MUCHINERIPI v LITEMWE (195 of 2025) [2025] ZWHHC 195 (21 March 2025)

2 HH 195 – 25 HCH 2161/22 ABIGAIL MUCHINERIPI versus ERINA LITEMWE HIGH COURT OF ZIMBABWE MUNANGATI-MANONGWA J HARARE: 30 JANUARY 2025 & 3, 4, 21 MARCH 2025 Civil Trial C.T Tinarwo with L. Majoni, for the plaintiff H. Magadure, for the defendant MUNANGATI-MANONGWA J: The plaintiff approached this court claiming adultery damages in the sum of US$20 000 (Twenty Thousand United States Dollars) or the equivalent in local currency at the prevailing interbank rate, specifically, she seeks US$10 000 for contumelia and US$10 000 for loss of consortium. In the same vein, the plaintiff claimed interest at the prescribed rate from the date of issuance of summons to date of payment and costs on a legal practitioner and client scale. The defendant raised prescription as a defence alleging that the claim has prescribed. The question of prescription being one that calls for evidence, a trial within a trial was conducted with both parties leading evidence. The facts of the case are common cause. The plaintiff was married to Sydney Muchineripi (“the deceased”) in 1994. The parties upgraded their union to a civil marriage under the Marriages Act on 30 April 2007. Their civil union was blessed with two children. The plaintiff’s husband was involved in an adulterous relationship with the defendant and sired a child in May 2014. The plaintiff alleges that the defendant engaged in an adulterous relationship with her husband well knowing that he was married. It is not in dispute that the plaintiff’s husband moved out of the plaintiff’s house in 2019 and moved in with the defendant till his death in 2023. The plaintiff alleges that she got to know that the defendant who is a member of the Zimbabwe Republic Police and a longtime family friend was in a relationship with her husband in 2015 when her husband confessed to having a child with the defendant. The plaintiff avers that the defendant’s conduct not only embarrassed, injured her feelings and humiliated her, but as a result, love, affection and all the comforts of marriage were withdrawn from her. The defendant did not deny being in a relationship with the plaintiff’s husband. She alleges that she was unaware that he was married and when she did, she terminated the relationship. This was after giving birth to her child born out of the adulterous relationship in May 2014. She thus insists that thereafter the relationship between her and the deceased ceased that year. The defendant confirms that she allowed the deceased to move in with her in her house initially in Unit A, Seke, Chitungwiza and thereafter in Unit N, Seke Chitungwiza because he was sick and as a father of her child, she allowed such arrangement so as to facilitate the bonding of the deceased with his child. Whilst admitting living with the deceased under the same roof, she denies being intimate with the now deceased. The defendant contended that the plaintiff’s claim has prescribed given that she became aware of the extra marital relationship in 2012 but failed to file a claim till 2019 when the plaintiff issued her initial summons. Mr Magadure for the defendant submitted that a claim for damages falls under a debt in terms of s2 of the Prescription Act [Chapter 8:11] (“the Act”) hence the claim has prescribed in terms of s15 of the same Act since a period of three years has lapsed since the claim arose. On the contrary, the plaintiff denies that the cause of action arose in 2015 when she knew of the birth of the defendant’s child. The plaintiff led evidence of two witnesses. The plaintiff alleges that there were rumours in 2012 that defendant was having an affair with the deceased, but she did not believe the rumours. She alleges that on 15 December 2015 her husband confessed having sired a child with the defendant but denies that the cause of action arose on the same date. In her evidence, she maintained that although she had knowledge of the extra marital relationship on 15 December 2015, she still required more evidence of the adulterous relationship before she could file legal proceedings against the defendant, evidence she alleges was complete in 2019. This was supported by evidence of one Evidence Muchineripi who testified that although the family and the plaintiff knew of the adulterous relationship in 2015, the plaintiff had to gather evidence which would be acceptable in court which became complete in 2019. Both witnesses in their evidence maintained that the cause of action arose 2019 when the plaintiff moved out of the matrimonial home and went to stay with the defendant. Mr Tinarwo for the plaintiff submitted that the cause of action arose in May 2019 hence the plaintiff issued her initial summons in May 2019 after it became apparent to the plaintiff that the defendant was committing adultery when the deceased moved in with the defendant at her place of residence in Unit A, Seke, Chitungwiza. Mr Tinarwo argued that prior 2019, the plaintiff only had suspicions. The plaintiff disputed the defendant’s allegations that she was not intimate with the deceased given that the defendant and the now deceased lived as husband and wife, would refer themselves as