Kudzai Gombakomba v Tsitsi Bhudhiyo

The plaintiff (wife) married Charles Gombakomba in a civil monogamous marriage on 23 June 1995, though they had cohabited since 1980. In September 2004, the husband informed the plaintiff he had a friend called Tsitsi Bhudhiyo (the defendant). The defendant and the husband had been in an adulterous relationship since June 2002. During this period, they traveled together on business trips to various locations including South Africa, Kariba, Mutare and Bulawayo. The defendant claimed the husband told her he was not married and that his wife had deserted him. The defendant visited the husband's home only twice over three years and the husband introduced her to his relatives. The defendant fell pregnant and gave birth to a child on 2 February 2005. After learning of the marriage, including at a maintenance hearing in April 2005, the defendant continued her relationship with the husband. The plaintiff's marriage suffered significantly - her husband reduced sexual relations to once every four months, stopped supporting development of their property, no longer bought gifts for the family, and spent nights away from home. The plaintiff sued for adultery damages of $100,000,000.

• Whether the defendant knew that the plaintiff's husband was married when she engaged in the adulterous relationship
• Whether the defendant was called upon to stop the adulterous relationship and whether she heeded the plaintiff's protestations
• Whether the plaintiff suffered damages and the quantum thereof
• Whether condonation by the innocent spouse precludes a claim for loss of consortium or limits damages to contumelia only
• The appropriate measure and assessment of damages for adultery including both loss of consortium and contumelia

Judgment for the plaintiff. The defendant shall pay the plaintiff the sum of $80,000.00 (revalued) as damages for adultery with interest thereon at the prescribed rate from 15 April 2005 to the date of full payment and costs of suit.

A defendant who is 'diligent in ignorance' - who suspects that a person is married but deliberately avoids confirming those suspicions - has sufficient knowledge to be held liable for adultery damages. Condonation by an innocent spouse does not automatically bar a claim for loss of consortium; damages for partial loss of consortium may be awarded even where the marriage continues and adultery has been condoned, provided the plaintiff properly pleads such loss and establishes it through evidence showing the extent of the loss. Adultery damages comprise two distinct heads: (1) loss of consortium (loss of companionship, love, affection, comfort and services); and (2) contumelia (injury, hurt, insult and indignity inflicted on the innocent spouse). In assessing quantum, courts must consider: (a) the character of the persons involved; (b) the social and economic status of the parties; (c) whether the defendant has shown contrition; (d) the need for deterrent measures to protect the marriage institution; and (e) the level of awards in comparable cases. The adulteress may be held liable for damages even where the adulterous relationship continues after the innocent spouse has protested and called for its cessation.

The court observed that there is no set protocol by which lovers should conduct their affair, acknowledging the difficulty in establishing definitive proof of knowledge of marital status. The court noted that lovers who are truly besotted with one another would naturally seek to be together, implying that avoidance of the matrimonial home was indicative of guilty knowledge. The court commented that in adultery cases, the true blame lies with the married spouse who strays from the marital bed and instigates the affair. The court expressed sympathy for the anxiety the innocent spouse must experience upon discovering infidelity in the context of the HIV/AIDS epidemic, though no medical evidence was led in this case. The court acknowledged that comparable case awards have ceased to have utility value due to the inflationary spiral affecting the currency. The court observed that adultery awards should not be seen as a path to riches but must be substantial enough not to punish the plaintiff for seeking recompense. The court noted that the husband's conduct in misleading the defendant through blandishments and pretending to initiate customary union procedures was a mitigating factor for the defendant, effectively acknowledging that the primary moral culpability rested with the married spouse who initiated and perpetuated the deception.

This Zimbabwean High Court judgment is significant for clarifying the law on adultery damages in several respects: (1) It definitively resolves that condonation by an innocent spouse does not automatically bar claims for loss of consortium, provided such loss is properly pleaded and proven through evidence - the spouse may claim for partial loss of consortium even where the marriage continues; (2) It applies and develops the 'diligent in ignorance' test from Takadini v Maimba, holding that constructive knowledge or willful blindness to a married person's status is sufficient to establish liability; (3) It provides comprehensive guidance on assessing damages for both loss of consortium (companionship, love, affection, comfort and services) and contumelia (injury, hurt, insult and indignity), identifying five key factors for assessment; (4) It addresses the evidentiary burden on plaintiffs to establish partial loss of consortium through specific pleadings and proof; and (5) It emphasizes that adultery damages should provide fair and adequate recompense without constituting a windfall, while being sufficiently substantial to serve deterrent purposes and protect the marriage institution. The judgment is notable for its thorough review of prior Zimbabwean and Federal Supreme Court authorities on adultery damages.