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[2004] ZAFSHC 169
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N v B (3398/2003) [2004] ZAFSHC 169 (22 October 2004)
IN
THE HIGH COURT OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Case
No. : 3398/2003
DATE:
22 OCTOBER 2004
In the matter
between:
N
.....................................................................................................................................................
Plaintiff
And
B
.................................................................................................................................................
Defendant
CORAM: KRUGER J
HEARD ON: 12, 13,
15 OCTOBER 2004
JUDGMENT: KRUGER
J
DELIVERED ON: 22
OCTOBER 2004
[1] Plaintiff
instituted action against the defendant for alienation of affection
and adultery. The defendant denies the alienation
but as to the
adultery, pleads as follows in paragraph 3 of her plea:
“3.1
Verweerderes erken dat sy gemeenskap gehad het met die gemelde Mnr N
tydens die bestaan van die huwelik tussen
Eiseres en gemelde V
terwyl sy bewus daarvan was dat Eiseres en gemelde V getroud was,
maar ontken sy dat sy sedert 2000 en te die
plekke soos beweer deur
Eiseres owerspel gepleeg het met gemelde V;
3.2 Verweerderes
pleit dat alhoewel sy kennis gedra het van die huweliksband tussen
Eiseres en gemelde Mnr N, sy nie animus iniuriandi
gehad het nie en
ontken sy dat haar optrede onregmatig was omrede sy te alle materiele
tye onder die redelike en bona fide geloof
verkeer het dat Eiseres en
gemelde V nie meer as getroude eglede saamgewoon het nie, dat hulle
van tafel en bed geskei was en dat
hulle nie meer huweliksregte
gedeel het nie;
3.3 In die
vooropstelling, ontken Verweerderes dat gemelde gemeenskap owerspel
daargestel het op grond waarvan en/of onder omstandighede
wat ‘n
skuldoorsaak vir skadevergoeding daarstel.”
[2] The plaintiff
was married to Mr N on 30 July 1988. They had 4 children - A. aged
15, C. 12 and a half, S. 9, A. 4 and a half
(born on [day/month]
2000). The plaintiff and Mr N were divorced in this Court on 11 March
2003. The summons for divorce was issued
during or about March 2002.
[3] Plaintiff
testified that they resided in Durban when they were married. They
stayed there for about three years. Then they moved
to M. Mr N was a
qualified chartered accountant. He got a job where he was the
financial manager. This was about in April 1992.
The eldest child was
then two and a half years old. They are English speaking. There was
no English school and they moved after
three years during the year
before which the eldest child had to go to school in order to put
this child through pre-school. They
stayed there for five years until
about the year 1997. Then she moved again.
[4] Plaintiff
testified that she and Mr N intended to emigrate. At first she was
not keen, but Mr N was set upon it. The first time
they went was
during June 1997. All of them went and the three children they had at
the time, for three weeks. They looked at opportunities
to emigrate.
[5] In October 1998
they went for the second time. They all again went. That was a short
holiday. They looked for jobs and three
of the visas were then
stamped.
[6] In January 2000
they went for their third visit, for one week, to look for a position
for Mr N.
[7] Their fourth
visit was in May - June 2000 which lasted six days. A. had by then
been born. At that stage they left the two elder
children and took
the two little ones because they had to get the visa of the youngest
stamped.
[8] She testified
that during the period 1998 to 2000 the marriage relationship was
fine. They were planning to go overseas at the
end of that period.
[9] Mr N wanted to
go three months before her and she then
planned to get a
container for their furniture. There was at that stage she said no
sign of any breakdown in their marriage and
all of them were exited
to emigrate. Then, about two weeks later, he retracted and said to
her that it was not for discussion,
we are not going anymore. At that
stage he was commuting. She felt that they needed to live together as
a family again. She says
that Mr N felt that she should move and she
and the children then moved at the end of 2001. She said that she
could just as well
live far from him but that was not acceptable to
Mr N. She said she looked at houses and then Mr N bought her a house.
Then she
saw Mr N every weekend and when he came home they slept
together Friday, Saturday and Sunday. There were no problems in the
marriage
at that stage.
[10] On 14 February
2002 it was Valentine’s Day. They went out. She sent him a
present and they had a happy evening and slept
together.
[11] About two weeks
later, one Saturday afternoon, towards the end of February 2002 Mr N
was at her house. He was in his son’s
bedroom and said to her
that he wanted a divorce. Up ’to that point his behaviour had
been fine and there had been
no lack of affection
and no arguments. This was a bombshell to her and she asked him why,
but he denied an affair. Later on she
got a summons after he had
still been coming back home and she said that they even continued
with sexual relations. She had actually
asked him when she was going
to get her summons. They still slept together in March. She said she
only got the summons two months
later. Mr N left towards the end of
February and she said to him if that is what you want, you must pack
up and go and he then
packed his things and did not come back to the
home.
[12] The plaintiff
testified that she had known the defendant for about 12 to 13 years
for as long as she and Mr N worked together.
Plaintiff testified that
the defendant moved in with Mr N during about August 2002 and they
are still living together. (The defendant
testified that she and Mr N
intend getting married during March 2005.)
[13] The plaintiff
was asked in chief about her feelings for Mr N. She responded: “I
still love him. He is the father of my
children. We have memories.”
She says that if he had admitted to the affair she would have taken
him back. In summary she
said that their marriage was fine until
February
v 2002. They had
their ups and downs, but they had children and she said “my
marriage was fine”. When asked how she
feels now, she said: “I
am finished. I booked myself and my children into therapy.” It
is now 18 months further and
she lives elsewhere. She gets
maintenance of R12 550,00 per month.. She never worked during the
marriage. She went to start work
about two months ago and has still
not started earning any money. When asked about her dignity, she
said: “Your friends are
married. Children have divorced
parents. Children carry a stigma.”
