Judith Tikiwa v Makomborero Adiyolah Charlie

The plaintiff and Major Mejasi Tikiwa married under customary law in 1994, and their marriage was solemnised under the Marriages Act [Cap 5:11] on 6 December 2001. The marriage produced three children aged 17, 15, and 9 years. The plaintiff left employment to become a full-time housewife. In November 2011, the plaintiff discovered a love message from the defendant on her husband's phone. She replied advising the defendant that she was married to Major Tikiwa under the Marriages Act and had three children, requesting the defendant to stop the relationship. Despite this, the defendant continued the adulterous relationship. In January 2012, the plaintiff's husband left the matrimonial home to cohabit with the defendant at stand 1776 Area D Westgate, a property he had acquired without the plaintiff's knowledge. A child was born from the relationship. In February 2012, the husband issued summons for divorce. The plaintiff sued for adultery damages totaling USD 25,000 (USD 15,000 for loss of consortium and USD 10,000 for contumelia). The defendant denied knowledge of the marriage initially and claimed the marriage had already broken down.

• Whether the defendant knew that the plaintiff's husband was married to the plaintiff at the time she was engaged in an intimate relationship with him
• Whether the plaintiff suffered damages due to the adultery and the quantum thereof
• Whether the plaintiff suffered loss of consortium
• Whether the plaintiff suffered contumelia
• The appropriate quantum of damages for adultery in light of comparable awards

Judgment for the plaintiff. The defendant was ordered to pay the plaintiff adultery damages in the sum of USD 6,500 with interest at the prescribed rate, plus costs of suit on the ordinary scale.

For adultery damages to be awarded: (1) There must be proof of actual loss of consortium, meaning the wife must be shown to have lost the companionship, society, services, and conjugal rights of her husband as a result of the adultery. (2) The plaintiff must prove that the loss was caused by the adultery the defendant committed with the spouse and that damages were suffered as a result. (3) Damages are aggravated where the adultery led to the breakup of the marriage. (4) Contumelia damages are awarded for the injury, hurt, insult and indignity inflicted upon the plaintiff by the defendant's conduct. (5) In assessing quantum, courts must consider: the character of the parties involved; the social and economic status of the parties; whether the defendant showed contrition; the need for deterrent measures against adultery particularly in light of HIV/AIDS; the level of awards in similar cases; and whether both loss of consortium and contumelia were suffered. (6) Even if a defendant initially did not know of the marriage, continuing the adulterous relationship after becoming aware constitutes adultery warranting damages.

The court made several important observations: (1) No sum of monetary value can adequately translate into the pain and anguish suffered or truly compensate for the breakup of a marriage - courts make "rough and ready assessments" varying according to circumstances. (2) The prevalence of HIV/AIDS cannot be overlooked, and acts of promiscuity make a mockery of efforts to control HIV infections. Persons with a propensity for promiscuity should be reminded that "history will judge them harshly as uncaring spreaders of the deadly HIV virus." (3) While the guilty spouse is not before the court, his conduct in abandoning his family and requiring them to sue for maintenance demonstrates equal culpability in promiscuity. (4) The court can only discourage adultery by awarding damages that reflect the circumstances without being unduly harsh, and punitive damages may be appropriate where the defendant shows arrogance and lack of remorse. (5) The court noted that while the plaintiff requested costs on a higher scale, ordinary costs were appropriate despite the defendant's failure to admit adultery from the outset.

This case is significant in Zimbabwean family law jurisprudence as it clarifies the principles for awarding adultery damages in the multicurrency era, particularly regarding: (1) the assessment of damages for loss of consortium and contumelia; (2) the requirement of proof of actual loss of consortium (abandonment of matrimonial home); (3) the relevance of the defendant's knowledge of the marriage and their conduct after becoming aware; (4) the aggravating effect of lack of remorse and contemptuous conduct; (5) the consideration of HIV/AIDS prevalence as a factor warranting deterrent damages against promiscuity; and (6) the quantum of awards appropriate in USD following dollarization. The judgment provides guidance on the proper approach to assessing damages in adultery cases and emphasizes the court's role in discouraging adultery through appropriate awards that reflect the circumstances of each case.