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In a matter before the Constitutional Court in 2015, before some of our most learned legal minds, the question of infidelity and the remedies available to an injured spouse was raised both as a constitutional matter as well as one of public import, therefore fulfilling the requirements vesting the Constitutional Court with the power to hear the matter.
The Court began by laying out the basis for the appeal and stated that the questions involved were whether, in the legal context, when a spouse commits adultery:
- does the non-adulterous spouse have a right of action in delict against the third party for injury or insult to self-esteem (contumelia)?;
- does the non-adulterous spouse have a right of action in delict against the third party for loss of comfort and society (consortium)?; and
- if so, is there justification for the continued existence of the action?
There was no question that the delictual actions were part of our law, that is until the decision by the Supreme Court of Appeal in the same matter, which led the matter to come before the Constitutional Court.
The Applicant (Mr DE) had successfully sued Mr RH, in the High Court in Pretoria, for damages arising from the adultery that occurred between Mr RH and Mr DE’s erstwhile wife, Ms H. Mr DE sued on the actio iniuriarum for loss of consortium and contumelia.
The Supreme Court of Appeal then, mero motu (of its own accord), raised the question whether the claim should continue being part of our law at all. The Court stated that, on the facts, the Applicant did not have a claim for loss of consortium but that he may have a claim for contumelia, on the law as it stood at the time. The Supreme Court of Appeal, however, stated that it was time for the claim to fall out of our legal system based on the boni mores of our society currently.
The Court made reference to the history of the claim, foreign law development and comparisons as well as our changing society and its mores. The Court pronounced that the claim had become outdated and that it could no longer be sustained. In accordance with its power, the Court was developing the common law and exiling an ancient action which, in the Court’s opinion, had become outdated.
The applicant’s argument, before the Constitutional Court, stood on three constitutional points:
- the failure of the Supreme Court of Appeal to develop the common law in line with the Constitution;
- the right to dignity; and
- the importance placed on marriage and the family by Section 15(3) of the Constitution.
The Constitutional Court stated that the most important question to be answered was the continued existence of the claim and that that question could be answered by considering whether, nowadays, under society’s current mores, adultery meets the element of wrongfulness for liability to attach.
The Court dealt with the issue that the claim was deeply rooted in patriarchal norms wherein a female spouse was treated as chattels (property) and that the action was available to a male spouse in the case of another man, in effect, robbing him of his chattels in the form of his wife. This is also clearly demonstrable by the fact that the claim lies only against the third party and not against the wife, who is merely the property which is the object of the claim, rather than another subject of the claim. In order to overcome the discriminatory nature of the claim, the claim was made open to wives in Rosenbaum v Margolis 1944 WLD 147 which was confirmed by Foulds v Smith 1950 (1) SA 1(A).
The Court quoted Kentridge AJ, from the decision in Du Plessis and Others v De Klerk and Another  ZACC 10, wherein the learned judge stated that judges “can and should adapt the common law to reflect the changing social, moral and economic fabric of the country. Judges should not be quick to perpetuate rules whose social foundation has long since disappeared.”
The Court went on to consider the changing societal norms regarding adultery and made reference to the change in attitude towards children born of adulterous relationships. These children are, rightly, given all the rights of any child born of married parents. This is a clear example of a “softening” approach towards infidelity. In addition to this, the Court referred to the abrogation by disuse of the criminal offence of adultery. The Court took into account the plethora of academic writings on the issue which, bar a few writers, all took the same approach towards the continued existence of the claim: it is outdated.
The applicant contended that the delict, in its then form, was available to protect marriage as a sacred institution. In answer to this, the Court cited the relaxation of laws relating to divorce which now allow spouses to get divorced on the basis of an “irretrievable breakdown of marriage” rather than the specific circumstances which had to be present to end a marriage in the past. The Court went on to state, in no unclear terms, that it was not stating that marriage as an institution should not be protected and quoted itself in the case of, inter alia, Dawood and Another v Minister of Home Affairs and Others  ZACC 8 (“Dawood”).
The Court considered, in some depth, many other jurisdictions, specifically those based on English civil law where the majority of countries had made the move to abolish a claim such as this. Certain jurisdictions maintained the claim as well as the criminal offence, but these are few and far between.
The applicant stated that all of the above amounted to nought in light of certain words pronounced by the Constitutional Court itself. In Dawood, the Constitutional Court said as follows:
“Marriage and the family are social institutions of vital importance. Entering into and sustaining a marriage is a matter of intense private significance to the parties to that marriage for they make a promise to one another to establish and maintain an intimate relationship for the rest of their lives which they acknowledge obliges them to support one another, to live together and to be faithful to one another. Such relationships are of profound significance to the individuals concerned. But such relationships have more than personal significance, at least in part because human beings are social beings whose humanity is expressed through their relationships with others. Entering into marriage therefore is to enter into a relationship that has public significance as well.
The institutions of marriage and family are important social institutions that provide for the security, support and companionship of members of our society and bear an important role in the rearing of children… The importance of the family unit for society is recognised in the international human rights instruments referred to above when they state that the family is the ‘natural’ and ‘fundamental’ unit of our society.”
These strong words were used by the applicant in support of the contention that the claim should continue to be part of our law. The Court then contextualised the words of its judgement by stating that that judgement dealt with the laws concerning immigration of spouses of South African citizens as well as the judgement of Minister of Home Affairs and Another v Fourie and Another; Lesbian and Gay Equality Project and Others v Minister of Home Affairs and Others  ZACC 19 wherein the matter dealt with the law prohibiting same-sex couples from being married.
The Court held that there was a fundamental difference between laws that prevented the enjoyment of marriage i.e. those that prevent homosexual marriage and those which spouses sought to use to “prop up” their marriage which, for non-legal reasons, is disintegrating.
The Court made use of the quotation from Carnelly “One Hundred Years of Adultery- Reassessment Required”:
“Love and respect are the foundations of a solid marriage and not legal rules.”
The Court ultimately stated that it was up to spouses to control their relationship as they were the parties who made their solemn vows and promised to be faithful. Further to this, the Court balanced the rights of the adulterous spouse and the third party to privacy, and dignity as well as freedom of the person and association against those of the non-adulterous spouse to dignity and also considered the multifaceted nature of human relationships where any number of acts and omissions could lead to the disintegration of the marriage relationship which ultimately ends in infidelity. The Court stated that in this day and age it seems mistaken to assess marital fidelity in terms of money.
In Chief Justice Mogoeng’s concurring judgement (signed by Justice Cameron), the learned justice stated that “I am in agreement with these views. The law does and can only create a regulatory framework for the conclusion of marriage and the enforcement of obligations that flow from it. It can also help ensure that barriers to family life are removed. The rest is in the hands of the parties to the marriage. Barring exceptions, they decide freely to get married and it is within their ability to protect their marriage from disintegrating.”
The Court, therefore, found that the continued existence of the claim against a third party for the infidelity of a spouse is outdated and inconsistent with our current social norms. The claim, therefore, no longer forms part of our law. Whilst this decision was correctly made, legally speaking, the results of the “softening” approach towards infidelity, amongst all genders, is of concern to those who hold family values in high esteem and it cannot be predicted how far the Courts might go in their quest to reduce the significance of the commitment of marriage.
Kim Rademeyer – Partner