During cross
examination she was asked about the summons approximately a month
after Mr N had told her of the divorce, she phoned
her attorney and
he said there was no summons and she asked how long it takes. It was
put to her that she was eager to get the
summons and she said she is
a serious person. She was devastated and a whole month had gone by
without anything happening. She
said they were sitting on air and if
this was where they were going she wanted to get it done. She said
that Mr N had left at the
end of February. She told him to go and
take his clothes and move. After that he came to visit the children
during weekends. She
was devastated but they did not talk about the
matter. She says they still had intercourse because he still loved
her. He wanted
the divorce merely because of the defendant, was her
feeling. The defendant was the boss’s daughter.
[15] When asked
about adultery, she admitted that the defendant had cheated on her
before. The first time was when the youngest
child was about eighteen
months old and he came home with love bites. She was hurt. She said
Mr N is a womaniser. She said he puts
his hands up women’s
skirts at functions and squeezes their boobs right in front of where
she is. He carried on with the
ladies, but she says he always came
home to her. It was put to her that in the particulars of claim of
the divorce she had said
the plaintiff committed adultery on various
occasions. She said that concerned her, but that was something which
she accepted throughout
the marriage. She said: “I took a lot
of nonsense from him. I put up with a lot from him”. The anger
in her came up.
“It was part and parcel of our marriage. He had
been doing it for such a long time. I put up with it, because I loved
him.”
s# '
f16] She admitted
that Mr N drank a lot. He enjoyed getting himself hammered, as she
put it. It was put to her that she pulled him
out of the pub and made
a scene and she denied that. She said drinking was stress relief for
him. That is the type of person he
is and she accepted him like that.
[17] As to assault
she testified that he had assaulted her in the kitchen once. He was
sitting on the couch and was looking at her
and for no reason he
snapped, he grabbed her and pushed her back. She was at that stage
seven and a half to eight months pregnant.
He had hit her before
that. He had a bad temper. The first time, it happened twice. He just
snapped. He is an affectionate person.
They went on holiday together,
but these assaults did happen.
[18] It was put to
her that she had said in the divorce particulars of claim that the
defendant lied to her. She admitted that was
so and Mr N also
admitted that. She said it was just towards the end. When pressed
further upon this, she said that Mr N is a type
of person who will
say what he needs to say. He is a person who does not mind lying. He
is a lying person. He has to cover himself.
She said on the other
hand she was a Christian and believed that she had to speak the truth
and she did. I shall revert to the
veracity of her evidence later on.
[19] The plaintiff
was asked whether the defendant mentally abused her and she said that
he played mind games with her. He was not
a confrontational person,
but he would play mind games with her.
[20] It was then put
to her that this was not a happy marriage and she said yes it was not
a perfect marriage, but it would have
been in order if the defendant
had not come onto the scene. She felt that the defendant was the
reason for the breakdown, but could
take the matter no further than
that.
[21] The plaintiff
was asked whether she had brought the children with her for this
court case. She admitted that she had brought
the children with her.
She said she had told the children the truth; namely that if it was
not for the defendant they would still
have their father. Also one
day they had been in church when the minister had given a sermon on
adultery and the one child had
then said to her: “Mommy
. isn’t this
what Daddy is doing?” It was put to her that she told Mr N that
she was going to bring the children to
Court to see the woman and Mr
N and to see what they have done to them. She admitted that she had
done that and said the children
were indeed there.
[22] In summary she
was again asked about their life. She said he had come home every
evening when he was working. (Mr N said that
he came back two or
three nights per week. He had meetings on other days. There was also
accommodation for him elsewhere.) Mr N
testified that he did not even
know where the house was. She said she had to give him directions how
to get there, but they had
chosen the house together. She was also
asked whether at the end of 1999 beginning 2000 Mr N did not talk to
her about the house
that he wanted to buy. She said he had indeed
done so but at that stage they were intent on emigrating and she felt
it would be
a waste of money to buy the house. The point which Mr N
made and which was made on behalf of the defendant was that she was
not
interested in getting the family together again. She was just
interested in her own affairs.
[23] Asked about the
move, she said that Mr N had said to her he did not want her to stay.
She had to go away. His version was a
different one, that she
actually chose to go. Mr Williams, on behalf of the plaintiff, tried
to make the point that in the rule
43 application of their divorce Mr
N had said that it was his decision to go whereas he now denied it.
The context of that document
however shows that it is more relevant
to the schooling at the time. Another important point relates to
whether the plaintiff and
Mr N were living together at the time she
was living elsewhere during the last part of the marriage. She said
they were sleeping
together Friday, Saturday and Sunday and he said
he was sleeping in his son’s bedroom. In this regard the
evidence of both
of them that the conversation relating to the
divorce took place in the son’s room indicates to me that he
was sleeping in
his son’s room. He testified, which was not
contested, that he was lying on the bed in his son’s room,
where he slept
when he was at home, on the Saturday afternoon, when
she came in - and the conversation about the divorce started. That
indicates
to me that he was not living in the same room with her and
that his evidence is to be preferred above her evidence. This is in
direct contradiction to the portrait she . tried to paint of a loving
caring marriage.
[24] Plaintiff was
asked about the question of prostitutes. She said that yes when they
cancelled the overseas trip Mr N had said
to her that he had been
sleeping with prostitutes. That was when they were on their way. She
says: “I was quite shocked.
