24/06/2015
ADULTERY DEAD AS A DELICT IN SA
Madlanga J (Unanimous Court) :
[61] Adultery, while very different to taking a second spouse, entails a significant intrusion of a third party into a person’s most intimate relationship without their consent. That intrusion is not made any less severe by present day attitudes towards adultery.[109]
[62] Nevertheless, this potential infringement of dignity must be weighed against the infringement of the fundamental rights of the adulterous spouse and the third party to privacy, freedom of association and freedom and security of the person. These rights demand protection from state intervention in the intimate choices of, and relationships between, people. This must be viewed in light of current trends and attitudes towards adultery both nationally and internationally.[110] These attitudes also demonstrate a repugnance towards state interference in the intimate personal affairs of individuals.
[63] I am led to the conclusion that the act of adultery by a third party lacks wrongfulness for purposes of a delictual claim of contumelia and loss of consortium; it is not reasonable to attach delictual liability to it.[111] That is what public policy dictates. At this day and age it just seems mistaken to assess marital fidelity in terms of money.[112]
MOGOENG CJ (Cameron J concurring):
[67] I am indebted to my Brother Madlanga J for the background and exposition of the law on adultery and the action for damages arising from adulterous conduct of one of the spouses. I concur in that judgment. All this judgment seeks to do is lay some emphasis on and give perspective to certain aspects of the main judgment.
[68] The essence of marriage and what it takes to sustain it was captured by the Bundesgerichtshof as follows:
“[M]arriage is a human institution which is regulated by law and protected by the Constitution and which, in turn, creates genuine legal duties. Its essence, however, consists in the readiness, founded in morals, of the parties to the marriage to create and to maintain it.”[114]
This was also quoted with approval by the Supreme Court of Appeal which added that “[i]f 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”.[115]
[69] 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.[116] 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.
[70] It bears emphasis, that marriage essentially hinges on the “readiness, founded in morals, of the parties to the marriage to create and to maintain it”.[117] Like the Supreme Court of Appeal, I also believe that parties’ loss of moral commitment to sustain marriage may lead to its failure. For abuse of one by the other and other factors that could lead to the breakdown of marriage are, in my view, likely to creep in when that commitment ceases to exist.
[71] 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.
DE...............................................................................................................................................Applicant