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[2014] ZASCA 133
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RH v DE (594/2013) [2014] ZASCA 133; 2014 (6) SA 436 (SCA) (25 September 2014)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
REPORTABLE
Case
No: 594/2013
In
the matter between:
RH
.......................................................................................................................................
APPELLANT
and
DE
.....................................................................................................................................
RESPONDENT
Neutral
citation:
RH v DE
(594/2013)
[2014] ZASCA 133
(25 September 2014)
Coram:
Brand, Cachalia, Tshiqi, Majiedt
et
Mbha JJA
Heard:
27 August 2014
Delivered:
25 September 2013
Summary:
Delictual claim for damages based on adultery between defendant and
plaintiff’s wife on the law as it stands. Award
rightly made
for contumelia – but award for loss of consortium not justified
– consideration of whether the action
should be maintained as
part of our law – concluded that its continued existence no
longer justified.
ORDER
On
appeal from:
North Gauteng High Court,
Pretoria (LI Vorster AJ sitting as court of first instance):
1
The appeal is upheld with costs, including the costs of two counsel.
2
The order of the high court is set aside and replaced with the
following:
‘
Plaintiff’s
action is dismissed. Each party to pay his own costs.’
JUDGMENT
Brand
JA
(Cachalia, Tshiqi, Majiedt
et
Mbha JJA concurring):
[1]
The respondent instituted an action for damages against the appellant
in the North Gauteng High Court, Pretoria. To avoid confusion
I shall
refer to the parties as they were cited in the court a quo, ie to the
respondent as the plaintiff and to the appellant
as the defendant.
The plaintiff’s cause of action was that the defendant had
committed adultery with the plaintiff’s
wife. Prior to the
institution of this action, the plaintiff’s wife divorced him
and reverted to her maiden name. Minor children
are born of the
marriage between the plaintiff and his wife. In order to protect them
against adverse publicity flowing from this
litigation, the names of
the parties shall not be disclosed in the citation of the case. For
the same reason I refer to the plaintiff’s
wife just as Ms H.
[2]
As has become customary in matters of this kind, damages were claimed
under two headings: (a) contumelia and (b) loss of consortium.
In the
court a quo, LI Vorster AJ awarded damages under both headings, but
in a composite amount of R75 000, together with
interest and
costs on the high court scale. The present appeal against that order
is with the leave of this court.
[3]
The background facts that turned out to be relevant appear from what
follows. The plaintiff and Ms H were high school friends.
They were
married on 30 April 2005 when he was 26 and she 25. Two children were
born of their marriage, a daughter in May 2006
and a son in October
2008. On 23 March 2010 Ms H left the common home and cohabitation
between her and the plaintiff ceased, never
to be resumed again. In
June 2010 Ms H instituted action for an order of divorce which was
eventually granted in September 2011.
On 15 April 2009 Ms H started
employment with a company where she met the defendant, who was the
managing director of an affiliated
concern operating from the same
building. The defendant and Ms H, who both testified at the trial,
admitted that they became romantically
involved, but this only
happened, so they said, after Ms H left the common home on 23 March
2010. They also admitted that they
subsequently entered into an
adulterous relationship, but this only started, so they said, on 17
July 2010. That was after
Ms H had instituted action for divorce
and the plaintiff had filed his plea in that action in which he
admitted that the marriage
had irretrievably broken down.
[4]
The plaintiff’s case, by contrast, was that the adulterous
relationship must have started much earlier; that he had a
happy
marriage until the commencement of that relationship, which was the
cause of Ms H leaving the common home on 23 March 2010.
In answer to
these allegations Ms H contended that there were serious problems in
the marriage which started shortly before the
birth of their son in
October 2008. As a result, she testified, she went for marriage
counselling in August 2009, but that, in
spite of her efforts, the
marriage kept on deteriorating until it finally broke down in March
2010. This deterioration and breakdown
of the marriage, she said, had
nothing to do with the relationship between her and the defendant.
Despite the narrow ambit of the
real issues, the trial ran for eight
days. The record of evidence alone exceeded 800 pages with a further
400 pages of pleadings
and documents. The parties succeeded in
building this substantial record by an endless debate on when the
marriage between the
plaintiff and Ms H became unhappy and the
heavily disputed reasons for that unhappiness, seemingly with little
regard for the relevance
of these debates to the outcome of the case.
[5]
In the event the court a quo found it impossible and unnecessary to
deal in its judgment with all the disputes of fact that
arose.
Broadly speaking, however, it accepted the plaintiff’s version
in preference to that of the defendant and Ms H on
all the major
issues. This court’s reluctance to interfere with factual
findings by trial courts has become well-established.
One of the
underlying reasons for this reluctance is precisely that trial courts
are simply not able to motivate their eventual
credibility findings
with reference to every aspect of the evidence. At the same time,
this court is equally conscious of the fact
that an entirely
uncritical approach to the factual findings of the trial court will
render appeals on fact illusory. In this case
I cannot avoid the
impression that the court a quo had considerable personal sympathy
with the plaintiff and his plight while at
the same time it found the
conduct of the defendant and Ms H unpalatable. Since these rather
personal sentiments seem to have influenced
the court’s whole
approach to factual findings, I believe those findings should be
treated with caution. As it happens, however,
and for reasons that
will soon become apparent, I think the determination of the numerous
factual disputes that arose is for the
most part not relevant to the
outcome of this appeal. It will suffice, therefore, to highlight only
a few aspects in the judgment
of the court a quo to illustrate why I
do not regard my criticism of the court’s approach as
unwarranted or unfair.
[6]
The plaintiff’s version, as we now know, was that the marriage
between him and Ms H was a happy one until shortly before
she left
the marital home in March 2010. Ms H’s version, on the other
hand, was that the marriage started to deteriorate
in October 2008
and by August 2009, was in serious trouble. In support of his version
the plaintiff relied on a bundle of photographs
comprising almost 100
pages of the trial record. The court a quo describes the import of
this bundle in the following way:
‘
At
the outset I must say that the photographs to which I have referred
above depict a happy family consisting of both the plaintiff
and [Ms
H], their children and their relatives over a lengthy period of time
since 2008 up and until at least February 2010. If
no more is said,
those photographs are
prima facie
evidence of a happy marriage relationship between the plaintiff and
[Ms H].’
