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[2020] ZAGPJHC 229
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T G v W C (3198/2019) [2020] ZAGPJHC 229 (28 September 2020)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case
Number: 3198/2019
In
the matter between:
T
G
Defendant
(Excipient)
and
W
C
Plaintiff
EXCEPTION
JUDGMENT
Summary
Held
-A claim in delict based on a fraudulent misrepresentation
leading to a marriage and which results in pure economic loss is
not
recognised in our law and it is not in the public and legal interest
that that the
lex aquilia
be
extended to allow for such claim; exception taken to such a claim
thus upheld.
Held
-a common law rule to the effect that claims for damages between
spouses
based on the
actio iniuriarum
are barred is not
part of our law; exception taken to such claim not upheld.
FISHER
J:
Introduction
[1]
This is judgement deals with exceptions taken to
the plaintiff’s particulars of claim on the basis that the two
claims pleaded
disclose no cause of action. The claims are for
damages in delict and are based on the
lex
aquilia
and the
actio
iniuriarum
respectively. Both claims
are brought
stante matrimonio
and this is the source of the complaints in each case.
[2]
Both claims focus on an inquiry into the legal and
social convictions which are implicated in that most complex of
institutions:
Marriage.
The
plaintiff’s pleaded case
[3]
The parties are currently married to each other
out of community of property and according to the Accrual Regime, but
are in the
throes of divorce. They were married after a courtship
which lasted two years and eight months during which the defendant by
his
conduct and verbally expressed love for the plaintiff. The
defendant proposed marriage on 15 September 2018, which proposal
the
plaintiff accepted, believing that the defendant loved her because he
had represented to her that he loved her and wished to
spend the rest
of his life with her. They married and the plaintiff expended money
on the wedding in an amount of R 331 342.
But the marriage
relationship was short lived. Approximately a week after the
marriage, the defendant began conducting himself
towards the
plaintiff in an intentionally insulting and denigrating way and this
culminated in him asking her to leave the matrimonial
home.
Thereafter the plaintiff discovered that when the defendant proposed
marriage to her he already considered that their romantic
relationship had broken down irretrievably. He failed to disclose
this to her. In so misleading her she claims that he made a
fraudulent misrepresentation which induced the marriage.
[4]
Based on these pleaded facts the plaintiff raises
two causes of action:
(a)
A claim under the
lex
aquilia
based on the fraudulent
misrepresentation for which she claims, as special delictual damages,
the costs associated with the wedding,
which she pleads that she
would not have expended but for the misrepresentation.
(b)
A claim based on the
actio
inuriarum
for the impairment of her
dignity and reputation arising from the conduct and circumstances
described and the fact that such circumstances
became public
knowledge amongst the parties’ social milieu.
The
exceptions
[5]
The defendant raised nine exceptions which can be
distilled into two objections. Both focus on an inquiry into
wrongfulness.
The first argument is in relation to the claim
under the
lex aquilia
for wasted wedding costs and is to the effect that it would be
contrary to public and legal policy to extend the
lex
aquilia
to allow such a claim. The
second argument is that there is a long standing rule at common law
which precludes claims based on the
actio
iniuriarum
between spouses for being
contrary to legal and public policy.
[6]
I will deal with each of the claims in turn with
reference to these objections.
The
claim under the lex aquilia
[7]
A fraudulent misrepresentation leading to a marriage and which
results in pure economic loss is not recognised under the
lex
aquilia
. Mr Steyn who appeared for the plaintiff argued for
liability to be extended to such a claim. Mr Kuny SC, who appeared
for the
defendant, argued that such a claim should not be
entertained. As I have said the enquiry is in relation to the element
of wrongfulness.
Its focus is on whether the policy and legal
convictions of the community, constitutionally understood, regard it
as acceptable
that liability flow from the conduct in issue. In
essence, it questions the reasonableness of imposing liability.
Discussion
[8]
Public policy is now infused
with the fundamental values and rights contained in the
Constitution.
[1]
In
sum, to say that conduct is wrongful
means
that public or legal policy considerations require that the conduct
is actionable if there is fault and, if conduct is not
wrongful, that
public or legal policy considerations require that such a person
should not be subjected to a claim for damages,
notwithstanding his
or her fault.
[2]
[9]
In cases of pure economic loss
– i.e. where financial loss is sustained by a plaintiff with no
accompanying physical harm
to her person or property
[3]
- the criterion of wrongfulness assumes special significance.
