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[2015] ZACC 18
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DE v RH (CCT 182/14) [2015] ZACC 18; 2015 (5) SA 83 (CC); 2015 (9) BCLR 1003 (CC) (19 June 2015)
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Heads of arguments
CONSTITUTIONAL COURT OF SOUTH
AFRICA
Case CCT 182/14
DATE: 19 JUNE 2015
In the matter between:
DE
...............................................................................................................................................
Applicant
And
RH
...........................................................................................................................................
Respondent
Neutral
citation:
DE v RH
[2015]
ZACC 18
Coram:
Mogoeng CJ,
Moseneke DCJ, Cameron J, Froneman J, Jappie AJ, Khampepe J,
Madlanga J, Molemela AJ, Nkabinde J and Theron AJ
Judgments:
Madlanga J (majority): [1] to [66]
Mogoeng
CJ (concurring): [67] to [72]
Order:
[66]
Decided
on:
19 June 2015
Summary:
Law of delict —
actio
iniuriarum
— injury to
personality —
contumelia
— loss of consortium — development of common law of
delict based on public policy — must consider constitutional
values — wrongfulness of adultery
Delictual claim against third party based on
adultery — continued existence of claim for adultery in South
African law —
right to dignity — right to privacy —
protection of marriage — constitutional rights of spouses and
third party
ORDER
On appeal from the Supreme
Court of Appeal (hearing an appeal from the North Gauteng High Court,
Pretoria):
1.
Leave to appeal is granted.
2.
The appeal is dismissed.
JUDGMENT
MADLANGA J (unanimous):
Introduction
[1]
Undertakings of fidelity – whether in
the form of
ho lauwa
,
go laiwa
or
ukuyalwa
[1]
or solemn vows or any other form dictated by various cultures or
religions – are no guarantee that adultery will not take
place
in marriage. In fact, adultery is probably fractionally younger than
the institution of marriage. In the legal context, when
a spouse
commits adultery, does the non-adulterous spouse have a right of
action in delict against the third party for injury or
insult to
self-esteem (
contumelia
)
and loss of comfort and society (consortium) of her spouse? If so, is
there justification for the continued existence of the action?
These
questions are at the centre of this application.
[2]
Until a recent pronouncement by the Supreme
Court of Appeal, the delictual action has been part of our law.
[2]
On appeal to it in this very matter, the Supreme Court of Appeal held
that the time had come to rid our legal system of this
claim.
[3]
It is that decision, which undoubtedly is of historical moment in our
jurisprudence, with which we must now grapple.
[3]
The
applicant, Mr DE, successfully sued the respondent, Mr RH, in the
North Gauteng High Court, Pretoria (High Court) for damages
arising
from adultery that occurred between Mr RH and Mr DE’s erstwhile
wife, Ms H.
[4]
Mr DE sued on the
actio iniuriarum
.
[5]
The claim was for loss of consortium and
contumelia
.
[6]
[4]
On appeal to it, the Supreme Court of
Appeal raised –
mero motu
(of
its own accord) – the question whether the claim should
continue being part of our law.
[7]
It invited written submissions on this issue from the parties.
In a unanimous judgment by Brand JA, the Court held
that on the facts
the applicant did not have a claim for loss of consortium against the
respondent,
[8]
but that, on the law as it stood, he may have a claim for
contumelia
.
[9]
This then brought to the fore the question the Court had raised
mero
motu
. In dealing with this issue,
the judgment canvassed the historical trajectory of the claim,
foreign law comparators, changing
societal norms and the detrimental
financial and emotional costs of an action of this nature. It
concluded “that in
the light of the changing
mores
of our society, the delictual action
based on adultery . . . has become outdated and can no longer be
sustained; that the time for
its abolition has come”.
[10]
[5]
Mr DE seeks leave to appeal to this Court
against that decision. This Court has elected to give judgment on the
papers without an
oral hearing.
[11]
Background
[6]
It is common cause that adultery did take
place. Intimate details of it were laid bare in a very raw and
intrusive way before
the High Court and then, to a lesser extent,
before the Supreme Court of Appeal. For purposes of this
judgment, I need only
state the facts very briefly.
Cohabitation between Mr DE and Ms H ceased on 23 March 2010 when
Ms H left the common
home. In June 2010 Ms H instituted divorce
proceedings. In September 2011 a divorce order was granted.
Mr DE
avers that the breakdown of the marriage was due to the
adulterous relationship. He maintains that the marriage
relationship
was a happy one until 2010.
[7]
Ms H claims that the marriage began to
deteriorate in late 2008. By late 2009 the seriousness of the
marital problems caused
her to consult a marriage counsellor.
She admits that she and the respondent became romantically involved
after she left
the marital home and that they only had sex much
later, at a time when the marriage relationship had broken down
irretrievably.
Leave to appeal
[8]
The applicant contends that the question
whether the delictual claim based on adultery should continue to
exist is an arguable point
of law of general public importance.
Yes, it is.
[12]
The survival or demise of a delictual claim invariably affects the
broader public, it is a discrete legal question and there
is some
merit in the appeal.
[9]
The application is also founded on
constitutional issues. The test for the grant of leave in
applications raising constitutional
issues is well-established and I
need not rehash it. The question raised
mero
motu
by the Supreme Court of Appeal
engages the development of common law in accordance with public
policy. Public policy is now
infused with constitutional values
and rights contained in the Constitution.
[13]
The applicant raises three main constitutional issues. First,
the Supreme Court of Appeal failed to develop the common
law in line
with the Constitution. Second, that Court did not take into
account the applicant’s right to dignity when
it abrogated the
delictual action based on adultery, as the action serves to protect
the dignity of the non-adulterous spouse.
Finally, that Court
failed to take heed of the value and importance of marriage and
family, acknowledged in section 15(3) of the
Constitution,
[14]
which he claims should be protected – under section 8 of the
Constitution – from interference through the continued
existence of the delictual claim.