[7]
Further evidence relied upon by the plaintiff in corroboration of his
version that the marriage was a happy one until Ms H left
in March
2010, stemmed from a transcript of a speech made by Ms H on the
celebration of her 30
th
birthday on 3 October 2009.
During this speech she described the plaintiff as ‘her soul
mate’ and declared her
undying love for him. With regard to the
photographs Ms H’s response was in essence that appearances can
be deceptive; that
she is an outgoing person who is eager to please;
who often smiles even when she is hurting inside; that people
normally smile
when they are photographed; and that they normally
look happy when they smile. As to her speech on her 30
th
birthday party, her answer was that she was keeping up a front before
family and friends on an occasion which was supposed to be
a happy
one. The court’s comment on this evidence shows the extent to
which it was unimpressed by her answers, when it said:
‘
When
the text of the speech was put to her in cross-examination she was
constrained to deny the truth of what she had said about
the
plaintiff and explained that it was just a front she had put up to
create the impression of happiness to the family and friends
who
attended the occasion. She was constrained to maintain the same
stance in relation to all the other photographs handed in by
the
plaintiff and which depicted her and the plaintiff and their family
and friends as in a state of complete happiness and harmony.’
[8]
What the court seems to have lost sight of was the undisputed
evidence that Ms H consulted a marriage counsellor on three occasions
in August and September 2009. The court’s only comment on this
evidence is that ‘those problems clearly did not terminate
the
cohabitation of [Ms H] and the plaintiff or cause the disintegration
of their marriage’. But as I see it, this comment
misses the
point. The point being that it clearly corroborates Ms H’s
evidence that, despite what the photographs may show
and in spite of
what she said in her speech, the marriage was in serious trouble, at
the latest in August 2009. Other objective
evidence that the court a
quo seemed to have lost sight of was an e-mail which Ms H sent to the
plaintiff on 20 August 2009 where
she pleaded with him that they must
make time to talk about their difficulties. There was also the
uncontroverted evidence of Ms
H of a meeting between her and the
plaintiff which she called for on 14 October 2009. The measure of her
despair on that occasion
appears from the agenda she prepared for
that meeting in which she enumerated the difficulties she experienced
in the marriage,
which she proposed to discuss at the meeting and
which happened to coincide with what she described in her evidence as
the main
reasons for the eventual breakdown of the marriage.
[9]
Another example of where the court a quo missed the point again
relates to the bundle of photographs. What Ms H marked as the
beginning of the end of their marriage relationship was an incident
shortly before the birth of their son in October 2008 when
they
attended the wedding of friends in the KwaZulu-Natal Midlands. That
night at the reception, she testified, she began to feel
seriously
ill. Subsequently this proved to have been the start of pneumonia
while she was heavily pregnant. She asked the plaintiff
to take her
back to the guesthouse where they were staying. He refused to do so
and told her to lie down in the car. Upon their
return to
Johannesburg she asked him to take her to hospital. Again he refused,
saying that she was exaggerating, as a result of
which she had to
call her parents that night to take her to hospital. With regard to
this testimony, which was not really disputed
by the plaintiff, the
court a quo commented as follows:
‘
It
is possible that she fell ill during the course of that occasion at
some stage. The photographs to which I have referred showed
her
happily having a ball on the dance floor with the plaintiff.’
It
is common cause, however, that the photographs depicting Ms H ‘having
a ball dancing with the plaintiff’ were taken
on a completely
different occasion.
[10]
That is why I conclude that not much reliance can be placed on the
credibility findings of the court a quo. But at the same
time, as I
have said, I believe most of these findings to be of peripheral
import only. I say that for the reasons that follow.
To start with,
it should be underlined that the plaintiff’s cause of action
relied on the
actio iniuriarum
in
the form of adultery and adultery only. Although he claimed damages
under the two headings of contumelia (ie insult or injury
to his
self-esteem) and loss of consortium (ie the loss of comfort and
society of his wife), he did not rely on what has become
known in our
law of delict as the action for enticement. To succeed with the
latter, the plaintiff would have to show not merely
that his wife
left him for the defendant, but that the defendant actually induced
her to leave him or, in the words of Trollip
J in
Wassenaar
v Jameson
1969 (2) SA 349
(W) at 352B,
‘
that he had
coaxed her away from the applicant, that he had talked her over, or
that he had persuaded her to leave the applicant,
and as a result
thereof she had lost her affection for him. That is usually a very
formidable
onus
to discharge’
(see
also
Smit v
Arthur
1976
(3) SA 378
(A) at 387C-D; J Neethling, J M Potgieter & P J Visser
Neethling’s
Law of Personality
2 ed (2005) at 213). This means that, even on the assumption that the
plaintiff had purported to rely on enticement as a separate
cause of
action – which was never pleaded or raised in any other way –
he did not even come close to discharging that
onus. On the contrary,
what the evidence shows is that the defendant and Ms H became
attracted to one another and became
involved in a romantic
relationship, each by their own desire. Ms H was as much the pursuer
as the pursued. There was no evidence
whatsoever of enticement by the
defendant in the form of coaxing or persuasion.
[11]
Once it is appreciated that the plaintiff’s case relied on
adultery only, the sole question is: what were the consequences
of
the adultery? Thus understood, the dispute as to whether Ms H and the
defendant became romantically involved after March 2010
– as
they said – or in January 2010 – as contended for by the
plaintiff – is of no real importance. As
to dates, the only
relevant questions appear to be: when did they commit adultery for
the first time? And what happened after that?
In accordance with the
admissions by the defendant and Ms H it happened on 17 July 2010. The
plaintiff, on the other hand, set
out to prove that it happened on 11
December 2009 at a year-end function when Ms H left the defendant’s
residence at about
2am the following morning. That suggestion was,
however, refuted by the evidence of Mr Pieter Grimes who testified
that he had
also attended the same function; that there were about
seven to ten other people present; that he left the function at the
same
time as Ms H and that nothing untoward happened while he was
there.
[12]
That moved the plaintiff’s contention as to when adultery was
committed for the first time, forward to either April or
June 2010.
