Chipo Jhamba v Aleta V. Mugwisi

The plaintiff and her husband entered into a monogamous marriage under the Marriages Act [Chapter 5:11] on 17 August 1974, which marriage still subsisted. From 1988 and on diverse occasions, the plaintiff's husband and the defendant engaged in an adulterous sexual relationship which resulted in the birth of four children, the last one being born in December 1996. This adulterous relationship continued for 21 years. The plaintiff did nothing about the adultery until 2009 when she sued the defendant for adultery damages in the sum of US$50,000. The defendant initially defended the action but later failed to file a plea, leading to an application for default judgment. The plaintiff did not sue for divorce and remained married to her husband.

• Whether the plaintiff was entitled to adultery damages despite her inaction for 21 years
• Whether the plaintiff's conduct amounted to condonation of the adultery
• What the appropriate quantum of damages should be in the circumstances
• Whether adultery damages should be properly separated between contumelia (injury) and consortium (loss of society and comfort)
• Whether a large award of damages is justified when the plaintiff has not sued for divorce and continues to remain married

The court ordered: (1) Payment of US$500 (Five hundred United States Dollars) as damages for adultery against the defendant; (2) Interest at the prescribed rate on the sum of US$500 from the date of service of summons to date of full and final payment; (3) Costs of suit at an attorney and client scale.

The binding legal principles established are: (1) Adultery damages are claimable on two entirely separate and distinct grounds: contumelia (injury inflicted upon the plaintiff) and consortium (loss of comfort, society and services of the spouse), and these must be properly distinguished in the claim; (2) The quantum of adultery damages must be reflective of all the circumstances surrounding the occurrence of the adultery, including the plaintiff's own conduct; (3) Where a plaintiff has knowledge of an adulterous relationship over an extended period and takes no action, this constitutes condonation which significantly reduces the appropriate quantum of damages; (4) Loss of consortium is a main element in the estimation of damages for adultery; (5) Where the plaintiff chooses to maintain the marriage and does not sue for divorce, this indicates incomplete loss of consortium and justifies a reduction in damages, as awarding substantial damages in such circumstances would amount to allowing the plaintiff to trade on the spouse's dishonour.

The court made non-binding observations that: (1) In the absence of the plaintiff's denial of knowledge of the adultery, given the length of time of the adulterous relationship (over 20 years) and the birth of four children, it is reasonable to assume she must have known about it at some point; (2) The plaintiff is entitled to either sue the adulterer alone or simultaneously sue her spouse for divorce; (3) Had the plaintiff sued for divorce, this would have demonstrated that she had indeed lost consortium of her husband and her claim for a higher sum would have been justified; (4) The long duration of inaction (21 years) removes the sting and effect that adultery usually has on the offended party; (5) The court expressed the view that claiming large sums for adultery damages for a relationship that has existed for over 20 years, while choosing to maintain the marriage, is inconsistent with genuine loss of consortium.

This case is significant in Zimbabwean family law jurisprudence as it establishes important principles regarding the assessment of quantum in adultery damages claims. It emphasizes that courts will consider the conduct of the plaintiff, particularly evidence of condonation through prolonged inaction, in determining appropriate damages. The judgment reinforces the legal distinction between the two grounds for adultery damages (contumelia and consortium) and requires plaintiffs to properly distinguish between these in their claims. It also establishes that the decision not to seek divorce while claiming adultery damages is a relevant factor in quantum assessment, as it suggests the plaintiff has not completely lost consortium. The case serves as authority for the proposition that courts will not allow parties to "trade on their spouse's dishonour" by awarding excessive damages when the circumstances indicate condonation or acceptance of the adulterous relationship.