Viola Dhudhla Machingura Versus Eugenia Machaya

### Preamble
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HMA-16/25
HCMSC 73/24
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VIOLA DHUDHLA MACHINGURA

versus

EUGENIA MACHAYA

HIGH COURT OF ZIMBABWE

MAMBARA J

MASVINGO; 17 and 23 April 2025

Unopposed Summons

P. Chimwanda, for the plaintiff Defendant in default

MAMBARA J: This matter was set down on the unopposed roll after the defendant’s plea was struck out for non-attendance at the pre-trial conference and her subsequent application for rescission was deemed abandoned. Liability is therefore not in issue; the court is seized only with the assessment of quantum under r 25(1) of the High Court Rules, 2021.

The plaintiff seeks US $50 000, broken down into US $30 000 for contumelia and US $20 000 for loss of consortium, arising from a protracted adulterous relationship between the defendant and the plaintiff’s husband that began in 2019, produced two children, and led to the effective desertion of a 41-year civil marriage.

Applicable Principles

When fixing adultery damages the court considers—

the nature and duration of the marriage;

knowledge of the marriage by the adulterer;

character and social-economic standing of the parties;

the extent of contumelia and loss of consortium proved;

contrition (or lack thereof) by the adulterer;

the need for deterrence; and

the level of awards in comparable cases.

These factors were restated in Njodzi v Matione HH 37-16 and

Shamhu v Taderera ZWMSVHC 19-23

Evidence on Quantum

Contumelia

The plaintiff, a retired university lecturer and church elder, testified—through affidavit— to public humiliation in her congregation and community, severe emotional trauma requiring medical treatment for diabetes, hypertension and depression, and the stripping away of her role in the family estate (bank accounts, farm operations and vehicles).

Loss of Consortium

Since 2019 the plaintiff’s husband has cohabited with the defendant; intimacy, companionship and joint family life have ceased entirely. The marriage now subsists only in name.

The defendant, despite service, elected to remain absent and therefore offered no apology or mitigation.

Comparable Awards

Case	Year	Contumelia Consortium	Total Njodzi v Matione		2016	 US $15 000 US $10 000 US $25 000

Shamhu v Taderera	2023	US $5 000	US $8 000	US $13 000

Taoneyi v Madzima	2025 (HH 18-25) US $10 000 US $10 000 US $20 000

No reported High Court decision after Taoneyi has exceeded the composite figure of US $20 000. Inflation-adjusted though that award is, it remains the highest recent comparable award placed before the court.

Assessment

Taking into account—

the plaintiff’s long, otherwise stable marriage;

the flagrant, ongoing nature of the adultery and the birth of two children;

the defendant’s total lack of contrition; and

the deterrent function emphasised in Khumalo v Mandishona 1996 (1) ZLR 434 (H) and later cases,

The court is satisfied that an award modestly above the most recent ceiling of US $20 000 is justified to reflect both changing economic realities and the egregious facts of this case.

Accordingly, it is ordered that:

The defendant shall pay to the plaintiff the sum of US $25 000 (Twenty-Five Thousand United States Dollars), made up as follows:

(a) Contumelia: US $16 000

(b) Loss of consortium: US $9 000

Interest shall run on the above amount at the prescribed rate of 5 % per annum from the date of this judgment to the date of full and final payment.

The defendant shall bear the plaintiff’s costs of suit.

Saratoga Makausi Law Chambers, plaintiff’s legal practitioners