What happened in April 2010, according to the defendant’s own
version, is that he invited Ms H to a health spa.
He reserved a
single room where they spent the night together in the same bed. In
June 2010 Ms H returned the favour by inviting
the defendant to spend
the weekend with her in Paternoster. They admitted that on this
occasion she booked a single bedroom cottage
with a double bed in
which they slept together, but denied, however, that they had sexual
intercourse on either of these occasions.
[13]
Even if the plaintiff’s contention in this regard is to be
accepted, it would of course not afford him a claim for loss
of
consortium. This derives from the fact, which is common cause, that
the parties were separated in March 2010 and never resumed
cohabitation. But as to the claim for contumelia, it turned out to be
important to determine whether adultery occurred for the
first time
on one of these earlier dates and not on the later date admitted by
the defendant and Ms H, which was 17 July 2010.
Why this is so, stems
from the principles of our law which were formulated as follows by
Tindall J in
Groundland v Groundland and Alger
1923 WLD 217
at
220:
‘
The
question then remains as to the amount of damages. There is a
judicial separation in existence between the plaintiff and his
wife,
but in my opinion the fact that a separation exists, does not in
itself, according to our law, disentitle the husband from
claiming
damages. . . . I am satisfied that the plaintiff in this case had not
permanently given up all intention of living with
his wife. This case
is distinct from the case of
Michael v
Michael & McMahon
1909 TH 292
,
where the plaintiff had abandoned his wife.’
(See
also Neethling
et al supra
209-210
and the authorities there cited.)
[14]
By 17 July 2010 the plaintiff had relinquished all thought of
reconciliation between him and Ms H and had given up on the marriage.
I say this because by then the plaintiff had admitted in his plea
filed in the divorce action that the marriage had broken down.
By
contrast, that was not the position in April 2010. At that stage the
plaintiff was still trying to rescue the marriage with
the help of
professional counselling. The court a quo rejected the denial by the
defendant and Ms H that they had intercourse on
these earlier dates
as completely improbable. I must admit having some misgivings about
the notion that the defendant and Ms H
would be truthful enough to
admit that they slept in the same bed on two occasions – a fact
about which there was seemingly
no other evidence – and then to
deny that they committed adultery on those occasions. Yet I am not
prepared to say that the
court a quo’s finding on the
probabilities constituted a misdirection which would allow us to
interfere. Neither the defendant
nor Ms H gave a satisfactory
explanation as to why, on each occasion, they booked a single room
with one bed. In addition I do
not regard it as insignificant that
towards the end of June 2010 the two of them exchanged e-mails
suggesting the name Isabella
for the daughter they hoped they would
have.
[15]
In the light of this finding of fact, the present state of our law
allows the plaintiff an action against the defendant for
contumelia.
The conclusion that the adultery was committed at a time when the
marriage had already broken down irretrievably is
no absolute defence
to this claim, although it means that the award for loss of
consortium was wrongly made by the court a quo.
That, however,
introduces the antecedent question that we had raised with counsel
prior to the hearing. It concerns the justification
for the continued
existence in our law of the delictual claim for adultery.
Continued
existence of the action for adultery
[16]
The present existence of the action cannot be doubted. After it had
been explicitly recognised by this court for the first
time in
Viviers v Kilian
1927 AD 449
, that recognition had been
confirmed on several occasions (see for example
Foulds v Smith
1950 (1) SA 1
(A);
Bruwer v Joubert
1966 (3) SA 334
(A) at
337). Its continued existence was pertinently raised by way of
exception in
Wiese v Moolman
2009 (3) SA 122
(T). In that case
Du Plessis J held, after an in-depth consideration, that the action
should be maintained. In this matter, Vorster
AJ not only held
himself bound, but found himself in complete agreement with the
decision in the
Wiese
case. The question raised now is whether
that case was rightly decided.
[17]
The context in which the question arises is the recognition by our
courts that, while the major engine for law reform lies
with the
legislature, the courts are nonetheless obliged on occasion to
develop the common law in an incremental way. These occasions
are
dictated, firstly, by s 39(2) of the Constitution which imposes
the duty on the courts to develop the common law so as
to promote the
spirit, purport and objectives of the Bill of Rights. Secondly, by
the acceptance that the courts can and should
adapt the common law to
reflect the changing social, moral and economic fabric of society;
that we cannot perpetuate legal rules
that have lost their social
substratum (see for example
Du Plessis v
De Klerk
[1996] ZACC 10
;
1996 (3) SA 850
(CC) para 61;
Carmichele v Minister of Safety and
Security & another (Centre for Applied Legal Studies Intervening)
[2001] ZACC 22
;
2001 (4) SA 938
(CC) para 36).
[18]
The
boni mores
of society or the legal convictions of the
community, which in effect constitute expressions of considerations
of legal and public
policy, are of particular significance in
determining wrongfulness, which is an essential element of delictual
liability in our
law, both under the
lex Aquilia
and the
actio
iniuriarum.
In
Le Roux v Dey (Freedom of Expression Institute
and Restorative Justice Centre as amici curiae)
2011 (3) SA
274
(CC) para 122 the principle was formulated thus:
‘
In
the more recent past our courts have come to recognise, however, that
in the context of the law of delict:
(a)
the criterion of wrongfulness ultimately depends on a judicial
determination of whether — assuming all the other elements
of
delictual liability to be present — it would be reasonable to
impose liability on a defendant for the damages flowing
from specific
conduct; and
(b)
that the judicial determination of that reasonableness would in turn
depend on considerations of public and legal policy in accordance
with constitutional norms.’
(See
also
F v Minister of Safety and Security & others
2012 (1)
SA 536
(CC) paras 117-124;
Roux v Hattingh
2012 (6) SA 428
(SCA) para 33.)
This
means that, especially in determining whether conduct should be
regarded as wrongful, ie whether delictual liability should
follow,
courts are more sensitive to have regard to the dynamic and changing
nature of the norms of our society.
