Alfred Mukonori and Clayton Ndoro v Cleopas Gara

### Preamble
1
HCC54/25
HCC CIV ‘A’ 22/25
---------


ALFRED MUKONORI
versus
AND CLEOPAS GARA
and
CLAY TON NDORO
 versus
CLEOPAS GARA

HIGH COURT OF ZIMBABWE
MUZOFA & BACHI MZAWAZI JJ
Chinhoyi, 9 June, 23 June, 23 July 2025, 15 September 2025

N. Chikono, for the first Appellant
B. T Ncube, for the second Appellant

V.L.  Zvobgo, for the Respondent

Civil Appeal

BACHI MZAWAZI J:

Brief Historical Narrative

The two matters were instituted and determined individually by the Magistrates court on different dates. The appeals against the decisions in both cases were also filed and set down before this court on separate occasions. However, the first appeal to be filed with this court which we will refer to as appeal one, hereinafter, was postponed for further submissions, to a date which coincided with appeal two (by virtue of it being filed second).  The respondent in both cases is the same, as well as, the cause of action and relief sought and granted by the trial court. The grounds of appeal are also more or less the same. Given the common threads that run through both cases, the parties agreed to the consolidation of the two records for the purpose of judgment.

Common Cause Facts

The respondent, Cleopas Gara at the time of the issuance of summons against both appellants, was legally married to the woman at the heart of these disputes, Agnes Gara, nee Jerimwe under the then Marriage Act Chapter 5:11. They had been married for about thirty years before the respondent’s wife instituted divorce proceedings against him citing irreconcilable differences amongst other factors.

The Respondent issued summons against the two appellants separately claiming adultery damages against each one of them. The claims were based on untranslated vernacular WhatsApp text messages. These messages were various conversations between the respondent’s wife and each of the two appellants on divergent dates and times. In both summons the respondent blamed each appellant as the cause of his marital break down resulting in his lawfully wedded wife instituting divorce proceedings against him.

In each lawsuit, the respondent successfully sought and obtained judgment on considerable amounts in damages under the headings of loss of consortium and contumelia against the appellants. In each case, respondent was awarded the sums of USD 8000 and USD5000.00 or its local currency equivalent, respectively, for loss of consortium and the sums of USD5000.00, and USD3500.00 or its local equivalent for contumelia respectively.  These appeals are as a result of the appellants’ dissatisfaction with the trial court’s overall decision.

Summarized Grounds of Appeal

In both their grounds of appeal the appellants challenged the trial court’s finding that both appellants had committed adultery with the respondent’s wife through WhatsApp texts in the absence of any tangible physical evidence suggestive of sexual intimacy. They also challenged the basis upon which both damages under the headings of contumelia and loss consortium were arrived at.

Alfred Mukonori’s Submissions

Point of law

It is important to note that Mr,Chikono, counsel for the appellant in the first appeal to be heard, raised a point of law at the onset of the appeal proceedings. This in essence, seems like a new ground of appeal raised for the first time on appeal disguised as a point of law. As such the trial court was never given an opportunity to exercise its mind and the point’s implication on the proceedings which had been placed before it.

The cases of Trustees, Leonard Cheshire Homes Zimbabwe Central Trust v Chite & ors 2010 (1) ZLR 631, Muchakata v Nertherburn Mine 1996 (1) ZLR 153 (S) at 157, Nissan Zimbabwe (Pvt) Ltd v Hopitt (Pvt) Ltd 1997 (1) ZLR 569 (S), Zesa v Bopoto 1997 (1) ZLR 126 (S), are authorities, that a point of law can be raised at any time or stage of proceedings and even on appeal. The above case law also highlighted that, if properly raised the point of law should be determined before the other grounds of appeal can be considered. If it succeeds it has the effect of resolving the appeal without considering the other grounds of appeal. Bearing this in mind, we allowed parties to interrogate the legal point further by filing supplementary heads of argument and submissions.

We, however also took judicial notice that the honourable CHIEF JUSTICE MALABA, in Bonnyview Estate (Private) Limited vs Zimbabwe Platinum Mine (Private) Limited and Ministry of Lands and Rural Resettlement, CCZ06-19, observed as follows;

“It is settled law that a point of law can be raised for the first time on appeal if it involves no unfairness or prejudice to the party against whom it is raised. See Kufa v The President of the Republic of Zimbabwe & Ors CCZ 22/17. However, in this case, the position that the applicant sought to take in the court a quo would lead to manifest prejudice to the respondents, in that it sought to raise a fresh ground for the first time on appeal as the sole ground of appeal. Clearly this was not acceptable.”