[15]
[10]
This Court’s jurisdiction is engaged
both on the basis that an arguable point of law of general public
importance has been
raised and the matter is constitutional in
nature. The debate that follows plainly demonstrates that the
issues that the
applicant raises are arguable and they bear
reasonable prospects of success. Also, it is in the interests
of justice for
this Court to pronounce on the central question facing
us. Leave to appeal must be granted.
Continued existence of the claim
[11]
In essence, this is the only issue to be
determined. The answer to this question lies in whether
nowadays the act of adultery
meets the element of wrongfulness in
order for delictual liability to attach. Even though my
discussion has a number of headings,
the pivotal question concerns
wrongfulness and all those headings relate to it.
[12]
From this point onwards I borrow
extensively from the well-reasoned judgment of the Supreme Court of
Appeal and I am grateful to
that Court. That judgment deals
with the subject so extensively that, in essence, what this Court’s
judgment does is
to focus on the impact constitutional imperatives
have on the delictual claim.
[13]
Giving a brief historical background of its
development, the claim was recognised by the Appellate Division
[16]
in
Viviers
.
[17]
This has been confirmed several times since.
[18]
[14]
The
origins of the claim are deeply rooted in patriarchy.
Originally only a man had the right to pursue a claim against a
third
party that had committed adultery with his wife.
[19]
Wives were viewed as mere chattels.
[20]
And that probably explains why the claim was available only against
the third party, and not the wife who – in essence
– was
a co-wrongdoer. As time went on, South African courts began
questioning the discriminatory nature of the claim.
[21]
Making contentions based on Christian principles of fidelity, which
are applicable both to husbands and wives, Barlow advocated
that the
delictual claim be available to wives as well.
[22]
Not long thereafter the case of
Rosenbaum
v Margolis
declared that the claim was
available to wives.
[23]
The Appellate Division confirmed this in
Foulds
.
[24]
[15]
Reverting to the issue at hand, must the
claim continue to exist?
[16]
Without doubt it is open to courts to
develop the common law. This is a power they have always
had.
[25]
Today the power must be exercised in accordance with the provisions
of section 39(2) of the Constitution which requires that
common law
be developed in a manner that promotes the spirit, purport and
objects of the Bill of Rights. This entails developing
the
common law in accordance with extant public policy. In
Du
Plessis
[26]
Kentridge AJ quoted the case of
Salituro
with approval:
“
Judges
can
and
should
adapt the common law to reflect the changing social, moral and
economic fabric of the country.
Judges
should not be quick to perpetuate rules whose social foundation has
long since disappeared
.
Nonetheless there are significant constraints on the power of the
[J]udiciary to change the law. . . . In a constitutional
democracy such as ours it is the Legislature and not the courts which
has the major responsibility for law reform. . . .
The
[J]udiciary should confine itself to those incremental changes which
are necessary to keep the common law in step with the
dynamic and
evolving fabric of our society.”
[27]
(Emphasis
added.)
This
dictum
shows that courts have the duty to develop the common law whenever
that is warranted.
[28]
[17]
Public policy is now infused with
constitutional values and norms.
[29]
In
Barkhuizen
this
Court said:
“
Public
policy represents the legal convictions of the community; it
represents those values that are held most dear by the society.
Determining the content of public policy was once fraught with
difficulties. That is no longer the case. Since the
advent of our constitutional democracy, public policy is now deeply
rooted in our Constitution and the values which underlie it.
.
. .
What
public policy is . . . must now be determined by reference to the
values that underlie our constitutional democracy as given
expression
by the provisions of the Bill of Rights.”
[30]
(Footnote omitted.)
Also, public policy
does inform the wrongfulness element of delictual liability.
[31]
[18]
In this Court, although expressing himself
in the context of the Aquilian action,
[32]
Van der Westhuizen J said:
“
The
wrongfulness enquiry focuses on the conduct and goes to whether the
policy and legal convictions of the community, constitutionally
understood, regard it as acceptable. It is based on the duty
not to cause harm – indeed to respect rights – and
questions the reasonableness of imposing liability.”
[33]
[19]
In the context of the
actio
iniuriarum
under which the present
claim falls, the Appellate Division said:
“
In
determining whether or not the act complained of is wrongful the
Court applies the criterion of reasonableness – the ‘algemene
redelikheidsmaatstaf’ . . . . This is an objective test.
It requires the conduct complained of to be tested against
the
prevailing norms of society (i.e. the current values and thinking of
the community) in order to determine whether such conduct
can be
classified as wrongful.”
[34]
[20]
The
Supreme Court of Appeal in the instant matter acknowledged that it
had to analyse the
mores
of society (or public policy) in order to assess the currency of this
delictual claim but felt it unnecessary to analyse its continued
existence in the context of constitutional norms. The Court
held:
“
In the light
of this conclusion I find it unnecessary to consider the further
contention advanced by some of our academic authors
. . . which was
subscribed to by the defendant in argument, that the continued
existence of the action is in conflict with our
constitutional
norms.”
[35]
[21]
Any analysis of the
mores
of our society must include an assessment of constitutional norms as
Barkhuizen
detailed; public policy is now steeped in the Constitution and its
value system. The Supreme Court of Appeal’s analysis
stopped short of this.
[22]
I now turn to whether the act of adultery
is wrongful for purposes of the claim in issue here. If it is
not, that is the end
of the matter as there can be no delictual
liability without wrongfulness. Based on the above test,
changing – and
indeed softening – attitudes towards
adultery bear relevance to public policy and, therefore,
wrongfulness.
Changing attitudes
(a) South Africa
[23]
Unthinkable pronouncements –
obviously informed by attitudes towards adultery at the time –
would sometimes be made
not only about adultery, but about children
born of adulterous relationships.
[36]
Over time there has been a softening of attitudes towards adultery.