[19]
The action for adultery is part of a group of actions, based on the
actio iniuriarum,
which are connected to the institution of
marriage. The group also comprises the action for breach of promise
to marry. With regard
to the latter, Harms DP said the following in
Van Jaarsveld v Bridges
2010 (4) SA 558
(SCA) para 3:
‘
Courts
have not only the right but also the duty to develop the common-law,
taking into account the interests of justice, and at
the same time to
promote the spirit, purport and objects of the Bill of Rights. In
this regard courts have regard to the prevailing
mores
and public-policy considerations. Davis J felt [in
Sepheri
v Scanlan
2008 (1) SA 322
(C) at
330I-331A] the time had come for a reconsideration of the action [for
breach of promise to marry], but felt uncomfortable
to take a lead in
the matter. However, having had regard to the views expressed by the
authors quoted by the learned judge . .
. I do believe that the time
has arrived to recognise that the historic approach to engagements is
outdated and does not recognise
the
mores
of our time, and that public policy considerations require that our
courts must reassess the law relating to breach of promise.’
And
(para 6):
‘
The
world has moved on and morals have changed. Divorce, which in earlier
days was available in the event of adultery or desertion
only, is now
available in the event of an irretrievable breakdown of the marriage.
Guilt is no longer an issue. There is no reason
why a just cause for
ending an engagement should not likewise include the lack of desire
to marry the particular person, irrespective
of the “guilt”
of the latter.’
(See
also
Cloete v Maritz
2013
(5) SA 448
(WCC).)
[20]
The question raised in this case is whether the same can be said
about the delictual claim for adultery. Exactly 100 years
ago this
court held in
Green v Fitzgerald
1914 AD 88
that adultery was
no longer a criminal offence in our law, because it had become
obsolete due to disuse. In the course of his judgment
Lord de
Villiers CJ inter alia said (at 103):
‘
Adultery
. . . is unhappily of most frequent occurrence, and although the
reports of divorce cases are daily published in the newspapers,
the
authorities take no notice of the offence. It has ceased to be
regarded as a crime.’
Thirty
years later the following was said by Blackwell J in
Rosenbaum v
Margolis
1944 WLD 147
at 158:
‘
The
criminal sanction for adultery having disappeared, the only remedy
left to an injured husband is an action for divorce against
his wife,
with the claims ancillary thereto, and for damages against the
adulterer. In so far as the latter may be regarded as
a deterrent and
in the public interest, I can see no good reason why it should not
enure equally in favour of the wife. There is
something, in my
opinion, to be said for the view that an action for damages against
an adulterous third party is out of harmony
with modern concepts of
marriage and should be abolished. But as long as the action remains,
it should remain in favour of both
sexes alike.’
[21]
In
Foulds v Smith supra
the extension of the action to allow the wife of an adulterous
husband to also have a claim, was confirmed by this court. But today,
70 years after Rosenbaum, the question brought up by Blackwell J is
again pertinently raised before us. In the meantime, adultery
was
abolished as a ground for divorce in the
Divorce Act 70 of 1979
. Yet,
as I have said,
Wiese v Moolman supra
decided the question whether the action against the third party based
on adultery should be maintained in the affirmative. Academic
writers
on the subject go the other way, with the notable exception of
Neethling’s
Law of Personality
to
which I have referred earlier. The judgment in
Wiese
relied mainly on Neethling
Persoonlikheidsreg
4
ed, ie the Afrikaans version of Neethling’s
Law
of Personality
. In a subsequent article
by Prof Johan Neethling ‘Owerspel as onregmatige daad –
Die Suid-Afrikaanse reg in lynregte
teenstelling met die Nederlandse
reg’
(2010) 73
THRHR
343
at 346, he concludes that
Wiese
was correctly decided and seems surprised that Dutch law does not
hold the same. The fact is, however, that the position in most
other
countries is that the action is no longer available. I shall come to
that. The various other academic authors who argue that
the claim
should be abolished hold the view that the action is outdated and
archaic and that it has lost its place in the context
of modern
society (see for example J Church ‘Consortium Omnis Vitae’
(1979) 42
THRHR
376
at 380-381; HR Hahlo,
South African Law
of Husband & Wife
(1980 Supplement
to the 4
th
ed) at 31; JMT Labuschagne ‘“Deinjuriering” van
Owerspel’
(1986) 49
THRHR
336
,
DSP Cronje & J Heaton
South African
Family Law
2 ed (2004) at 50-51, HJ
Erasmus, CG van der Merwe & AH van Wyk
Lee
& Honore Family, Things and Succession
(1983) para 59 note 5; M Carnelley ‘One Hundred Years of
Adultery – reassessment required?’ in S V Hoctor &
M
Kidd (eds)
Stella Iuris Celebrating 100
Years of Teaching Law in Pietermaritzburg
(2010) 183-204).
[22]
From a historical perspective, Roman law punished adultery as a crime
but did not afford an action in private law (see for
example M
Carnelley ‘Laws on Adultery: Comparing the Historical
Development of South African Common-Law Principles with those
in
English Law’ (2013) 19 (2)
Fundamina
185 et seq). As to Roman Dutch Law, JC Sonnekus concluded in his
doctoral thesis at the University of Leiden in 1976,
Die
Privaatregtelike
Beskerming
van die Huwelik
(at 58 and 75), that
apart from certain general statements by De Groot (eg ‘Inleidinge’
3.35.9 and ‘De Iure belli
ac pacis’ 2.17.15), support for
the proposition that Roman Dutch law afforded a private law action
for adultery, is hard
to find amongst our old authorities (see also
Wessels JA in
Viviers v Kilian supra
at 458 and Watermeyer J in
Wagner v
Kotze
unreported but referred to by CH
van Zyl
The Theory of the Judicial
Practice of the Colony of the Cape of Good Hope and of South Africa
Generally
(1902) at 514-515 and alluded
to by Wessels JA in
Viviers v Kilian
).
[23]
In
Biccard v Biccard & Fryer
(1892)
9 SC 473
at 475, De Villiers CJ, however, relied on De Groot
Inleiding
3.35.1 to allay the doubt expressed earlier by Watermeyer J about the
existence of the action in Roman Dutch law. When the issue
came
before this court for the first time in
Viviers
v Kilian
, it confirmed the judgment of
De Villiers CJ in
Biccard
.