I did not believe him.” Asked
about why she consulted a private detective she said she thought
there might be some truth
in it. She said she had told the private
detective to watch Mr N to see if he is still seeing this type of
prostitute. This I find
not the action of a person who is concerned
about the marriage and wants to save the marriage. On the contrary
that is rather symptomatic
of a very troubled marriage.
[25] A further
troubling aspect of the plaintiff’s evidence relates to the
question about the abortion of A. Again this is
evidence she did not.
give in chief but she readily conceded that there was talk about an
abortion of A. at the time she was to
be born. She said that the
defendant did not want A. and wanted her to have an abortion. His
version was that because of the age
of the plaintiff at that stage
there was a risk of the child being mentally or otherwise defective
and therefore they should rather
have an abortion. She did have the
tests and did have the child. Again these are not the actions of
parties who have a caring and
loving relationship.
[26] It was put to
the plaintiff in cross examination that she told people that Mr N was
having an adulterous affair with the defendant,
that she spread the
news. This she readily admitted. She was not ashamed of it. Again it
appears that she did not phone her friends
to get sympathy. It is
rather to me an indication of a person who tries to harm someone else
and merely wishes to obtain some satisfaction
of telling stories of
people she does not really care about. At that stage it appears clear
to me that it was obvious that her
marriage was over. The divorce
proceedings were pending and she was not really concerned about the
divorce. She simply wanted to
spread the rumours further.
[27] A further
aspect which emerged in cross examination was that at some stage
during the divorce proceedings, she saw Mr N in
a bar with his arm
around another woman who was not the defendant. Again this must have
indicated to the plaintiff that the defendant
was certainly not such
an important person in Mr N’s life to the extent that she had
been responsible for the breakdown of
the marriage.
[28]
In‘re-examination she said that she suspected an affair and she
said the story of the prostitutes might have been a smokescreen.
This
1 simply do not understand. Why she would have thought it was a
smokescreen and what type of smokescreen it was, I do not
understand
and why she appointed a private investigator to investigate it to
find out whether it was a so called smokescreen, I
don’t follow
what she intended to do. If she wanted to save her marriage, surely
she should have spoken to him about it and
considered counselling.
That she did not do. It is quite clear to me that their marriage was
not a stable relationship.
[29] In view of the
assessment of the evidence which 1 have given above it is clear that
where there is a conflict between the evidence
of the plaintiff on
the one hand and that of the defendant and Mr N on the other. I
prefer the evidence of the latter.
[30] Mr N testified
that in about July 1991 he worked and did not go home every night.
When the plaintiff went away the relationship
had started to
deteriorate. It was a blessing in disguise that he did not have to go
home every night. The plaintiff had secretly
sent the child away. An
apology was
demanded for the
plaintiff fighting with the coach and the child was then suspended.
Plaintiff refused to give the apology and the
child remained
suspended. When asked why he decided not to go overseas, he said
there were several reasons but the major one was
that he felt he was
not getting on with his wife at the time. The additional stress of
living with her under one roof he felt would
be impossible for him to
live with. He said he realised that she had been living here with
three servants. That would not be possible
overseas and also when
they had gone overseas, the two of them, he had lived with her for
five days. That was as he put it, “hell”
and he did not
think that would be possible. The other reason was that he would have
to take a significant decrease in earnings.
After he had come back he
looked at the available jobs and saw what he could earn and realised
that with the lower income they
would have to lower their standard of
living which would make life very difficult for him. He said in June
2001 there was no real
relationship and no . sexual relationship
between him and the defendant. He opened up to her and told her about
the type of life
he had been leading. He had said there was nothing
between him ..and the plaintiff. Another reason for his leaving the
plaintiff
was that he felt
they were living a lie. He was making as if he was a married man, but
yet he was living as a bachelor. This evidence
was confirmed by the
defendant who said that she and other people saw him as a bachelor.
He was always drinking and socialising
with the boys and she very
seldom saw him with his wife and people did not experience him as a
married person.
[31] He also
testified about his dealings with prostitutes and said that the
plaintiff had accused him of being the father of one
child. It
subsequently appeared that this might have been the child of the
defendant they were referring to and he had said well
go and look at
the child and you will see it is not my child, but that evidence is
not clear at all.
[32] In cross
examination Mr Williams tried to stress the fact that all of a sudden
in August 2002 and after the divorce proceedings
were pending, the
relationship between Mr N and the defendant all of a sudden started
up. He said it was a type of whirlwind romance.
Mr N was clear that
this was not the case. He said they had a type of relationship, but
certainly not a sexual relationship and
at that stage he simply went
to live with her. He said in 2001 he had approached the defendant,
but she did not respond to his
approaches and they had left it at
that. They were working together at the time. She was still married.
Nothing happened. Then
something happened later on. Looking back over
events one has to be careful to distinguish between causality and
events which follow
upon each other. The fact that after the
plaintiff and Mr N had separated he then embarked on a relationship
with the defendant,
does not mean that that had existed previously or
had caused the break-up. Even if it had, as I shall presently point
out, that
still does not give rise to a cause of action for
alienation of affection.
[33] During cross
examination Mr N listed the grounds for his divorce:
I
(i) Already during
2001 there was no longer a relationship. He was living apart from
her.
. (ii) . The general
manager had acted contrary to his contract and was suspended. He had
been a good friend of Mr N and a mentor
and this incident had a
sobering effect on
Mr N.
There was a strike
and he had to deal with that at the factory.
(iv) The defendant’s
brother had a brain tumour.
(v) Early in June
2002 his sister was diagnosed with a brain tumour. Mr N then
testified when these things happen you sit and start
thinking of your
life. He said he hates hypocrites. He was living the life of a
hypocrite. He was married yet he was not living
a married life.
