Alfred Mukonori v Cleopas Gara and Clayton Ndoro v Cleopas Gara

The respondent, Cleopas Gara, was legally married to Agnes Gara (nee Jerimwe) under the Marriage Act Chapter 5:11 for approximately thirty years before she instituted divorce proceedings citing irreconcilable differences. The respondent issued separate summons against two appellants claiming adultery damages based on untranslated vernacular (Shona) WhatsApp text messages between his wife and each appellant. The respondent blamed each appellant for causing the marital breakdown. The Magistrates Court granted judgment in both cases, awarding the respondent USD 8,000 and USD 5,000 for loss of consortium, and USD 5,000 and USD 3,500 for contumelia respectively (or local currency equivalent). Both appellants appealed the decisions. The two appeals were consolidated for judgment due to common facts, parties, cause of action, and grounds of appeal. Evidence suggested that by January 2023, the respondent and his wife were already estranged and living apart, before the alleged delicts occurred and before the civil actions were launched in October 2023.

• Whether untranslated vernacular WhatsApp text messages are admissible as evidence in court proceedings conducted in English
• Whether a point of law regarding the admissibility of untranslated documents can be raised for the first time on appeal
• Whether WhatsApp text messages alone constitute sufficient evidence to prove adultery in the absence of physical evidence of sexual intimacy
• Whether an appeal becomes moot or academic when the judgment has been executed pending appeal
• Whether the quantum of damages for loss of consortium and contumelia was appropriate in the circumstances

Both appeals were allowed. The judgments of the court a quo (Magistrates Court) were set aside in both matters. The appellants were absolved from liability. The respondent's claims in the court a quo were dismissed with costs. The execution of the court a quo's judgment was set aside with costs in the second appeal.

The binding legal principles established are: (1) Documentary evidence in vernacular languages is inadmissible in Zimbabwean courts unless properly translated into English and certified in accordance with Section 17 of the Civil Evidence Act Chapter 8:01; (2) Courts in Zimbabwe, by virtue of Section 5(2) of the Magistrates Court Act Chapter 7:10 and Section 49 of the High Court Act Chapter 7:06, are English courts and proceedings must be conducted in English, save for matters specifically designated to be conducted in vernacular; (3) Failure to translate vernacular documents renders them inadmissible and any judgment based solely on such untranslated evidence is not well-founded and must be set aside; (4) A point of law may be raised for the first time on appeal if it involves no unfairness or prejudice to the party against whom it is raised; (5) An appeal is not rendered moot or academic merely because the judgment has been executed pending appeal where substantive legal issues remain to be determined that could provide meaningful relief to the appellant.

The court made several non-binding observations: (1) It would have been interesting to explore the issue of WhatsApp text messages as a basis for adultery damages against the underpinnings of constitutional freedoms of expression and association alongside their limitations, but this was not necessary given the disposition on the point of law; (2) The court noted that even if the untranslated messages were the best evidence available, they were still not properly before the court; (3) The court observed that different vernacular words may have totally different meanings to different ethnic groups - what may be foul or vulgar in one tribe may not be interpreted as such in another region, hence the need for the neutral language of English in courts; (4) The court commented that granting execution pending appeal, while procedural, somewhat defeats the ends of justice and impinges on the constitutional right of an aggrieved person to appeal; (5) The court noted from the record that the respondent's marriage was already rocky and the parties were estranged before the alleged delicts occurred, suggesting that contumelia damages or their quantum may have been misplaced in any event.

This case establishes important precedent in Zimbabwean law regarding the admissibility of evidence in vernacular languages in court proceedings. It reinforces the principle that courts must operate in English as prescribed by statute, and that all documentary evidence in vernacular languages must be properly translated and certified before being admitted as evidence. The judgment protects the integrity of court proceedings by ensuring accurate interpretation of evidence and preventing potential miscarriages of justice arising from untranslated vernacular documents. It also clarifies the circumstances under which an appeal may be considered moot or academic, holding that mere execution of a judgment does not render an appeal academic where substantive legal issues remain to be determined. The case has implications for the increasing use of electronic communications (such as WhatsApp messages) as evidence in delictual claims, particularly adultery claims.