In doing so it relied largely on the judgment of the Privy Council in
Norton v Spooner
[1854] UKPC 21
which was given in 1854. This was an appeal from
British Guyana in which the Privy Council held that a civil action
for recovery
of damages against a defendant for ‘criminal
conversation’ lies by Roman Dutch law which prevailed in
British Guiana
at the time.
[24]
The thesis advanced by Sonnekus (at 219), was that the decision in
Norton v Spooner
was heavily influenced by English law and
that in consequence
Viviers v Kilian
was representative of
English law rather than Roman Dutch law. That thesis appears to be
supported by the reference to ‘an
action for criminal
conversation’ in
Viviers
at 451, which is a description
of the action peculiar to English law. Of further significance is the
fact that other civil law
countries such as France, the Netherlands,
Germany and Austria do not recognise a private law claim for adultery
although at some
stage it was punishable in these countries as a
criminal offence. So, for instance, a famous professor of civil law
at the University
of Vienna is reported to have said many years ago,
when coming to the subject of liability for adultery:
‘
The
treatment of adultery as a criminal offence, has long ago been
abrogated in every civilised country in the world, but I am given
to
understand that there still exists in a few countries an action for
damages for adultery. This is utterly repugnant to modern
ideas. Not
only is it degrading to the wife, who is treated as a kind of chattel
belonging to her husband, but it is wrong that
the time of the courts
should be taken up in attempting to assess marital fidelity in terms
of money.’
(See
B Tennet ‘Damages for adultery: a criticism of our law’
(1952) 69
SALJ
96.)
[25]
It appears that after the Second World War academic writers in
Germany sought to persuade the German courts to recognise a
private
law claim of this kind. The Bundesgerichtshof, however, steadfastly
refused to do so. This appears, for instance, from
the judgment of
the Bundesgerichtshof (Sixth Civil Senate) on 22 February 1973 (JZ
1973, 668), as translated by BS Markesinis and
H Unberath
The
German Law of Torts A Comparative Treatise
4 ed (2002) at
364-365. I apologise in advance for quoting so extensively from this
judgment. My excuse is that I found much guidance
in the clarity of
reasoning that it displays. It reads:
‘
The
plaintiff bases his claims on the fact that the defendant was an
accomplice to the breach of fidelity for which the plaintiff’s
wife was to be blamed. According to a constant practice of the
Bundesgerichtshof, maintained until now in the face of attacks by
some writers, no claims in tort are allowed by the law in force in
cases of “intrusion of a marriage” either against
the
guilty spouse or against the intruding third party . . . [In an
earlier case the] Fourth Division points out that without the
co-operation of one of the spouses no interference with the marriage
can occur and that, therefore, it constitutes essentially
an internal
marital matter, which is not sought to be protected by inclusion
among the situations attracting liability in tort.
In view of its
strong link with the conduct of the unfaithful spouse the
participation of the third party must be coloured by it
as well. It
is inadmissible to divide the activities into misbehaviour of the
spouse governed by matrimonial law and a tort committed
by the third
party rendering him liable to pay damages. The Fourth Division has
pointed out further that it is difficult, having
regard to the
multiplicity of possible acts of interference with marital relations,
to establish suitable limits for any such liability
and that the
necessary enquiries, as required in the individual case, would have
undesirable effects in various respects . . .
It
is true that according to the practice of the Bundesgerichtshof,
particularly of this Division, a claimant whose general right
of
personality has been severely infringed may be awarded pecuniary
damages for his non-pecuniary loss, provided that additional
conditions have been met. However, in so far as the right of
personality of a spouse has been infringed because a third party
acting together with the other spouse has interfered with the right
to the integrity of the marital community, as in the present
case,
any claims for damages in tort must be denied for the reasons stated
above which rule out liability in tort . . .
The
legislature has refrained from enforcing proper marital conduct
directly or indirectly by public measures . . . including any
penalties and equivalent measures for adultery, and has contented
itself with the protection provided by family law . . . [I]t
expresses the conviction that highly personal relations should not be
regulated by law, which is at least compatible with constitutional
law and corresponds to modern ethics . . .
Finally,
a conclusion to the contrary cannot be based either on the protection
of marriage . . . Admittedly, marriage 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.’
[26]
In view of the clear and consistent recognition of the private law
action for adultery by this court, its origin is of significance
in
one respect only, namely that in England, which is its country of
origin, the action for adultery against a third party, or
‘criminal
conversation’ as it was called, has since been abolished by
legislation in terms of the Law Reform (Miscellaneous
Provisions) Act
1970. Both the history of the action and the reasons for its demise
in England appear from the following summary
by Diplock LJ in
Pritchard v Pritchard and Sims
[1966] 3 All ER 601
(CA) at
607-610:
‘
In
1857, when marriage in England was still a union for life which could
be broken only by private Act of Parliament, there existed
side by
side under the common law three distinct causes of action available
to a husband whose rights in his wife were violated
by a third party,
who enticed her away, or who harboured her or who committed adultery
with her. In enticement and in harbouring,
which were actions on the
case, the damage claimed was for loss of the society and services of
the wife. In the action for adultery
known as criminal conversation,
which . . . lay originally in trespass, the act of adultery itself
was the cause of action and
the damages punitive and at large. It lay
whether the adultery resulted in the husband’s losing his
wife’s society
and services or not.
All
three causes of action were based on the recognition accorded by the
common law to the husband's proprietary interest in the
person of his
wife, her services and her earnings, and in the property which would
have been hers had she been feme sole. The common
law in 1857
reflected in this respect the social values of a country governed
exclusively by the dominant male, and, although by
judicial extension
the cause of action for enticement is now available to both spouses .
. . there is no trace of such an action
being brought by the wife
before 1857.
.
. .
The
ancient common law action for criminal conversation was abolished by
s 59 of the Matrimonial Causes Act, 1857, which first gave
jurisdiction to an English court to dissolve marriages. By s 33 of
the same Act, however, the newly constituted court for matrimonial
causes was empowered to award to a husband damages for adultery, and
the section provided that such claim should be tried on the
same
principles and in the same manner as actions for criminal
conversation were formerly tried at common law . . .
