High Court Judge Justice Sunsley Zisengwe has defended the delict of adultery and said it must remain in the statutes to protect the institution of marriage.
He said this when he handed down probably the heaviest damages for adultery since the High Court in Masvingo was established in 2016, when he ordered Provincial Medical Director, Dr Amadeus Shamu’s mistress Ancercaria Taderera to pay US$13 000 to his wife Tatyana Shamu.
Justice Zisengwe said that Tatyana who broke down in court as she narrated how her husband built a house for the mistress when she as a wife didn’t have any was traumatized by the adulterous relationship. The Judge said he even felt pity for Tatyana as she was on the witness stand and recounting her experience.
“The plaintiff cast a sorrowful and pitiful sight on the witness stand as she recounted the humiliation, pain and indignity she had to endure on account of the adulterous relationship. As a consequence, she lapsed into a depression necessitating medical intervention,” said Justice Zisengwe.
Tatyana was represented by Grace Bwanya of Chihambakwe and Partners while Taderera was represented by Pauline Chimwanda of Nyavo, Ruzive Attorneys
Justice Zisengwe warned that the introduction of civil partnerships under the new Marriage Act, Chapter 5:15 last year does not remove the delict of adultery but was only introduced to deal with sharing of properties where a relationship had existed. The existence of civil partnerships in the Marriage Act does not therefore, remove adultery as it serves a different purpose, he said.
Analysts who commented to The Mirror after the ruling said there were a lot of misconceptions over civil partnerships introduced into the Marriage Act with many people relapsing into believing that adultery is no longer an issue.
Justice Zisengwe further said that the delict of adultery was important in the laws to serve two purposes; as a deterrent to would be transgressors and therefore preserve the sanctity and protect marriages. Damages from adultery give solace for the innocent spouse who is affected, said the Judge.
He disagreed with the defendant’s lawyer that adultery in the statutes was unconstitutional and he dismissed an appeal for the Judge to make such a declaration.
Chimwanda, on behalf of her client also said in her closing submissions that extramarital relationships have become so common and acceptable in contemporary Zimbabwe society that adultery in the statutes was no longer relevant and served no purpose. She said adultery was between two consenting adults and the law had no business policing social morals.
Justice Zisengwe agreed with Chimwanda that today’s society is more tolerant towards adultery but he said there are more factors that support the retention of the adultery delict. He said the steady flow of adultery cases into the courts means that a lot of people still frown at adultery. He called for more evidence to support Chimwanda’s position including the necessity of a referendum.
The relationship which resulted in two children started in 2011 and Tatyana discovered it in 2019. There was an out of court settlement in which Taderera paid US$5 000 compensation for monies and other favours that she had received from Dr Shamu. After the settlement there was an agreement that Taderera would stop the adulterous relationship.
However, Tatyana decided to sue for US$50 000 after realizing that the two continued with their relationship. Her evidence that the relationship still subsisted was that Dr Shamu and Taderera continued to communicate clandestinely mostly at midnight when she was asleep. She said that the tone of their communication was cordial and romantic. Tatyana said that Dr Shamu would abruptly end Ancercaria’s conversations whenever she entered his room.
More painful to Tatyana is that Taderera was a family friend who worked at Dr Shamu’s surgery. She said that Dr Shamu pampered his girlfriend with gifts that she never received herself as a wife.
She said that Dr Shamu bought Taderera a car and built her a house, something that he could not do for her as a wife. She also said that the two no longer share the same bedroom as a result of the illicit affair.
The damages claimed for by Tatyana were for contumelia and loss of consortium. Contumelia is the injury, insult and indignity suffered by the plaintiff as a result of adultery while consortium relates to the loss of comfort society and service of the wife of husband as the case maybe.
Justice Zisengwe granted Tatyana US$5 000 for contumelia and noted that Taderera’s case was worsened by her lack of contrition to the extent that she said in court that Tatyana’s depression was not caused by the illicit relationship but by the war in Ukraine because she is a Ukrainian.
For contumelia, Justice Zisengwe granted Tatyana US$8 000 because her marriage had all but collapsed with the couple using separate bedrooms and living as strangers.
