Nicholas Gwinyai Muchirahondo v Carol Bere and Others

The applicant and first respondent were in an adulterous relationship lasting several years which produced a son. During the relationship, they lived together and purchased immovable property (Stand No 2830 Bluffhill Township), which was registered solely in the first respondent's name. The applicant claimed to have contributed US$100,000 towards completing construction on the property. The applicant alleged that the parties had an agreement to share equally any property acquired during their relationship upon its termination. When the relationship ended and the first respondent intended to dispose of the property, the applicant sought an interdict to prevent such disposal, claiming he was entitled to 50% of the property's value based on their alleged agreement.

• Whether the applicant had established a clear right to interfere with the first respondent's real right in the property registered in her name
• Whether a contract premised on an adulterous relationship was enforceable
• Whether the court could grant relief based on an immoral agreement
• Whether the ex turpi causa non oritur actio rule applied to prevent enforcement of the alleged agreement

The application was dismissed with costs.

A contract premised on an immoral adulterous relationship is unenforceable. The ex turpi causa non oritur actio rule (no action arises from an immoral cause) prevents courts from granting relief that would enforce or give legal effect to an immoral agreement. To establish a clear right necessary for an interdict against interference with registered property rights, an applicant must demonstrate an enforceable legal right; a claim based on an immoral agreement fails to establish such a right. Granting relief directly premised on an immoral agreement would improperly clothe that agreement with legality.

The court observed that while adultery is immoral, it is not illegal as it is not an offence but merely opens parties to civil suits. The court noted that while courts will not enforce immoral agreements, they may nevertheless grant relief or restitution to a party who has made performance without receiving reciprocal benefit, but distinguished this from the present case where the applicant sought to enforce the immoral agreement itself. The court indicated that examining the other requirements for granting an interdict (beyond establishing a clear right) became unnecessary once the applicant failed at the threshold of establishing a clear right.

This case reaffirms the application of the ex turpi causa non oritur actio principle in Zimbabwean law, establishing that courts will not grant relief that is directly premised on an immoral agreement, as this would clothe such agreements with legality. It clarifies the distinction between enforcing an immoral contract itself versus granting restitution where one party has performed under such a contract. The case demonstrates the limits of judicial intervention in disputes arising from adulterous relationships and protects registered real rights in property from claims based on unenforceable immoral agreements.