Mupindu (Nee Makweche) v Chitopota (403 of 2025) [2025] ZWHHC 403 (8 July 2025)

2 HH 403-25 HCHF 947/25 SANDRA MUPINDU (NEE MAKWECHE) versus CATHERINE TATENDA CHITOPOTA HIGH COURT OF ZIMBABWE MAXWELL J HARARE; 29 May 2025 & 8 July 2025 Opposed – Special Plea K Chimiti, for the plaintiff R Mabwe, for the defendant MAXWELL J: On 12 March 2025 Plaintiff issued our summons claiming damages for loss of contumelia and consortium. She also claimed interest thereon and costs of suit on a legal practitioner and client scale. In her declaration she stated that the defendant intruded into the marriage institution between herself and her husband sometime in 2014 and proceeded to engage in a sexual relationship with the Plaintiff’s husband. This, Plaintiff claimed was despite Defendant’s knowledge of the romantic and peaceful marriage relationship existing between the plaintiff and her husband. She further stated that three children were born by the Defendant having been sired by Plaintiff’s husband. Further that Defendant has contributed to causing Plaintiff’s husband to move out of the matrimonial home to stay with her. Defendant filed a special plea and an exception to the summons. She specifically pleaded that the matter is prescribed. She excepted to the declaration on the basis that the Plaintiff condoned the adultery and was compensated under customary law and that Simon Mupindu ought to have been joined to the matter. Defendant filed heads of argument in support of the special plea and exception. She argued that the Plaintiff became aware of her relationship with Simon Mupindu in 2014 therefore her cause of action crystallized then. Further that Plaintiff demanded compensation under customary law which compensation was received by both her relatives and herself. Defendant also argued that plaintiff makes allegations against Simon Mupindu who is not party to this matter. In response Plaintiff objected to the raising of the defense of prescription through exception. She argued that Defendant should have raised the defense of prescription as a special plea. On the merits she submitted that the defense does not apply to a continuing wrong. She disputed that there was no joinder and stated that she does not need the non-joined party to prove adultery. The objection by the Plaintiff that the Defendant should have raised the defense of prescription as a special plea has no merit if regard is had to the papers filed of record. Whilst the heading on the document is worded “Defendant’s Exception”, a reading of the document shows that it is a special plea combined with an exception. Defendant raised a special plea of prescription and excepted to the declaration on the basis that Plaintiff had condoned the adultery and was compensated under customary law and further that there was a fatal non-joinder. There is no ambiguity in the manner in which Defendant raised the issue of prescription. The first statement is “The defendant hereby specially pleads to the plaintiff’s declaration as follows-‘’ I am persuaded that this is a special plea and therefore the objection fails. Does a claim for adultery damages prescribe? In my view, the answer to that question depends on the circumstances of the case. Defendant in heads of argument referred to the learned author Max Loubser in Extinctive Prescription, Juta Co, 2nd edition 1996, at page 47 where he said “Certainty requires that the ‘prescription period should begin to run as soon as there is a completed cause of action, with a plaintiff who can sue and a defendant who can be sued…………” In my view, in adultery damages, the cause of action is complete when sexual intercourse takes place. In casu, that act is said to have taken place in 2024. However, plaintiff stated that it was not a one-off incident. Sexual liaison continued even after the summons were issued, and plaintiff position which was not disputed was that the acts were happening even when the matter is being prosecuted. According to her, defendant seems not to have an intention of ceasing such sexual liaison. In Slomowitz v Vereeniging Town Council 1966 (3) SA 317, the court pointed out that where the issue is not where the injurious effects of a completed unlawful act continued but rather a case were the unlawful act itself by its very nature continued for all the time, the prescription of the initial cause of action arising from the first act does not preclude recovery of losses that occurred later, provided the losses occurred within the prescriptive period before the summons were served. Mr. Chimiti submitted that as of the day of the hearing, the cause of action had not ended as defendant was still engaging in sexual acts with the plaintiff's husband. On that basis, the plaintiff is entitled to claim damages for the period that is not extinguished by prescription. In Ngcobo v Minister of Police 1978 (4) SA 930 where the Plaintiff claimed damages for unlawful detention, it was held that “the statutory time bar operates to whittle away the portions of the claim which relate to detention more than six months prior to the commencement of the action”. It therefore follows that the portions of the claim which relate to adultery that occurred more than three years prior to the commencement of the action are whittled away. However, as it was not disputed that the acts of sexual intercourse are continuing, the defense of prescription cannot succeed. Defendant also argued that the Plaintiff had condoned the adultery and was compensated under customary law. In response, the Plaintiff “vehemently’’ denied having condoned the adultery or having been compensated under customary law. It is therefore a disputed fact which was not established on the papers before me. In any event, as established in Gombakomba v Bhudhiyo HH 118/2006, condonation does not extinguish the claim. It is only mitigatory. The exception therefore has no merit. Defendant also raised an exception on the basis of a fatal non-joinder. She argued that Simon Mupindu against whom allegations are made is not before the court. in response plaintiff stated that she is seeking nothing from Simon Mupindu. In terms of rule 32 (11) of SI 202 of 2021 “No cause or matter shall be defeated by reason of the misjoinder or non-joinder of any party and the court may in any cause or matter determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the cause or matter”. The Plaintiff’s claim therefore cannot be dismissed because of non-joinder. In any event, the Plaintiff stated that she does not need the non-joined party to prove her case. The exceptions raised are not dispositive of the matter. The special plea has not succeeded. The matter must therefore proceed. Costs on a higher scale were prayed for but not justified. The following order is appropriate The special plea and exception be and are hereby dismissed with costs. Mupindu Legal Practitioners Excipient’s Legal Practitioners (Defendant in the matter) Machaya and Associates Defendant’s Legal Practitioners (Plaintiff in the main matter) 2 HH 403-25 HCHF 947/25 2 HH 403-25 HCHF 947/25 SANDRA MUPINDU (NEE MAKWECHE) versus CATHERINE TATENDA CHITOPOTA HIGH COURT OF ZIMBABWE MAXWELL J HARARE; 29 May 2025 & 8 July 2025 Opposed – Special Plea K Chimiti, for the plaintiff R Mabwe, for the defendant MAXWELL J: On 12 March 2025 Plaintiff issued our summons claiming damages for loss of contumelia and consortium. She also claimed interest thereon and costs of suit on a legal practitioner and client scale. In her declaration she stated that the defendant intruded into the marriage institution between herself and her husband sometime in 2014 and proceeded to engage in a sexual relationship with the Plaintiff’s husband. This, Plaintiff claimed was despite Defendant’s knowledge of the romantic and peaceful marriage relationship existing between the plaintiff and her husband. She further stated that three children were born by the Defendant having been sired by Plaintiff’s husband. Further that Defendant has contributed to causing Plaintiff’s husband to move out of the matrimonial home to stay with her. Defendant filed a special plea and an exception to the summons. She specifically pleaded that the matter is prescribed. She excepted to the declaration on the basis that the Plaintiff condoned the adultery and was compensated under customary law and that Simon Mupindu ought to have been joined to the matter. Defendant filed heads of argument in support of the special plea and exception. She argued that the Plaintiff became aware of her relationship with Simon Mupindu in 2014 therefore her cause of action crystallized then. Further that Plaintiff demanded compensation under customary law which compensation was received by both her relatives and herself. Defendant also argued that plaintiff makes allegations against Simon Mupindu who is not party to this matter. In response Plaintiff objected to the raising of the defense of prescription through exception. She argued that Defendant should have raised the defense of prescription as a special plea. On the merits she submitted that the defense does not apply to a continuing wrong. She disputed that there was no joinder and stated that she does not need the non-joined party to prove adultery. The objection by the Plaintiff that the Defendant should have raised the defense of prescription as a special plea has no merit if regard is had to the papers filed of record. Whilst the heading on the document is worded “Defendant’s Exception”, a reading of the document shows that it is a special plea combined with an exception. Defendant raised a special plea of prescription and excepted to the declaration on the basis that Plaintiff had condoned the adultery and was compensated under customary law and further that there was a fatal non-joinder. There is no ambiguity in the manner in which Defendant raised the issue of prescription. The first statement is “The defendant hereby specially pleads to the plaintiff’s declaration as follows-‘’ I am persuaded that this is a special plea and therefore the objection fails. Does a claim for adultery damages prescribe? In my view, the answer to that question depends on the circumstances of the case. Defendant in heads of argument referred to the learned author Max Loubser in Extinctive Prescription, Juta Co, 2nd edition 1996, at page 47 where he said “Certainty requires that the ‘prescription period should begin to run as soon as there is a completed cause of action, with a plaintiff who can sue and a defendant who can be sued…………” In my view, in adultery damages, the cause of action is complete when sexual intercourse takes place. In casu, that act is said to have taken place in 2024. However, plaintiff stated that it was not a one-off incident. Sexual liaison continued even after the summons were issued, and plaintiff position which was not disputed was that the acts were happening even when the matter is being prosecuted. According to her, defendant seems not to have an intention of ceasing such sexual liaison. In Slomowitz v Vereeniging Town Council 1966 (3) SA 317, the court pointed out that where the issue is not where the injurious effects of a completed unlawful act continued but rather a case were the unlawful act itself by its very nature continued for all the time, the prescription of the initial cause of action arising from the first act does not preclude recovery of losses that occurred later, provided the losses occurred within the prescriptive period before the summons were served. Mr. Chimiti submitted that as of the day of the hearing, the cause of action had not ended as defendant was still engaging in sexual acts with the plaintiff's husband. On that basis, the plaintiff is entitled to claim damages for the period that is not extinguished by prescription. In Ngcobo v Minister of Police 1978 (4) SA 930 where the Plaintiff claimed damages for unlawful detention, it was held that “the statutory time bar operates to whittle away the portions of the claim which relate to detention more than six months prior to the commencement of the action”. It therefore follows that the portions of the claim which relate to adultery that occurred more than three years prior to the commencement of the action are whittled away. However, as it was not disputed that the acts of sexual intercourse are continuing, the defense of prescription cannot succeed. Defendant also argued that the Plaintiff had condoned the adultery and was compensated under customary law. In response, the Plaintiff “vehemently’’ denied having condoned the adultery or having been compensated under customary law. It is therefore a disputed fact which was not established on the papers before me. In any event, as established in Gombakomba v Bhudhiyo HH 118/2006, condonation does not extinguish the claim. It is only mitigatory. The exception therefore has no merit. Defendant also raised an exception on the basis of a fatal non-joinder. She argued that Simon Mupindu against whom allegations are made is not before the court. in response plaintiff stated that she is seeking nothing from Simon Mupindu. In terms of rule 32 (11) of SI 202 of 2021 “No cause or matter shall be defeated by reason of the misjoinder or non-joinder of any party and the court may in any cause or matter determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the cause or matter”. The Plaintiff’s claim therefore cannot be dismissed because of non-joinder. In any event, the Plaintiff stated that she does not need the non-joined party to prove her case. The exceptions raised are not dispositive of the matter. The special plea has not succeeded. The matter must therefore proceed. Costs on a higher scale were prayed for but not justified. The following order is appropriate The special plea and exception be and are hereby dismissed with costs. Mupindu Legal Practitioners Excipient’s Legal Practitioners (Defendant in the matter) Machaya and Associates Defendant’s Legal Practitioners (Plaintiff in the main matter)