Daniel Nemukuyu Senior Court Reporter
Scrapping of adultery damages from the country’s laws is likely to increase promiscuity and spread HIV and Aids to unprecedented levels, the High Court heard yesterday.
Defending the $25 000 adultery claim against a Harare nurse, Ms Lorraine Matione, Harare lawyer Mr Nyasha Munyuru of Muvingi and Mugadza law firm, said the adultery damages were proper and that they seek to protect the marriage institution.
On behalf of the plaintiff Ms Georgina Njodzi, whose husband was snatched by Ms Matione, Mr Munyuru said the Constitution of Zimbabwe protects marriages and that adultery damages were proper and should remain in the books of law.
“It is submitted that the action for damages saves a useful purpose of protecting the institution of marriage and adultery is still frowned upon by the moral convictions of Zimbabwean society.
“Granting the order sought will open a floodgate of promiscuity especially in this age of HIV and Aids.
“HIV will spread at a faster rate as people will be free to commit adultery and to be intimate with anyone without limitations,” said Mr Munyuru.
Mr Munyuru said Ms Matione was fully aware of the marriage between Mr Muzvondiwa and Ms Njodzi, hence she must be sued.
He said Zimbabwe must not be guided by decisions of some courts in other countries, saying the situations and circumstances were different.
“Adultery in the eyes of Zimbabwean society is still reprehensible, foreign judgments cannot be used as measure of Zimbabwean sense of morality. Allowing foreign judgments to dictate the morality of Zimbabwean society is not only unconstitutional, but despicable,” he said.
Mr Munyuru said in most cases, adultery was the cause of break-down of marriages and the perpetrators should be sued.
He said Zimbabwe was a country dominated by Christianity and a decision legalising adultery would be against Christian values.
However, top Harare lawyer Mr Wellington Pasipanodya, who appeared for Ms Matione, submitted that having an affair with a married man was not legally wrong but only wrong on moral grounds.
Mr Pasipanodya said it was the duty of the married couples to protect and safeguard their unions and not third parties.
He said if a spouse is aggrieved by infidelity or adultery, only two remedies were available.
“If a party is aggrieved by the infidelity of the other, seeking divorce is an available option.
“If they still love each other despite infidelity, then they should seek reconciliation or forgiving each other.
“The law cannot be used to protect the hurt feeling of one spouse,” said Mr Pasipanodya.
Mr Pasipanodya told the court that adultery was not the cause of divorce in the case of his client but instead, it was a result of divorce.
“A spouse goes out to bed other women because he is not getting it in a marriage. A spouse may also go out to sleep with other women in search of a child because the wife does not want to make one.
“It therefore is unconstitutional to punish a third party when she is not the cause of the marriage break-up,” said Mr Pasipanodya.
Mr Pasipanodya said the law must be amended to make it clear that spouses should be responsible in protecting and safeguarding their marriages.
After hearing the arguments on the constitutionality of the adultery claims, High Court judge Justice Hlekani Mwayera reserved judgment to a later date.
She is expected to determine whether or not it is constitutional to sue a third party for wrecking a marriage that he or she is not party to.
Ms Matione, a nurse at Harare Central Hospital, wants adultery to be abolished saying it violated the third party’s rights to privacy, equality before the law among others.
Ms Matione is accused of knowingly having an adulterous affair with Mr Lawrence Muzvondiwa resulting in the birth of a son.
Aggrieved by the conduct, Mr Muzvondiwa’s wife, Ms Georgina Njodzi, files for summons claiming adultery damages to the tune of $25 000 from Ms Matione.
Mr Muzvondiwa and Ms Njodzi married in 1996 under the Marriages Act and the marriage still subsists.
In 2012, it is alleged, Mr Muzvondiwa entered an adulterous relationship with Ms Matione and a child was born on April 9 2014.
Since then, Mr Muzvondiwa and Ms Matione have been living together as husband and wife.