By Tsogo Rampolokeng
The impact of adultery is like being hit with a huge brick. In township lingo it is said, ‘goshapiwa ka setena’, translated to mean ‘to be hit with a brick’. It leaves a long lingering pain, and the victim cannot move or do anything for a long time, but suffer the pain and humiliation.
In DE v RH 2015 (5) SA 83 (CC) at para 1 the Constitutional Court (CC) stated: ‘Undertakings of fidelity – whether in the form of ho lauwa, go laiwa or ukuyalwa [Sesotho, Setswana and Nguni – respectively – for the counselling that takes place at traditional weddings on the do’s and don’ts of marriage] or solemn vows or any other form dictated by various cultures or religions – is no guarantee that adultery will not take place in marriage.’
The guarantee referred to by the court is similar to the requirement of being a ‘fit and proper’ person to be admitted to practice as an attorney or advocate. Magda Slabbert ‘The requirement of being a “Fit and Proper” person for the Legal Profession’ (2011) 14 PER 209 regards such guarantees as a ‘false warranty given to the public’ and that it does not guarantee that a lawyer would act in an ethical manner in the future. Slabbert further contends that the test of a ‘fit and proper’ person to practise law, can be viewed similarly to the ‘I do’ vows exchanged by marriage partners during a wedding ceremony. This becomes their solemn commitment, even though they know that things do change with the passage of time, changes in circumstances and personalities.
A failing marriage has been likened to a slow, sinking ship. The water starts seeping through the cracks and the ship slowly starts to rot, decompose and eventually sink. Similarly, if there is a rift in a marriage relationship, this relationship will also degrade to a situation where it can no longer sustain itself. This is the point where one of the parties, while the relationship is failing, may jump ship, find comfort and solace on a life boat, in the arms of someone else. This is what adultery is all about.
Given the situations described above, can the courts continue to intervene as they have done in the past, and provide for a delictual claim against a third party based on adultery and then compensate the non-adulterous partner for the wrongs of the adulterous partner and the third party.
Facts and findings
Mr DE (the applicant) had successfully sued Mr RH (the respondent) in the Gauteng Division of the High Court in Pretoria on the basis that Mr RH had an extra-marital affair with Ms H. Mr DE had launched an action based on the actio iniuriarum, the claim being for loss of consortium (intimacy and society) and contumelia (injury or insult to self-esteem).
The CC in the DE v RH matter at para 11 identified that the main and only issue to be determined was the continued existence of the delictual claim against a third party based on adultery, the answer to the question being ‘whether nowadays the act of adultery meets the element of wrongfulness for delictual liability to attach’ (my italics).
According to B Zitzke ‘A case of anti-constitutional common-law development’ (2015) 48 vol 2 De Jure 457, after a lengthy trial the High Court found that Mr RH was delictually liable to Mr DE for both heads of damage, being for loss of consortium and contumelia. The court held that Mr DE had a valid claim for contumelia based on the law as it stands. This was once again a positivist approach followed by South African courts, which apply the letter of the law as it is. On appeal by Mr RH to the Supreme Court of Appeal (SCA), the court overturned that decision and mero motu (of its own accord), raised the question of whether a claim based on adultery should continue to be part of South African law. The court found that adultery should no longer be punished through a civil damages claim against a third party. On appeal by Mr DE to the CC, the court held, at para 63, that the appeal falls to be dismissed, finding that ‘the act of adultery by a third party lacks wrongfulness for purposes of a delictual claim of contumelia and loss of consortium; it is not reasonable to attach delictual liability to it. That is what public policy dictates.’
Reasons of the court
According to Lecturers Law of Delict Only Study Guide for PVL3703 (UNISA Press Pretoria 2011) delictual liability is established when the following elements are present –
Wrongfulness is when the conduct is considered unacceptable by the community. The community’s values and morals influence the interpretation and development of the law. Hence, wrongfulness is based on the legal convictions of society (boni mores – good morals) and is determined according to the boni mores test, which is an objective test, the standard being the morals of society.
