Alex Alufisha v Tawanda Muchirahondo

### Preamble
1
HMT 16-22
HC 49/20
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ALEX ALUFISHA

versus

TAWANDA MUCHIRAHONDO

HIGH COURT OF ZIMBABWE

WAMAMBO J

MUTARE, 7 September 2021 & 17 May 2022

Civil Trial

C Maunga with K Kabaya for the plaintiff

C Chibaya, for the defendant

WAMAMBO J:   Plaintiff issued summons against defendant on 13 February 2020 with a claim of ZW$500 000.00 with interest at the prescribed rate from the date of judgment to date of payment in full and costs on a higher scale for contumelia and loss of consortium flowing from defendant’s adultery with his wife.

Plaintiff’s declaration reflects the allegation that in 2017 – 2018 defendant engaged in an adulterous affair with his wife.  This resulted in plaintiff confronting defendant and defendant admitted to the affair.

Despite the apology plaintiff contends defendant resumed the affair with plaintiff’s wife and the two had sexual intercourse several times at plaintiff’s matrimonial home.  Plaintiff confronted defendant in 2019 and defendant again admitted to the adulterous affair.

Defendant in his plea denied having had an affair with plaintiff’s wife and further denies tendering any apology to plaintiff.  He averred that he only associated with plaintiff’s wife after she approached him to assist her with her marital woes with plaintiff.

The joint pre-trial conference minute records the issues for trial as follows:

Whether or not the defendant engaged in an adulterous affair with the plaintiff’s wife.

If so what quantum of damages is the plaintiff entitled to.

During the trial, plaintiff and defendant testified as sole witnesses. The parties’ marriage certificate was produced by consent and is marked Exhibit “1”.  It reflects that the parties were married on 26 May 2007 at ZAOGA Church in Mutare.  Exhibit 2 was also produced by consent.  It is a transcript of plaintiff and defendant’s meeting.  The plaintiff saw it fit not to produce exhibits forming the rest of his bundle of documents.  I have had no regard to the documents that have not been produced.  In terms of exhibits I will concentrate on the two exhibits produced.

Plaintiff’s testimony was as follows.  He is married to Rutendo Wallen Mvere (hereinafter called Rutendo) and the marriage still subsists though only on paper.  There was a period when he was working in Botswana. Upon his return to Zimbabwe he noticed that his wife was no longer attending ZAOGA Church but attending a church where defendant is a pastor.  He noticed that his wife was chatting with defendant at night.  He confronted defendant who assured him he would stop associating with his wife, Rutendo.  He is of the view that defendant was having sexual intercourse with Rutendo at the plaintiff’s matrimonial house at 100 Second Street, Mutare.

After two and half (2½) years he discovered that the affair between defendant and Rutendo was still continuing.  He held a meeting with defendant at Nandos in Harare.  During that conversation defendant admitted to having an affair with Rutendo.  He audio recorded the conversation they held.  The conversation was later transcribed and is before me as Exhibit 2.

He described at length how the affair between Rutendo and defendant affected him.  He described how he held two lavish weddings when he married her.  He said he sold his sofas and bed for a song as he could not bear the hurtful feelings he had when he looked at them as the two lovebirds had enjoyed sexual intercourse on his marital bed and sofas.  He said he considered suicide at some stage but was counselled by his family members.  He confirmed that he still resides with Rutendo but there is no longer any intimacy shared between them.  His evidence was that before the appearance of defendant in their lives the marriage between himself and Rutendo was blissful.

In his testimony, plaintiff was of the view that an order that defendant pays USD$5 000 would suffice as monetary compensation and further that defendant should completely cut off all ties with Rutendo.  I did not hear plaintiff to depart from the quantum of damages he sought as per the summons.   This being clear when he was particularly cross-examined on this issue. The plaintiff cut a traumatized figure of a hurt and emotional man when he testified.  His testimony was punctuated with emotion and beside the testimony itself his body language betrayed a hurt person.  Besides being emotional and rather aggressive at times I found his demeanour and testimony straight forward.  At times one could tell that the pre-trial discussions with his legal practitioner may not have properly prepared him for what awaited him in court.  At times he would give extraneous detail about a particular occasion.  I did not find him to exaggerate or embellish his testimony.

Defendant also testified.  His evidence reflected largely that while he admitted to associating with Rutendo he was adamant, there never was an affair between him and her.  His version was that Rutendo had approached him for assistance with her marriage as a man of the cloth.  He admitted to visiting Rutendo at her matrimonial home when she requested him to bring some supplies.  He was quick to put an innocent interpretation to Exhibit 2.  He also suggested that Rutendo told him her husband had been unfaithful for some time.

Defendant conceded that the first-time plaintiff confronted him he (plaintiff) told him not to associate with Rutendo, his wife.  He confirmed the second meeting with plaintiff.  The meeting is recorded in Exhibit “2”.