(vi) Mr PM, a friend
of his, went out with Mr N and they were discussing the defendant who
had actually had the courage of moving
out of her house. They
discussed the issue and they said that the defendant had the guts to
go with her convictions. Mr N says
that was a life changing event.
After that he had the courage to tell the plaintiff that he would be
moving out.
(vii) Another
important incident concerned a person by the name of RY who said to
him: “Mr N what are you doing?” She
said her biggest
regret was that she had not left her husband, Mr G, twenty years ago.
She did it for the children, but they had
told her it was no good,
she should have moved out earlier.
[34] After all these
events and in particular the last couple of events, namely the
discussion with Mr PM and that with RY, Mr N
had decided to take the
step of getting a divorce. Asked further why he did not get divorced
in 1995 he said he believed it was
wrong to do so. His mother had
said that one must live in the bed that you make. Her father had told
her one does not get a divorce
because of the stigma of the children.
In 1995 his sights were set elsewhere. When he was asked what
happened in 2002 he said it
was a combination of events. If one looks
back over this marriage and the events described by John and
especially the last few
events of his discussion with the other
people about the divorce and his seeing that the defendant had the
courage of her conviction,
then one has to understand that it was
indeed a combination of events which then led him to decide. There is
simply no evidence
that the defendant enticed him away.
J testified that the
plaintiff had had various other relationships subsequent to the
divorce. When he was asked whether the plaintiff
was distressed, he
said he did not think so. She propagated the story. When asked why
she did not move, J said that she had made
derogatory comment and
said that was a town of Dutchmen and she did not wish to live there.
That evidence was never given earlier
and there was no attempt to
contradict it. When it was put to J that she wanted to know the
reason for the divorce he said that
he tried to tell her but she
never listens. When told about the house that he purchased, he said
it was the only way he could get
her to move and he said she would do
nothing unless there was some or other financial benefit to her. It
is important to note that
these derogatory comments were not made
during his evidence in chief, but were made as responses to questions
put to J in cross
examination. He did not try to run down the
plaintiff, but when pressed he gave evidence as to what he thought of
her. During re¬examination
J reiterated that the defendant never
even went so far as to say to him that he must make up his mind. He
said there was no influence
from her. Again this is uncontested
evidence.
[35] The defendant
testified. Her testimony largely confirms the evidence of J. She said
he lived like a bachelor and she said in
September already she was
very unhappy in her own marriage, but she did not discuss that with J
and she said she did not experience
John as a married person because
he lived the life of a bachelor. She was asked whether John had
played any role in her decision
to get divorced and then she said
definitely not. When asked whether she had played any role in his
divorce, she said not that
she knows about. She said that because she
did not know his reasoning. She was of the impression that there
wasn’t a marriage
relationship between him and plaintiff. When
it was put to her that the plaintiff was humiliated, she said she did
not see that
there was a problem. Her impression was that their
marriage was not a good one. Her testimony was that when she first
decided to
have intercourse with J it did not have a particular
influence on her decision that plaintiff and J were not living
together. She
says even if that had not been the case she was going
though a divorce at the time and the fact that she and defendant were
not
working together anymore at that stage also influenced her. She
said she was vulnerable at the time and would probably have done
what
she did in any event. As to morality she said when she decided that
her marriage could no longer go ahead, she was amenable
to another
relationship. As to the influence she might have had on J she said
she did not know whether she had perhaps indirectly
influenced him
because of the fact of his evidence which he gave namely that he had
seen that she had had the courage of her convictions.
She was asked
about her future with John. She said everyone has baggage. She
accepts his baggage. He is an honest person. She is
willing to live
with that.
[36] I found the
defendant a satisfactory witness. She is a woman in a managerial
position in a workplace still dominated by men
and to that extent
sensitive to her position, but certainly not mendacious and she did
not try to entice John to leave the plaintiff.
[37] In summary on
the plaintiff’s evidence I find her a poor witnbss. She made a
bad impression in the witness box. She.
interrupted counsel often.
Her answers were contradictory and the picture which emerged of the
marriage during cross examination,
was a vastly different one from
the happy marriage with one or two ups and downs she tried to portray
in her evidence in chief.
As to the bland allegations in the
particulars of claim of adultery, assaults, alcohol abuse,
womanising, prostitutes, nothing
of that was said in her evidence in
chief and all that had to be drawn out. During cross examination I
find her a wholly unsatisfactory
witness.
[38] Both the
defendant and J gave carefully considered answers and I do not find
their evidence improbable or untruthful in any
respect The most
serious allegation made in this regard by Mr Williams, is the fact
that J in his rule 43 affidavit said about
the move that it was his
decision whereas the evidence was now that it was actually the
plaintiff’s decision. Read in context
what was addressed in the
rule 43 affidavit was not so much who decided as to the question of
what type of schooling it was. The
other criticism levelled against J
during his evidence, was that in the plea to the counter claim he had
denied the adultery whereas
in his evidence he admitted it. Again
that plea is a normal type of pleading that the grounds for divorce
are denied to be those
alleged by the defendant and repeated to be
those of the plaintiff. I do not believe that any criticism can be
levelled against
John for that reason either.
[39] There was no
evidence at all that the defendant had enticed J to leave. There was
a troubled marriage and there is no evidence
at all, even by the
plaintiff that the defendant wanted him to leave the plaintiff and
come and live with the defendant. It is
simply something which
happened when the divorce proceedings were pending and there is no
evidence to support any enticement by
defendant. The defendant denied
that she had asked him to leave and J also said that nothing of that
happened. On the evidence
before me I can certainly not find that
there was any enticement at all. J is clearly an intelligent person.
He carefully considered
his answers. He freely admitted his
relationships and the deficiencies in his character as to womanising.
