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[2013] ZAGPPHC 11
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Erasmus v Heine (39407/2010) [2013] ZAGPPHC 11 (28 January 2013)
IN THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE NO. 39407/2010
DATE: 28/01/2013
In the matter between:
D J E
ERASMUS
.......................................................................................
PLAINTIFF
and
G R
HEINE
..................................................................................................
DEFENDANT
___________________________________________________________________
JUDGMENT
__________________________________________________________________
LI VORSTER AJ:
[1] The plaintiff claims from the
defendant damages on the grounds of the defendant having committed
adultery with the wife of
the plaintiff at the time, and alienation
of her affection which ultimately led to the breaking down of that
marriage and a decree
of divorce granted against him.
[2] Before I deal with the evidence
in this matter it is convenient to deal with a point that is
submitted by the defendant in
argument. That point is that the
plaintiff claiming separate amounts of damages in respect of
adultery and alienation of affection
amounts to an improper
splitting of actions. The submission is that the elements relating
to the cause of action based on alienation
of affection are part and
parcel of the elements relating to the cause of action relating to
adultery, although adultery contains
the additional element that
there must have been sexual intercourse between the defendant and
the plaintiff’s wife. I
disagree with this contention.
Adultery contains an element of
contumelia
which relates to the
humiliation of the plaintiff by the defendant committing adultery
with his wife, whilst alienation of affection
relates to damages
suffered by a plaintiff as a result of the loss of consortium of his
wife caused by the unlawful action of
the defendant who led her
astray. Depending upon the facts of the case, loss of consortium
can take place as a result of adultery.
However, adultery can also
take place only after the wife had been led astray by a defendant in
which case a different measure
of quantum would apply, depending
upon the facts of each case.
[3] Both the plaintiff, his former
wife and the defendant testified that they were Christians and
subscribed to the principles
of Christianity as a religious faith.
The sanctity of marriage and the obligation that it places on both
spouses to the marriage
to engage in sexual activity with one
another only within the framework of the marriage has been
recognized in a comprehensive
judgment in the case of
Wiese
v Moolman
2009(3) SA 122
(T). I am in complete agreement with that decision. It follows
that the marital rights of sexual intercourse
and affection and
devotion of the married parties are still held in high esteem in law
and the rights of action of either spouse
to protect those rights
and, in the case of violation thereof by third parties, to claim
damages as a result of such infringement,
are still part of our law
and enforceable. In the instant case the sanctity of those rights
and obligations is beyond question
in view of the Christian faith
professed by all the parties to this action.
[4] The plaintiff was married to his
former wife, Suné Erasmus (born Hay) on 30
th
of April 2005. For the sake of convenience I shall refer to her as
“Suné”
hereinafter.
[5] The marriage was dissolved on the
1
st
of September 2011 after Suné left the common home of the
parties on 23
rd
of March 2010 and had served a summons for divorce on the plaintiff
on the 7
th
of June 2010.
[6] On 15
th
of April 2009 Suné began employment with a company by the
name of Novagen Pharma. In the course of her employment she
met the
defendant who was the managing director of an affiliated company
called Home Med. Originally Novagen and Home Med operated
from the
same office building, but later they separated and then operated
from adjacent buildings.
[7] It is the plaintiff’s case
that he had a happy marriage until the intervention of the defendant
which caused Suné
inter
alia
to vacate the common
home on 23
rd
of March 2010 and to revert briefly back to the common home on 27
th
of March 2010, on which date the plaintiff left the common home. It
is common cause that the parties have not cohabitated as
husband and
wife since then and that the marriage was dissolved as a result of
the summons which Suné issued against the
plaintiff and which
led to the ultimate dissolution of the marriage during September
2010.
[8] The defendant denies the claims
made by the plaintiff. He testified and also presented the evidence
of Suné in support
of his denial of the plaintiff’s
claims. The plaintiff also testified.
[9] Initially the defendant denied in
his plea that he committed adultery with Suné. However, that
plea was amended to
concede adultery during July 2010. In evidence
adultery by the defendant and Suné during August 2010, when
the marriage
was still not dissolved, but after the summons had been
served by Suné on the plaintiff, was also conceded by the
defendant
and Suné.
[10] The defence of the defendant is
simply that problems in the marriage between the plaintiff and Suné
were caused by
inconsiderate behaviour on the part of the plaintiff
and his lack of understanding and love towards Suné which
caused
the disintegration of the marriage relationship between them
and not the actions of the defendant. It is necessary to examine
and analyze the evidence led before me to come to a conclusion in
that regard. I shall do so below.