[24]
In
Green v
Fitzgerald
De Villiers CJ pronounced
that the criminal offence of adultery had been abrogated by disuse.
He said:
“
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”.
[37]
[25]
The continued existence of the contentious
claim was questioned by a South African Court more than seven decades
ago. The
Court said:
“
There is
something . . . 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.”
[38]
The
Supreme Court of Appeal judgment has a useful collection of
authorities that have opined on this issue.
[39]
Academics overwhelmingly take the view that the claim is outdated and
should be abolished.
[40]
A notable exception is Neethling.
[41]
He finds judicial support in
Wiese v
Moolman
.
[42]
The High Court in the instant matter followed
Wiese
which it considered to have been decided correctly.
[26]
On concrete changes, I have touched on the
abrogation of adultery as a crime.
[43]
Central to the applicant’s case is a theme that the delict
founded on adultery is intended to protect marriage.
In that
context, it is not without significance that divorce laws have long
been relaxed to make it easier for spouses who no longer
wish to be
bound by a marriage that does not work to obtain a divorce.
Before the relaxation, divorce could only be obtained
on
circumscribed grounds: adultery; malicious desertion; incurable
insanity; and habitual criminality. This was altered by
section
3 of the Divorce Act,
[44]
which made it possible for a marriage to be dissolved on the basis
that it had broken down irretrievably. I am not mentioning
this
to suggest that the value of marriage as an institution has
diminished. Quite the contrary is true. This Court
has
expressed itself favourably towards the institution.
[45]
[27]
What I do say, however, is that our modern
day idea of the sacrosanctity of marriage and its concomitant
protection by the law are
by no means what they were in, say, the
times of King Henry VIII, who – because of Roman Catholic
tenets, at a time when
there was not much separation between church
and state – could not even get a divorce and was forced to
decree that thence
forth the Church of England would be separated
from the papal authority of the Roman Catholic Church. Needless
to say, he
was then free to follow his heart’s desire, although
he was excommunicated by the Pope for this conduct. We have
come
a long way from those strictures and gymnastics. That is
because times are changing, and the law – though still
recognising
the sanctity of marriage – has moved with the times
both in its conception of the institution of marriage and the
punitive
extremes to which it will go to protect it.
(b) Comparative law
[28]
It may be of value to seek guidance from
foreign law on developments on the claim. But – because
of differences in context
– this is something that must be done
with the necessary caution. This Court has said:
“
The relevant
question then is what role foreign law can fulfil in considering this
case. Where a case potentially has both
moral and legal
implications in line with the importance and nature of those in this
case, it would be prudent to determine whether
similar legal
questions have arisen in other jurisdictions. In making this
determination it is necessary for this Court to
consider the context
in which these problems have arisen and their similarities and
differences to the South African context.
Of importance is the
reasoning used to justify the conclusion reached in each of the
foreign jurisdictions considered, and whether
such reasoning is
possible in light of the Constitution’s normative framework and
our social context.”
[46]
[29]
The Supreme Court of Appeal identified
English law as the origin of the private law claim for damages
arising from adultery in South
African law.
[47]
The action – which was called “criminal conversation”
in England – was abolished by legislation.
[48]
This has since been followed by New Zealand and Australia in 1975,
Scotland in 1976, Ontario in 1978, and subsequently by
almost all the
provinces of Canada.
[49]
In 42 states in the United States of America the action has been
abolished or severely restricted.
[50]
[30]
While at one time adultery was punishable
as a criminal offence in France, the Netherlands, Germany and
Austria, it no longer exists
as a crime in any of these countries;
nor do civil claims exist in these jurisdictions.
[51]
As long ago as 1952, an unnamed professor at the
University of Vienna is reported to have said the continued existence
of an action
for damages for adultery was “utterly repugnant to
modern ideas”.
[52]
He continued:
“
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.”
[31]
The German position was emphatically
articulated in a case before the Bundesgerichtshof,
[53]
which rejected a plea for the development of German law to recognise
the claim. The Bundesgerichtshof held:
[54]
“
[N]o
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. . . . [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.”
[55]
[32]
The majority of other jurisdictions based
on English civil law have also disposed of the claim.
[56]
These nations include the Republic of Ireland,
[57]
Barbados,
[58]
Bermuda,
[59]
Jamaica
[60]
and Trinidad and Tobago.
[61]
[33]
To the extent I could ascertain, the
position in Africa reveals a chequered pattern.
[62]
I deal with only a few countries on the continent. Cameroon is
one of those countries where adultery is still a criminal
offence.
[63]
Kenya has recently introduced changes which appear to leave some room
for a claim; its exact nature is not all that clear
to me. The
Matrimonial Causes Act
[64]
allowed for a “husband . . . [to] claim damages from any person
on the ground of adultery with [his] wife”. This
was
repealed by the Marriage Act,
[65]
section 13 of which replaced the action with the following claim:
“
Despite the provisions of any other
written law—
. . .
(c) a spouse shall be
entitled to claim, in any action resulting from a negligent act,
omission or breach of duty, which causes
loss of the companionship of
the other, or damages in respect of that loss.”
[66]
[34]
Several African countries retain the action
for damages for adultery against a third party.
[67]
They include Zimbabwe,
[68]
Namibia,
[69]
and Botswana.
[70]
[35]
Seychelles is an example of a country that
has definitively disposed of the action for adultery. The claim
was repealed by
the Matrimonial Causes Act, which stated that
“[n]otwithstanding any other written law, the adultery of a
party to a marriage
shall not give rise to a claim for damages”.
[71]
Quite instructively, in
Rose v Valentin
the Supreme Court of Seychelles, quoting
Cosgrow
v Cosgrow
said:
“
The evolution
of the law within commonwealth jurisdictions over the last decade or
so demonstrates that there is no longer any turpitude
attached to
adultery.”