[I]n
1857 . . . the old concept of the husband's proprietary rights in his
wife was still firmly rooted, and the principles on which
the amount
of damages was assessed in the old common law action for criminal
conversation, immediately before the passing of the
Act, were applied
to the new statutory cause of action for damages for adultery. These
principles . . . had by 1857 already been
rationalised as
compensatory – but compensatory for what? Certainly and
primarily for the loss to the husband of the value
of the wife . . .
Nevertheless, no doubt as a rationalisation of the former punitive
nature of the damages, it was well established
that, where the action
did lie, the husband was entitled to be compensated also for the
injury to his feelings and his pride .
. .
The
measure of the . . . compensation for injury to the husband's
feelings and pride, must also take account of changing social
norms.
The test must be his rational resentment, not his mere idiosyncratic
ire, and the factors to be taken into account in mitigation
or in
aggravation are those which would affect the feelings of a reasonable
man with an unfaithful wife in the social conditions
of today. Such
reasonable cuckold of the common law may be divorced from reality as
well as from his wife, but the concept is needed
so long as
Parliament preserves a cause of action which, in so far as it extends
beyond proven pecuniary loss, I confess I find
“repugnant to
modern and sensible ideas”.’
And
by Scarman J in the same case when he said (at 611):
‘
When
a wife was a piece of property whom the husband could not divorce
short of an Act of Parliament, her infidelity was understandably
regarded as a terrible blow to his honour and his pride. A cuckold
was then a contemptible, ridiculous figure, “the husband
of an
unfaithful wife, derisory” says the Shorter Oxford English
Dictionary; but today all is changed. Divorce runs at something
like
forty thousand cases a year; a man can divest himself easily, cheaply
(and without loss of face) of his adulterous wife. Thousands
of
husbands come annually to the courts seeking the relief of divorce
for adultery; but how many claim damages?—the merest
handful.
The truth is that our social mores have changed, and with them the
monetary assessment of the factors of loss and injury,
whose graphic
descriptions increase the volume and enrich the literary quality of
the older law reports.’
[27]
The abolition of the action for criminal conversation in England was
followed, so it appears, in most other common law jurisdictions
which
inherited that action from English law. In New Zealand and Australia
it happened in 1975, in Scotland in 1976, in Ontario
in 1978 and
subsequently in almost all the provinces of Canada. In the United
States of America the action has been abolished or
severely
restricted in 42 states and the District of Columbia either by what
has been called ‘anti-heart balm statutes’
or by
decisions of the State Supreme Courts. Indeed, North Carolina appears
to be one of the last remaining states where tort claims
for adultery
are still recognised (see L McMillian ‘Adultery as tort’
(2012) 90
North Carolina Law Review
1987
at 1988; JM Cary and S Scudder ‘Breaking up is hard to do:
North Carolina refuses to end its relationship with heart balm
torts’
(2012) 4
Elon Law Review
1).
The reasons for the abolition in these jurisdictions are, in short,
that the action is regarded as no longer in confirmation
with
considerations of morality, that it has grave disadvantages and that
on balance, its continued existence is no longer justifiable.
[28]
Experience teaches us that different jurisdictions provide more or
less the same answer to a particular legal problem, albeit
that they
sometimes arrive at that answer in different ways. Where our law
therefore gives an answer that appears to be directly
at odds with
what has happened in most other jurisdictions, it makes one stop to
think: are the morals and the needs of our society
so different from
most others? And if so, why? Proponents of the continued existence of
the action believe that in the main it
serves two purposes: First, to
protect marriage as an important institution of society and, second,
to protect the personality
rights of injured spouses by affording
them compensation for the contumelia or injury they had suffered and
(perhaps) for the wounded
feelings they were made to endure. I shall
return to these.
[29]
What the proponents of the action have to admit, however, is the
clear anomaly that the action is available against the third
party
only and not against the adulterous spouse, although a clearer case
of a co-perpetrator is difficult to conceive (see for
example
Neethling
et al supra
208;
Wiese supra
at 128C-H). This
anomaly was advanced in the judgment of the Bundesgericht, from which
I have quoted, as one of the reasons why
this action should not be
admitted as part of German law. It was also underscored by Van Zyl JP
in
Asinovsky v Asinovsky
1943 CPD 131
at 132-133 when he said:
‘
It
is difficult to see why the act of a man committing adultery with
another man’s wife should amount to a delict towards
the
husband, but the adultery of a woman’s husband should not be
treated as a delict committed by him towards her.’
[30]
The anomaly becomes even more stark when it is borne in mind that:
(a)
If anything, the behaviour of the guilty spouse is patently more
reprehensible than that of the third party and more hurtful
to the
innocent spouse. It is, after all, the guilty spouse, not the third
party, who solemnly undertook to remain faithful and
who is bound by
a relationship of trust.
(b)
According to the law as it stands, it makes no difference whether the
guilty spouse initiates the relationship or whether he
or she was the
seducer or the seduced.
(c)
Neither does it make any difference whether the two spouses
subsequently carried on with their marital relationship or even
that
they were married in community of property with the result that the
guilty spouse would share in the benefits of the award
of damages.
[31]
One answer to the anomaly which appears to be accepted in
Wiese
supra
198G-H is that the remedy of the
innocent spouse against the guilty spouse lies in an action for
divorce. But this is no longer
the case. It is true that the former
can obtain an order for forfeiture of benefits or maintenance against
the latter in terms
of
s 7
of the
Divorce Act, but
this would
only benefit the innocent spouse in limited instances. And, as I have
said, the innocent spouse can condone the adultery
of the guilty
spouse, continue with the marriage and still sue the third party for
damages.
[32]
The further reason for the immunity of the guilty spouse advanced,
for example in
Wiese
at
128F-G, is that it lies in considerations of legal policy. But this
does not even begin to explain what those policy considerations
may
be. What it also fails to explain is the apparent conflict with the
further statement in that judgment, that if the action
against the
third party were to be abolished, it would send out the unfortunate
message that adultery is ‘regmatig’,
ie not wrongful and
therefore somehow condoned by our law (see
Wiese
at 128A). But that raises the question:
why is the same message not conveyed by the immunity of the guilty
spouse? The answer is,
of course, in both instances, that when we say
that conduct is ‘regmatig’, ie not wrongful, it only
means that the
defendant is immune from legal liability; that despite
the possible moral blameworthiness of this conduct, the law has
decided,
for reasons of legal or public policy, that it would not
impose legal liability on the defendant for that conduct (see for
example
Trustees, Two Oceans Aquarium
Trust v Kantey & Templer (Pty) Ltd
2006
(3) SA 138
(SCA) paras 11 and 12). Thus understood, the statement
that conduct is not wrongful does not convey any legal or moral
condonation
of that conduct at all.