Conduct causing pure economic loss is not prima facie
wrongful
[4]
and there is no general right not to be caused pure economic loss.
[5]
[10]
Our law is generally reluctant
to recognise claims for pure economic loss, especially where it would
constitute an extension of
the law of delict.
[6]
It is understood that, if claims for pure economic loss are
too freely recognised, there is the risk of ‘liability
in
an indeterminate amount for an indeterminate time to an indeterminate
class.’
[7]
[11]
The enquiry as to wrongfulness
requires the identification of the implicated norms and the balancing
of those norms – the
one against the other/s - to
determine the pubic and/or legal policy considerations which come
into play.
[8]
[12]
In
Dawood
[9]
O’Regan J eloquently encapsulated the public significance
of marriage thus :
‘
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’
[10]
.
[13]
Central to the defendants objections to both claims is that, to allow
them, would have the potential to have a negative impact
on marital
relationships which are vital to societal health and wellbeing.
[14]
To my mind, this approach fails to take account of developments in
the law and societal convictions which are founded on the
recognition
of the importance of the freedom of choice and autonomy involved in
the modern marital condition.
[15]
The laws enabling divorce
have long been relaxed to allow parties legally to dissolve their
marriage if their relationship
has deteriorated to a point where they
choose not to remain married to each other. Before the relaxation,
divorce could only be
obtained on circumscribed grounds: adultery,
malicious desertion, incurable insanity, and habitual criminality.
This was altered
by s 3 of the Divorce Act
[11]
which made it possible for a marriage to be dissolved on the basis
that it had broken down irretrievably.
[16]
Room must be made in the
inquiry for an acknowledgement of the role that the institution of
marriage has in the past played in the
subjugation of woman and the
entrenching of patriarchal norms.
There
have been constant developments in the law over time in order to
regulate the respective rights and obligations between spouses
which
operate during the course of a marriage and on its dissolution. Much
of the development in the law has been concerned with
ensuring
economic parity between the spouses and more especially with allowing
woman to achieve a position of equality before the
law in the context
of the choices they make as to the financial consequences of their
marriages. Most notably, this gender
equality was achieved
legislatively by the Matrimonial Property Act
[12]
which, inter alia, abolished the marital power and established the
Accrual Regime. Any remaining inequality will obviously not
bear
scrutiny under Constitutional prescripts.
[13]
[17]
Thus, those who decide to marry in accordance with
South African law have a choice of property regimes which are well
described
both in statute and at common law. Parties may contract
with a view to their intended marriage and, in their antenuptial
contracts,
opt to keep completely separate estates, adopt the Accrual
Regime and/ or deal with any special features which they deem
appropriate
to their personal circumstances. If they do not
decide to enter into an antenuptial contract, they become, on their
marriage,
subject to a community of property regime which has, as its
foundation, a fair and equal sharing of economic resources between
the spouses.
[18]
From a general perspective, I can see no reason why the
aquilian
remedy should be extended to a plaintiff who must be regarded as
having been in the position to both appreciate and manage the
risks
attendant on an unsuccessful marriage, but who decided not to do so.
It does not take much wisdom to understand that the
vagaries of the
human condition and marital relationships are such that there are no
guarantees that love will last or that it
was there in the first
place. Indeed the premise of the fraudulent misrepresentation sought
to be relied on by the plaintiff
encompasses metaphysical
questions as to the nature and meaning of love and, to my mind,
whether such things are capable of proof
in a court of law is
questionable. I have however proceeded on the usual basis adopted in
exceptions – being that I accept
the facts pleaded as true.
[19]
In this case the plaintiff, like anyone embarking on this important
rite of passage, was in a position to make a series of
choices.
Should she pay for the relevant expenses for the wedding or should
she lay these costs at the feet of her intended spouse?
Should she
opt for a less expensive wedding or even the registry office? Should
she deal with outlays and acquisitions which flow
from the nuptial
celebrations in an antenuptial contract? For example it is common for
parties to dictate that one or the other
will be entitled to the
wedding gifts in the event of divorce.
[20]
To my mind, this is a case where the social, economic and other costs
are too high to justify the use of the law of delict
for the
resolution of the issue. To do so would, to my mind, be an
impermissible intrusion into an area of the law where
the parties
respective rights freely to determine their financial relationships
within their marriage should be given pre-eminence
over the right to
be recompensed for economic loss which has accrued as a result of
conduct which occurred before the marriage
even if that conduct led
to the marriage. The question touches on the parties right to dignity
- to be accorded the respect
which will allow them the autonomy
to regulate the financial consequences of their lives together.
