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Article by listed attorney: Fawzia Khan

On 19 June 2015 the Constitutional Court delivered its judgment in the long awaited “adultery” case which looked at the rights of the non- adulterous spouse to claim damages from the third party who caused the marriage to break down.

In this case a aggrieved ex-husband “DE”, sued his former wife’s lover, “RH”  (the third party”) in the High Court for damages, based on the an adulterous relationship he claimed, existed between his former wife and “RH”.  He claimed that RH had an extra-marital affair with the man’s former wife. The ex-husband claimed damages based on a general remedy for the infringement of personality rights, specifically claiming for insult to his personality as well as the loss of comfort and society of his spouse. The High Court found in the ex-husband’s favour in respect of the claim for insult but found that the loss of comfort and society of his spouse could not be proved because there was no evidence to show that the adultery had caused the breakup of his marriage.

The third party RH took the decision of the High Court on appeal to the Supreme Court of Appeal. In September 2014, the Supreme Court of Appeal in delivering its judgment in this case made legal history by abolishing adultery altogether. The Supreme Court of Appeal concluded that in light of the changing values of our society, the claim based on adultery had become outdated and could no longer be sustained. The Court therefore abolished it. The ex-husband then took his fight to the Constitutional Court challenging the Supreme Court of Appeal’s abolition of adultery.

The Constitutional Court delivered a unanimous judgment in which they held that there is no basis to impose a delictual liability for adultery. In a lengthy judgment the court held “ “What also comes into the equation are the softening and current trends and attitudes towards adultery. The constitutional norms and changing attitudes are not necessarily separate notions: constitutional norms also inform present day attitudes towards adultery. Of relevance in respect of the adulterous spouse and the third party are the rights to freedom and security of the person, privacy and freedom of association. These rights do not necessarily weigh less just because the two have committed adultery. The delictual claim is particularly invasive of, and violates the right to, privacy. This very case is illustrative of this. The Supreme Court of Appeal dealt with the abusive, embarrassing and demeaning questioning that Ms H suffered in the High Court. She was “made to suffer the indignity of having her personal and private life placed under a microscope and being interrogated in an insulting and embarrassing fashion”. Likewise, in order to defend a delictual claim based on adultery, the third party is placed in the invidious position of having to expose details of his or her intimate interaction – including sexual relations – with the adulterous spouse. That goes to the core of the private nature of an intimate relationship. Marriages are founded on love and respect, which are not legal rules, and are the responsibility of the spouses themselves. In the present case, the breakdown of the marriage was as a result of a failure by the spouses themselves to sustain their marriage and thus it would be inappropriate for the courts to intervene. The court also held that “The law cannot shore up or sustain an otherwise ailing marriage. It continues to be the primary responsibility of the parties to maintain their marriage. For this reason, the continued existence of a claim for damages for adultery by the “innocent spouse” adds nothing to the lifeblood of a solid and peaceful marriage”.

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