[33]
This brings me to the advantages of the action that are put forward
by those who contend that it should be retained. First
amongst these
is that it protects the institution of marriage which our society
holds dear as one of the most important bases for
family life and
which is recognised and protected as such by our Constitution. This
advantage was underscored in
Wiese
(125F-H; 127C-G). It also formed the bulwark of the plaintiff’s
argument as to why the action should be maintained. In response
and
lest I be misunderstood, let me start by saying that I have no doubt
that marriage is one of the most important institutions
in our
society which is and should be recognised and protected by our
Constitution. That much was clearly confirmed by the Constitutional
Court in a number of cases (see for example
Dawood
& another v Minister of Home Affairs & others
[2000] ZACC 8
;
2000
(3) SA 936
(CC) paras 30-33).
[34]
But the question is: if the protection of marriage is one of its main
goals, is the action successful in achieving that goal?
The question
becomes more focused when the spotlight is directed at the following
considerations:
(a)
First of all, as was pointed out by the German Bundesgericht in the
passage from the judgment (JZ 1973, 668) from which I have
quoted
earlier, although marriage is ‘a human institution which is
regulated by law and protected by the Constitution and
which, in
turn, creates genuine legal duties . . . Its essence . . . consists
in the readiness, founded in morals, of the parties
to the marriage
to create and to maintain it’. If 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.
(b)
Grave doubts are expressed by many about the deterrent effect of the
action. In most other countries it was concluded that the
action (no
longer) has any deterrent effect and I have no reason to think that
the position in our society is all that different.
Perhaps one reason
is that adultery occurs in different circumstances. Ever so often it
happens without any premeditation, when
deterrence would hardly play
a role. At the other end of the scale, the adultery is sometimes
carefully planned and the participants
are confident that it
will not be discovered. Moreover, romantic involvement between one of
the spouses and a third party can be
as devastating to the marital
relationship as (or even more so than) sexual intercourse.
(c)
If deterrence is the main purpose, one would have thought that this
could better be achieved by retaining the imposition of
criminal
sanctions or by the grant of an interdict in favour of the innocent
spouse against both the guilty spouse and the third
party to prevent
future acts of adultery. But, as we know, the crime of adultery had
become abrogated through disuse exactly 100
years ago while an
interdict against adultery has never been granted by our courts (see
for example
Wassenaar v Jameson supra at
352H-353H). Some of
the reasons given in
Wassenaar
as to why an interdict would
not be appropriate are quite enlightening and would apply equally to
the appropriateness of a claim
for damages. These include, firstly,
that an interdict against the guilty spouse is not possible because
he or she commits no delict.
Secondly, that, as against a third party
‘it interferes with, and restricts the rights and freedom that
the third party ordinarily
has of using and disposing of his body as
he chooses; . . . it also affects the relationship of the third party
with the claimant’s
spouse, who is and cannot be a party to the
interdict, and therefore indirectly interferes with, and restricts
her rights and freedom
of, using and disposing of her body as she
chooses’ (at 353D-E).
(d)
In addition, the deterrence argument seems to depart from the
assumption that adultery is the cause of the breakdown of a marriage,
while it is now widely recognised that causes for the breakdown in
marriages are far more complex. Quite frequently adultery is
found to
be the result and not the cause of an unhappy marital relationship.
Conversely stated, a marriage in which the spouses
are living in
harmony is hardly likely to be broken up by a third party.
[35]
The second purpose of the action advanced in
Wiese
(125I-126A) is that it serves as a
solatium
(ie compensation) to the innocent spouse for the contumelia (ie
insult) which he or she had suffered. It must, however, be borne
in
mind that in our law, the claim for insult or contumelia involves an
objective criterion. As Harms DP explained in
Van
Jaarsveld v Bridges supra
(para 19), it
requires that the conduct complained of be tested against the
prevailing norms of society. Even if that conduct is
subjectively
perceived by the plaintiff as insulting or hurtful to his or her
self-esteem, it cannot give rise to an action for
compensation unless
it is, objectively determined, insulting. Unless the reasonable
observer would also regard the conduct as humiliating
or degrading,
no action for
iniuria
or
insult will lie (see for example
Delange
v Costa
1989 (2) SA 857
(A) at
861D-862G;
Le Roux v Dey supra
paras
177-180). Applying that test, it appears to me that in this day and
age the reasonable observer would rarely think that the
innocent
spouse was humiliated or insulted by the adultery of his or her
spouse. The passages from the judgments of the Court of
Appeal in
Pritchard
that
I have referred to express the view that in modern society the
reasonable person would not regard the ‘cuckold husband’
with less respect. Or, as Diplock J put it, that the cuckold who
still feels humiliated may find himself divorced from reality
as well
as from his wife. I think the position in our society would be no
different. Perhaps, society will think less of the guilty
spouse but
not of the one who had been betrayed.
[36]
Neethling’s
Law of Personality
supra
(at 209) contends that the action
serves to protect another personality interest, namely ‘die
gevoelslewe’, or wounded
feelings of the innocent spouse. He
regards this protection as part of the claim for loss of consortium.
Wiese
(126A-C)
appears to endorse this notion, but regards it as part of contumelia.
However, as far as I know, an action for wounded
feelings as such had
not as yet been specifically recognised by our law. Moreover, I am
not entirely sure what the proposed action
entails. Does it refer to
the purely subjective feelings of the spouse? That would directly
conflict with the established principle
that our law does not concern
itself with subjective feelings of hurt which are not regarded as
objectively reasonable. In addition,
if the law is to be extended to
protect wounded feelings, where would we draw the line? Would it
include the wounded feelings of
a party whose agreement to marry had
been broken or of a man whose girlfriend had left him for another? If
it can only be brought
as part of the claim for loss of consortium,
what about the spouse who has no claim for loss of consortium, but
nonetheless feels
deeply hurt?
