusion

To sum up, the delict of adultery damages remains valid and enforceable in Zimbabwe post the new Marriages Act that recognises the co-existence of civil monogamous marriages with civil partnerships. This case provides clarity on the continued application of the delict of adultery, an award of a hefty amount of USD13 000 against an intruder of one’s marriage clearly shows that the delict has not been abrogated by disuse or by the subsequent Marriages Act. The aspects of contumelia and loss of consortium remain the two heads of damages claimable under adultery damages and the act of adultery need not always be direct, it can be inferred on a balance of probabilities from the presented evidence [be it messages, photographs, acts of kindness done to each other and so on].

[1]  Shamhu vs Taderera HMA01-23: page 4.

[2]  Masvimbo v Masvimbo HH237-26.