For various reasons defendant did not impress me as a faithful witness.  He is a pastor who is expected to travel the narrow and straight road.  I found his answers evasive and guarded.  He admitted to visiting Rutendo at her matrimonial home.  He even roped in his wife but was quick to say he only visited Rutendo along with his wife on one occasion.  On the other occasions he said he did not go into the house.  One wonders why Rutendo would want defendant to bring her supplies at her home.  Why not defendant’s wife or yet another woman relative or friend.

On the face of it, it may appear as an innocent association.  One has to look further and see that defendant was counselling Rutendo alone although she had told him she was having husband problems.  There was no testimony from defendant that he once attempted in his counselling sessions to invite Rutendo’s husband, the plaintiff.  The relationship was purely between Rutendo and defendant and some members of Rutendo’s family.

That defendant knew Rutendo was married is common cause.  According to defendant himself she approached him citing problems within her marriage.  In other words he knew from the word go that she was a married woman.

When he was confronted the first time by the plaintiff over his relationship with Rutendo he should have relented.  He did not.

According to defendant it was Rutendo who reached out to him after a period when the two were not communicating.  I did not hear defendant to say he rebuffed the approach.  Plaintiff was working in Botswana and the wife was residing alone. The pastor was associating with Rutendo to the exclusion of her husband.

Exhibit 2 is more telling, however, if it is to be analysed in light of the background of the earlier confrontation and the general negative spirit plaintiff had already exhibited towards defendant associating with his wife.

At p 8 appears the incriminating portion.  I will quote it verbatim:

“Q.	I want something straight.  I am saying so she opened herself to you.  In other words be with me because I need a man because I am not happy.  Is that what you are trying to tell me?

That is what I can say sir truthfully speaking.

Q.	Okay so how many times have you guys indulged in sex.

A.	Not much.

Q.	I am asking a question.  How many times have you guys indulged in sex.

A.	I cannot count.   It is not many times.”

The defendant was at pains to put an innocent interpretation to the above excerpt of the transcript.  I do not agree with any innocence being placed on the above conversation.  The transcript was produced by consent.  There was no question of defendant being misquoted that was raised.  The questions and answers resonate with each other.  The first question quoted sets a background as it were.  The background is that of plaintiff’s wife presenting herself as being in need of a man because she was not happy.  Defendant confirmed this position.  The next question is a direct question regarding the number of times defendant had sex with Rutendo.  The answer is not much.  The answer is rather guarded considering defendant was confronted by an obviously unhappy husband.  The answer, however, implies that defendant and Rutendo had sex but not on too many occasions.

The question was repeated and the answer is telling.  It is a slight movement towards detail from the previous answer.  It is however another confirmation that sex took place between defendant and Rutendo.  What is it that he could not count if there had been no sexual intimacy as was clearly being asked of him?  What is it that he was saying it is not many times?  The obvious answer is that he was confirming that he indulged in sexual intercourse with Rutendo.  He was however in the circumstances constrained to limit the number of sexual bouts to a minimum and an undislosed minimum.

I find in the circumstances that it was proven that defendant had sexual intercourse with Rutendo.  As adverted to earlier from the very first meeting between defendant and Rutendo, defendant was informed by Rutendo that she was a married woman.

I find in the circumstances of this case that not only were desire opportunity and willingness present in this case but that defendant also confirmed the adultery in his own words. The defendant and Rutendo would meet just the two of them at times at plaintiff’s matrimonial home, Rutendo at least once going by the transcript intoned her availability and being in an unhappy marriage. Plaintiff for most of the relevant time was based in Botswana and that provided a free opportunity for defendant and Rutendo to indulge in sexual intercourse.

I thus find that adultery has been proven. To that end I find that it has been proven that defendant engaged in an adulterous affair with Rutendo, plaintiff’s wife.

The next question is on the quantum of damages plaintiff is entitled to.  In Amon Mapiye v Innocent Mudyiwa HH 399-18. NDEWERE J at p 5 said:

“In Nyakudya v Washaya 2000(1) ZLR 653 the factors to be considered in determining the amount of damages to be awarded against a third party for adultery were summarised as follows:

the character of the woman (or man) involved

the social and economic status of the plaintiff (and defendant)

whether the defendant has shown contrition and has apologised.

the need for deterrent measures against the adulterer to protect the innocent spouse against contracting HIV from the errant spouse and

The level of awards in similar cases.

In addition to the above, the court should also take into account whether the plaintiff has suffered lack of consortium as well as contumelia or just the later and the decrease in the value of money.”

In this matter the character of Rutendo does not quite emerge. We get glimpses of her character from plaintiff and defendant’s testimonies. She appears, however, to have been of a stable character. That she made efforts to mend her marriage by approaching a pastor points to a reasonable woman of some virtue. According to plaintiff before defendant came onto the scene he and plaintiff had a blissful marriage.

Plaintiff appears to be a man of good standing socially and economically. He boasts of two immovable properties and was working in a respectable position in Botswana.  He held a position at his church ZAOGA.

Defendant according to his testimony is dependent economically on his wife. He holds the esteemed office of a pastor at his church.