The claim based on adultery originates from English law. The SCA duly identified the origin of this private law claim for damages in South African law as being from English law (RH v DE 2014 (6) SA 436 (SCA) at para 24). Patriarchy influenced the origins of this claim, including the influence on society and law. Originally only a man could institute such a claim against another man (the third party) who was involved in an adulterous relationship with his wife (DE v RH at para 14). Historically, wives were viewed as ‘chattels’ being someone’s property and women in general had no role in society and in law. According to Zitzke (op cit) the Court of Appeal in Pritchard v Pritchard and Sims  3 All ER 601 at 606-610 held that the action was born in a patriarchal society in which men had a proprietary interest in their wives, comparable to that of cattle. I submit that patriarchy resulted in practices where women had to change their surnames to their husband’s surname on marriage because the wife no longer belongs to her maiden family.
The action based on adultery has been abolished in many foreign jurisdictions. Since the action was introduced from England it was interesting that it was abolished starting with England, then followed by other foreign countries – which either abolished or severely restricted the claim (RH v DE at para 27). Africa was also not left behind in abolishing the claim. However, Cameroon still retains adultery as a criminal offence. Namibia and Botswana have retained the action for damages for adultery. The court in the DE v RH matter at para 36, referring to the Namibian case of Van Wyk v Van Wyk and Another  NAHCMD 125 (though retaining the claim) held that there has been a softening of attitudes and it ‘recognised certain core rights of each spouse as an individual … however … marriage remains the cornerstone and the basic structure of our society. The law recognises this still today.’
The CC in S v Makwanyane and Another 1995 (3) SA 391 (CC) at para 88 held that, even though public policy might be relevant in a case, it cannot be a substitute for the courts’ duty ‘to interpret the Constitution and to uphold its provisions’. The issue is not what the majority believe, but what the Constitution provides. If public opinion was decisive, then we do not need constitutional adjudication. Rights can then be protected by the legislature, which has a mandate from the public, and is answerable to the public for the way its mandate is exercised. However, this would take us back to parliamentary supremacy.
Public opinion is a notion that is informed by our constitutional values. In the DE v RH matter at para 52, the court held that the relevant constitutional norms that affect a delictual claim based on adultery are those that balance the rights of the victim (non-adulterous spouse) and those of the perpetrators (adulterous spouse and the third party).
It is common knowledge that South
Africa comes from a past characterised by strife, conflict, untold suffering and injustice based on parliamentary supremacy. However, the new constitutional dispensation provides a ‘bridge between the past of a deeply divided society … and a future founded on the recognition of human rights, democracy and peaceful co-existence … for all South Africans, irrespective of colour, race, class, belief or sex’ (Preamble to the Constitution of 1993). All laws are now subject to the Constitution and the new constitutional values that includes ubuntu.
People around the world regard adultery as being morally wrong. Derogatory names were also given to children born out of adulterous relationships. Over time, the attitudes that actually changed towards adultery were still rooted in sexism and patriarchy. Attitudes to relationships have a direct influence on attitudes towards adultery. However, as seen from the above discussion, these attitudes are biased to and in favour of men. Therefore, it cannot be said in all sincerity that what has been touted as ‘changes in attitudes of society towards adultery’ is in fact in the interests of justice, because these attitudes are still discriminatory in nature. Thus, the determination of wrongfulness based on changes in societal norms in this instance is simply a fallacy, which according to the Critical Legal Studies, is a false consciousness at work in law and in society.
A third party interferes in the marriage relationship that is exclusive and out of bounds. On the other hand, the state should then intervene to protect the ‘right to a sphere of intimacy and autonomy’ from intrusion and invasion. Failure to protect impairs the ability of the partners to honour their obligations to one another as determined in Dawood and Another v Minister of Home Affairs and Others; Shalabi and Another v Minister of Home Affairs and Others; Thomas and Another v Minister of Home Affairs and Others 2000 (3) SA 936 (CC) at para 62. Without legal recourse or remedies, the victim would at times end up resorting to self-help, to the extent of killing either or both perpetrators. Crimes of passion are plenty and this decision by the court can escalate these killings.
Tsogo Rampolokeng BCom (Unisa) HED (TEC) is a legal adviser at The Legal Advice Centre in Mafikeng.
This article was first published in De Rebus in 2017 (March) DR 24.