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ADULTERY AND THE LAW

In the case of Wiese v Moolman, in 2009, adultery was defined as voluntary sexual intercourse between a married person and someone who is not his or her spouse. Previously, a delictual action for adultery was recognised in South African law, however, the aggrieved spouse could only sue the third party for damages and not the adulterous spouse. The amount of damages claimed was determined by the consideration of various factors such as: the income of the spouses; and whether a spouse has, for example, neglected his or her partner causing him or her to be exposed to temptation.

In 2014, in the case of RH v DE, the Supreme Court of Appeal decided that such an action for damages has become outdated and that the law could no longer support such a claim. The applicant and ex-husband (DE) sued the respondent (RH) in the High Court and was awarded R75 000 in damages with interest and costs, for having an adulterous relationship with the applicant’s wife. Unhappy with the decision of the Supreme Court of Appeal who found in favour of RH, DE brought the matter to the Constitutional Court.

Unanimously, the Constitutional Court decided that adultery by a third party lacks wrongfulness for a delictual claim for injury or insult to self-esteem (contumelia) and loss of comfort and society (consortium) and that it is not reasonable to ascribe delictual liability to it. Furthermore, in this day and age it is incorrect to assess marital fidelity in terms of money and the State should not interfere in the intimate personal affairs of individuals. The law is there to protect marriages and to prevent legal barriers that obstruct the enjoyment of a married life – it is not there to prop up one’s marriage for intimate reasons that have nothing to do with the law. Love and respect are foundations of a solid marriage and not legal rules.

It is important to note that no constitutional right is absolute. In its determination of wrongfulness, the Constitutional Court concluded that although the applicant has the right to dignity, which is entrenched in our Bill of Rights, so too does the respondent have rights that need to be protected – The right to freedom and security of the person, privacy and freedom of association. Even though the respondent disrespected and was inconsiderate of a marriage relationship, it was the applicant and his ex-wife who had undertaken to be faithful to one another. Therefore, the rights of the respondent cannot be ignored. It was held that the delictual claim for adultery was especially intrusive of the right to privacy and although the claim is not against the adulterous spouse, the risk of delictual liability invades the right of a consenting adult to have sex with whomever he or she chooses.

Adultery should no longer be punished through a civil damages claim. It is the commitment of spouses to maintain their marriage and not the responsibility of the law. Thus, the Constitutional Court supported the decision of the Supreme Court of Appeal and the appeal was dismissed with costs, putting paid to any prospects of being awarded damages for adultery.

Author:  LAUREN STEWART (Candidate Attorney) (Umhlanga Office)

Tel:  031 566 2207

E-mail:  laurens@tmj.co.za