[21]
The potential insecurity that such litigation would introduce into
the operation of the chosen property regime of the parties
to the
marriage is also an important consideration. It would be difficult to
allocate this liability in the context of the complex
economic
relationships that are engendered by marriage and are sought to be
rationalized on its dissolution.
[22]
Thus there is no cause of action on this claim.
The
claim under the actio iniuriarum
[23]
The second exception relates to
the claim for general damages under the
actio
iniuriarum.
[14]
Similar considerations apply to claims for defamation.
[24]
Mr Kuny contends that, in terms of the common law, a claim
based on the
actio iniuriarum
between spouses is barred. He
argues that what is sought by the plaintiff is that the common law be
extended to permit of the claim.
He argues that such extension would
lead to a proliferation of litigation and that it is against public
policy
Mr Steyn on the
other hand argues that such a rule does not exist in our law and it
is to this question to which I now turn.
Does
such a rule exist?
[25]
Mann v Mann
[15]
is one of very few instances in the early twentieth century of
an action taken by a wife against a husband arising
from his assault
of her. This is notwithstanding that such treatment of women was ,
regrettably, as commonplace as it is
today and is, in no small
part, by reason of the fact that it was condoned in certain legal and
societal quarters. The approach
in
Mann
is a case in point. After a detailed analysis of the Roman and
Roman-Dutch writings on the subject of the rights of women to sue
their husbands for non-patrimonial damages, the court came to the
conclusion that, as the claim was based in the
actio
inuriarum
, it was not
competent. The judgment has been criticised for failing to regard the
physical consequences of the assault as definitive
of the cause of
action. Had these physical aspects been accorded their due
significance, the Court could have found that the claim
was, in fact,
brought under the
lex
aquilia.
[26]
Some
forty years later
in the
Southern Rhodesian (as Zimbabwe was then known) case of
C
v C
[16]
the question came again to be considered. The Court after
examining the old authorities and with reference to
Mann
,
also came to the conclusion that a wife had no claim against
her husband under the
actio
iniuriarum
. An analysis of
the Roman and Dutch authorities as it emerges from this
judgment, identifies the basis for this exclusion
as the underlying
principle of loss of status or honour (
infamia
)
on the part of a husband so charged. The Court, whilst accepting that
the principle of
infamia
as a basis for the rule no longer existed, held that there were
nonetheless policy considerations which favoured the retention
of the
rule. It found these policy considerations in the concept of the
‘unity of the flesh’ between man and wife.
This concept,
it said, had religious significance from a Christian perspective as
well as broader significance in relation to the
societal
perceptions of the marital relationship. The court held further
that, as actions based on the
actio
iniuriarum
are essentially
of a personal character ‘they are more likely to cause
ill-feeling and resentment and to disrupt family life
than other
forms of civil actions’
[17]
.
[27]
Mr Kuny relies on this authority to argue that the rule and the
policy considerations underpinning it have survived in
our law. He
argues that claims for defamation and
iniuria
are of a
nature that spouses should not be allowed to bring against each other
because of the intimate nature of marital
relations and the
fact that misbehaviour of the kind involved in these claims is best
and adequately accommodated in the law pertaining
to divorce.
[28]
He seeks to rely on the
Constitutional Court decision in
RH
v DE
and
DE
v RH
[18]
which, in finding that the delictual claim for
contumelia
and loss of consortium under the
actio
iniuriarum
arising from the
adultery of a spouse had become abrogated in our law, recognised the
complexity of the marriage relationship and
that there was an
international trend away from the interference in the intimate
relationships and private affairs of marriage.
This trend, so
the argument goes, is in keeping with maintaining the rule against
allowing a claim for damages based on defamation
and the
actio
iniuriarum
between spouses.
Put simply, the argument is that the law should be slow to allow
claims which have the potential to create familial
and marital
discord and the
actio
iniuriarum
is
consummately such a claim.
[29]
Mr Steyn argues that, in fact, the question as to whether or not the
rule is part of our law has definitively been put to rest
in
the 1960’s by the Appellate Division
(
as the Supreme Court of Appeal was then known) in
Rohloff
v Ocean Accident and Guarantee Corporation Ltd
.