The dictum in the Apex court’s decision, in our view insinuates a qualification that, if a point of law is raised for the first time on appeal it must “involve no unfairness or prejudice to the other party against whom it is raised.”

In casu, appellant Alfred Mukono, preliminarily argued before us, that the court a quo erred and misdirected itself by admitting into evidence WhatsApp text messages which were written in Shona when they had not been translated to the court’s language which is English, as a point of law.  We are convinced and of the considered view that, this point of law does not involve unfairness or prejudice to the respondents given the totality of the circumstances of these cases.

Discussion on point of law

At the centre of this dispute are electronic data communication messages sent to and from the appellant and the respondent’s wife. The WhatsApp text messages are in the Shona dialect. It is on the basis of these untranslated Shona messages that delictual liability and subsequent damages against the appellant arose.  These messages have been construed by the respondent as well as the trial court to constitute sufficient circumstantial evidence to establish and to prove the delict of adultery against the appellant.

Whilst the question of the admissibility of these messages was not challenged before the lower court, it is an issue brought to the fore on appeal that cannot be ignored.  The issue to be determined is neither the authenticity of the electronic data messages, how it was gathered nor its source. It is about the evidentiary weight that was attached to it given, it was in a language foreign to the courts as it were. This has been well articulated in the case of Mwedzi v Chakawanda HMT24/25in the following excerpt,

“Where a legal practitioner is involved in the proceedings, it is the duty of the plaintiff or applicant to have the document written in vernacular translated by a court interpreter, both documents, the vernacular version and the translation have to be produced for record purposes. If the applicant or plaintiff is a self-actor, it shall be the duty of the trial court and ancillary staff that the translation is done and certified into the court’s official language, which is English. This will assist a court which is not familiar with that language, all in the interests of justice of the case. In this particular case the three (3) letters were left untranslated. Fortunately, we were privy to be able to decipher the import of the letters. We have asked the interpreter to translate the letters and file them of record.”(My emphasis).is

We are inclined to agree with the appellant’s submission that by  virtue of both the Magistrates Court Act [Chapter 7:10] and the High Court Act {chapter 7:06] these two courts, in particular and our courts in general save for those specially designated to conduct business in vernacular language, are English courts. Simply put court business is conducted in English.

S 5 of the Magistrates Court Act reads;

(1) Every court shall be a court of record

(2) Subject to this Act and except as provided in any other law—

(a)the proceedings in all cases shall be in the English language and shall be carried on in open court:

Provided that, in any matter to be determined according to customary law, the proceedings may be conducted in any other language agreed upon by the parties and the presiding magistrate;

(b)the records of the proceedings of the court shall be kept in the English language and shall be accessible to the public under the supervision of the clerk of the court at all convenient times and upon payment of such fees as may be prescribed in rules;

Section 49 of the High Court Act provides;

Proceedings in open court and in English Save as is otherwise provided in rules of court or in any other enactment, all proceedings in the High Court shall be carried on in open court and the pleadings and proceedings thereof shall be in the English language.

Disposition

We are of the view that the position of the law is as submitted by the appellants in their supplementary heads as regards untranslated vernacular records. English is the official court language in Zimbabwean Courts both in subordinate and superior courts, as stipulated by Section 5(2) of the Magistrates Court Act and Section 49 of the High Court Act [Chapter 7:06] above.

It therefore follows, that, any document not in English must be translated for admissibility, with Section 17 of the Civil Evidence Act [Chapter 8:01] outlining the requirement for an accompanying affidavit attesting to the translation's truth and accuracy.  As such, failure to translate documents can lead to their exclusion from evidence, a principle supported by the ruling in S v Mlauzi and 3 others HH 100/23. The Appellant therefore contends that the court a quo committed a serious error by relying on inadmissible, untranslated WhatsApp text messages, which were not certified as required by Section 17 of the Civil Evidence Act.

We find the respondent’s submission, has no merit on this point. Given that the challenge is not about the admissibility of electronic data perse, which was well exhaustively expounded by MAKONI JA in the case Japajapa v State SC41/25, but the admissibility of an untranslated vernacular document. Even if it was the best evidence available, untranslated as it was, it was not properly before the court.

In that regard, since the trial court is presumed not familiar with the untranslated vernacular in the texts that was placed before it, in the absence of translation as required by the law his or her interpretation may not have been the most appropriate. Because of various dialects, one vernacular word may have a totally different meaning to a different ethnic group. What may be a foul or vulgar word in the Batonga tribe, for example, may not be interpreted as such in the Manyika or predominantly Shona regions. Hence the officialization of the more neutral language, English in courts. The danger of innocent discourse in the WhatsApp text messages being misinterpreted was thus not eliminated.

