HARARE: The High Court has warned it will not fold its arms and let society drift into immoral decadence under the canopy of ill-perceived rights. Justice Hlekani Mwayera said the matrimonial bond was undeniably protected by the Constitution which sanctions the marriage institution. She said this while awarding $8 000 to Georgina Njodzi who had sued her husband’s lover Lorraine Mationa for adultery.
Njodzi was legally married to Lawrence Muzvondiwa Njodzi for 22 years at the time the illicit affair was birthed and conceived a child.
She claimed adultery damages to the tune of $25 000, which was split into $15 000 for contumelia and $10 000 for loss of consortium.
But Justice Mwayera reduced the claim to $8 000 for both contumelia and loss of consortium.
“Any intrusion to the detriment of marriage institution in situations where the intruder has knowledge or ought to have knowledge should not go unchecked,” said Justice Mwayera.
She said the delictual claim for adultery damages was still relevant in a progressive society like Zimbabwe which has its social values sanctified in the supreme law of the country.
“The quantum of damages should not be a mockery to the aggrieved party lest the judicial system falls into disrepute and run the risk of being held in complicity with the adulterous couple,” she said.
Justice Mwayera said where evidence was flawless as in the case, that Njodzi was injured, insulted and subjected to indignity contumelia umbrella damages were justified.
The judge noted that from 2012 to the time of hearing the matter, Njodzi suffered loss of consortium.
The case, which started off with a pre-trial conference, was referred to trial after parties failed to hammer a settlement.
The court had to determine whether Mationa committed adultery with Njodzi’s husband. Other issues for determination were whether Njodzi was entitled to contumelia and consortium as well as payment of $25 000 as damages.
Last year, Mationa, a nurse at Harare Central Hospital, had her constitutional application seeking to abolish adultery law by the same court thrown out.
Justice Mwayera, who dealt with the constitutional application at the time ruled that adultery damages were a legal claim meant to protect the sanctity of marriage and they remained part of the country’s laws.
The ruling was a direct challenge to the status in neighbouring South Africa, which two years ago outlawed adultery damages, a decision that was celebrated by Zimbabweans.
This had inspired Mationa to launch a constitutional application contesting a suit against a third party over the breakdown of a marriage.
But Justice Mwayera said decisions of the South African court or other foreign courts to declare such damages unconstitutional were not binding in Zimbabwe.
Justice Mwayera said in terms of Zimbabwean policy and values, adultery remains wrongful and the claim for damages was justified as it serves to compensate the injured party.
Mationa wanted adultery to be abolished saying it violated the third party’s rights to privacy and equality before the law. She was accused of knowingly having an adulterous affair with Mr Muzvondiwa that resulted in the birth of child. The Herald
