Rita Sekesai Chiwandamira v Josephine Mupandawana

The plaintiff sued the defendant for adultery damages totaling ZW$400 billion (ZW$200 billion for contumelia and ZW$200 billion for loss of consortium), claiming the defendant committed adultery with her husband Stanley Chiwandamira from 1981 to the date of summons. The plaintiff married Stanley in 1975 under the Marriages Act and had six children with him. The defendant admitted having a relationship with Stanley in 1981-1982, resulting in a child named Blessing, but claimed she was unaware Stanley was married at first. The relationship ended in 1982 and was resuscitated in 2006 when Stanley told the defendant he had divorced the plaintiff. Stanley had left the matrimonial home in 2004 to live with a prophetess in Budiriro before moving in with the defendant in 2006. He had also sired two other children with different women in 1987 and 1988. On 28 July 2008, the defendant tendered ZW$400 billion (the full amount claimed) in settlement, which was received by the plaintiff's legal practitioners on 30 July 2008 but never returned. After receiving the tender, the plaintiff's legal practitioners attempted to amend the claim to ZW$400 trillion.

• Whether the defendant caused the plaintiff's loss of consortium with her husband
• Whether the plaintiff suffered contumelia at the hands of the defendant warranting substantial damages
• Whether the defendant's tender of the full amount claimed discharged her liability
• Whether the plaintiff had validly amended her summons to increase the claim amount
• Whether costs should be awarded

The claim was dismissed with no order as to costs.

For a successful claim for loss of consortium in an adultery action, the plaintiff must prove actual loss of consortium caused by the defendant's adulterous conduct. Where the defendant is not shown to have enticed the errant spouse to abandon matrimonial duties, and where the marriage had already broken down before the adultery, damages are minimal or not recoverable. A tender of the full amount claimed, when received and retained by the plaintiff's legal practitioners without being returned, constitutes acceptance and discharge of liability, regardless of whether a receipt was issued or whether the tender complied with procedural rules. The test is the intention of the parties as shown by their statements and conduct. Amendment of pleadings after issue of summons requires either consent of parties or order of court - a mere notice of amendment without either is invalid and ineffective.

The court observed that it was improper for the plaintiff to persist with a claim that had already been settled by tender and payment. The court commented critically on the plaintiff's attempt to attribute all her marital anguish to the defendant when Stanley had multiple adulterous relationships with other women and had already abandoned the matrimonial home for another woman before resuming relations with the defendant. The court also made critical observations about the improbability of the legal practitioner's explanation regarding the alleged earlier notice of amendment, and about counsel making averments from the bar on behalf of a clerk who was not called as a witness. The court expressed concern about the confusion created by multiple contradictory notices of amendment and the lack of authenticity of certain documents allegedly filed with the court.

This case is significant in Zimbabwean law for its treatment of adultery damages claims, particularly regarding: (1) the requirement to prove actual causation of loss of consortium by the defendant's conduct; (2) the principle that damages for loss of consortium are reduced where the marriage has already broken down or where the defendant did not entice the spouse away; (3) the law on tender and settlement, particularly that retention of a tendered amount without returning it can constitute acceptance even without formal receipt or compliance with procedural rules; (4) the importance of credibility and full disclosure in delictual claims; and (5) procedural requirements for amending pleadings. The case illustrates judicial intolerance for improperly pursuing claims that have been settled.