It would have been interesting to explore the  issue and the merits, on WhatsApp text message as a basis for adultery damages against the underpinnings of constitutional freedoms of expression and association alongside the limitations thereto. However, the point of law has carried the day.

This point of law disposes the whole matter in respect to Alfred Mukonori. There will be no need to delve into the merits of the appeal. The trial court’s decision based on the untranslated messages was therefore not well founded. The decision of the trial court is set aside on that basis.

Accordingly,

The appellant Alfred Mukonori, is absolved from liability and the appeal is allowed.

The respondent’s claim in the court a quo is dismissed with costs.

Clayton Ndoro’s Appeal

Point in limine

In this appeal the respondents raised a preliminary point that the judgment of the lower court subject to this appeal had already been executed. We were informed that at the time of the hearing the Sheriff had placed the appellant’s property under judicial attachment.  With that hindsight Ms Zvobgo for the respondent, relying on the case of Ndewere v President of Zimbabwe N.O and 4 Others SC7/22, argued that the matter was now moot and renders any judgment by this court, brutum fulmen.

It is true, that ordinarily, once the trial court grants the application for execution pending appeal and once the judgment has been executed then the appeal launched will be of academic purposes only. Whilst it was procedural to grant such an application, in a way it sort of defeats the ends of justice.    This becomes an impingement to the constitutional right of an aggrieved person or an unsuccessful litigant to appeal to an upper court against the decision of a lower court. It defies logic that even if execution has been done on an incorrect judgment at law, then that judgment should not be interrogated on appeal.

At law a case is moot and academic when the appeal decision would have been superseded by events and will not change much or provide any meaningful relief due to the occurrence of those events that resolve the original issue. In other words where the case is no longer a live controversy. As per, PATEL JCC in the case of Zimbabwe School Examinations Council v Victor Mukomeka (on behalf of a minor Charmaine Mukomeka) and Anor, SC10/202, wherein he stated that,

“The court must deal with a controversy that is live and not one that is moot. The appellant must not have a mere academic interest in the right or obligation in question…”some tangible advantage” in relation to that right’- per Chidyausiku CJ in Ngulube v Zimbabwe Electricity Authority & Another SC52/2002’.

We guess without further ado the Zimbabwe School Examinations Council v Victor Mukomeka Mukomeka (on behalf of a minor Charmaine Mukomeka) and Anor above spells it all out.  As such, the judicial attachment of the appellant’s property by the Sheriff does not in any way address or resolve the main controversy between the parties as borne by the appellant’s grounds of appeal. It is only an enforcement mechanism which may be premised on a wrong decision. The core issue has not been addressed. It therefore cannot be said to be moot and of academic purposes.

What can be termed moot was extensively addressed by the apex court decision Thokozani Khupe & Anor v Parliament of Zimbabwe & Others CCZ20/19 any elaboration will be an injustice to the detailed judgment.

These three different law suits, one filed before this court, and these two before us, all allege each individual respondent therein, as the cause of the loss of consortium with his estranged wife. Further, the divorce summons attached to the three cases all indicate that by the time the alleged delicts took place the respondent and his wife were already estranged and staying apart as of January 2023. Notably, the respondent’s civil actions and allegations emerged and were launched in October 2023. From the appellant Ndoro’s perspective, the respondent’s marriage was already rocky, therefore, even the contumelia damages or their quantum were misplaced.

From that perspective, the above issues as succinctly summarised above are live issues to be determined. The preliminary point is dismissed as we move onto the merits.

Merits.

On assessment of evidence just as in the first appeal hereto, the appellant’s adultery claim arose from the WhatsApp text messages between the appellant two and the respondent’s already named wife. These texts were not denied save to say that they did not insinuate any sexual intimacy between the parties tantamount to adultery.

Since, the two appeals had been consolidated by mutual consensus, Mr Ncube for the second appellant joined issues with the appellant in the first appeal on the impact of untranslated vernacular and abiding by the submissions made by his counterpart, Mr Chikonono.

We have already concluded that the untranslated vernacular electronic messages and data were inadmissible because of that defect the same applies in this case.

The Appeal is accordingly allowed.

The judgment of the court a quo is set aside.

The execution of the court a quo’s judgment is set aside with costs.

The costs follow suit.

MUZOFA J: I agree

Moyo Chikono and Gumiro 1st Appellant’s legal Practitioners

Saizi Law Chambers	2nd Appellant’s Legal Practitioners

Zvobgo Marava Law Chambers, Respondent’s Legal Practitioners