such to relatives, their child’s school staff and to the public generally. Plaintiff even indicated that at her mother in law’s funeral it was publicly announced. The legal question to be determined in this case is when did the cause of action arose? The law on what constitutes a cause of action is settled. In Mudhanda v The Registrar of Deeds & Anor SC5/18 Gowora Ja (as she then was) referring to other cases that visited the definition described a cause of action as: “the entire set of facts which give rise to an enforceable claim and includes every fact which is material to be proved to entitle a plaintiff to succeed in his claim. It includes all that a plaintiff must set out in his declaration in order to disclose a cause of action.” Drawing from the definition of cause of action as defined in Mudhanda case supra, the argument by the plaintiff that the cause of action arose in 2019 when she had full information to enable her to institute a legal claim against the defendant does not hold water. This is because the deceased had confessed on 15 December 2015 that he sired a child with the defendant. This is against a background where plaintiff had her suspicions. It is baffling what more evidence plaintiff required given that it is common knowledge that a child is born as a result of two adults having been intimate. Litigants should differentiate between facts leading to a cause of action in a damages claim and facts that aggravate the quantum of damages. For the plaintiff to wait till 2019 when the husband moved out of the house and claim that it was only then, that she became certain of the existence of the extra marital relationship is hard to believe. The truth is, the plaintiff was in denial of the existence of the adulterous relationship until the husband moved out of the house in 2019. The mere birth of the defendant’s child was sufficient for the institution of a claim for adultery damages. The fact that the plaintiff’s husband then left the plaintiff to go and stay with defendant can only be considered as evidence which impacts upon the quantum of damages. Equally, the argument by Mr Magadure that the cause of action arose in 2012 when the plaintiff had suspicions of the existence of the adulterous relationship is misplaced. Given the evidence presented, even the defendant herself denied being in a relationship with the deceased during this period. As derived from evidence presented what is apparent is that in 2012 what existed were mere suspicions as per the plaintiff’s testimony which suspicion was not sufficient to give rise to a cause of action in a claim for adultery damages. It is therefore the court’s finding that the cause of action arose on 15 December 2015 after the deceased’s confession. This is when the claimant became aware of all the relevant facts upon which her claim is based (see Eddies Pfugari (Private) Limited and Another v Knowe Residents and Ratepayers Association and Another SC2/21. The question that therefore begs an answer is, given that the cause of action arose on 15 December 2015, when did prescription started to run. A claim for adulterous damages is classified under a debt in terms of s2 of the Prescription Act. For completeness the section reads as follows: “debt, without limiting the meaning of the term, includes anything which may be sued for or claimed by reason of an obligation arising from statute, contract, delict or otherwise.” A debt in terms of the same Act prescribes after a period of three years. For clarity, s15(d) of the Prescription Act reads as follows: “The period of prescription of a debt shall be- (d) except where any enactment provides otherwise, three years, in the case of any debt.” In this case, the cause of action having arose on 15 December 2015, prescription commenced to run on the same date. Calculating three years from 15 December 2015, the claim prescribed in December 2018 in terms of s15(d) of the Prescription Act. Thus, the plaintiff failed to discharge the onus to prove that prescription was interrupted at any point despite the fact that the plaintiff had initially instituted summons in 2019 and withdrew same. In the event that there was no judicial interruption in terms of s19 of the Prescription Act which took place through issuance of any process between the period 15 December 2015 to 16 December 2018, any process filed afterwards was out of time. Thus, the plaintiff having instituted these proceedings in 2022, this was in essence way out of time given that prescription started to run in 2015. Given that scenario, dilatoriness in instituting the claim led to the death of an otherwise serious claim which if it had been brought timeously, the defendant would have had difficulty in rebutting the plaintiff’s claim given the prima facie evidence led. Prescription having kicked in, the plaintiff’s claim suffers a natural death. The defendant having succeed in resisting the plaintiff’s claim, she is entitled to costs. Accordingly, it is ordered as follows; Plaintiff’s claim be and is hereby dismissed. Plaintiff to bear defendant’s costs. Munangati-Manongwa J: ……………………………………… Zimudzi & Associates, plaintiff’s legal practitioners. Magadure Legal Practice, defendant’s legal practitioners. 