[37]
Another purpose rather obliquely advanced in
Wiese
(128A-B) is that adultery often gives
rise to strong emotions and that, but for the availability of the
action for damages, the
innocent spouse may resort to self-help
through unlawful means. I find the argument somewhat perilous. The
law cannot be expected
to create or maintain remedies with the sole
purpose of preventing unlawful conduct, even if the motivation for
that conduct is
understandable. People often feel wronged by others
without any available legal remedy to amend that wrong. Yet both the
norms
and the laws of civilised society expect them to restrain
themselves from self-help by means of what would amount to unlawful
revenge.
[38]
In the end the history of the delictual action for adultery reveals
its archaic origin. On the one hand it stems from the concept
in old
English law that the husband has some proprietary interest in the
person and ‘services’ of his wife. That is
why in common
law the action for criminal conversation was always confined to the
husband of an adulterous wife. According to some
of our older
judgments, on the other hand, the action was influenced by the
biblical notion received from Canon law that both husband
and wife in
a marriage are entitled to the sole use of each other’s body
(see for example
Strydom v Saayman
1949
(2) SA 736
(T) at 738;
Foulds v Smith
supra
at 8), akin to some kind of
servitude. When these archaic notions were exposed by changing norms
of society, the law started
looking for a new
raison
d’etre
.
This was found, on the one hand, in the protection of marriage as an
institution and in the notion of a
solatium
for the insult of the innocent spouse, on the other. But as I see it,
the time has come for our law to recognise, in harmony with
most
other legal systems, that in the light of changing
mores
,
these reasons advanced for the continued existence of the action have
now also lost their persuasive force.
[39]
What is more, even if the action still performs some legitimate
function which I may have overlooked, that notional advantage
will be
far outweighed by the hurt and damage that the action too often
brings about. Some of these were well-illustrated in this
case, and
the list is clearly not exhaustive:
(a)
First, the trial exposed the young children of the marriage to
harmful publicity and emotional trauma which was manifestly not
in
their best interest. One day they may even be confronted by the
evidence given at the trial and the cross-examination which
delved
into the extramarital sex life of their mother.
(b)
The evidence normally led in adultery actions seriously impacts on
the dignity and privacy of the defendant, and the spouse
that is
alleged to have committed adultery. In this case Ms H was subjected
to embarrassing and demeaning cross-examination and
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.
(c)
The clear impression one gains from the evidence in this case was
that the plaintiff was motivated by considerations of anger
at his
wife for the breakup of their marriage. He found the defendant a
convenient scapegoat and repository of his anger and his
desire for
revenge. So, instead of being moved by a need for solace and closure,
the action was driven by a negative and destructive
craving for
revenge. I have no doubt that this is often the case.
(d)
Actions for adultery are usually prosecuted in the high court and
involve the parties in enormous costs. During the trial reference
was
made to costs incurred by the appellant alone which amounted to half
a million rand. That of course is to be doubled to provide
for the
costs on both sides and it obviously did not include the costs of
appeal. The actual award of damages thus paled into insignificance
when compared to the costs. One suspects that these costs will be far
beyond the means of most defendants who may then be compelled
to
suffer the consequence of a default judgment. Even from the
plaintiff’s perspective, the game can hardly be worth the
candle.
[40]
The conclusion I arrive at is that in the light of the changing
mores
of our society, the delictual action based on adultery of the
innocent spouse has become outdated and can no longer be sustained;
that the time for its abolition has come. In the light of this
conclusion I find it unnecessary to consider the further contention
advanced by some of our academic authors (see for example M Carnelley
‘One Hundred Years of Adultery’
supra
at 199-201) which was subscribed to by the defendant in argument,
that the continued existence of the action is in conflict with
our
constitutional norms. Suffice it to say that there could well be
merit in some of these arguments.
[41]
Finally, and in order to avoid confusion:
(a)
My finding is that the action derived from the
actio iniuriarum
and based on adultery, which afforded the innocent spouse a claim
for both contumelia and loss of consortium, is no longer wrongful
in
the sense that it attracts liability and is thus no longer available
as part of our law.
(b)
I make no comment on the other actions based on the
actio
iniuriarum
which relate or are connected to the institution of
marriage, such as the action for abduction, enticement and harbouring
of someone’s
spouse. I leave the sustainability of their
continued existence as the subject of consideration for another day.
(c)
I also make no comment on the continued existence of the claim
against a third party, based on adultery, for the patrimonial
harm
suffered by the innocent spouse through the loss of consortium of the
adulterous spouse, which would include, for example,
the loss of
supervision over the household and children (see for example
Viviers
v Kilian supra
at 455). This may well
afford the innocent spouse a claim under the
lex
Aquillia
(see for example
Media
24 Ltd v SA Taxi Securitisation (Pty) Ltd (Avusa Media Ltd &
others as amici curiae)
2011 (5) SA 329
(SCA para 7).
Costs
[42]
What remains are issues of costs. As to the costs of appeal, it
appears to me that, even if we were to retain the action of
adultery,
the defendant would still have been at least partially, yet
substantially successful on appeal because the award for
loss of
consortium should not have been made by the court a quo. In any
event, he would therefore be entitled to these costs. But
in the high
court, the plaintiff would have been entitled to a costs order in his
favour if we were to maintain the law as it stands.
In the
circumstances where we have now shifted the goal posts on appeal, I
believe it would be fair to order that each party should
pay his own
costs in the high court.
[43]
In the event:
1
The appeal is upheld with costs, including the costs of two counsel.
2
The order of the high court is set aside and replaced with the
following:
‘
Plaintiff’s
action is dismissed. Each party to pay his own costs.’
____________
F
D J BRAND
JUDGE
OF APPEAL
APPEARANCES:
For
the Appellant: S Kuny and Z Ndlokovane
Instructed by:
Friederich Inc,
Pretoria
c/o
Symington & De Kock, Bloemfontein
For
the Respondent: D A Smith and J A van Tonder
Instructed by:
Terblanche
Attorneys, Pretoria
c/o
Lovius Block, Bloemfontein