A Harare woman who is being sued for US$50,000 over alleged adultery is seeking to dismiss the claim, arguing it is no longer a part of the laws of Zimbabwe.
Ratidzo Nyamuchengwa, who is being sued by her former friend, Marvelous Marufu, has since been granted the relief to approach the upper court by High Court judge, Justice Emilia Muchawa.
In seeking referral of her case to the Constitutional court, Nyamuchengwa raised a special plea in which she argued that the claim for adultery is no longer a part of the laws of Zimbabwe as it is inconsistent with Chapter 4 of the Constitution of Zimbabwe.
The Constitutional Court is expected to hand down a landmark ruling after hearing her arguments.
Nyamuchengwa wants the court to show whether the common law of adultery is consistent with subs (1) Section 56 of the Constitution in so far as it allows her to be sued whilst simultaneously precluding the complainant from suing her former husband for the same acts.
She also said the claim is unconstitutional as it exposes her to the prospect of being questioned on and testifying on intimate and personal details of her private, sexual relations.
In addition, she complained that it calls for scrutiny of and publicity of her alleged sexual liaisons or other relations with Marufu’s former husband.
Another query is whether the common law delict of adultery is consistent with subs (1) of Section 58 of the Constitution in so far as it restricts her right to freely associate with any consenting adult person she chooses.
The Constitutional Court is also expected to determine whether the common law delict of adultery serves any rational and justifiable purpose or object protectable under the Constitution.
The judge referred the matter to the Constitutional Court in terms of Section 175 (4) Constitution for a determination of issues she raised.
“To that end, the Constitutional Court shall determine whether the common law delict of adultery sued upon by plaintiff is consistent with subs (1) of Section 56 of the Constitution in so far as it allows the plaintiff to sue the defendant whilst simultaneously precluding her from suing her former husband for the same acts upon which she sues the defendant,” the judge said.
“Whether the common law delict of adultery, as sued upon by the plaintiff, serves any rational and justifiable purpose or object protectable under the Constitution 2013.”
The man at the centre of the controversy is Albert Mhondoro, who allegedly used his wife’s savings to marry Nyamuchengwa.
There was drama on the day he paid lobola for his new wife, after Marufu stormed the proceedings, demanding her money and man back.
Mhondoro has since dumped his family and is now living with Nyamuchengwa.
Mhondoro and Nyamuchengwa work at Nuanee Zimbabwe, which is into cosmetics.
According to court papers, Marufu and Mhondoro wedded on March 19, 2018 and celebrations were held on April 7, 2018.
Nyamuchengwa attended the wedding and bought gifts for the couple.
Marufu said Nyamuchengwa enticed her husband and took him away.
It has emerged that Nyamuchengwa ditched her husband, Terrence Mawire, for Mhondoro.