2 HH 195 – 25 HCH 2161/22 2 HH 195 – 25 HCH 2161/22 ABIGAIL MUCHINERIPI versus ERINA LITEMWE HIGH COURT OF ZIMBABWE MUNANGATI-MANONGWA J HARARE: 30 JANUARY 2025 & 3, 4, 21 MARCH 2025 Civil Trial C.T Tinarwo with L. Majoni, for the plaintiff H. Magadure, for the defendant MUNANGATI-MANONGWA J: The plaintiff approached this court claiming adultery damages in the sum of US$20 000 (Twenty Thousand United States Dollars) or the equivalent in local currency at the prevailing interbank rate, specifically, she seeks US$10 000 for contumelia and US$10 000 for loss of consortium. In the same vein, the plaintiff claimed interest at the prescribed rate from the date of issuance of summons to date of payment and costs on a legal practitioner and client scale. The defendant raised prescription as a defence alleging that the claim has prescribed. The question of prescription being one that calls for evidence, a trial within a trial was conducted with both parties leading evidence. The facts of the case are common cause. The plaintiff was married to Sydney Muchineripi (“the deceased”) in 1994. The parties upgraded their union to a civil marriage under the Marriages Act on 30 April 2007. Their civil union was blessed with two children. The plaintiff’s husband was involved in an adulterous relationship with the defendant and sired a child in May 2014. The plaintiff alleges that the defendant engaged in an adulterous relationship with her husband well knowing that he was married. It is not in dispute that the plaintiff’s husband moved out of the plaintiff’s house in 2019 and moved in with the defendant till his death in 2023. The plaintiff alleges that she got to know that the defendant who is a member of the Zimbabwe Republic Police and a longtime family friend was in a relationship with her husband in 2015 when her husband confessed to having a child with the defendant. The plaintiff avers that the defendant’s conduct not only embarrassed, injured her feelings and humiliated her, but as a result, love, affection and all the comforts of marriage were withdrawn from her. The defendant did not deny being in a relationship with the plaintiff’s husband. She alleges that she was unaware that he was married and when she did, she terminated the relationship. This was after giving birth to her child born out of the adulterous relationship in May 2014. She thus insists that thereafter the relationship between her and the deceased ceased that year. The defendant confirms that she allowed the deceased to move in with her in her house initially in Unit A, Seke, Chitungwiza and thereafter in Unit N, Seke Chitungwiza because he was sick and as a father of her child, she allowed such arrangement so as to facilitate the bonding of the deceased with his child. Whilst admitting living with the deceased under the same roof, she denies being intimate with the now deceased. The defendant contended that the plaintiff’s claim has prescribed given that she became aware of the extra marital relationship in 2012 but failed to file a claim till 2019 when the plaintiff issued her initial summons. Mr Magadure for the defendant submitted that a claim for damages falls under a debt in terms of s2 of the Prescription Act [Chapter 8:11] (“the Act”) hence the claim has prescribed in terms of s15 of the same Act since a period of three years has lapsed since the claim arose. On the contrary, the plaintiff denies that the cause of action arose in 2015 when she knew of the birth of the defendant’s child. The plaintiff led evidence of two witnesses. The plaintiff alleges that there were rumours in 2012 that defendant was having an affair with the deceased, but she did not believe the rumours. She alleges that on 15 December 2015 her husband confessed having sired a child with the defendant but denies that the cause of action arose on the same date. In her evidence, she maintained that although she had knowledge of the extra marital relationship on 15 December 2015, she still required more evidence of the adulterous relationship before she could file legal proceedings against the defendant, evidence she alleges was complete in 2019. This was supported by evidence of one Evidence Muchineripi who testified that although the family and the plaintiff knew of the adulterous relationship in 2015, the plaintiff had to gather evidence which would be acceptable in court which became complete in 2019. Both witnesses in their evidence maintained that the cause of action arose 2019 when the plaintiff moved out of the matrimonial home and went to stay with the defendant. Mr Tinarwo for the plaintiff submitted that the cause of action arose in May 2019 hence the plaintiff issued her initial summons in May 2019 after it became apparent to the plaintiff that the defendant was committing adultery when the deceased moved in with the defendant at her place of residence in Unit A, Seke, Chitungwiza. Mr Tinarwo argued that prior 2019, the plaintiff only had suspicions. The plaintiff disputed the defendant’s allegations that she was not intimate with the deceased given that the defendant and the now deceased lived as husband and wife, would refer themselves as such to relatives, their