By Devon Jenkins

This story is by no means unique: High School friends become lovers, get married, have children and portray the picturesque middle-class suburban family… until one spouse steps outside of the marriage and commits adultery.

Such is the story of DE and RH. In this case the plaintiff’s wife (Mrs H) moved out of the matrimonial home and instituted divorce proceedings against the plaintiff because the marriage had irretrievably broken down. The plaintiff alleged that the marriage had broken down because of an adulterous affair that Mrs H was having with the defendant. Mrs H alleged that her marriage had broken down prior to her relationship with the defendant and that she only became romantically involved with the defendant after she had left the marital home.

The plaintiff sued the defendant in the Gauteng Division, Pretoria (GP) for injury and insult to self-esteem (contumelia) and loss of comfort and society (consortium) of his spouse. The High Court agreed and awarded the plaintiff R 75 000 for damages with interest and costs.

The matter was taken on appeal by the defendant to the Supreme Court of Appeal (SCA) (RH v DE 2014 (6) SA 436 (SCA)) and later the Constitutional Court (CC). The SCA in considering the case, raised whether it was justified to have the delictual claim for adultery as a legal action in our law in the light of current societal norms, public policy and the changing mores of our society. The SCA also raised whether it was time to re-evaluate and develop the common law to bring it in line with constitutional values.

The SCA found that the action derived from the action iniuriam and based on adultery, which afforded an innocent spouse a claim for both contumelia and loss of consortium was no longer wrongful and did not attract liability and, therefore, should no longer form part of our law. The CC confirmed the SCA’s decision.

Considerations by the courts: 

• Public policy

In the judgment, the SCA took into account the changing attitude of South Africans towards adultery and the institution of marriage. While the SCA recognised that the legislature should be primarily responsible for law reform, it recognised that courts are obliged to develop the common law to promote the spirit, purport and objectives of the Bill of Rights and to reflect the changing social, moral and economic fabric of society.

The SCA found that the mores of society or the legal convictions of the community are significant in determining wrongfulness of conduct in delictual liability – courts should have regard to the changing norms of society when determining wrongfulness.

Adultery is no longer a criminal offence; abolished due to lack of enforcement. South African courts apply a no fault principle to divorce actions, polygamous marriages are recognised, as well as civil unions. The traditional notion of the family has changed. These legal developments are all signs of a transformative public policy in a constitutional democracy. The moral fabric of society has changed and if our laws do not change with it, they will be archaic.

The SCA reasoned that the changing morals of modern society, nationally and internationally, no longer justified a delictual action against an adulterous third party. The CC ruled that these actions lack the delictual element of wrongfulness and must be abolished to bring the concept of wrongfulness in line with ‘the community’s general sense of justice’.

• Comparative law

The SCA also considered comparative common law jurisdictions that inherited the action from the English law and found that the action had been abolished. The reason for the abolition in these jurisdictions were mainly that the action was no longer aligned to the current considerations of morality; created grave disadvantages and that on a balance its continued existence could not be justified.

• The protection of the institution of marriage

On a purposive interpretation of the law, both the SCA and CC, explored whether the action actually achieved its purpose, which was to protect the institution of marriage. Both courts considered whether the abolishment of these actions would degrade the institution of marriage or, leave it more vulnerable as they may serve as a justifiable deterrent against committing adultery.

After extensive consideration, the deterrence argument fell short on several points:

• Adultery is generally not planned, and even when it is, participants in an adulterous relationship continue on the basis that the infidelity would not be discovered.
• Criminal sanctions usually have more of a deterrent effect than civil claims – and yet the crime of adultery was abolished more than 100 years ago.
• Adultery is often the result of a deteriorating marriage and not the cause of it; as expressed by Mrs H in this case.

Ultimately marriage is an institution regulated by law, which creates enforceable legal duties, but the bedrock of marriage is founded in the personal morals of the parties who are charged to maintain that marriage. An action against a third party would do little, if anything at all, to fix an already broken marriage.

• The injured innocent spouse

The very notion of compensating an innocent spouse was analysed. Traditionally women were viewed as property of their husbands. Husbands could only divorce their wives with an act of parliament – thus infidelity was viewed as a terrible blow to a man’s ego and, therefore, the need for compensation was justified. However, now divorces are no fault based and men can easily divorce an adulterous wife. Also there is more sympathy for an innocent spouse than shame in modern society. Society does not hold an innocent spouse in less esteem.

One would assume that the innocent spouse’s feelings are more tarnished by their partner’s infidelity than the conduct of the third party. After all, the guilty spouse was meant to be faithful and committed to a trusting relationship.

• Constitutional rights of dignity, privacy, freedom of association and children

In considering the matter, the SCA and CC found that the rights of the innocent spouse must be weighed up against that of the adulterous spouse and the third party. Each of the parties has the right to freedom of association, security and privacy.

This action unduly infringed on individual’s rights to privacy and freedom of association. It forced parties to disclose their intimate interactions to the court in giving testimony and placing their private lives under a microscope. It intrudes into the consenting person’s right to have a sexual relationship with whomever he or she chooses. It undermines the rights of a third party who did not undertake to be faithful to anyone. The children caught up in the middle of such a claim may also be subject to adverse publicity and emotional trauma.

Although the infringement of dignity suffered by the innocent spouse cannot be denied, it must be weighed against the infringement of the fundamental rights of the adulterous spouse and the third party and this, along with social norms and the current attitude towards adultery, does not justify the continuance of these actions within our legal system.

Way forward

The SCA’s judgment, was subsequently upheld by the CC, and abolished the claims for both contumelia and loss of consortium. The SCA also made no comment on other claims based on the actio iniuriam, which relate or are connected to the institution of marriage such as the action for abduction, enticement and harbouring of someone else’s spouse, which are still enforceable in law.

Also no comment was made by the SCA on the continued existence of the claim against a third party based on patrimonial harm suffered by the innocent spouse through the loss of consortium of the adulterous spouse, which could include loss of supervision over the household and children and preferred to leave that as the subject for consideration for another day.

Given our transformative public policy and the judicial willingness to develop the common law, one can be sure that there is bound to be further development of this area of law in the near future.

• See also ‘Delict’ report in law reports 2015 (Jan/Feb) DR 53 and ‘Adultery’ report in 2015 (Aug) DR 45.

Devon Jenkins LLM (Stell) is a candidate attorney at Fasken Martineau in Johannesburg.

This article was first published in De Rebus in 2015 (Oct) DR 48.