[72]
[36]
It is worth noting that in the Namibian
case of
Van Wyk
even as the Court upheld the claim, it acknowledged the softening of
attitudes towards adultery.
[73]
It accepted that societal
mores
in modern times have moved on from olden day perceptions of
adultery. It recognised certain core rights of each spouse as
an individual, especially the autonomy and individual agency of
each. In this respect, society no longer views it as
reprehensible,
without more, that a married person may meet and fall
in love with someone else. It said:
“
It may well
be that in this age, society views with less disapprobation than in
the past the commission of adultery.
There are also degrees of reprehensibility in the delict of
violating the marital relationship ranging from the isolated
chance
encounter to the sustained continuing invasion of the sanctity of the
marital relationship. It must however be remembered
that
marriage remains the cornerstone and the basic structure of our
society. The law recognises this still today and the
court must
apply the law. One can also not ignore the possibility that a
married person meets someone else, develops feelings
for that person
and falls out of love with his or her spouse without intending to.
But the way in which the ‘guilty’
spouse and third
party behave thereafter, due regard being had to the innocent party’s
personality rights, will determine
the extent of an award of damages
in an action for damages against the guilty party.”
[74]
(Emphasis added and footnote omitted.)
[37]
Taking the foreign law that I have tracked
as a whole, it appears that the general trend is towards the
abrogation of a civil claim
following on the heels of the even faster
paced international disposal of the crime of adultery. The wave
of change seems
to be moving – certainly preponderantly –
in one direction. I would be surprised if in recent history
there are
countries, let alone a significant number, that have
introduced more restrictive laws against the act of adultery.
[38]
Also, the retention of the claim by some
countries is not necessarily an indication that these countries would
not abolish it even
if called upon to do so. In certain cases
it may well be that the issue of abolition has never arisen for
judicial determination.
Quite mindful that we are yet to
pronounce finally on the issue, let us take South Africa as an
example. Had the Supreme
Court of Appeal not raised the issue
of its own accord, South Africa would still be counted amongst those
nations that retain the
claim. So, all that may be keeping some
countries where they are may be no more than a lack of the necessary
trigger; the
issue whether the claim should continue to exist may
simply never have been raised pertinently.
Constitutional significance of marriage
[39]
Where does the above discussion take us?
The thrust of the applicant’s argument says nowhere. Not
in the face
of the seal of constitutional significance of marriage
given by this Court. For this the applicant relies on
Dawood
[75]
and
Fourie
.
[76]
In
Dawood
O’Regan J said:
“
Marriage and the family are social
institutions of vital importance. Entering into and sustaining
a marriage is a matter of
intense private significance to the parties
to that marriage for they make a promise to one another to establish
and maintain an
intimate relationship for the rest of their lives
which they acknowledge obliges them to support one another, to live
together
and to be faithful to one another. Such relationships
are of profound significance to the individuals concerned. But
such relationships have more than personal significance, at least in
part because human beings are social beings whose humanity
is
expressed through their relationships with others. Entering
into marriage therefore is to enter into a relationship that
has
public significance as well.
The institutions of
marriage and family are important social institutions that provide
for the security, support and companionship
of members of our society
and bear an important role in the rearing of children. . . .
The importance of the family unit
for society is recognised in the
international human rights instruments referred to above when they
state that the family is the
‘natural’ and ‘fundamental’
unit of our society.”
[77]
(Footnotes omitted.)
[40]
More pertinently:
“
[I]t cannot be said that there is a more
specific right that protects individuals who wish to enter into and
sustain permanent intimate
relationships than the right to dignity in
section 10. . . .
The decision to enter
into a marriage relationship and to sustain such a relationship is a
matter of defining significance for many,
if not most, people and to
prohibit the establishment of such a relationship impairs the ability
of the individual to achieve personal
fulfilment in an aspect of life
that is of central significance. In my view, [legislation
interfering with the right to enter
into permanent intimate
relationships] would clearly constitute an infringement of the right
to dignity. It is not only legislation
that prohibits the right
to form a marriage relationship that will constitute an infringement
of the right to dignity, but any
legislation that significantly
impairs the ability of spouses to honour their obligations to one
another would also limit that
right.”
[78]
(Footnotes omitted.)
[41]
Without derogating from the above
pronouncements by this Court, it is crucial to look closely at the
context in which they were
made.
Dawood
concerned the insufferable impact on
marriage relationships of statutory provisions governing the
immigration of, and grant of residence
permits to, foreign spouses of
South Africans.
[79]
Of importance, there it was the law itself that rendered cohabitation
and the meaningful enjoyment of a marriage relationship
intolerable.
Similarly, in
Fourie
it was the law that precluded same-sex couples from getting
married.
[80]
In both these cases, the removal of legal obstacles amounted to the
protection of marriage.
[42]
Here, we face different considerations.
The applicant wants the law to use punitive measures to come to his
aid as the non-adulterous
spouse. In this case, the marriage
deteriorated without obstruction or intervention by the law.
The distinction is
not insignificant. It is one thing for the
law to protect marriages by removing all legal obstacles that impede
meaningful
enjoyment of married life.
[81]
It is quite another for spouses to expect the law to prop up their
marriage which – for reasons that have nothing to
do with the
law – is weakening or disintegrating.
[43]
Dawood
and
Fourie
do
not go as far as the applicant would like them to. Carnelly
observes that the time has come for us to say “[l]ove
and
respect are foundations of a solid marriage and not legal
rules”.
[82]
Those are within the control of the spouses themselves. After
all, it is they who undertook to be truthful and faithful
to each
other.
[83]
[44]
The words of the Bundesgerichtshof are
quite instructive:
“
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.
”
[84]
(Emphasis added.)
The obligation
pre-eminently rests on the spouses themselves to protect and maintain
their marriage relationship. Subject
to some cultural
variations,
[85]
love, trust and fidelity are the bedrock on which a marriage
relationship is built. Whittle or take that away, the
relationship
may perish. It is the spouses that must avert
anything negative befalling the foundation of their marriage.
