By Mary Taruvinga
AN adulterous Harare man has been ordered to pay ZW$100 000 adultery damages following a successful lawsuit by the husband of a woman he snatched away.
Dambudzo Oliver Munyebvu was ordered to pay the damages by High Court judge Justice Justice Amy Tsanga after he was sued by Talent Musvibe.
Musvibe had mounted the lawsuit stating that he wants to use the money to divorce his wife.
The case has had twist and turns after it emerged that Munyebvu’s first encounter with Musvibe’s was forced but the abuse later developed into an adulterous affair.
The rape case was never reported and although it confirmed by the lower court, the abuse was not entertained because it was not before the courts.
Musvibe had claimed ZW$150 000 in a claim he filed at the Magistrates court and an order was granted in his favour.
However, Munyebvu appealed at the High Court claiming that the couple fabricated a case against him in a bid to extort money.
Tsanga however dismissed the assertion saying no report was made to the police to this effect.
The aggrieved Musvibe submitted that he sought an award of ZW$150 000 as he wanted to use that money to institute divorce proceedings.
He also accused the court of erring by finding the evidence of his wife that she was raped to be credible.
Musvibe said she never disclosed the alleged rape to him at any time or report the matter to the police.
Justice Tsanga vindicated the woman as a credible witness given the sensitive nature of rape and what the victims go through.
“The failure to report does not mean that a witness is not credible since there are many reasons why rape victims do not report such as fear of losing the marriage,” read the Judgement.
However, she dismissed Musvibe’s wife’s witness statement before the court as lacking merit.
“The court below found on a scale of probabilities that the respondent’s (Musvibe) version was more credible and that the respondent’s wife’s explanation as to how the relationship started was lucid.
“According to the court, her statement that the first sexual encounter with the appellant was rape did not affect her credibility.
“The magistrate found the issue to be beside the point as the real issue before the court was whether or not adultery had subsequently occurred,” ruled Justice Tsanga.
“The claim for adultery damages falls under two main heads, namely loss of consortium (right each spouse has to the companionship) which could include loss of love, companionship, sexual privileges and assistance in good and bad times which a spouse is entitled to expect and consequent mental distress.
“The second head for claiming is contumelia (injury, hurt, insult and indignity that occurs to an innocent spouse) encompassing the infringement of privacy, dignity and reputation.
“The main element under which damages are awarded is loss of consortium which in this case there had been found to be no loss of consortium,” said the judge.
Tsanga said the loss is regarded as less where the respondent has condoned the adultery and the marriage still subsists.
In this regard she slashed the claimed amount.