Fezile Murahwa v Mayibongwe Ncube

The plaintiff married Stanley Murahwa on 24 July 2002 under the Marriage Act, Chapter 5:11. They enjoyed a happy marriage for 15 years. In February 2017 and January 2018, the defendant, who was the plaintiff's husband's workmate (both were police officers), started an adulterous relationship with the plaintiff's husband. The plaintiff confronted the defendant and exhibited proof of her marriage, but the defendant continued the relationship despite the plaintiff's attempts to dissuade her. The adulterous relationship resulted in the plaintiff's husband abandoning her and the children for the defendant. The plaintiff's husband withdrew conjugal rights, stopped showing love, and became abusive towards her. The plaintiff issued summons on 22 June 2018 claiming US$12,000 in adultery damages (US$8,000 for contumelia and US$4,000 for loss of consortium). The defendant did not appear at trial, thereby defaulting.

• Whether the defendant was aware of the existence of the marriage relationship between the plaintiff and Stanley Murahwa
• Whether the defendant entered into and continued with an adulterous affair with the plaintiff's husband despite such knowledge
• What quantum of damages the plaintiff is entitled to for contumelia and loss of consortium

Judgment entered for the plaintiff. The defendant was ordered to pay the plaintiff US$3,000 for contumelia and US$3,000 for loss of consortium (total US$6,000), together with punitive costs.

In adultery claims, damages should be assessed by considering: (1) the character of the woman involved; (2) the social and economic status of the plaintiff and defendant; (3) whether the defendant showed contrition; (4) the need for deterrent measures against adultery to protect innocent parties from HIV transmission risk; and (5) the level of awards in similar cases. When a defendant in an adultery action defaults at trial after initially defending, the plaintiff is entitled to punitive costs. The quantum of damages for contumelia and loss of consortium must be assessed reasonably in line with the circumstances of each case, recognizing that no amount of money can truly replace the pain and suffering occasioned by adultery, but the court must make a reasonable monetary assessment.

The court endorsed and repeated observations from previous cases that "no amount of money can replace the pain and suffering occasioned by adultery but the court has to make a reasonable assessment in line with the circumstances of the case" and that "in awarding adultery damages the court is in essence saying 'We give you money because there is nothing else we can give you, otherwise there is no money equivalent to the loss and pain as the loss cannot be measured by way of a monetary value.'" The court also endorsed the principle articulated in Katsumbe v Buyanga that "unless they are prepared to take a strong and principled stand in this regard in support of the vital institution of marriage, the courts will only be party to society's further slide down the slippery slope to the unlicensed promiscuity which scoffs at the spiritual prohibitions against pre-marital and extra-marital sex and which has landed the world in sexual morass over which the monster AIDS now presides in all its frightening aspects."

This case is significant in Zimbabwean jurisprudence as it reaffirms the courts' role in protecting the institution of marriage through adultery damages. It demonstrates the application of established principles for quantifying damages for contumelia and loss of consortium, considering factors such as the social status of the parties, the circumstances of the adultery, and the need for deterrence. The case emphasizes that courts must take a strong stand to support the vital institution of marriage and deter promiscuity, particularly in light of HIV/AIDS risks. It also provides guidance on the quantification of damages in adultery cases, contributing to the body of precedent on appropriate award levels in such matters. The court's recognition that no monetary value can truly measure the loss and pain caused by adultery reflects the delicate balance courts must strike in awarding damages.