International law obligations and the family
[45]
Of relevance to the applicant’s case
are some international instruments. The protection of marriage
and the foundational
role marriage plays in the formation of the
family unit forms part of this country’s international law
obligations.
[86]
Article 18 of the African Charter on Human and Peoples’
Rights
[87]
(African Charter) enjoins states parties to protect and assist “the
family”:
“
1. The family shall be the natural unit
and basis of society. It shall be protected by the State which
shall take care of
its physical health and morals.
2. The State shall have the duty to assist the
family which is the custodian of morals and traditional values
recognized by the
community.”
[46]
This does not make specific reference to
“marriage”. Indeed, based on our constitutional
values, the idea of a
family is much wider than married heterosexual
couples.
[88]
A family may take various forms, including lesbian and gay couples,
whether married or not, and with or without children.
That
notwithstanding, it cannot be gainsaid that “[m]arriage has a
central and special place,
and forms one
of the important bases for family life in our society
”.
[89]
It follows that the explicit injunction in Article 18 in respect of
the family does require – albeit implicitly –
that
marriage be protected and assisted. Our non-homophobic
constitutional ethos has led to the recognition of same-sex civil
unions.
[90]
In our context, Article 18 must find equal application to both
same-sex civil unions and heterosexual marriages.
[47]
Although express reference to assistance
and protection “of marriage” is not present, both the
Universal Declaration
of Human Rights
[91]
and the International Covenant on Civil and Political Rights
[92]
identify the right to marry and to found a family and talk of the
family as the natural and fundamental unit of society.
[93]
[48]
In the light of these international
instruments and the fact that adultery is deleterious to marriage
relationships, an argument
may be made that there continues to be
sufficient reason for the law to protect marriages from adultery.
[49]
Does the African Charter assist the
applicant? At first blush, it appears so. But, for the
same reasons I advanced when
dealing with this Court’s
judgments on the protection of marriage, there cannot possibly be any
cogent reason for this instrument
to be read to require of states
parties to strengthen a weakening marriage or breathe life into one
that is disintegrating on its
own. If the duty imposed by the
African Charter is not to be rendered nugatory, we must give content
to it. The Constitution
itself undoubtedly forms the basis for
the protection of marriage. This Court has reinforced this in
the
Dawood
-type
context.
[94]
That serves to comply with the duty imposed by the African
Charter.
[50]
The Universal Declaration of Human Rights
and the International Covenant on Civil and Political Rights –
which are no more
forceful than the African Charter – are
similarly unlikely to come to the aid of the applicant.
Determination on wrongfulness
[51]
On the yardstick for wrongfulness, the
Afrikaans language – in its characteristic expressive manner –
refers to the
algemene regsgevoel van
die gemeenskap
,
[95]
the rough translation of which would be “the community’s
general sense of justice”. This is a concept that
has
also been referred to as “the
boni
mores
of society”
[96]
or “the legal convictions of the community”.
[97]
All are about public policy. Does public policy – a
notion that is now informed by our constitutional values
– tell
us that the delictual claim founded on adultery must still be part of
our law? Put differently, in this context,
is it reasonable to
impose delictual liability?
[98]
[52]
The answer lies in the relevant
constitutional norms: those in favour of the non adulterous
spouse and those in favour of the
adulterous spouse and the third
party. What also comes into the equation are the softening and
current trends and attitudes
towards adultery.
[99]
The constitutional norms and changing attitudes are not necessarily
separate notions: constitutional norms also inform present
day
attitudes towards adultery.
[53]
Of relevance in respect of the adulterous
spouse and the third party are the rights to freedom and security of
the person,
[100]
privacy
[101]
and freedom of association.
[102]
These rights do not necessarily weigh less just because the two have
committed adultery.
[54]
The delictual claim is particularly
invasive of, and violates the right to, privacy. This very case
is illustrative of this.
The Supreme Court of Appeal dealt with
the abusive, embarrassing and demeaning questioning that Ms H
suffered in the High Court.
She 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”.
[103]
Likewise, in order to defend a delictual claim based on adultery, the
third party is placed in the invidious position of
having to expose
details of his or her intimate interaction – including sexual
relations – with the adulterous spouse.
That goes to the
core of the private nature of an intimate relationship.
[55]
It is so that at times a spouse may engage
in adultery even in instances where the non-adulterous spouse has not
committed any marital
wrong. And at times the adulterous spouse
may not even be desirous of ending the marriage relationship.
It is equally
true that there are factors that may make the act of
adultery less reprehensible and, in certain instances, not
reprehensible at
all.
[104]
For example, the conduct of the non-adulterous spouse might have
caused the marriage relationship to be so intolerable as
to drive the
spouse who ends up being adulterous into the arms of the third
party. Surely then, the rights of the adulterous
spouse and
third party to privacy, freedom of association and freedom and
security of the person can hardly be questioned.
The
non-adulterous spouse is less likely not to comprehend what it is
that drove the other spouse into a sexual relationship with
someone
else. I am not unmindful that hitherto the abusive conduct of
the non-adulterous spouse has always been relevant
to the quantum of
damages, and not the question of liability.
[105]
That is an approach more suited to the era that predates our present
constitutional dispensation. The antecedent question
is whether
– in the face of the overarching constitutional rights of the
adulterous spouse and third party – there
should be a delictual
claim at all.
[56]
Even where the adulterous spouse has not
been wronged by the other, it is life’s reality that sometimes
marriages just do
not work out. In those instances the rights
of the two that have committed adultery do not become irrelevant.
This
affords an answer even to the view that a married couple
restricts its own right to associate and have extra-marital sexual
relations
with whomsoever.
[106]
[57]
I should not be misunderstood to suggest
that in instances where there is reprehensibility on the part of the
adulterous spouse
and third party, their rights count for nought.