[11] It is convenient to deal with
certain facts put before me by way of evidence and which is common
cause or not disputed by
the parties. That evidence comprise the
following:
11.1 A bundle of photographs
disclosed and submitted by the plaintiff in evidence which comprise
of photographs of the plaintiff
and Suné on various occasions
and referring to
inter alia
holidays that were enjoyed
by them at Umhlanga, Ballito, Ireland, Cape Province, a marriage in
Kwazulu Natal Midlands, family
get-together festivals, Clarens
(Golden Gate), the celebration of the plaintiff’s 30
th
birthday on 14
th
of February 2009 and the celebration of the 30
th
birthday of Suné at a venue called Rhapsody’s during
October 2009. At that occasion Suné made a speech which
was
recorded and transcribed and put before Court. The video that was
made of that occasion was also presented in evidence and
I had the
opportunity to look at it.
11.2 A record of e-mails interchanged
between Suné and the defendant and also a record of cellphone
calls interchanged
between them was made available in evidence. The
contents of the e-mails were not in dispute and the dates and
duration of the
cellphone calls between them was also not disputed.
It was also common cause that the defendant and Suné spent
two nights
together in the same bed at different locations. The
first time was on the evening of 9
th
of April 2010 when the defendant invited Suné to spend an
evening with him at a health spa. The second time was in June
2010
when Suné invited the defendant to spend a weekend with her
in Paternoster and she had booked a cottage with a single
room with
a double bed therein where they slept together over the said
weekend. Both Suné and the defendant denied that
they were
sexually intimate during either of those two occasions.
[12] 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 Suné, 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 Suné.
That
prima facie
impression was hotly
disputed by the defendant in his evidence and in that regard he
relied heavily on the evidence of Suné.
[13] Suné had good employment
when she married the plaintiff which enabled her to earn a good
salary and even buy a motorcar
and some immovable property. The
employment with Novagen Pharm was likewise lucrative and enabled her
to maintain a good living
standard with the plaintiff. The
plaintiff, on the other hand, regarded himself as the head of the
household and responsible
for control of the finances consisting of
the joint income of himself and Suné. He worked according
to a budget in terms
of which the income and expenses were regulated
and budgeted for. In the evidence it became clear to me that Suné
resented
the fact that her income was appropriated by the plaintiff
and dealt with in terms of his monthly budget. She felt aggrieved
as a result of that. She tried to paint a picture of the plaintiff
as a miser and referred to specific instances where the plaintiff
was unwilling to pay when they dined out with friends on social
occasions and even when they were on holiday with her family
at
Umhlanga. Her evidence in that regard was denied by the plaintiff.
Moreover, when the credit card statement of the plaintiff
was put to
her in cross-examination which indicated that on the occasions
referred to by her, the plaintiff made substantial
payments to the
restaurant in question, she was unable to explain the evidence put
to her which was clearly contradictory to
her evidence on that
aspect. She also in her evidence resented the fact that the
plaintiff wanted to have sex with her at inopportune
times when she
was not ready for it and that he did not treat her with the
necessary consideration when she was ill, for instance
when she and
the plaintiff attended a wedding ceremony in the Kwazulu Natal
Midlands when she fell ill and had to receive medical
treatment
ultimately. 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. She referred also to another instance
during
February 2010 when the plaintiff had arranged a weekend for her
family, herself and some friends on a farm near Manhaarrand.
That
was an occasion which overlapped with Valentines day. She had made
a Valentines card for the plaintiff. He ultimately
threw the card
in the dustbin. Much was made in that respect to show the
inconsiderate behaviour of the plaintiff towards her.
I am not
impressed by that conclusion which is sought to be drawn by Suné
and the defendant. Throwing away a Valentines
card after Valentines
day celebrations have been terminated can hardly be said to be
inconsiderate behaviour as contended for.
During the celebration of
the 30
th
birthday of Suné in October 2009, Suné made a speech
which was transcribed and produced to Court. I also had the
opportunity to listen to the video recording of that occasion. Suné
said of the plaintiff that he was her absolute soul
mate and that
she loved him incredibly much. 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.
[14] It is common cause that Suné
consulted a biblical counselor on 18
th
of August and 14
th
and 28
th
of September 2009. The counselor, Dr Vorster Combrink, gave
evidence. He confirmed that Suné consulted him on the
aforesaid
dates. He was unable to divulge further information about
the consultations he had, as he had destroyed his notes and
documents
which could refresh him memory in that regard. In
fairness I must accept that Suné experienced some stress or
discomfort
in her marriage relationship with the plaintiff which
caused her to consult Dr Combrink on the aforesaid dates. However,
the
fact of the matter is that those problems clearly did not
terminate the cohabitation of Suné and the plaintiff or cause
the disintegration of their marriage, as, if that had been the case,
it is difficult to reconcile a conclusion that the marriage
relationship was practically over with for instance the birthday
celebration of Suné during October 2009 and the Manhaarrand
weekend during February 2010.
