P - as she is referred to in the recent judgment of Harare Judge Alfas Chitakunya - and her husband are Zimbabwean nationals but also hold South Africa citizenship.
They married in 2015 in South Africa but now live in Bulawayo - which became the “scene of the crime”, where D (the other woman) and P’s husband embarked on an affair.
P sued D for US $150 000 - a claim under the law of delict where one can sue for damages for harm that has been suffered.
But D raised a “special plea in bar” - saying the trial could not go ahead because the marriage had been solemnised in South Africa and adultery was no longer recognised there by virtue of a “times have changed” Constitutional Court ruling in 2015.
Further, she argued, the claim was “inconsistent” with Zimbabwe’s own Constitution which guarantees the rights to freedom of association, privacy, dignity and equality.
The former argument was misplaced, Judge Chitakunya said.
“The alternative argument would be that had P been married in Zimbabwe and the adultery committed in South Africa, the South African courts would have jurisdiction to award damages in spite of its Constitutional Court decision.
“This would certainly be absurd,” he said.
On the second issue, that adultery damages are inconsistent with the Constitution of Zimbabwe, her lawyers had urged him to “take the South African route”.
But, the judge said: “Influences outside South Africa are only persuasive and not binding.
“The South African court did not deprive its citizens or dual citizens from seeking recourse when their marriage is intruded upon in jurisdictions where the delict is still considered actionable.
“And, it is my view, that Zimbabwe has not reached the stage where delictual claims for adultery can be abolished,” he said.
“This is an area where public enlightenment and education is still required on the pros and cons.”
The judge said there had not been enough changes in public policy and “the communities general sense of justice” to justify the abolishment of the delict.
“Without buy in from the community in general, it could be met with fierce resistance to an extent that the court will be going diametrically opposed to public sentiment.
“The Zimbabwean community still considered adultery as deserving of punishment to the paramour.”
Judge Chitakunya said the institution of marriage was “still held in sacrosanct” despite the high level of infidelity.
“While I am mindful of the waning interest from some quarters of society, it is my view that instead of the court leading the crusade, society, through evolution, must lead the process.
“As value systems change it is inevitable that claims for adultery damages may be abolished but it is only when public views have evolved to such a level that courts may be called upon to pronounce the end of such a delict.
“It is my view that the constitutional provisions that speak to the central position and importance of marriage and family institutions are clearly in support of the protection of institutions.
“And other rights must give way to the interests of public policy on the sanctity of the marriage institution,” he said.
Copyright : Re-publication of this article is authorised only in the following circumstances; the writer and Africa Legal are both recognised as the author and the website address www.africa-legal.com and original article link are included. A bio for the writer can be provided on request.
Re-publication without reference to Africa Legal is not authorised