Basil Makururu v Derick Vori

The applicant (a lawyer by profession) instituted action proceedings against the defendant (a music artist) claiming adultery damages totaling $11,000 ($4,000 for contumelia and $7,000 for consortium). The defendant engaged in an adulterous relationship with the applicant's wife, Sharon Margaret Makururu, who was married to the applicant under the Marriage Act [Chapter 5:11]. The defendant and the applicant's wife arranged intimate meetings via WhatsApp while the applicant was working outside Harare. The applicant was humiliated when he was introduced to the defendant at the Legal Aid Trust (where the applicant was Chairman and his wife worked) as the defendant was presented as a relative of a workmate. The applicant discovered explicit sexual messages between the defendant and his wife, including discussions about his wife's menstrual cycle. This traumatized the applicant, leading him to resign from his Chairmanship and issue divorce summons. His wife has since moved to her parents' home. The defendant did not enter an appearance to defend, and the dies inducie expired, resulting in an unopposed application.

• What is the appropriate quantum of damages for adultery in cases involving contumelia (injury, hurt, insult and indignity)?
• What is the appropriate quantum of damages for loss of consortium (loss of comfort and society)?
• What factors should be considered in assessing adultery damages in Zimbabwe?
• What is the legal significance of adultery in protecting the sanctity of marriage?

1. The defendant shall pay a total of $6,000 (being $4,000 for contumelia and $2,000 for loss of consortium), together with interest thereon at the prescribed rate calculated from the date of the summons to the date of payment in full. 2. The defendant shall pay the costs of suit.

The binding legal principles established are: (1) Adultery damages must be awarded to compensate an innocent spouse for both contumelia (injury, hurt, insult and indignity) and loss of consortium (loss of comfort and society), even though monetary awards cannot fully compensate for the destruction of a happy marriage. (2) In assessing quantum of adultery damages, courts must consider: (a) social and economic status of plaintiff and defendant; (b) character of the spouse involved; (c) whether defendant showed contrition; (d) need for deterrent measures including HIV protection; and (e) level of awards in similar cases. (3) Where an adulterous relationship leads to divorce and there are no mitigating factors, higher awards are appropriate. (4) Awards must be meaningful and not appear to mock the aggrieved innocent spouse or make them feel the adulterer has won. (5) Adultery is wrongful conduct that intrudes upon and threatens the marriage institution, which is protected by both statute (Matrimonial Causes Act) and the Constitution of Zimbabwe.

The court made several non-binding observations: (1) The court noted the difficulty in placing monetary value on pain and suffering inflicted by adultery, endorsing the sentiment from Fuller v Fuller that no sum can truly compensate for mental distress suffered. (2) The court expressed concern about the increase in crimes of passion associated with adultery, suggesting this justifies meaningful deterrent awards. (3) The court observed that adultery is "still prohibited by public opinion as an act of sexual incontinence" (citing Mapuranga v Mungate). (4) The court noted the modern context of adultery facilitated through social media platforms like WhatsApp, which can intensify humiliation and pain. (5) The court commented on the need to protect innocent spouses against the risk of contracting HIV from errant spouses as a consideration in deterrence. (6) The court emphasized that adultery should be "visited with an award of damages" to censure conduct that displays arrogance and is calculated to demean and inflict pain on the innocent spouse.

This case is significant in Zimbabwean jurisprudence as it reaffirms the continued recognition of adultery damages in protecting the sanctity of marriage. It demonstrates the court's approach to assessing quantum of damages in unopposed adultery claims, emphasizing that awards must be meaningful to avoid mocking the innocent spouse and must serve deterrent purposes. The judgment reinforces that adultery remains wrongful conduct that threatens the marriage institution, as recognized in the Matrimonial Causes Act and the Constitution of Zimbabwe. It also reflects the modern context of adultery facilitated by social media and the need for courts to consider the increased risks of crimes of passion and health concerns like HIV when awarding damages. The case provides guidance on the settled factors to be considered in quantifying adultery damages in Zimbabwe.