Sandra Mupindu (nee Makweche) v Catherine Tatenda Chitopota

On 12 March 2025, the Plaintiff issued summons claiming damages for loss of contumelia and consortium against the Defendant. The Plaintiff alleged that the Defendant intruded into her marriage with her husband Simon Mupindu sometime in 2014 and engaged in a continuing sexual relationship with him, despite knowing of the marriage. Three children were born from this relationship. The Defendant allegedly contributed to causing the Plaintiff's husband to move out of the matrimonial home. The Defendant filed a special plea of prescription and exceptions on the grounds that: (1) the matter was prescribed since the cause of action arose in 2014; (2) the Plaintiff had condoned the adultery and was compensated under customary law; and (3) there was a fatal non-joinder as Simon Mupindu was not joined to the proceedings.

• Whether a claim for adultery damages prescribes when the adulterous relationship is continuing
• Whether the defense of prescription can succeed in the case of a continuing wrong
• Whether condonation and customary law compensation extinguish a claim for adultery damages
• Whether the non-joinder of the husband (Simon Mupindu) constitutes a fatal defect that should defeat the claim

The special plea and exception were dismissed with costs. The matter was allowed to proceed to trial on the merits.

In claims for adultery damages involving a continuing adulterous relationship, the defense of prescription cannot succeed to dismiss the entire claim, though portions of the claim relating to acts of adultery that occurred more than three years (the prescriptive period) prior to commencement of the action are prescribed. Where the unlawful act itself continues by its very nature for all the time, the plaintiff is entitled to claim damages for the period that is not extinguished by prescription. Condonation of adultery does not extinguish a claim for damages but is only mitigatory. Non-joinder of a spouse against whom allegations are made does not constitute a fatal defect where the plaintiff does not seek relief against that party.

The court noted that the defense of condonation and customary law compensation raised disputed factual issues that could not be resolved on the papers before it, and these matters would need to be determined at trial. The court also observed that the Plaintiff's claim for costs on a higher scale was not justified on the papers.

This case is significant in Zimbabwean law (though the user requested South African law analysis, this is a Zimbabwean judgment) for clarifying the application of prescription to claims for adultery damages where the adulterous relationship is ongoing rather than a one-off incident. It establishes that continuing wrongs in adultery claims prevent the defense of prescription from succeeding entirely, though claims older than the prescriptive period are time-barred. The case also confirms that condonation is mitigatory rather than extinctive of adultery claims, and reinforces the liberal approach to non-joinder under modern civil procedure rules.