Little or no blame on the part of the adulterous spouse and the third
party
affords the least contentious atmosphere to illustrate my
point. Indeed, above I make plain that this is not about only
an
adulterous spouse who has been wronged by the non-adulterous
spouse.
[58]
What is the relevance of the adulterous
spouse’s rights as the claim is not against him or her?
It is this: the claim
has the potential of having a negative impact
on the adulterous spouse’s rights. The threat of
delictual liability
is undoubtedly an intrusion into the right of a
consenting individual to have a sexual relationship with whomever he
or she chooses.
[59]
We may easily be driven to conclude that
the third party’s constitutional rights count for nothing: she
or he has disrespected
and trampled on a marriage relationship.
But human relationships are such a multifarious complex that –
short of being
purely sanctimonious – we may find that the
third party’s conduct too is less reprehensible or not
reprehensible at
all. But I reiterate: reprehensibility is
immaterial. In any event, it is the parties to a marriage
relationship that
undertake to be faithful to each other, and not a
third party. Therefore, I do not believe that the third party’s
rights
become irrelevant.
[60]
The right of a non-adulterous spouse that
is implicated by the act of adultery is the right to dignity.
[107]
Not surprisingly, that is the right that the applicant asserts.
Undoubtedly, adultery has the potential to infringe the
non-adulterous spouse’s right to dignity. This Court has
previously held:
“
Given that
marriage is a highly personal and private contract, it would be a
blatant intrusion on the dignity of one partner to
introduce a new
member to that union without obtaining that partner’s
consent”.
[108]
[61]
Adultery, while very different to taking a
second spouse, entails a significant intrusion of a third party into
a person’s
most intimate relationship without their consent.
That intrusion is not made any less severe by present day attitudes
towards
adultery.
[109]
[62]
Nevertheless, this potential infringement
of dignity must be weighed against the infringement of the
fundamental rights of the adulterous
spouse and the third party to
privacy, freedom of association and freedom and security of the
person. These rights demand
protection from state intervention
in the intimate choices of, and relationships between, people.
This must be viewed in
light of current trends and attitudes towards
adultery both nationally and internationally.
[110]
These attitudes also demonstrate a repugnance towards state
interference in the intimate personal affairs of individuals.
[63]
I am led to the conclusion that the act of
adultery by a third party lacks wrongfulness for purposes of a
delictual claim of
contumelia
and
loss of consortium; it is not reasonable to attach delictual
liability to it.
[111]
That is what public policy dictates.
At
this day and age it just seems mistaken to assess marital fidelity in
terms of money.
[112]
Conclusion
[64]
The application for leave to appeal must
succeed but the appeal falls to be dismissed.
Costs
[65]
The applicant brought suit in terms of an
extant common law remedy the continued validity of which had been
confirmed as recently
as 2009.
[113]
It was the Supreme Court of Appeal that
mero
motu
raised the question whether the
claim should continue being part of our law and proceeded to
pronounce that it should not.
The applicant could not have
foreseen this. On the contrary, he was perfectly entitled to
bring suit based on what the law
was at the time. It is only
fair and just that there should be no order as to costs.
Order
[66]
The following order is made:
1.
Leave to appeal is granted.
2.
The appeal is dismissed.
MOGOENG CJ (Cameron J concurring):
[67]
I am indebted to my Brother Madlanga J for
the background and exposition of the law on adultery and the action
for damages arising
from adulterous conduct of one of the spouses.
I concur in that judgment. All this judgment seeks to do is lay
some
emphasis on and give perspective to certain aspects of the main
judgment.
[68]
The
essence of marriage and what it takes to sustain it was captured by
the Bundesgerichtshof as follows:
“
[M]arriage is
a human institution which is regulated by law and protected by the
Constitution and which, in turn, creates genuine
legal duties.
Its essence, however, consists in the readiness, founded in morals,
of the parties to the marriage to create
and to maintain it.”
[114]
This was also quoted
with approval by the Supreme Court of Appeal which added that “[i]f
the parties to the marriage have
lost that moral commitment the
marriage will fail, and punishment meted out to a third party is
unlikely to change that”.
[115]
[69]
I am in agreement with these views.
The law does and can only create a regulatory framework for the
conclusion of marriage
and the enforcement of obligations that flow
from it. It can also help ensure that barriers to family life
are removed.
[116]
The rest is in the hands of the parties to the marriage.
Barring exceptions, they decide freely to get married and
it is
within their ability to protect their marriage from disintegrating.
[70]
It bears emphasis, that marriage
essentially hinges on the “readiness, founded in morals, of the
parties to the marriage to
create and to maintain it”.
[117]
Like the Supreme Court of Appeal, I also believe that parties’
loss of moral commitment to sustain marriage may lead
to its
failure. For abuse of one by the other and other factors that
could lead to the breakdown of marriage are, in my view,
likely to
creep in when that commitment ceases to exist.
[71]
The
law cannot shore up or sustain an otherwise ailing marriage. It
continues to be the primary responsibility of the parties
to maintain
their marriage. For this reason, the continued existence of a
claim for damages for adultery by the “innocent
spouse”
adds nothing to the lifeblood of a solid and peaceful marriage.
[72]
I
reiterate my concurrence in the judgment by Madlanga J.
For the Applicant: D Smith SC and O Ben-Zeev
Instructed by Schoemans Attorneys.
For the Respondent: S Kuny and Z Ndlokovane
Instructed by Friedrich Incorporated.
[1]
SeSotho, SeTswana and Nguni – respectively
– for the counselling that takes place at traditional weddings
on the do’s
and dont’s of marriage.
[2]
As far back as 88 years ago the Appellate
Division recognised the claim for the first time in
Viviers
v Kilian
1927 AD 449
(
Viviers
).
Before that it was recognised in the then Cape Colony in
Biccard
v Biccard and Fryer
1892 (9) SC 473.