The defendant, however, has not shown any contrition. He was given a warning by plaintiff the first time and did not heed to the warning. Plaintiff discovered some years later that the affair between defendant and Rutendo still continued after the first warning. Up to the end of the trial defendant was adamant that he never committed adultery with Rutendo. In Amon Mapiye v Innocent Mudyiwa (supra) the learned judge continued at p 7 to define consortium as follows:

“Consortium has been defined as the totality of a number of rights duties and advantages accruing to spouses of a marriage.  In Best v Samuel Fox Co Ltd [1951] 2 KB 639 at p 663 the Lord Justice described consortium as follows:

Companionship, love, affection, comfort, mutual services, sexual intercourse – all belong to the married state. Taken together they make up consortium.

In Place v Searle [1932] 2 KB 497 at 512 it was held that a husband has a right to the        consortium of his wife and the wife to the consortium of her husband.”

Plaintiff gave evidence that his relationship with his wife is more akin to that between an employer and his maid. This was in response to a question by defendant’s legal practitioner. The question posed was if Rutendo still does his laundry and cooks for him. He however went on to testify that Rutendo and himself do not share a bed and are not being intimate after the adulterous affair. Plaintiff testified that he used to take Rutendo for holiday every year but has since put a stop to that. He further testified that he now views Rutendo as any other woman and does not have the feelings he used to have for her.

I find that the lack of sexual intercourse and drastic reduction of feelings, love and comfort between plaintiff and Rutendo prove that there was loss of consortium in this case.  Contumelia involves the infringement of the plaintiff’s right to privacy, injury, insult, dignity and reputation among other infringements.

In the instant matter it would appear that Rutendo was a woman of virtue. She was enticed from the straight path by a pastor to whom she had confided in.  Defendant took advantage of her vulnerable position. Defendant’s conduct was unfeeling towards plaintiff. He was warned against associating with Rutendo. Two and a half (2½) years later he was still having an adulterous affair with her.

The result of the affair is that plaintiff contemplated suicide. Plaintiff felt enraged that the adultery sometimes took place in his matrimonial home on his bed and sofas. This revulsion led him to sell the bed and sofas for a song.

Clearly Plaintiff and Rutendo have not divorced and still reside in the same house but he has had to endure a lot of stress because of the affair.  He testified that he at one stage went for one month sleeping on the floor.

I am convinced that Plaintiff has suffered to a great extent and has been hurt, insulted and indignified as a result of the adultery between Rutendo and Defendant. He gave telling evidence of a lavish wedding, holiday escapades, the respect of his in laws and the respectful manner he used to associate with Rutendo before the adultery. His demeanour before me was that of a genuinely injured man. Defendant’s demeanour was certainly not apologetic.

His conduct was rather insensitive of Plaintiff’s plight.  His conduct of the trial was such that he imputed blame on Plaintiff for uttering words already referred to in the transcript.  I find that his actions are reprehensible and they call for censure.  Sight should also not be lost that Plaintiff and Rutendo were married in 2007.  The affair is alleged to have taken place from 2017 onwards meaning the Plaintiff and Rutendo were already married for at least 10 years at that time.

In order to reach an equitable quantum of damages one has to consider the quantum of damages given in previously decided cases.  In Amon Mapiye v Innocent Mudyiwa supra defendant in that matter was ordered to pay $6 000 damages for contumelia and $4 000 damages for loss of consortium.

In the same case reference was made to the quantum of damages granted in Chenesai Rateiwa v Tsitsi Venge HB 152-11, Monica Muerudza v Ropafadzo Magara HC 6334/13, Muhwati v Nyama 2011 (1) ZLR 634 Judith Tikiwa v Makomborero Adiyolah Charlie HH 488-14 and Makururu v Vori HH 174-16.

In the above cases damages were granted in the range of US$1 500 to US$8 500,00.  I take note that the above damages were granted at a time when the legal currency at the time was the US$.

kudya J (as he then was) in Maclean Masimba Nyandoro v Godfrey Tizirai HH 12/2006 found that $100 million in contumelia damages fitted the circumstances of that case.  I find in the circumstances of this case that the loss of consortium is not as great as the contumelia.  To that end I find that the damages of the loss of consortium should be less than those for contumelia.  I find that the level of contumelia damages should be higher in the circumstances.

To that end I am of the view that the appropriate award for damages of loss of consortium should be ZW$200 000,00 while those for contumelia should be ZW$240 000.00

Accordingly, I entered judgment for plaintiff as follows:

The defendant shall pay the plaintiff the sum of ZW$200 000.00 as damages for loss of consortium with interest at the prescribed rate from the date of judgment to the date of full payment.

The defendant shall pay ZW$240 000.00 to the plaintiff as damages for contumelia with interest at the prescribed rate from the date of judgment to the date of full payment.

The defendant shall pay plaintiff’s costs of suit.

Maunga Maanda & Associates, plaintiff’s legal practitioners

Chibaya & Partners, defendant’s legal practitioners