Makanyara Perpetual Mafunga v Natasha Green

The applicant married Evans Kudzayi Gwekwerere traditionally at the beginning of 2020 and civilly under the Marriage Act [Chapter 5:11] on 1 November 2020. Approximately three weeks later, on 21 November 2020, the applicant discovered that the respondent was in an adulterous relationship with her husband. The respondent allegedly knew of the marriage but engaged in the affair regardless. The respondent and the applicant's husband had a child together and were cohabiting at the time of the application. The applicant's marriage was not blessed with children. A letter of demand was sent to the respondent on 6 October 2021 but was neither responded to nor acknowledged. The respondent did not enter an appearance to defend or file a plea, and was barred. The applicant claimed she suffered loss of love and affection, loss of support, comfort, status and luxury, stress, depression, and was exposed to sexually transmitted diseases including HIV/AIDS. The respondent showed no contrition.

• Whether the respondent was liable for adultery damages having engaged in sexual relations with the applicant's husband knowing he was married
• The quantum of damages to be awarded for contumelia (injured feelings, infringement of privacy, dignity and reputation)
• The quantum of damages to be awarded for loss of consortium (loss of love, companionship, sexual privileges and assistance)
• Whether the claims were properly quantified in light of currency devaluation

The respondent was ordered to pay the applicant ZWL$1,015,449.30 (comprised of ZWL$406,190.52 for contumelia and ZWL$609,285.78 for loss of consortium), together with interest at the prescribed rate from the date of judgment until full payment, plus costs of suit.

An adulterer is liable for damages where she knew at the time of sexual intercourse that her sexual partner was married. Damages are claimable under two heads: (1) loss of consortium (which includes loss of love, companionship, sexual privileges and assistance, and is the main element in estimation of damages), and (2) contumelia (for infringement of privacy, dignity and reputation). Loss of consortium must be awarded as the larger amount. Factors relevant to quantum include: the character of the parties, their social and economic status, whether the defendant showed contrition, the need for deterrent measures against adultery (particularly regarding HIV/AIDS transmission), the level of awards in similar cases, and the circumstances of the particular case. Claims for mental breakdown must be supported by medical evidence. In the context of currency devaluation, courts should convert claims to stable currency equivalents (such as USD) to ensure awards remain meaningful and comparable to precedents.

The court endorsed the strong statement from Katsumbe v Buyanga 1991 (2) ZLR 256H that courts should "come down hard" on adulterers in the absence of mitigatory circumstances, to support the vital institution of marriage and ensure aggrieved spouses do not feel the adulterer has been the winner. The court noted the particular distress caused when adultery occurs during the "honeymoon phase" of a marriage (here, only three weeks after the civil marriage). The judgment observed that insufficient evidence was provided regarding the social and economic status and character of the parties, which would have assisted in properly assessing the level of indignity and infringement of dignity. The court also noted that the heightened fear of HIV/AIDS transmission was evidenced by the birth of a child, demonstrating unprotected sexual relations in the adulterous relationship.

This case is significant in Zimbabwean family law and delict as it demonstrates the application of adultery damages principles in the context of currency devaluation and economic instability. It reaffirms the importance of properly apportioning damages with loss of consortium as the main element, and illustrates the court's approach to converting claims to USD equivalents to ensure awards remain meaningful despite rapid currency devaluation. The judgment reinforces the need for courts to take a strong stand against adultery to protect the institution of marriage, while also requiring proper evidence (such as medical reports) to support certain claims. It provides guidance on the range of appropriate awards for adultery damages in contemporary Zimbabwean jurisprudence.