He admitted that he did
lie as to his whereabouts to the plaintiff
and said that he- did not lie about other things. In chief he did not
attack the character
of the plaintiff but in cross examination i he
did say some unflattering things about her, for instance . that money
was very important
to her and that she was not concerned about him.
He also said that she had had several relationships since the divorce
which evidence
was not disputed and this evidence gives the lie to
her evidence of this loving husband which she would take back
tomorrow.
ALIENATION OF
AFFECTION
[40] Alienation of
affection is a difficult cause of action to prove. This is clearly
illustrated by the case of GOWER v KILLIAN
1977 (2) SA 393
(ECD). The
facts in that case were that the defendant had admitted that he was
responsible for the break-up of the marriage and
had offered to make
a certain payment. The Court found that there was no affirmative
evidence of enticement by the defendant and
also found that the fact
that the wife left after being in defendant’s company, is not
enough:
“It must be
shown that the defendant coaxed the plaintiffs wife away from him,
that he talked her over and persuaded her to
leave him.”
(At 39’5 E -
F)
In that case the
defendant was found to be an unsatisfactory witness. In this case the
converse applies. I found the defendant and
J to be satisfactory
witnesses. There is no evidence of coaxing away. There is no evidence
of any causality and there is no basis
upon which the claim for
enticement can succeed. The claim for enticement must therefore be
dismissed. The fact that events happened
in time after each other,
does not mean that there was a causal connection. In life events
follow upon each other and looking back
upon them, one seems to be
able to discern events which led to each other. This one cannot
always do and one has to look at what
happened at the time. At the
time there was no enticement and no intention to entice.
ADULTERY
[41] J and defendant
both testified that they slept together for the first-time towards
the end of February 2002, and on several
occasions thereafter. The
first time was at a date after J had told plaintiff that he wanted a
divorce. As far as the defendant
and J were concerned, the marriage
relationship between plaintiff and J was over at that stage.
[42] In MELIUS DE
VILLIERS: THE ROMAN AND ROMAN
DUTCH LAW OF
INJURIES (1899 at p. 55) the following is stated:
“Thus, a
person who commits adultery with a married woman inflicts an injury
upon the husband, the dishonour of the wife bringing
with it also,
more or less according to circumstances, the dishonour of the
husband.”
It appears that the
mere fact of the intercourse with a married person, without looking
too closely at the intention of the defendant
means that adultery did
take place. This is clearly put by Van den Heever J.A. in FOULDS v
SMITH
1950 (1) SA 1
(A) at 11:
“Trouens enige
aanmatigende inbreuk op die regte van :n ander is verkleinerend,
selfs indien die dader ‘n ander oogmerk
vervolg het.”
He says that a
person who opens a cheese factory does not intent to create a bad
smell in the area, but the fact of the opening
of the cheese factory
has such result:
“Indien ek op
my perseel kaas maak is my direkte oogmerk om kaas te besit; maar
indien en daarby so stank veroorsaak dat jy
dit in jou huis eenvoudig
nie kan uithou nie, dan stel my aanmatigende en eiegeregtige gedrag
my bloot aan die actio iniuriarum”
(At 11).
[43] When committing
adultery the intention is not necessarily to inflict damage on the
other spouse. Van den Heever J.A. says that
is an inevitable result.
Several writers have commented on the question of intention and I
intend to deal with this aspect briefly.
In his dissertation
PERSOONLIKHEIDSKRENKING EN SKULD IN DIE SUID- AFRIKAANSE PRIVAATREG -
‘N REGSHISTORIESE EN REGSVERGELYKENDE
ONDERSOEK by P.C. Pauw
1976 Leiden the learned author says that in the initial cases that
Court did not deal specifically with
animus iniuriandi. Pauw says the
following at page 192:
“Die
skuldvereiste wat hier gestel word, is nog nie deur die howe ontleed
nie. Dit wil nie se dat daar noodwendig opset in
een of ander vorm
aanwesig moet wees nie. Dit is bes moontlik dat dolus eventualis
aanwesig kan wees, maar dit word nie vereis
vir aanspreeklikheid nie.
Indien dit die geval
was, sou dwaling ‘n
verweer gewees het, byvoorbeeld dwaling of die man van die
owerspelige vrou toegestem het of dat hy nie
sou omgee nie, soos in
die geval waar die man en vrou van tafel en bed geskei is. In so ‘n
geval doen die feit dat die partye
nie saamwoon nie, nie afbreuk aan
die eis van die onskuldige party nie. Soos daar reeds vroeer opgemerk
is: seksuele delikte lewer
probleme op omdat die skuld en moraal daar
nie suiwer te skei is nie.
In hierdie geval sou
mens ‘n cw//?a-konstruksie op die handeling kon plaas: as
redelike man moes die dader besef het dat hy,
deur owerspel te pleeg,
die dignitas van die man/vrou van sy mede-owerspelige kan krenk.
Hierdie culpa kom egter baie na aan ‘n
fiksie, aangesien daar
geen verwere hierteen bestaan nie. Aanspreeklikheid sonder werklike
skuld van die dader is dus nie uitgesluit
nie.
Hierdie is dus ‘n
tipiese geval van ‘n iniuria wat in die Suid- . Afrikaanse reg
‘n nuwe ontwikkeling ondergaan
het, maar nie ‘ meer inpas
in die actio iniuriarum, waarvoor dolus ‘n vereiste is nie.”
See also the
discussion of Amerasinghe, ADULTERY AS AN INJURIA IN SOUTH AFRICAN
AND CEYLON LAW in ACTA JURIDICA 1968 p. 111 and
specifically at p.