The recent pronouncement by the Supreme Court of Appeal was made in
the instant matter (
RH v DE
[2014] ZASCA 133
;
2014 (6) SA 436
(SCA) (
RH
)).
See
Foulds v Smith
1950 (1) SA 1
(A) (
Foulds
)
and
Bruwer v Joubert
1966 (3) SA 334
(A) (
Bruwer
)
at 337 and
Wiese v Moolman
[2008] ZAGPHC 246
;
2009 (3) SA 122
(T) (
Wiese
).
[3]
RH
id at para
41.
[4]
E v H
[2013]
ZAGPPHC 11. That adultery did take place is not at issue.
What is in issue is its timing.
[5]
This is the general remedy for the infringement
of personality rights. Its main aim is to protect plaintiffs
against wrongful
and intentional infringement of these rights and
allow for the recovery of damages if infringement is proved. Under
Roman-Dutch
law, the personality rights protected by this action are
bodily integrity (
corpus
),
dignity (
dignitas
)
and reputation (
fama
).
O’Keeffe v Argus Printing and
Publishing Co Ltd
1954 (3) SA 244
(C)
at 247-8.
Dignitas
essentially
functions as an umbrella for all personality rights apart from
physical integrity and good name and includes the concept
of
contumelia
.
See generally Neethling and Potgieter
Law
of Delict
6 ed (LexisNexis, Durban
2010) at 13-5 (Neethling and Potgieter). See also
Khumalo
and Others v Holomisa
[2002] ZACC 12
;
2002 (5) SA 401
(CC);
2002 (8) BCLR 771
(CC) (
Khumalo
)
at para 27, where this Court notes that “no sharp line can be
drawn between these injuries to personality rights”
and in
essence states that constitutional values imbue our understanding of
these rights.
[6]
E v H
above n 4
at para 17.
[7]
It appears from the papers before the High Court
that Mr DE did also claim on the basis of the action for
enticement. That
action is available when “a third
person, by persuasion or inducement alienates one spouse from the
other, and convinces
him or her to leave the matrimonial home”.
Neethling and Potgieter above n 5 at 353. The Supreme Court of
Appeal,
possibly erroneously, was of the view that this action was
not pleaded. It also expressed the view – and perhaps
correctly – that in any event, Mr DE was hopelessly short of
proving this claim on the facts.
RH
above n 2 at para 10.
Accordingly, it did not rule on the continued existence of that
claim at all. Before us, no
issue has been raised around that
claim. Therefore, there is no need for me to deal with it, or
indeed any other claim
other than for loss of consortium and
contumelia
.
[8]
The Supreme Court of Appeal’s assessment of
the facts was that loss of consortium between Mr DE and Ms H
occurred when Ms
H left the family home in March 2010 – a few
months before the adultery took place – and the parties lived
apart
and never resumed cohabitation.
[9]
RH
above n 2 at
paras 13-5.
[10]
Id at para 40.
[11]
Rule 11 of this Court.
[12]
Without getting into any detail, the test laid
down in
Paulsen and Another v Slip Knot
777 (Pty) Ltd
[2015] ZACC 5
;
2015 (3)
SA 479
(CC) at paras 20-3 is met.
[13]
Loureiro
and
Others v iMvula Quality Protection (Pty) Ltd
[2014] ZACC 4
;
2014 (3) SA 394
(CC); 2014 (5) BCLR (CC) 511 at para
34 (
Loureiro
);
Barkhuizen v Napier
[2007] ZACC 5
;
2007 (5) SA 323
(CC);
2007 (7) BCLR 691
(CC) at paras
28-9 (
Barkhuizen
);
Carmichele v Minister of Safety and
Security
[2001] ZACC 22
;
2001 (4) SA
938
(CC);
2001 (10) BCLR 995
(CC) at para 56 (
Carmichele
);
and
Brisley v Drotsky
[2002] ZASCA 35
;
2002 (4) SA 1
(SCA) (
Brisley
)
at para 91 of the concurring judgment by Cameron JA.
[14]
Section 15(3) relates to the right to freedom of
religion, belief and opinion, and states:
“
(a) This section does not prevent
legislation recognising—
(i) marriages concluded under any tradition, or a
system of religious, personal or family law; or
(ii) systems of personal and family law under any
tradition, or adhered to by persons professing a particular
religion.
(b) Recognition in terms of paragraph (a) must be
consistent with this section and the other provisions of the
Constitution.”
[15]
Section 8 provides:
“
(1) The Bill of Rights applies to all
law, and binds the legislature, the executive, the judiciary and all
organs of state.
(2) A provision of the Bill of Rights binds a
natural or a juristic person if, and to the extent that, it is
applicable, taking
into account the nature of the right and the
nature of any duty imposed by the right.
(3) When applying a provision of the Bill of Rights
to a natural or juristic person in terms of subsection (2), a court—
(a) in order to give effect to a right in the Bill,
must apply, or if necessary develop, the common law to the extent
that legislation
does not give effect to that right; and
(b) may develop rules of the common law to limit the
right, provided that the limitation is in accordance with section
36(1).”
[16]
As the Supreme Court of Appeal was then known.
[17]
Viviers
above n
2 at 449-450 and 457-9.
[18]
RH
above n 2 at
para 16. On cases that have previously confirmed the
existence, see, for example,
Foulds
above n 2 and
Bruwer
above n 2.
[19]
Carnelly “One Hundred Years of Adultery –
Re-assessment Required?” in Hoctor and Kidd (eds)
Stella
Iuris Celebrating 100 Years of Teaching Law in Pietermaritzburg
(Juta and Co Ltd, Cape Town 2010) (Carnelly).
[20]
Tennet “Damages for adultery; a criticism
of our law” (1952) 69
SALJ
96 (Tennet).
[21]
Carnelly above n 19 at 188.