[15] The defendant became acquainted
to Suné in the course of his employment as managing director
of Home Med of which
Novagen Pharm which employed Suné, was
an associated company. He got to know her and in the course of
their contact in
their respective employment situations they began
to like each other. Suné felt aggrieved because the
plaintiff, according
to her perception, was a miser who denied her
access to the money she earned and to which she felt entitled and
showed lack of
consideration to her according to her perception of
the way the plaintiff behaved. The defendant, who was a divorced
man, started
to like Suné and she started to like him. It is
difficult to determine on the evidence exactly when Suné and
the
defendant developed a liking to each other. It must have been
at least since January 2010 and probably as far back as late 2009.
This conclusion is supported by the evidence of the plaintiff that
he noticed a change in attitude from Suné towards
late 2009
and which continued and escalated into the beginning of 2010. It is
also supported by the fact that it is common cause
that a meeting
took place on the 4
th
of March 2010 at Irene between the defendant and Suné and
during which occasion the defendant said to Suné that
he
liked her a lot, he is aware that she also likes him and that they
should stop having contact with each other until such time
as she
sorted out her problems in her marriage and made up her mind what
she wanted to do. That prudent undertaking did not
bear fruit. The
undisputed evidence indicates that telephonic and SMS contact
increased between them. The plaintiff, having
learned that the
defendant is involved with Suné then confronted the defendant
at his workplace. The defendant denied
involvement in the marriage
of the plaintiff and stated that he prayed for the marriage of the
plaintiff. As it later appeared,
those prayers did not bear fruit.
Whilst the SMS and cellphone communications between Suné and
the defendant increased
after the 4
th
of March 2010, Suné decided to leave the common home with the
plaintiff on 23
rd
of March 2010 and informed the defendant accordingly. However,
before 23
rd
of March 2010, the defendant, contrary to his undertaking not to
contact Suné, sent an e-mail dated the 8
th
of March 2010 in which he lovingly addressed her as “dear
Bella” and referred to a text in the Bible, ostensibly
justifying his departure from his undertaking not to contact Suné.
In the meantime, the plaintiff realizing that his
marriage
relationship is under stress, agreed with Suné to undergo
marriage counseling.
[16] The marriage counseling came to
no positive result. On the evidence before me that is not
surprising. The e-mail and SMS
communication between defendant and
Suné escalated up to a point where, on 29
th
of June 2010, they agreed, on the erroneous assumption that the
Biblical texts provide support for what they were planning to
do,
decided to have a child which hopefully would be a daughter to be
called Isabella. The defendant and Suné were serious
to
commit adultery before the decree of divorce in terms of the summons
which was served early June 2010 became a finality.
That follows
from the fact that the defendant and Suné spent a night
together on the 9
th
of April 2010 at a Health Spa and subsequent to that, in June 2010
the same happened at Paternoster. The denial by them that
they
merely slept together in the same bed and that no intimacy between
them took place, is clearly completely improbable and
manifestly
untrue in the light of their clearly escalating romantic
relationship as is evidenced by the e-mails that I have referred
to
above. Finally, on this point, I find it untenable that they can
deny sexual intimacy on those two occasions because it
would be
against their Christian principles, whereas their actions subsequent
to the 4
th
of March 2010 clearly indicate that they would not hesitate to
invoke Biblical texts to justify a violation of the sanctity of
marriage because they happened to have fallen in love with one
another.
[17] In the result of the aforegoing
I am satisfied that the plaintiff has proved that the defendant with
the required intent
was responsible for leading astray his former
wife, Suné and that the plaintiff is entitled to succeed with
its claim.
As far as damages are concerned, I intend to award a
composite amount in respect of adultery and the loss of the
plaintiff of
the consortium of his former wife. In that regard I
also take into account that the marriage of the plaintiff was under
some
stress as a result of the resentment of Suné to which I
have already referred above. I am, however, not persuaded that
such
problems as there were could not have been satisfactorily dealt with
in the process of marriage counseling had the defendant
not
interfered as he did. I make the following order:
Judgment is granted for the
plaintiff in the amount of R75 000,00;
The amount of R75 000,00 bears
interest at the rate of 15,5% per annum as from date of this order
until date of payment;
The defendant is ordered to pay
the costs of the plaintiff on the applicable High Court scale of
tariff of fees and disbursements.
L I VORSTER: AJ