child’s school staff and to the public generally. Plaintiff even indicated that at her mother in law’s funeral it was publicly announced. The legal question to be determined in this case is when did the cause of action arose? The law on what constitutes a cause of action is settled. In Mudhanda v The Registrar of Deeds & Anor SC5/18 Gowora Ja (as she then was) referring to other cases that visited the definition described a cause of action as: “the entire set of facts which give rise to an enforceable claim and includes every fact which is material to be proved to entitle a plaintiff to succeed in his claim. It includes all that a plaintiff must set out in his declaration in order to disclose a cause of action.” Drawing from the definition of cause of action as defined in Mudhanda case supra, the argument by the plaintiff that the cause of action arose in 2019 when she had full information to enable her to institute a legal claim against the defendant does not hold water. This is because the deceased had confessed on 15 December 2015 that he sired a child with the defendant. This is against a background where plaintiff had her suspicions. It is baffling what more evidence plaintiff required given that it is common knowledge that a child is born as a result of two adults having been intimate. Litigants should differentiate between facts leading to a cause of action in a damages claim and facts that aggravate the quantum of damages. For the plaintiff to wait till 2019 when the husband moved out of the house and claim that it was only then, that she became certain of the existence of the extra marital relationship is hard to believe. The truth is, the plaintiff was in denial of the existence of the adulterous relationship until the husband moved out of the house in 2019. The mere birth of the defendant’s child was sufficient for the institution of a claim for adultery damages. The fact that the plaintiff’s husband then left the plaintiff to go and stay with defendant can only be considered as evidence which impacts upon the quantum of damages. Equally, the argument by Mr Magadure that the cause of action arose in 2012 when the plaintiff had suspicions of the existence of the adulterous relationship is misplaced. Given the evidence presented, even the defendant herself denied being in a relationship with the deceased during this period. As derived from evidence presented what is apparent is that in 2012 what existed were mere suspicions as per the plaintiff’s testimony which suspicion was not sufficient to give rise to a cause of action in a claim for adultery damages. It is therefore the court’s finding that the cause of action arose on 15 December 2015 after the deceased’s confession. This is when the claimant became aware of all the relevant facts upon which her claim is based (see Eddies Pfugari (Private) Limited and Another v Knowe Residents and Ratepayers Association and Another SC2/21. The question that therefore begs an answer is, given that the cause of action arose on 15 December 2015, when did prescription started to run. A claim for adulterous damages is classified under a debt in terms of s2 of the Prescription Act. For completeness the section reads as follows: “debt, without limiting the meaning of the term, includes anything which may be sued for or claimed by reason of an obligation arising from statute, contract, delict or otherwise.” A debt in terms of the same Act prescribes after a period of three years. For clarity, s15(d) of the Prescription Act reads as follows: “The period of prescription of a debt shall be- (d) except where any enactment provides otherwise, three years, in the case of any debt.” In this case, the cause of action having arose on 15 December 2015, prescription commenced to run on the same date. Calculating three years from 15 December 2015, the claim prescribed in December 2018 in terms of s15(d) of the Prescription Act. Thus, the plaintiff failed to discharge the onus to prove that prescription was interrupted at any point despite the fact that the plaintiff had initially instituted summons in 2019 and withdrew same. In the event that there was no judicial interruption in terms of s19 of the Prescription Act which took place through issuance of any process between the period 15 December 2015 to 16 December 2018, any process filed afterwards was out of time. Thus, the plaintiff having instituted these proceedings in 2022, this was in essence way out of time given that prescription started to run in 2015. Given that scenario, dilatoriness in instituting the claim led to the death of an otherwise serious claim which if it had been brought timeously, the defendant would have had difficulty in rebutting the plaintiff’s claim given the prima facie evidence led. Prescription having kicked in, the plaintiff’s claim suffers a natural death. The defendant having succeed in resisting the plaintiff’s claim, she is entitled to costs. Accordingly, it is ordered as follows; Plaintiff’s claim be and is hereby dismissed. Plaintiff to bear defendant’s costs. Munangati-Manongwa J: ……………………………………… Zimudzi & Associates, plaintiff’s legal practitioners. Magadure Legal Practice, defendant’s legal practitioners.