Chenai Badza v Berita Katsande

### Preamble
1
HH 48-18
CIV ‘A’ 401/15
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CHENAI BADZA

versus

BERITA KATSANDE

HIGH COURT OF ZIMBABWE

CHITAKUNYE & NDEWERE JJ

HARARE, 2 February 2017, 7 February 2018

Civil Appeal

Appellant in person

Respondent in person

NDEWERE J:  The plaintiff issued summons for $10 000-00 adultery damages against the defendant on 2 September, 2014. The adultery was common cause and it continued even after summons had been issued.

On 7 August, 2015, the magistrate at Mashava magistrate’s court upheld the plaintiff’s claim and granted her adultery damages of $7 000-00.

The defendant appealed against the whole judgment by the magistrate. Her grounds of appeal were as follows:

“1.	The learned magistrate erred when not taking into consideration the fact and evidence brought to him that the appellant was married to the respondent’s husband before the solemnisation of the marriage on 16 December, 2011.

2.	The learned magistrate also erred when ignoring facts and evidence brought to him that the appellant’s bride price was even paid before the solemnisation of the marriage and the parties were living together as wives of one person.

3.	The learned magistrate also erred when not taking into consideration the facts that the respondent took three (3) years to report the adultery, when the parties were staying together for that period as wives of one person.

4.	The learned magistrate also erred when not taking into consideration the facts that the respondent needs to explain how the appellant caused suffering to her and how she suffered such damages.

5.	Wherefore the appellant prays that the ruling of the court a quo be altered and should now read:”

Plaintiff’s claim be and is hereby dismissed with costs.

As regards ground number 1, the court a quo clearly took the facts and evidence

revealed during the proceedings. A civil marriage between the plaintiff and Dennis Chadzamira on 16 December, 2011 was proved by the production of the relevant marriage certificate. Since such a civil marriage was monogamous, this meant that from 16 December 2011 any other sexual relations between Dennis and other women became adulterous relationships. The defendant admitted the relationship, but tried to justify it by alleging that Dennis had married her customarily before he solemnised his marriage with the plaintiff. Unfortunately, the defendant was unable to prove that she was customarily married to the defendant before 16 December, 2011. Her own evidence on p16 of the record was as follows:

“I got married in September, 2011. Papers outlining lobola were sent to my husband through my aunt……. My husband gave my aunt the money but it was rejected by my parents.”

So clearly, if her parents rejected money meant as lobola from Dennis, perhaps

because they knew he had a wife, she cannot claim to have been married customarily. That rejection means the customary law transaction which is called a “customary marriage” was aborted; it was not finalised. So she was not customarily married to Dennis before the solemnisation of his marriage to the plaintiff on 16 December, 2011.

The court a quo took all the evidence into account on pp 27 to 28 of the record when he queried why she would use her aunt as the go-between and why her customary union was not publicised within the family and why she never joined Dennis’s family but remained holed-up at her residence at King Mine if she indeed was a customary law wife. Ground of appeal 1 therefore has no merit.

Ground number 2 is similar to ground number 1, with one addition, that “the parties were living together as wives of one person”. No evidence was adduced to show that the parties were living together as wives of one person.

In fact the parties never lived together. The defendant stayed at King Mine while the plaintiff stayed at Bere Township. The fact that they were never introduced and that the defendant never joined the Chadzamira family but remained at King Mine is one of the issues used by the plaintiff to prove that the defendant was never customarily married to Dennis.

On p 13, the plaintiff said she came to know about the affair when she saw a text message from the defendant to her husband in 2013. If the defendant had been a customary wife in a polygamous union, the plaintiff would have been properly introduced to her by her husband, she would not have had to discover about the relationship through a text message. On that same page, she testified that both the defendant and Dennis denied an affair when she confronted them. When she confronted them, if there had been a customary union, this was the time for the belated introductions but instead both of them denied any relationship. On p 15, the plaintiff’s evidence was that the defendant had not even been introduced to Dennis’s family or relatives. So how could the two be said to have been living together as the wives of one person when the relationship was shrouded in secrecy? This means ground 2 has no merit.

Ground 3 also has no merit.

The plaintiff’s evidence was that she first got to know about the affair in January, 2013 through a cellphone text message. The defendant did not dispute that evidence so we must take it to be the correct position. The plaintiff issued summons on 2 September, 2014, one year and eight months later. So the basis of ground three, that the plaintiff took three years to report is incorrect. Therefore there is no merit in ground 3.

In ground 4 the appellant said the magistrate erred when he did not take into consideration that the respondent needed to explain how the appellant caused suffering to her and how she suffered such damages.

As regards the quantum of damages, the defendant, during the hearing said she did not dispute the quantum awarded, although she said she could raise $2000-00.  It is clear from the plaintiff’s evidence that she suffered a lot because of the defendant’s adultery with her husband from when she knew about it in 2013. On p 14 of the record, she told the court how she confronted the defendant and her husband’s relatives for assistance and they told her to “let sleeping dogs lie”. Then her husband stopped coming home, and began to spend time with the defendant instead of her. So she lost her husband’s consortium, love and comfort.

Then Dennis started to neglect her and the children, till she claimed maintenance from him. On p 14 she testified how, after the granting of the maintenance order, he became worse and deserted the matrimonial home for good and went and lived with the defendant at King Mine. The magistrate took all the above facts and evidence into account on p 29 of the record when, in his judgment he said:

“From the evidence, it has emerged that as a result of the defendant’s conduct, Dennis has lost affection of the plaintiff. He has deserted the plaintiff and her children for the defendant. He has also stopped adequate support onto the plaintiff culminating in the maintenance suit. Up to now, the defendant is the one monopolising Dennis love and staying with him despite knowledge of the Marriage Act Union. They have even sired a child together. The defendant has not shown any morsel of remorse to the plaintiff since she is perpetuating the adulterous affair and her demeanour show that she is not prepared to relinquish the plaintiff’s husband. She has wrecked a marriage and family which was solid”.

Indeed, in her submissions during the appeal the appellant said she had expected the

defendant to terminate the relationship after she showed her the marriage certificate.

There being no merit in any of the grounds of appeal above, the appeal is hereby dismissed, with costs.

CHITAKUNYE J: I concur