[19]
In
Rohloff
the legal question raised on exception was whether a wife, married
out of community of property, is entitled to sue her husband
for
damages suffered by her as a result of his negligence. The
facts of
Rohloff
are similar to those in the Constitutional Court decision in
Van
der Merwe v Road Accident Fund and Another.
[20]
In
both cases the wife did not sue the husband directly but the question
was whether the husband was liable as insured in that the
insurer’s
liability was in dispute.
Van
der Merwe
dealt with
a constitutional challenge to s18(
b
)
of the Matrimonial Property Act which excluded claims for
damages for patrimonial loss between spouses married in community
of
property.
[21]
The Court found that such a provision was unconstitutional and s
18(b) was subsequently amended to allow spouses married in community
of property to make claims against one another for pure economic loss
flowing from bodily injuries.
[22]
The Court in
Van der
Merwe
did not deal with
s18(a) nor with the common law. Whilst the enquiry as to whether the
statutory provision passed constitutional
muster entailed a focus on
the proprietorial consequences involved in circumstances where the
parties have one undivided estate,
the Constitutional Court also
discussed general considerations of justice and fairness which are
germane to delictual claims
stante
matrimonio
and
Van
der Merwe
thus adds
helpfully to the inquiry being undertaken here in relation to the
common law. I will say more about this later.
[30]
Reference to the Roman and
Roman-Dutch authorities shows that archaic and distasteful notions of
male honour, power and privilege
lie at the heart of the resistance
to affording a wife the most basic of protections against her dignity
and person.
[23]
I have dealt above in relation to the extension of the
lex
aquilia
with the fact that
there have been significant developments in the law relating to
marriage and divorce in South Africa. That the
legal convictions of
our society relating to gender based rights have changed
momentously hardly needs to be addressed
at this point in our
history. As I have mentioned above, the Matrimonial Property
Act made important inroads into the theoretical
unity of the joint
estate and recast the common law of marriage. The introduction by the
Matrimonial Property Act of ‘separate
property’
in the context of a joint estate
[24]
is important to the inquiry at hand. It creates, in the context of
the claiming of damages by one spouse against another, a situation
which is similar to the position of couples who do not have a
community estate.
[31]
The trend is thus to acknowledge that, in getting married, a person
does not lose his or her rights in delict – regardless
of
whether the claim is in respect of an injury to the physical
person of the spouse or his or her personality interests
such
as dignity, mental integrity, bodily
freedom, reputation, privacy, feeling, and
identity. A
wrongful infringement into these personality
interests or rights entitles the victim to non-patrimonial damages.
[32]
Significantly, in
Van
der Merwe
the
Constitutional Court found that it was trite that in marriages
out of community of property the common law restriction
on claims in
delict has no place.
[25]
Rohloff
is cited for this proposition and specifically the following passage
approved:
‘
I
have considered all the available authorities with care and have come
to the conclusion that actions ex delicto are, in our law,
permitted
stante
matrimonio
between spouses married out of community of property with exclusion
of the marital power. Not only is this view supported by recognised
Roman-Dutch commentators, but it appears to me, moreover, to be in
accord with justice, reason, common sense and public policy.’
[26]
[33]
Importantly, there is no limitation proposed as to these action
ex
delicto
. A claim for damages or
iniuria
is as much of a
delictual claim as one which arises from bodily injury.
[34]
Recall that central to the argument of the defendant is the
contention that
RH v DE
is authority for the proposition that
adherence to the constitutional prescripts of dignity and the right
to privacy means that
there is a normative movement away from
allowing claims which have the potential to interfere in the complex
marriage relationship
and towards fostering familial relationships.
[35]
To my mind, this argument
misconstrues the basis for the approach in
RH
v DE.
The privacy
considerations which were dealt with there were based on the
acceptance that the obligation to protect and maintain
the marriage
relationship rests pre-eminently with the spouses themselves and not
with the law.
[27]
Madlanga J writing for the majority, recognised that notions of
patriarchy had previously been at the heart of the claim
based on
adultery. He stated as follows:
‘
The
origins of the claim are deeply rooted in patriarchy.
Originally only a man had the right to pursue a claim against a
third
party that had committed adultery with his wife. Wives were viewed as
mere chattels. And that probably explains why
the claim was
available only against the third party, and not the wife who –
in essence – was a co-wrongdoer.
