Mary Mubaiwa v Jocelelyn Mauchaza Chiwenga

The applicant was sued by the respondent (estranged wife of General Constantine Chiwenga, Commander of the Zimbabwe Defence Forces) for adultery damages of US$40,000,000 under case HC 1561/12. The respondent was engaged in bitter divorce proceedings with General Chiwenga. Both the divorce and adultery proceedings had generated intense unwelcome media publicity. General Chiwenga had previously obtained an interim provisional order on 13 September 2011 (case HC 8833/2011) protecting him against publicity of the divorce proceedings. The applicant sought similar protection, arguing that the adultery proceedings were directly linked to the divorce proceedings and any publicity would expose the General to adverse publicity against which he already had protection. The applicant averred that she was a private individual with no desire for public exposure, and that adverse publicity had negatively affected her children at school. Newspaper articles had been published casting the applicant in a bad light.

• Whether the applicant was entitled to an order excluding persons from proceedings and restricting disclosure under section 3 of the Courts and Adjudicating Authorities Act
• Whether the right to privacy extends to public figures in private legal proceedings
• Whether publicity of the adultery proceedings would undermine the protective order already granted to General Chiwenga in the divorce proceedings
• Whether the interests of the applicant's children justified restricting publicity of the proceedings

A provisional interim order was granted providing that: (1) All persons including members of the press and media shall be excluded from the adultery proceedings except for the parties' witnesses and their legal representatives; (2) Any oral, written, transcribed or electronically stored record of proceedings shall not be accessible or made available to any persons save the parties and their legal practitioners; (3) None of the proceedings shall be disseminated or reported on or in any media, whether public or private, manual or electronic, by electronic mail or by internet; (4) None of the proceedings shall be disseminated to any media in Zimbabwe; (5) Costs to be costs in the cause. The order was to remain in effect pending the return day and confirmation or discharge of the provisional order.

The binding legal principles established are: (1) Courts have discretion under section 3 of the Courts and Adjudicating Authorities Act to make orders excluding persons from proceedings and restricting disclosure where necessary to protect the private lives of persons concerned; (2) Public figures retain a right to privacy in private legal proceedings, particularly in matters of private law dealing with personal relationships; (3) Where related legal proceedings involve the same central individual who has already obtained protection against publicity, similar protection should be extended to related proceedings to avoid defeating the purpose of the original protective order; (4) The interests and welfare of children justify restricting publicity of proceedings where adverse publicity has or may have a disconcerting effect on them; (5) In the absence of prejudice to any party, courts should grant protective orders to prevent invasion of privacy in private legal disputes between individuals.

The court made several non-binding observations: (1) That the adverse publicity had a natural consequence of affecting children exposed to conflicts involving their parents, and it was only fair and in the best interests of children to protect them; (2) That private law disputes between individuals do not require "the washing of dirty linen in the public glare" absent compelling reasons; (3) That if the respondent was not the source of adverse publicity and had no desire to publicize her legal battles, no prejudice could be perceived in granting the protective order; (4) The court noted that the newspaper articles tended to cast the applicant in a bad light and drag the General's name into the conflict, though this was not strictly necessary for the decision.

This case is significant as it demonstrates the Zimbabwean courts' recognition and protection of privacy rights in private legal proceedings, even for public figures. It establishes that public figures such as military commanders and former beauty pageants retain a right to privacy in their personal legal disputes. The judgment reinforces the principle that private law disputes between individuals need not be conducted in the public glare, and that courts have discretion under section 3 of the Courts and Adjudicating Authorities Act to exclude persons and restrict disclosure where necessary to protect private lives. The case also recognizes the importance of protecting children from adverse publicity concerning their parents' legal disputes. It further establishes that where related proceedings involve the same individuals, protective orders should be applied consistently to avoid defeating their purpose.