130
footnote 135 where
the author says:
“Once the
illegality is established there does not seem not to be any point in
discussing anything else. The question of dolus
is relevant to
determine whether the factum was delictual in nature. Further, an
evil intention must be proved if ‘evil intention’
means
‘improper motive’.”
[44] In his article
“Owerspel as onregmatige daad tussen eggenotes” P.J.J.
Olivier in the HULDIGINGSBUNDEL PROFESSOR
PANIeL PONT 1970 at p. 272
says that the action against a third person for adultery is based on
delict and there is an iniuria.
[45] In his
dissertation PIE PRIVAATREGTELIKE BESKERMING VAN DIE HUWELIK, J.C.
Sonnekus Leiden 1976 deals specifically with the
requirement of
intention at pages 253 and following. He says at page 253 to 254:
“Ten einde met
die actio iniuriarum te slaag, word volgens die heersende
Suid-Afrikaanse reg opset by die dader vereis.”
At page 254 he
refers to FOULPS v SMITH (which I have already referred to) where
Judge van den Heever simply says that the intention
is presumed.
There does not even need to be an allegation of intent. At page 255
the learned author says:
“Opset om die
daad te pleeg is nie gelyk te stel aan die opset om die
persoonlikheidsregte van die eiser te krenk nie. Regter
van den
Heever laat na om hierdie onderskeid te tref.”
Then he quotes from
page 11 of the Foulds-case:
“Die blote
feit dat beweer is ‘met mekaar egbreuk gepleeg’ is
voldoende om dit duidelik te stel dat beide partye
opset gehad het”
Sonnekus continues
to say:
“Uit
-Amerasinghe se behandeling van die opsetvereiste blyk dieselfde
verwarring tussen die opsetvereiste as skuldelement
en die vereiste
wilskeuse by die handelingselement ‘n Verweer van onkunde
omtrent die getroude status van die vrou, raak
wel die opset om
owerspel te bedryf, dog se nog niks omtrent die opset om die
persoonlikheidsregte van die eiser te krenk nie.
Nie sondermeer
beteken die verwerping van die
verweer dat opset
wel aanwesig was nie.”
Sonnekus goes
further and says that:
“Indien die
Suid-Afrikaanse reg reeds so ver gevorder het dat opset altyd vermoed
word in hierdie gevalle waar met die actio
iniuriarum geeis word, is
dit reeds na aan 4n onweerlegbare vermoede? Die navolging wat die
uitspraak geniet het, dui beslis daarop.
‘n Onweerlegbare
vermoede en 4n fiksie is dikwels moeilik te onderskei. Fiksies word
aangewend om die substansiele vereistes
van die reg te verander.
Dieselfde funksie word nie aan onweerlegbare vermoedens toegeskryf
nie. In hierdie geval van die eis om
troosgeld na owerspel wil dit
tog voorkom of dit dieselfde effek het. In Pearce v Kevan gaan r
Selke so ver om te beweer dat die
vordering baseer is op
‘...intentional as distinct from negligent, conduct on the part
of the defendant...5
Die voortgesette
toepassing van hierdie vordering met negering van die werklike
opsetsvereiste, dui m i daarop dat die vordering
om troosgeld
inderdaad daarsonder moontlik is ondanks die verklaarde vereistes van
die actio iniuriarum in die Suid-Afrikaanse
reg."
[46] This survey of
the Law can be concluded with reference to NEETHLING’S LAW OF
PERSONALITY, by Neethling Potgieter and
Visser where the learned
authors say at page 231:
“It goes
without saying that in order to succeed with the actio iniuriarum,
all the requirements must be met. In the first
instance, therefore,
it must be clear that the personality of the innocent spouse has
indeed been infringed. This may be a problem
where the spouses are
living apart from one another (whether in terms of an order for
judicial separation of otherwise). It should
be pointed out in
advance that ‘the fact that a separation exists does not in
itself, according to our law, disentitle the
husband from claiming
damages’. The claim for satisfaction is forfeited only if the
adultery caused neither loss of consortium
nor contumelia. This was
the case in Michael v Michael and McMahon. Here the plaintiff
neglected and deserted his wife. While she
and the children were
living apart from the plaintiff, she committed adultery with the
defendant. The court found that under the
circumstances there was
neither loss of consortium nor contumelia. With regard to the latter
Mason J stated:
I do not think that
it necessarily follows because a man has abandoned his wife that he
cannot recover for any contumelia inflicted
on him, but a strong case
is required. Here the
evidence is that the
adultery was not felt by the plaintiff as an injury or as an insult
to his honour, and that this action was
not brought until the
plaintiff found that there was some chance of the co-defendant being
able to pay damages.”
[47] One is here
dealing with a claim for a loss suffered by the plaintiff. Even if
the delict was committed because the intention
lies only in the fact
of committing the act with a married person, the question remains
whether any contumelia or loss of consortium
was suffered by the
plaintiff. That is the central issue in this case and it has been
necessary to deal with the evidence to the
extent that I have and to
deal with the law to the extent that I have in order to answer this
question. There appears to be an
almost irrebuttable presumption of
intent from the act. However even if there is deemed to have been
intent to injure it does not
mean that the plaintiff was in fact
injured. If not on the merits, it is relevant to quantum. The
plaintiff will only be compensated
if the Court is satisfied that she
did actually suffer damage, in either the loss of consortium or
contumelia.