As time went on, South
African courts began questioning the discriminatory nature of the
claim. Making contentions based on Christian
principles of fidelity,
which are applicable both to husbands and wives, Barlow advocated
that the delictual claim be available
to wives as well. Not long
thereafter the case of
Rosenbaum
v Margolis
declared
that the claim was available to wives. The Appellate Division
confirmed this in
Foulds
.’
[28]
( footnotes omitted)
[36]
It must be understood that the claim for alienation of affection
whilst being brought against the adulterous third party, involves
public scrutiny of the intimate lives of the parties and
especially that of the spouse charged with the adultery. The right
to
privacy of all involved is impinged upon. The decision to enforce
these rights against a third party thus inevitably requires
a legal
examination of the personal affairs of the family in a manner which
casts the adulterous spouse as wrongdoer in a
cause that is not
his or her own. In contrast, the claim inter -spouse for rights in
contract and delict serves to preserve the
dignity of the spouses and
foster the adherence to values such as mutual respect and temperance
within the family.
[37]
In my view, to deny a spouse his or her rights under the
actio
inuriarum
would militate against the preservation of
dignity of the spouses and would impinge negatively on the family
structure. Without
redress to ordinary legal prescripts between
parties as to liability for wrongdoing, the power relations with the
marriage would
inevitably be affected. A sense of
impunity in marital relationships where personality rights are at
stake is self-evidently
not conducive to the maintenance of rights
within a marriage.
[38]
In examining this potential for injustice and illogicality which
would arise if the right to sue for damages in delict were
withheld
from a spouse, Malan J held as follows in
Rohloff
:
‘
If
the right to sue during the subsistence of the marriage in the case
of contract is conceded, it is illogical and manifestly unjust
to
withhold such right in the case of delict. The wrong caused by breach
of contract usually involves less serious consequences
to the
innocent party than the commission of a delict and there is greater
justification for granting an immediate remedy to a
spouse upon whom
serious bodily injury has been inflicted, or who has been grossly
defamed, than in the case of a breach of contract
which may involve a
paltry sum of money.’
[29]
‘
[39]
Mr Kuny seeks to distinguish
Rohloff
. He argues that it
relates only to special damages for pure economic loss and that the
reference to general damages for defamation
is obiter. Thus he says
that it does not relate to damages under the
actio iniuriarum
.
I do not agree. The case is clear authority for the view that
even more than thirty years before the advent
of the
Constitution, our courts found that to disallow a wife’s
basic right to claim from her husband damages for loss
of dignity and
reputation as a result of his abusive conduct to be repugnant and
inapposite.
[40]
As I have said, the Constitutional Court in
Van der Merwe
was
in apparent agreement that
Rohloff
is authority for a general
proposition as to damages as opposed to one which separated claims
for personality infringements from
bodily injury. Although the Court
in
Van der Merwe
declined to deal with the common law position
as to a claim for damages inter- spouse it put emphasis on the fact
that a rule which
sought to prevent a spouse from making a claim
against another by virtue of the marriage relationship was
constitutionally questionable.
Madlanga J said as follows:
‘
The rule in effect ousts legal
redess for delictual loss of any kind arising from the wrongdoing of
a spouse against another. The
amicus (third respondent) argues, and
it must be right, that this rule owes its origin to the boundless
patriarchy in a setting
where the husband wielded marital power over
the wife … and was the exclusive administrator of the joint
estate. As long
as the marriage endured, the estate was deemed to be
one, indivisible and subject to one command.’
[41]
Thus, regardless of the matrimonial property regime in issue, the
principle is the same – such a rule would have the
effect of
ousting redress from a spouse – which it is clear from
Van
der Merwe
will not be countenanced in a constitutional democracy.
[42]
It is important to add that
with the advent of social media the potential for profound and
widespread abuse of the dignity of intimate
partners has increased
exponentially. A phenomenon which has come to be called
‘revenge pornography’
refers to the sharing or
distribution of nude or sexually explicit material of someone without
their consent and with the express
purpose of humiliating them.
Victims may now lay criminal charges against anyone who distributes
or shares this material on social
media, in text messages, via any
electronic communication or on pornographic websites.
[30]
[43]
One would be hard pressed to
think of a basis for prohibiting civil redress in such circumstances.
In
Rohloff
it was found that the denial of a delictual claim would lead to
absurd results if the wronged spouse could bring criminal
charges
against the other spouse but was barred from claiming damages based
on precisely the same wrongs complained of in the criminal
case. It
found that effect the role of a spouse as complainant in a criminal
case is not very different from that of plaintiff
in a civil
action.
