Marvellous Marufu v Ratidzo Nyamuchegwa

The plaintiff sued the defendant for adultery damages in the amount of USD 50,000 for engaging in an extramarital affair with her husband, Albert Mhondoro. The plaintiff and her husband were initially married under an unregistered customary law union, which was later upgraded to a civil marriage on 19 March 2018. The defendant was a workmate of the plaintiff's husband and had attended their wedding ceremony. The plaintiff alleged that the defendant committed adultery with her husband at diverse places and occasions in Zimbabwe. As a result, the plaintiff claimed she lost the love, companionship and affection of her husband, who moved out of their matrimonial home on 26 December 2020 and allegedly began cohabiting with the defendant. The plaintiff claimed USD 30,000 for loss of consortium, comfort and companionship, and USD 20,000 for contumelia (humiliation and embarrassment). The defendant raised a special plea that the claim for adultery damages is inconsistent with Chapter 4 of the Constitution of Zimbabwe and requested that the constitutional questions be referred to the Constitutional Court.

• Whether the request for referral to the Constitutional Court was frivolous or vexatious within the meaning of s 175(4) of the Constitution
• Whether the common law delict of adultery damages is unconstitutional
• Whether the adultery delict violates s 56(1) of the Constitution (equality before the law) by allowing a claim against a third party but not against the adulterous spouse
• Whether the adultery delict violates s 57 of the Constitution (right to privacy) by requiring disclosure of intimate sexual details
• Whether the adultery delict violates s 58 of the Constitution (freedom of association) by restricting the right to freely associate with consenting adults
• Whether the common law delict of adultery serves any rational and justifiable purpose protectable under the Constitution

The matter was referred to the Constitutional Court in terms of s 175(4) of the Constitution of Zimbabwe (Amendment) Act, 2013 for a determination of whether the common law delict of adultery damages is unconstitutional, specifically addressing: (a) consistency with s 56(1) regarding equality; (b) consistency with s 57(d) regarding privacy; (c) consistency with s 58(1) regarding freedom of association; and (d) whether the delict serves any rational and justifiable purpose protectable under the Constitution.

A request for referral of a constitutional matter to the Constitutional Court under s 175(4) of the Constitution is not frivolous or vexatious where: (1) there are conflicting High Court decisions on the constitutional issue in question; (2) there have been significant developments in family law and societal values; and (3) persuasive jurisprudence from comparable jurisdictions supports the constitutional challenge. The court has a duty to refer genuine constitutional questions that raise serious legal issues deserving of determination by the Constitutional Court, rather than to dismiss them at the threshold based on a finding of frivolousness or vexatiousness.

The court noted that a previous similar referral in Nyakudya v Chabvonga HH 559/19 had been deemed abandoned and dismissed by the Constitutional Court in CCZ 01/20, meaning there was currently no pending referral on these issues before the Constitutional Court. The court also observed that there have been changes in Zimbabwean family law reflecting changing societal values, such as no-fault divorce provisions allowing even an adulterous spouse to claim property, and equal treatment of children born out of wedlock. The court distinguished between the binding effect of the South African Constitutional Court's decision in DE v RH 2015 (5) SA 83(CC) (which is only persuasive) and the need for Zimbabwe to determine its own constitutional position based on Zimbabwean values and circumstances. The court acknowledged the tension between cases like Dhlamini v Pamberi HH 3/19 (which held that Zimbabwean society still considers adultery deserving of punishment) and evolving constitutional jurisprudence on fundamental rights.

This case is significant as it represents a referral to the Constitutional Court on the constitutionality of the common law delict of adultery damages in Zimbabwe. It reflects the tension between traditional common law principles protecting marriage and modern constitutional rights to equality, privacy and freedom of association. The case highlights the evolving nature of family law in Zimbabwe and the courts' role in developing common law to align with constitutional values. The referral follows similar developments in other Southern African jurisdictions (South Africa, Botswana, Namibia) where adultery delicts have been found unconstitutional or abolished. The case also demonstrates the High Court's gatekeeping function under s 175(4) in determining what constitutional questions merit referral to the Constitutional Court. The outcome of this referral could fundamentally alter the landscape of delictual claims arising from adultery in Zimbabwe.