CONSORTIUM
[48] I deal firstly
with the issue of consortium. In this regard mr Williams, for the
plaintiff, referred me to the case of GROBBELAAR
v HAVENGA
1964 (3)
SA 522
(N). With reference to English authorities the Court there
says at 525 E that it means the companionship, love, affection,
comfort,
mutual services, sexual intercourse, which all belong to the
married state. It appears to be an abstraction. He also refers (at
526 C) to the situation that it is the duty of spouses to consort
with each other and the third person who intentionally causes
the
wife or the one spouse to violate this duty, commits a wrong against
the other spouse. In PETER v MINISTER OF LAW AND ORDER
1990 (4) SA 6
(ECD) at 9 G - H the Court says that the concept of consortium is an
abstraction which embraces intangibles such as loyalty and
sympathy,
care and affection, concern, as well as the more material needs of
life such as physical care, financial support, the
rendering of
services in the running of a common household.
[49] On the evidence
that I have accepted (and I have said that I accept the evidence of
the defendant in preference to that of
the plaintiff and
especially the evidence of J) 1 accept that there was no consortium
between J and plaintiff for a long time and
especially there was no
consortium which could be broken at the time of the alleged adultery.
Therefore there can to my mind be
no damages at all awarded for any
loss of consortium because that had long ago been lost and certainly
was non existent at the
time of the adultery.
CONTUMELIA
In FOULDS v SMITH
1950 (1) SA 1
(A) the Court (at 10) says that contumelia is rather a
fact than a question of law. The following passage in the judgment of
Solomon
C.J. in VIVIERS v KILIAN
1927 AD 449
at 456 - 457 is
instructive, also because the facts resemble the present:
“There
remains, however, the claim for sentimental damages due to the injury
or contumelia inflicted upon him by the person
who has committed
adultery with his wife. And it is evident that the estimate of the
damages recoverable on this ground may vary
greatly. Take, for
instance, the case of a refined woman to whom her husband is greatly
attached, and who has been debauched by
some designing profligate.
The husband, out of his affection for her, is prepared to forgive her
and condone her misconduct, but
if he nevertheless decides to proceed
against her seducer, there is no reason why substantial damages
should not be awarded. Again
an extreme case on the other side would
be where the husband is married to a prostitute; in such a case it is
difficult to conceive
of a Court awarding any damages. The present
case falls between these two extremes, though it approximates more
nearly to the latter.
For, though, Mrs. Kilian can in no sense be
described as a prostitute, she certainly was a woman, as I have
already said, of low
moral character and of a very coarse nature, who
had very little idea of faithfulness to her husband. The dishonour
done to a husband
by adultery with a woman of that nature cannot be
estimated at a high figure. Indeed, it is difficult to understand the
mentality
of a man who, in circumstances such as are here disclosed,
could bring an action of this nature. One would have expected that,
if he decided to condone his wife’s offence, he would have been
only too anxious to cover up her misconduct instead of publishing
it
to the world by taking these proceedings and putting her into the
witness box to proclaim in open court her own adulterous intercourse
with the appellant. He can scarcely, one would think, be a man of any
delicacy of feeling;”
[50] As to the
factual inquiry, in the case of BRUWER v JOUBERT
1966 (3) SA 334
(A)
Judge Rumpff says that
there are several
factors which are considered in deciding whether there should be an
award for damages. He says the following:
“Nie net
verswarende omstandighede nie, maar ook omstandighede wat die skade
temper moet in ag geneem word, en hieronder sal
veral die moontlike
gevoelloosheid van die gehoonde, sowel as ‘n swak karakter van
die oorspelige eggenoot in oorweging geneem
word.”
(At 338 D - E)
The case of VAN PER
WESTHUIZEN v VAN PER WESTHUIZEN ANP ANOTHER
1996 (2) SA 850
(C) is
possibly the high
watermark for a plaintiff. There the plaintiff had brought the
defendant into his house and given the defendant
a job and the
defendant had abused that position and embarked upon an adulterous
relationship with the plaintiff’s wife.
The facts in the
present case are very different.
[51] The evidence
shows that defendant and J did not intend to insult plaintiff by
their conduct. There are several facts which
indicate that the
plaintiff is not entitled to any damages and did not suffer any
contumelia. They have already been listed in
the discussion of the
cross examination of the plaintiff and I again refer them briefly:
(i) The plaintiff
had several adulterous relationships during the course of the
marriage. He said there were five or ten such incidents.
Some of them
were with the same person. Some of them were one night stands but
there were several. Plaintiff testified that she
was aware of those
adulterous relationships and said that the first was eighteen months
after their first child was born.
(ii) J was involved
with prostitutes. She knew about this. She appointed an investigator
to confirm it. She was aware of this and
she accepted it. Her
evidence was that that was the type of person he is.
(iii) J assaulted
her. The assault she described was quite a serious assault while she
was VA to 8 months pregnant. That is the
assault which she
remembered, yet she was willing to live with that man. Again not
symptomatic of a great marriage.
(iv) J drank
excessively. Her evidence was that J enjoyed getting himself
"hammered”, as she put it. She also testified
of office
parties where he drank to excess. He testified that he was dragged
out to great embarrassment of himself and other people.
It is common
cause that he is a heavy drinker which she knew and accepted.
(v) The evidence of
the plaintiff was that he is a womaniser which is abundantly
confirmed by the evidence. He had his arm around
another woman during
the divorce. There were several one night stands. He was involved
with prostitutes. He liked to charm other
women. His evidence was
that it took him fifteen minutes to get a woman into bed. This was
the type of person he was and this is
the type of person the
plaintiff preferred to live with.
(vi) When J told the
plaintiff of the divorce she did not ask what the trouble in the
marriage was of what she could do to save
the marriage. She simply
asked whether
there was another
woman. She actually told him to take his things and leave. After some
time she asked when her summons was coming.
It is quite clear that
she was keen to get rid of this man.
(vii) The parties
had been drifting apart for a couple of years. They had been living
apart for a long time. They shared very little,
only the children.