[31]
[44]
Thus, if indeed this unfortunate rule had found its way to our common
law by route of the Roman and Roman-Dutch law –
it
did not stand the test of time, even in our pre-constitutional
history and, if it had, it certainly would not withstand
scrutiny
under the Bill of Rights.
[45]
Thus I find that there is no bar in SA law to a claim by a wife
against her husband based on the
actio iniurarum.
[46]
Accordingly this exception fails.
Costs
[47]
Each party has achieved a measure of success. The defendant
argues that the late clarification by amendment of the fact
that what
is relied on is the
actio iniuriarum
and not a claim based on
defamation led to the defendant having to deal also with defamation
and the confusion which he alleges
existed in the pleadings before
the amendment. I do not believe that the amendment was necessary. It
seems to me that the pleaded
case was clear in the first place and
the amendment was made out of unnecessary caution. To my
mind a proper award
is that each party bear their own costs.
Order
[48]
My order is thus as follows:
1. The exception to the plaintiff’s
claim for patrimonial damages succeeds and this claim is struck out.
2.
The exception to the
plaintiff’s claim for general damages under the
actio
iniuriarum
fails.
3.
Each party is to pay
their own costs of the exception.
______________________________________
FISHER J
HIGH COURT JUDGE
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Date
of Hearing:
20 August 2020.
Judgment
Delivered:
28 September 2020.
APPEARANCES:
For
the Defendant (
Excipient
)
:
Adv S Kuny SC.
Instructed
by
:
Blake Attorneys.
For
the Plaintiff
:
Adv H Steyn.
Instructed
by
:
Van Rensburg Pillay Jonker Inc.
[1]
Loureiro
and Others v Imvula Quality Protection (Pty) Ltd
[2014]
ZACC 4
;
2014
(3) SA 394
(CC);
2014
(5) BCLR 511
(CC)
at
para 53.
[2]
T
rustees for the Time Being
of Two Oceans Aquarium Trust v Kantey & Templer (Pty) Ltd
[2005]
ZASCA 109
;
2006
(3) SA 138
(SCA) at para 12. See also
Gouda
Boerdery BK v Transnet Ltd
[2004]
ZASCA 85
;
2005
(5) SA 490
(SCA) at para 12 and
Minister
of Safety and Security v Van Duivenboden
[2002]
ZASCA 79
;
2002
(6) SA 431
(SCA) at para 12.
[3]
In
Lillicrap,
Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd
[1984]
ZASCA 132
;
1985
(1) SA 475
(A) at 498, Grosskopf AJA defined pure
economic loss as “loss which was caused without the
interposition
of a physical lesion or injury to a person or
corporeal property”.
[4]
Two Oceans
Aquarium
supra n 3 at
para 10.
[5]
Administrateur, Natal v
Trust Bank van Afrika Bpk
1979
(3) SA 824
(A) (
Trust
Bank
) at 833A-B.
[6]
Two Oceans Aquarium
supra
n 3 at para 20, citing
Lillicrap
supra
n 4 at 504D-H.
[7]
Cardozo CJ in
Ultramares
Corporation v Touche
174
NE 441
(1931) at 444.
[8]
Minister of Safety and
Security v Van Duivenboden
[2002]
ZASCA 79
;
2002
(6) SA 431
(SCA) at para 12.
[9]
Dawood and Another v
Minister of Home Affairs and Others; Shalabi and Another v Minister
of Home Affairs
and
Others; Thomas and Another v Minister of Home Affairs and
Others
[2000]
ZACC 8
;
2000
(3) SA 936
(CC); 2000
(8) BCLR 837.
[10]
Dawood
ibid
at para 30.
[11]
70 of 1979.
[12]
88 of 1984.
[13]
See
for eg
A S and Another
v G S and Another (D12515/2018) [2020] ZAKZDHC 1;
[2020] 2 All SA 65
(KZD);
2020 (3) SA 365
(KZD) (24 January 2020) which declared
the
provisions of s 21(2)
(a)
of
the Matrimonial Property Act to be unconstitutional and
invalid to the extent that they maintain and perpetuate
the
discrimination, created by s 22(6) of the Black Administration Act
38 of 1927 (‘the BAA’), in that the marriages
of black
couples, entered into under the BAA before 1988, are automatically
out of community of property.
