Flaring political passions in the region continue to make news headlines, but the courts have been hearing about other kinds of passion as well. While Zimbabwe is alight with raging political conflict, and while citizens die at the hands of the police and security forces, the judiciary has been dealing with the burning issues of sex, adultery and maintaining the country’s “moral standards”. In a recent decision, the high court in Harare has held that a damages claim for adultery may go ahead despite the regional trend to do away with the delict on the grounds that it is unconstitutional.

Read the judgment here

Zimbabwe is burning, its social fabric in tatters as fatal political violence rages through the cities and countryside. But for a woman known only as AD, there are other priorities: her husband’s adultery and what the courts are going to do about it.

After discovering the alleged affair, AD brought a damages claim against the woman she identified as her husband’s partner in illicit sex, and is suing her for USD150 000

The woman, APM, tried to deflect the matter, with a special plea argued in May 2018. Eight months later the high court has delivered its decision turning down her objection. This clears the way for the matter to go ahead, though as yet no date has been announced for a hearing.

It is a significant case for several reasons, not least because it gave Judge Alfas Chitakunye an opportunity to reconsider the Zimbabwe courts’ attitude to the delict. Certain countries in the region have done away with such actions as unconstitutional and he needed to decide whether Zimbabwe should follow suit.

It is also interesting because of the facts on the basis of which APM argued that the court had no standing to hear the matter.

AD and her husband are both Zimbabweans but hold SA citizenship as well. They married in SA in 2015, but have a “matrimonial home” in Bulawayo, the city where the woman that AD is suing is also based and where the affair is said to have taken place.

In her special plea, however, APM said that the high court in Harare did not have jurisdiction to consider the claim. This is because the claim concerns a marriage formalized in another jurisdiction which does not recognize damages for adultery.

She also said the claim was unconstitutional because it infringed her rights to freedom of association, to privacy, dignity and equality before the law.

On the jurisdiction question, the judge said that the wife had homes in both SA and Zimbabwe and had submitted to the jurisdiction of the Zimbabwe courts. In addition, the facts on which the claim was based arose in Zimbabwe and so the court had jurisdiction for these reasons as well.

APM also argued that as the marriage of AD and her husband was solemnized in SA where the highest court had ruled that claims for adultery damages were no longer constitutional, AD could not sue in Zimbabwe for adultery “committed” in Zimbabwe. Judge Chitakunye called this argument “misplaced”, saying that the question was where the cause of action arose and the applicable law there.

If the court found it had jurisdiction to hear a matter it “should not shy away from exercising that jurisdiction” merely because such a case could not go ahead in another jurisdiction where the marriage had been concluded.

As to the argument that damages for adultery were unconstitutional, this was also misplaced. SA’s constitutional court decision on the question did not apply beyond the borders: it was “persuasive but not binding”. That court did not stop its own citizens or people holding dual citizenship from suing in countries where it was still legal to do so.

In his view, “Zimbabwe currently has not reached that stage where delictual claims for adultery can be abolished”. The community’s “general sense of justice” did not yet justify abolishing the delict. If the court were to find it unconstitutional, there would be “fierce resistance” from the public: “The Zimbabwean community still considers adultery as deserving of punishment to the paramour,” he declared.

Marriage in Zimbabwe was still regarded as “sacrosanct” and protection of the institution was seen as needed, despite high levels of infidelity. He quoted a 2016 decision of the high court in Harare and two decisions from the 1990s to show judges “frowning on the wrongfulness of adultery”. These decisions were the “current position of the law,” he said. He associated himself with these views, saying nothing had changed since those decisions that would make it appropriate to abolish the claim for damages.

In his view, the constitution gave a central position to marriage and the family and thus clearly supported “protecting” such institutions – which included permitting the adultery delict to continue.

How to characterize this decision? A growing number of jurisdictions in the region – Seychelles, Botswana, Namibia and South Africa for example – have held  that the previous legal right to bring a damages claim for adultery is no longer constitutional. Unfortunately, this latest decision from Zimbabwe barely engages with the many serious issues raised in the judgments from these four jurisdictions against allowing such a claim.

But it also is something of a shock to hear a court waxing eloquent on the need to pay close attention to the views of the “Zimbabwean community” – in this case to that community’s supposed views on the need to “punish paramours”. It is a shock because that community’s views on other issues of human rights are given such short shrift, while its views on the need to punish those guilty of gross abuses of human rights appear to be given no attention at all.

In Swaziland meanwhile, where political tension continues over issues of human rights and the rule of law, a similar story of illicit passion has emerged to grip readers of The Times. A magistrate and a court president have been feuding over the affair that one had with the other’s wife, leading to the birth of a child, now a teenager. After protracted attempts to resolve the dispute between the two men, a judgment was handed down on the matter late last year by the Masundvwini Royal Kraal, noting that accused man had “pleaded guilty” to the charge of adultery, was convicted and sentenced to pay a fine of seven cattle.

* First appeared as “A matter of justice” in Legalbrief, 29 January 2019