His evidence was that he went home only to see the children. He was,
in the same position as a divorced person
coming to have visitation
rights with the children and simply staying in the house. He says he
was living in a different bedroom
and that evidence I have accepted.
The parties were therefore living apart long before. The divorce was
mentioned and the adultery
committed.
[52] One now
considers these factors to decide whether the plaintiff is entitled
to any damages in respect of contumelia. In this
regard Ms Van Zyl
referred to cases. The first is MICHAEL v MICHAEL AND McMAHON
1909 TH
292.
The facts in that case were that the plaintiff had totally
abandoned the defendant. The evidence was that the adultery was not
felt by the plaintiff as an injury or as an insult to his honour and
that the action was not brought until the plaintiff found that
there
was some chance of the co¬defendant being able to pay damages. In
those circumstances the Court found “I am satisfied
that the
plaintiff has not established a claim for damages on either ground.”
The Court found that the plaintiff failed to
prove any damages and
therefore did not grant any (at 293).
[53] The next case
is that of MASON v MASON AND ANOTHER
1932 NPD 393.
The facts in that
case were that at the time the parties had left each other and there
was a reasonable inference from the evidence
of the plaintiff that
she had definitely abandoned all idea of getting the other spouse
back. In those circumstances the Court
found that no damage could be
awarded for contumelia. It is of interest to note relating to
consortium that as the consortium had
long ceased. No damage could be
proved in respect thereof either.
[54] The third case
is STRYDOM v SAAYMAN
1949 (2) SA 736
(T) where the facts were that
the parties had not been living together since the adultery. The wife
testified that she could not
divorce the defendant because if she was
not at hand to restrain him, he would soon be in the gutter, but she
said that as a result
of his adultery, she would never be able to
trust him again. In that case the Court awarded a sum of five pounds
only. What was
taken into account there was the character and habits
of the defendant.
[55] The last case
relevant on this aspect, is the case of FRASER v DE V1LL1ERS
1981 (1)
SA 378
(D) where the evidence was that when the defendant stayed with
one Irma, the marital relationship between her and plaintiff had
already come to an end and the divorce action was pending. The Court
found that it was unable to find any causal connection between
the
admitted adultery and any loss of consortium and the Court says at
382 B - D:
“As for
contumelia, in view of the plaintiffs deplorable matrimonial record,
his cavalier attitude towards marriage generally
and marriage with
Irma in particular, his own adultery with Penny, his attempt to
mislead the Court by fabricating the May adultery
and Wagonwheels
Hotel incident, and his general mendacity, I am not disposed to
accept his assertion that the defendant’s
adultery with Irma
caused him humiliation and depression. The admitted adultery provided
the plaintiff with a good cause of action
which he exploited in the
divorce proceedings and attempted to exploit further in these
proceedings, but I am not satisfied that
it caused him any distress
or injuria whatsoever. Under the circumstances he is not entitled to
more than nominal damages."
The Court awarded
nominal damages of five rand. No cost order was made. These facts are
very similar to the facts of the present
case, and tie up to the
facts in VIVIERS v K1L1AN (above), where Wesseis J.A. said at 459:
“Again the lex
Julia did not give an action to the husband in the case of any kind
of wife. If she served in wineshops or
mixed with mimes or persons of
low degree, the husband could exact no penalty from a person who
commits adultery with her. This
shows that the civil law took into
account the character of the wife in estimating the contumelia
against the husband. The husband’s
character was also an
important factor in the case. When, therefore, as in this case, we
find that the husband has not lost the
consortium of his wife but has
retained her even
though he knew that
she committed adultery practically in a public street, and when we
find that the wife, by her own evidence and
by the letter she has
written, proves herself to be a coarse woman of low moral character,
we ought not to award substantial damages.
If I had sat alone in
first instance I doubt whether I should have awarded any damages, but
in the circumstances I am not disposed
to differ from my learned
brothers in reducing the damages awarded from £50 to £5.”
[56] Reverting to
the facts of this case there was very little to be lost by divorce,
if anything, and it does not appear to me
that the plaintiff suffered
any injury to her person at all. Having seen plaintiff in Court and
listened to the evidence, I am
satisfied that plaintiff acted more
out of a state of pique and spitefulness than genuine hurt. She is
not entitled to any damages.
The Courts have held that this type of
litigation should not be encouraged. (Viviers v Kilian (above) at
457.) It became quite
clear in the evidence of the plaintiff that her
main purpose if not the only purpose was simply to embarrass the
defendant and
J in public. That she has succeeded in doing. The
plaintiff testified, I am not sure how serious that concession was,
that this
litigation was not about the money. Why she should then
find pleasure in humiliating
them in this manner,
I have difficulty to understand.
[57] Plaintiff’s
financial situation, which is relevant to costs, is that she started
working two months ago. She has no income.
It appears that she must
be using the maintenance money she is receiving from J to fund this
litigation. 1 do not believe that
this litigation should be
countenanced. She wanted her day in Court and she has had that. She
has not proved that she suffered
any loss of consortium or contumelia
and to that extent is not entitled to any award at all. As to costs
it would not serve any
purpose to order her to pay the costs. It is
clear that if such cost order would be made, only the children would
suffer.Therefore
I propose to dismiss plaintiff’s claims and
make no order as to costs.
[58] The following
order is made:
(i) The plaintiff’s
claims are dismissed.
(ii) No order as to
costs is made.
On behalf of
Plaintiff: Advocate A. Williams
Instructed by
Honey & Partners Inc BLOEMFONTEIN
On behalf of
Defendant: Advocate C.van Zyl
Instructed by
Rossouws Attorneys BLOEMFONTEIN
/S Pieterse (wm)