[14]
This is the general remedy for the infringement of personality
rights. Its main aim is to protect plaintiffs against wrongful
and
intentional infringement of these rights and allow for the recovery
of damages if infringement is proved. Under Roman-Dutch
law, the
personality rights protected by this action are bodily integrity
(corpus), dignity (
dignitas
)
and reputation (
fama
).
See also
Khumalo and Others
v Holomisa
[2002] ZACC 12
;
2002 (5) SA 401
(CC);
2002 (8) BCLR 771
(CC) at para 27, where
the Constitutional Court found that “no sharp line can be
drawn between these injuries to
personality rights” and that
constitutional values are the foundation of our understanding of
these rights.
[15]
1918 CPD 89.
[16]
1958 (3) SA 547 (SR) 1958 (3).
[17]
Ibid at 552.
[18]
CCT 182/14)
[2015] ZACC 18
;
2015 (5) SA 83
(CC);
2015 (9) BCLR 1003
(CC) (19
June 2015).
[19]
1960 (2) SA
291 (A)
[20]
CCT48/05)
[2006] ZACC 4
;
2006 (4) SA 230
(CC);
2006 (6) BCLR 682
(CC) (30 March 2006)
[21]
Section 18 previously read as follows:
“
Notwithstanding the fact that a
spouse is married in community of property─
(a)
any amount recovered by him by way of damages, other than damages
for patrimonial loss, by reason of a delict committed against
him,
does not fall into the joint estate but becomes his separate
property;
(b)
he may recover from the other spouse damages, other than damages for
patrimonial loss, in respect of bodily injuries suffered
by him and
attributable either wholly or in part to the fault of that spouse.”
[22]
Section 18 (b) as amended pursuant to the pronouncements in Van der
Merwe reads as follows:
‘
(
b)
he or she may recover from the other spouse damages in respect of
bodily injuries suffered by him or her and attributable either
wholly or in part to the fault of that spouse and these damages do
not fall into the joint estate but become the separate property
of
the injured spouse.’
[23]
See for eg Brouwer, an authority on the law of Holland, who in his
De Jure Connuborium, 2.29.12, says:
'The
jurisconsults deny the actio injuriarum, which is 'famosa', to a
wife who has been severely and excessively beaten, without
reason,
but they allow the actio in factum, to the effect that the husband
pay compensation for the injuries he has brought upon
her. The
former is correct, but the latter is not, for the law has provided a
fixed penalty for this delict, and we ought to
be content with the
punishments contained in the laws.'
;
Huber,2.6.10.21 (Gane, p. 418), says:
'It
should finally be noted that, for the sake of decency, no action for
injury lies between husband and wife, the more so that
in the
Imperial law he who is found guilty of injury loses his honour, or
at least is more or less damaged therein, a thing which
ought not to
apply between spouses’ ;
There
are also a number of old authorities who deal with the wife's legal
remedies for injuries done to her by her husband, but
who do not
mention among those remedies the civil remedy of a claim for
damages. It is a fair inference from this that had those
writers
thought that the wife had such a remedy they would have mentioned it
when reciting her other remedies – see for
eg Grotius,
Groenewegen, and van der Keessel .
[24]
See sections 1, 17(1)(a) and (b), 19 and 20.
[25]
Van der
Merwe
Supra
n 20 at para 29.
[26]
See
Rohloff
Supra
n 19 at 302
[27]
RH v DE
supra n18 at para 44.
[28]
Ibid at
para 14.
[29]
Rohloff at
p 302
[30]
See 24E of Films and Publications Amendment Act 11 of 2019
which reads as follows:
(1)
of Any person who knowingly distributes private sexual
photographs and films in any medium including the internet and
social media, without prior consent of the individual or individuals
in the said sexual photographs and films with the intention
to cause
the said individual harm shall be guilty of an offence and liable
upon conviction, to a fine not exceeding R150 000
or to imprisonment
for a period not exceeding two years or to both a fine and such
imprisonment.
(2)
Any person who knowingly distributes private sexual photographs and
films in any medium including through the internet, without
prior
consent of the individual or individuals and where the individual or
individuals in the photographs or films is identified
or
identifiable in the said photographs and films, shall be guilty of
an offence and liable upon conviction, to a fine not exceeding
R300
000 or to imprisonment for a period not exceeding four years or to
both a fine and such imprisonment.
[31]
Rohloff p
302