The Sunday Mail
Tichawana Nyahuma
Undoubtedly, our courts and society as a whole consider adultery as abhorrent. lt is frowned upon.
The claim for adultery damages was, therefore, formulated as a way of not only curbing this vice but also to protect the marriage institution.
The focus in this discussion is to interrogate the question of whether adultery damages really afford that protection to marriages or they are just but a fallacy?
However, I digress a little before reverting to address the question in detail.
In the usual course of life, damage, harm or loss must necessarily rest where it falls. As such, every person must bear the harm he suffers. Accordingly, if a person drives his motor vehicle carelessly and ends up in a ditch, resulting in harm to himself or damage to the vehicle or if he drops his pair of spectacles, or if his herd of cattle is struck by lightning, such a person will not have a ground for complaint at law.
The loss, however, does not always lie where it falls. There are situations at law where the harm or loss incurred by a particular person has to be shouldered by another. This is where the law under the category of delicts, better known as civil wrongs, comes into play.
Generally speaking, the law of civil wrongs differ from criminal law in that the former is concerned with compensating or renovating the harm suffered whereas the latter aims to punish the wrong doer. The said compensation is paid directly to the aggrieved party, yet the punishment that is meted out on a person convicted after a criminal trial is designed to appease society as a whole.
This is the reason why in a civil/delictual claim, the matter is brought personally in the name of the wronged party but in a criminal trial, the case is brought in the name of the State representing, as it where, all the citizens of the country. Another vital characteristic of how civil cases are brought to court is that the person claiming, called a plaintiff or an applicant depending, and the person being sued, called the defendant or the respondent, also depending, has to have direct and/or real and substantial interest in the matter. Without such interest, noone is entitled to beat the path to court as a plaintiff/applicant and noone is to be dragged to court as a defendant/respondent. These requirements also extend to cases that arise out of breaches of contracts. There has to be special reasons why a plaintiff would include as a defendant in his/her suit, a person who was not part of the contract in the first place.
It would be ridiculous to do so. Under the doctrine of privity of contract, the contract operates only as between the parties to it and not any third parties.
You will recall that when Nelson Chamisa sued Emmerson Dambudzo Mnangagwa after the July 2018 plebiscite, not only did he cite Mnangagwa but he also cited Joseph Makamba Busha and all the other presidential candidates who participated in that election as well as the Zimbabwe Electoral Commission. When Chamisa did so, it was not just because the law relating to election petitions required him to have done so but that by virtue of them having taken part in that election as Presidential candidates, all those other candidates had a direct and/or real and substantial interest in that matter.
However, it is not in all cases that a person bringing a civil claim to a court of law has to cite all the persons with the so-called real and/or substantial interest in the case.
A claim for adultery damages stands out as an exception. With that, I now return to the question alluded to earlier, relating to whether adultery damages really protect the marriage institution.
Our law says that the tentacles of an adultery claim do not reach one of the adulterers, meaning the person married to the plaintiff under the Marriage Act (Chapter 5:11). In an adultery claim, where for instance, the plaintiff is a wife, it follows naturally that one of the adulterers is her husband, yet she only sues the other woman, the adulteress or intruder, colloquially called the “small house”.
From where I am sitting, the adulterous husband would have a direct and/or real and substantial interest in the matter by virtue of having intentionally broken a term of his marriage contract with his own wife. Yet the law allows such a person to follow the proceedings from a distance and to even take pleasure in the fight between his wife and his mistress.
After all, the two women will literally be fighting for him. As I have said, despite the apparent presence of this interest, the law on adultery says that the aggrieved party is not entitled to sue his or her spouse as it amounts to “suing oneself”, per Her Ladyship, Mwayera J in the case of Georgina Njodzi vs Lorraine Matione HH37/2016. Judgements on adultery in our country have consistently laid down that the purpose of the adultery damages is to protect the marriage institution. To the extent that the marriage deserves protection, I agree entirely. But to say that the adultery claim grants that protection, I disagree. In my view, and with the greatest respect, to so argue is to be fallacious. I do not see how such damages “protect the marriage”. I think that in an inquiry of that nature, the starting point is to recognise that a marriage, particularly under the Marriage Act (Chapter 5:11), is a contract, albeit one that is said to be in a class of its own. The parties to that contract are the wife and the husband.
As in any other contract, if one of the parties thereto breaks or breaches the terms of that contract, then the innocent party’s remedies lie chiefly against the other party to that contract and not to any other third party. In this regard, let us look at a case where the guilty party is the husband. It is well known almost universally that when it comes to matters of the heart, the man is usually the instigator.
One of the weapons that men employ in an effort to win a woman’s heart is a lie. It is said that the best route to a woman’s heart is through lies. Now if a man lies to a woman that he is not married under Chapter 5:11, how is she to know the truth? What occurs in most adultery escapades that are instigated by men is that by the time the “small house” establishes that “her man” is married under Chapter 5:11, it will be too late to get out of the relationship.
Remember, for an adultery claim to succeed, the plaintiff must prove that when the adulteress had sexual intercourse with her husband, she very well knew, or ought to have known, that he was married under Chapter 5:11. If she fails to prove that, then there will be no claim and the adulterous couple will remain at large in their “bliss”.
Take note also that when the court grants the adultery damages, it does not go so far as to order the adulterous couple to stop seeing each other. Furthermore, in most cases where a wife sues her husband’s mistress for adultery damages, it is in fact her own husband who will pay the damages on behalf of his mistress. Does this not amount to paying himself since it is said that if the wife sues her husband, it is just like suing oneself?
What is worse, however, is that the adulterous couple will not cease and desist from their shenanigans on the filing of the adultery suit but they will be brought even closer and are likely to up their game.
Needless to say, divorce will become inevitable with the consequent adverse effects on the children of that marriage.
In any event, to what extent is the law to be used to regulate relationships? Matters of the heart, being largely emotional, cannot be policed by a law. The law has no capacity to make one love their children, parents, wife or husband. For these reasons, I strongly believe that the adultery suit falls far short in protecting the marriage institution. It seems like this is the reason the claim has now been abolished in South Africa.
This being the case, how then is the marriage to be protected against the so-called intruders? Is it not time we made adultery a criminal offence? After all, it was like that sometime in the days gone by.
◆ Tichawana Nyahuma is a lawyer and he writes in his personal capacity. Email [email protected]
