On 26 September 2014, Justice Brand ruled on behalf of the full Supreme Court of Appeal (SCA) bench that,
“[I]n the light of the changing mores of our society, the delictual action based on adultery of the innocent spouse has become outdated and can no longer be sustained; that the time for its abolition has come.”
This was subsequent to a claim by the applicant (RH) against the defendant (DE) for contumelia and loss of consortium, due to an alleged adulterous relationship between DE and the applicant’s ex-wife during the existence of their marriage. For a full sequence of facts see the judgement.
The action based on adultery has been part of South African law for decades, recognised and confirmed by South African courts many times over. It was recently upheld in Wiese v Moolman (Wiese case), where the Court held that although adultery is no longer a crime, an innocent spouse’s claim for delictual damages against a third-party adulterer remained part of South African law.
The SCA in RH v DE was unreceptive to the rationale put forward by the High Court in Weise to support the continued existence of adultery claims as part of South African law.
The SCA held that, based on the shift on social mores and the anomaly of the action itself, the existence of the action is unsound. The action is anomalous because it is a claim against the third party, and not the guilty spouse. The anomaly, the SCA held, is that:
- it is the guilty spouse’s conduct rather than that of a third party that is more hurtful to the innocent spouse. The innocent spouse’s conduct is more reprehensible considering that he or she breaches the undertaking to “remain faithful and bound by the relationship of trust”;
- it makes no difference whether the guilty spouse initiated the adulterous relationship, that he or was the seducer rather than the seduced; and
- that it makes no difference whether the spouses divorce or carries on with the marriage after the surfacing of the adulterous relationship.
On the last point, I fully agree with the SCA. What purpose does the action serve if the innocent party can opt to revive his or her marriage with the guilty spouse, condone the adultery, and yet have a claim against the third-party? Is the aim of the action to furnish the innocent spouse with a revengeful tool, as one may presume to be the case in most cases? The adultery claim must not be confused with the claims based on the “enticement” of the guilty spouse by a third party where the innocent spouse has to prove blameworthiness of the third party.
For an adultery claim to succeed, it suffices for the innocent party to prove mere existence of the adulterous relationship during the existence of their marriage with the guilty spouse.
The rationale in Weise was that the action lies in consideration of public policy, absent of which it would be implicit that the law condones adultery. According to the SCA, this then “raises the question: why is the same message not conveyed by the immunity of the guilty spouse?”
Generally, it is argued that the action on adultery serves to protect marriage as an important institution in our society, and to protect the personality of the innocent spouse from injury by affording them compensation for the said contumelia (insult). In Weise, the court accepted this argument.
According to the SCA, the ultimate question is whether this action succeeds in protecting the institution of marriage? The court expressed serious doubts:
“[A]lthough marriage is ‘a human institution which is regulated by law and protected by the Constitution and which, in turn, creates genuine legal duties . . . Its essence . . . consists in the readiness, founded in morals, of the parties to the marriage to create and to maintain it‘. If the parties to the marriage have lost that moral commitment, the marriage will fail and punishment meted out to a third party is unlikely to change that.”
It further held that it is very doubtful, as in other jurisdictions, that the action still has any deterrent effect since adultery occurs in different circumstances. Such circumstances include “[adultery which] happens without any premeditat[ion], when deterrence would not play a role.” It is worth asking whether this means that the action could deter those who carefully and intentionally plan adultery.
Moreover, the SCA held that if deterrence was the purpose of the action, then it would have been better achieved by criminally sanctioning the conduct. This, as stated above, was abolished. Also, adultery is often “found to be the result, and not the cause, of an unhappy marital relationship,” and “a marriage in which the spouses are living in harmony is hardly likely to be broken up by a third party.”
The court’s claims are not entirely true. They seem to suggest that the marriage breaks down mainly because the plaintiff has stopped trying. I am not of the view that spouses at all times commit adultery due to an unhappy marriage environment. Adultery may be due to normal human temptation.
The Court also expressed serious doubts about whether the action protects personality of the innocent party. It held that the conduct not only needs to be tested against the prevailing norms of society, but also has to be insulting, when objectively tested. That is,
“Unless the reasonable observer would also regard the conduct as humiliating or degrading, no action for iniuria or insult will lie… Applying that test, it appears to me that in this day and age the reasonable observer would rarely think that the innocent spouse was humiliated or insulted by the adultery of his or her spouse.”
Questionably, the SCA held that, based on the current social norms and morals, society “will think less of a guilty spouse but not the one who had been betrayed.” This rationale is somewhat distanced from reality. Be it objectively or subjectively viewed, insult takes different forms. A spouse may be insulted by pitiful remarks. Although this would constitute hurt to the subjective feelings of the spouse which is not actionable in our law, it may still qualify as an insult when objectively viewed, taking into account the surrounding circumstances.
Many Nguni tribes — which make up the bulk of the South African population — place emphasis on the roles and capabilities of both spouses within the household. If one of the spouses faults, although blame is inevitably placed on the guilty spouse, the community will usually remark that the innocent spouse fell short of the required spousal standard. Such comments are insulting to the wronged spouse.
In addition, the SCA further held that even if the action served some purpose, the hurt and damage inherent to the action outweighs its benefits. This includes the exposure of young children to harmful publicity and emotional trauma. Children may come across the evidence of the adulterous conducts of their parent. The evidence led in trial usually impacts on the dignity and privacy of the third-party. In this regard, the innocent party seems vengeful. I am not convinced by the court’s reasoning in this regard.
Based on the reasoning outlined above, the SCA concluded that:
“[T]he time has come for our law to recognise, in harmony with most other legal systems, that in the light of changing mores, these reasons advanced for the continued existence of the action have now also lost their persuasive force.”
This conclusion is in line with the duty imposed on the courts by section 39(2) of the Constitution, to develop the common law so as to promote the spirit, purport and objectives of the Bill of Rights, and “the acceptance that the courts can and should adapt the common law to reflect the changing social, moral and economic fabric of society; that we cannot perpetuate legal rules that have lost their social substratum.”
Delictual actions are heavily based on the prevailing norms of society, which are subject to change over time. Therefore, adultery, in norm and in law, is no longer a ground for an innocent spouse’s claim for damages against a third party.
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