He said this when he handed down probably the heaviest
damages for adultery since the High Court in Masvingo was established in 2016,
when he ordered Provincial Medical Director, Dr Amadeus Shamu’s mistress
Ancercaria Taderera to pay US$13 000 to his wife Tatyana Shamu.
Justice Zisengwe said that Tatyana who broke down in court
as she narrated how her husband built a house for the mistress when she as a
wife didn’t have any was traumatized by the adulterous relationship. The Judge
said he even felt pity for Tatyana as she was on the witness stand and
recounting her experience.
“The plaintiff cast a sorrowful and pitiful sight on the
witness stand as she recounted the humiliation, pain and indignity she had to
endure on account of the adulterous relationship. As a consequence, she lapsed
into a depression necessitating medical intervention,” said Justice Zisengwe.
Tatyana was represented by Grace Bwanya of Chihambakwe and
Partners while Taderera was represented by Pauline Chimwanda of Nyavo, Ruzive
Attorneys
Justice Zisengwe warned that the introduction of civil
partnerships under the new Marriage Act, Chapter 5:15 last year does not remove
the delict of adultery but was only introduced to deal with sharing of
properties where a relationship had existed. The existence of civil
partnerships in the Marriage Act does not therefore, remove adultery as it
serves a different purpose, he said.
Analysts who commented to The Mirror after the ruling said
there were a lot of misconceptions over civil partnerships introduced into the
Marriage Act with many people relapsing into believing that adultery is no
longer an issue.
Justice Zisengwe further said that the delict of adultery
was important in the laws to serve two purposes; as a deterrent to would be
transgressors and therefore preserve the sanctity and protect marriages.
Damages from adultery give solace for the innocent spouse who is affected, said
the Judge.
He disagreed with the defendant’s lawyer that adultery in
the statutes was unconstitutional and he dismissed an appeal for the Judge to
make such a declaration.
Chimwanda, on behalf of her client also said in her closing
submissions that extramarital relationships have become so common and
acceptable in contemporary Zimbabwe society that adultery in the statutes was
no longer relevant and served no purpose. She said adultery was between two
consenting adults and the law had no business policing social morals.
Justice Zisengwe agreed with Chimwanda that today’s society
is more tolerant towards adultery but he said there are more factors that
support the retention of the adultery delict. He said the steady flow of
adultery cases into the courts means that a lot of people still frown at
adultery. He called for more evidence to support Chimwanda’s position including
the necessity of a referendum.
The relationship which resulted in two children started in
2011 and Tatyana discovered it in 2019. There was an out of court settlement in
which Taderera paid US$5 000 compensation for monies and other favours that she
had received from Dr Shamu. After the settlement there was an agreement that
Taderera would stop the adulterous relationship.
However, Tatyana decided to sue for US$50 000 after
realizing that the two continued with their relationship. Her evidence that the
relationship still subsisted was that Dr Shamu and Taderera continued to
communicate clandestinely mostly at midnight when she was asleep. She said that
the tone of their communication was cordial and romantic. Tatyana said that Dr
Shamu would abruptly end Ancercaria’s conversations whenever she entered his
room.
More painful to Tatyana is that Taderera was a family
friend who worked at Dr Shamu’s surgery. She said that Dr Shamu pampered his
girlfriend with gifts that she never received herself as a wife.
She said that Dr Shamu bought Taderera a car and built her
a house, something that he could not do for her as a wife. She also said that
the two no longer share the same bedroom as a result of the illicit affair.
The damages claimed for by Tatyana were for contumelia and
loss of consortium. Contumelia is the injury, insult and indignity suffered by
the plaintiff as a result of adultery while consortium relates to the loss of
comfort society and service of the wife of husband as the case maybe.
Justice Zisengwe granted Tatyana US$5 000 for contumelia
and noted that Taderera’s case was worsened by her lack of contrition to the extent
that she said in court that Tatyana’s depression was not caused by the illicit
relationship but by the war in Ukraine because she is a Ukrainian.
For contumelia, Justice Zisengwe granted Tatyana US$8 000
because her marriage had all but collapsed with the couple using separate
bedrooms and living as strangers. Masvingo Mirror
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