Godfrey Tafa v D. Denya

The plaintiff's ex-wife, Patricia Tafa, was employed as the defendant's private secretary at Merchant Bank of Central Africa, where the defendant was financial director. Between 4-6 August 2002, both the defendant and Patricia were in South Africa - the defendant attending a directors' meeting and Patricia purportedly attending a secretary's conference. Patricia lied to the plaintiff (her then husband) about the purpose of her trip. The plaintiff discovered that the defendant was in South Africa at the same time, staying at a hotel approximately one kilometer from where Patricia was booked. When the plaintiff phoned Patricia in South Africa, she lied about being with a colleague who was actually still in Zimbabwe. Based on these circumstances, the plaintiff concluded that the defendant and Patricia had engaged in sexual intercourse and brought an action for adultery. Patricia later explained she had traveled to South Africa to cash traveler's cheques from a refund for a failed car purchase from Japan, and lied to the plaintiff because she feared he would demand the money. The plaintiff also alleged the defendant facilitated Patricia obtaining foreign currency in contravention of Exchange Control Regulations.

• Whether the plaintiff established on a balance of probabilities that the defendant committed adultery with the plaintiff's ex-wife
• Whether the application for absolution from the instance should be granted at the close of the plaintiff's case
• Whether there was sufficient evidence upon which a reasonable court could find in favor of the plaintiff
• What costs order should be made in the circumstances

The application for absolution from the instance was granted with costs (on the ordinary scale).

In an application for absolution from the instance at the close of the plaintiff's case, absolution will be granted where there is no evidence upon which a reasonable court acting reasonably could give judgment in favor of the plaintiff. A claim for adultery cannot succeed on the basis of mere speculation, conjecture and suspicious circumstances alone - credible direct or circumstantial evidence is required. Evidence that contradicts the plaintiff's case in every material respect, particularly from the plaintiff's own key witnesses, fatally undermines the claim. Late attempts to introduce crucial evidence (such as an alleged confession) during cross-examination that was omitted from all pleadings and earlier testimony will be viewed with considerable skepticism and rejected as an attempt to remedy an already failed case.

The court observed that a plaintiff whose marriage is under stress and unstable cannot be faulted for being suspicious when his spouse lies about travel plans and is in the same location as her employer. In such circumstances, the plaintiff is entitled to have his day in court to clear his conscience and suspicions, and therefore should not be penalized with a costs order on the higher scale despite the failure of his claim. This reflects the court's understanding that some failed claims arise from understandable human reactions to suspicious circumstances rather than malicious or vexatious litigation.

This case illustrates the evidentiary standards required in delictual claims for adultery in Zimbabwe, demonstrating that mere suspicion, speculation and conjecture are insufficient to establish a claim. It also demonstrates the proper application of the test for absolution from the instance - whether there is evidence upon which a reasonable court acting reasonably might find for the plaintiff. The case shows judicial willingness to exercise discretion on costs where, despite the failure of a claim, the plaintiff had legitimate grounds for suspicion that warranted judicial determination.