[22]
Barlow “A Wife’s Claim to Damages
against a Female Co-respondent”
(1940) 57 SALJ 6
(quoted in
Carnelly id at 188).
[23]
Rosenbaum v Margolis
1944
WLD 147.
[24]
Foulds
above n
2.
[25]
See
Argus Printing
and Publishing Co Ltd v Inkatha Freedom Party
[1992] ZASCA 63
;
1992 (3) SA 579
(A) at 590G-H, where the Court, in
the context of developing the common law delictual action for
defamation, stated:
“
These are the rules which would be
applicable to the defamation of political bodies, if an action by
them is to be permitted.
And if it were to appear, in the
interests of legal or public policy, that the limits of lawfulness
are, in certain circumstances,
unreasonably wide or narrow our law
is flexible enough to adapt to the needs of the times.”
[26]
Du Plessis and Others v De Klerk and Another
[1996] ZACC 10
;
1996 (3) SA 850
(CC);
1996 (5) BCLR 658
(CC) at para
61 (
Du Plessis
).
This was again quoted by a unanimous Court in
Carmichele
above n 13 at para 36.
[27]
R v Salituro
[1991]
SCR 654
(Canada) at paras 666G-H and 670F-I (
Salituro
).
[28]
See also
Carmichele
above n 13 at para 36 where this Court held that—
“
the courts must remain vigilant and
should not hesitate to ensure that the common law is developed to
reflect the spirit, purport
and objects of the Bill of Rights.
We would add, too, that
this duty upon
Judges
arises in respect both of the
civil and criminal law, whether or not the parties in any particular
case request the court to
develop the common law under section
39(2).” (Emphasis added.)
[29]
Paulsen
above n
12 at paras 69-70;
Barkhuizen
above
n 13 at paras 28-9;
Carmichele
above n 13 at para 56;
Du Plessis
above
n 26 at para 24; and
Brisley
above
n 13 at para 91.
[30]
Barkhuizen
above
n 13 at paras 28-9.
[31]
Le Roux v Dey
[2011]
ZACC 4
;
2011 (3) SA 274
(CC);
2011 (6) BCLR 577
(CC) at para 122 and
Carmichele
above
n 13 at paras 37 and 39.
[32]
The action is described in
Coronation
Brick (Pty) Ltd v Strachan Construction Co (Pty) Ltd
1982 (4) SA 371
(D) at 377: “In essence the Aquilian action
lies for patrimonial loss caused wrongfully (or unlawfully) and
culpably”.
[33]
Loureiro
above n
13 at para 53.
[34]
Delange v Costa
1989
(2) SA 857
(A) at 862E-F (
Delange
).
The Afrikaans “algemene redelikheidsmaatstaf” means
“general reasonableness criterion”.
See also
Van
Jaarsveld v Bridges
[2010] ZASCA 76
;
2010 (4) SA 558
(SCA) at para 19.
[35]
RH
above n 2 at
para 40.
[36]
This is what was said in
Hoffman
and Others v Estate Mechau
1922 CPD
179
at 183:
“
I do not think it can be said to be
either just or expedient that bastard children, whose very existence
must have been a source
of humiliation and disgrace to the children
born in lawful wedlock, should be admitted as lawful children into
the family by
virtue of a subsequent marriage of the father with the
very woman whose illicit relationship with their father, the
children
born of lawful wedlock probably know embittered the life of
their mother and brought disgrace upon themselves. Such
legitimation
may be the source of much strife and unpleasantness in
the family and may operate very unfairly and unjustly upon the
children
of the lawfully wedded wife by wholly or partially
depriving them of their rights of succession as lawful issue.”
Needless to say, these utterances would not bear
scrutiny in our present constitutional dispensation. Not
surprisingly,
in
Makhohliso
[misspelt
Makholiso
]
and
Others v Makhohliso and Others
1997 (4) SA 509
(Tk) at 520G-I
the Court first disagreed with these views and then held that, in
any event, they did not accord with modern-day
notions of morality.
[37]
Green v Fitzgerald and Others
1914 AD 88
at 103.
[38]
Rosenbaum
above
n 23 at 158.
[39]
RH
above n 2,
commencing at para 21.
[40]
The Supreme Court of Appeal identifies the
following: Church “Consortium Omnis Vitae” (1979) 42
THRHR
376
at 380-1; Hahlo
South African Law of
Husband & Wife
(1980 Supplement to
4 ed) at 31; Labuschagne “‘Deinjuriering’ van
Owerspel’” (1986) 49
THRHR
at 336; Cronjé and Heaton
South
African Family Law
2 ed (2004) at
50-1; Erasmus et al
Lee & Honore
Family, Things and Succession
(1983)
at para 59 fn 5; and Carnelly above n 19.
[41]
Neethling
Law of
Personality
2 ed (LexisNexis, Durban
2005). See also Neethling “Owerspel as onrigmatige daad
– Die Suid-Afrikaanse Reg
in Lynregte Teenstelling met die
Nederlandse Reg”
(2010) 73
THRHR
343
at 346.
[42]
Wiese
above n 2.
[43]
At [24].
[44]
70 of 1979.
[45]
Dawood and Another v Minister of Home Affairs
and Others; Shalabi and Another v Minister of Home Affairs and
Others; Thomas and
Another v Minister of Home Affairs and Others
[2000] ZACC 8
;
2000 (3) SA 936
(CC);
2000 (8) BCLR 837
(CC) (
Dawood
)
at para 30. See also
Minister of
Home Affairs and Another v Fourie and Another; Lesbian and Gay
Equality Project and Others v Minister of Home Affairs
and Others
[2005] ZACC 19
;
2006 (1) SA 524
(CC);
2006 (3) BCLR 355
(CC)
(
Fourie
)
at paras 63-74 and
Volks NO v Robinson
[2005] ZACC 2
;
2005 (5) BCLR 446
(CC) (
Volks
)
at para 52.
[46]
H v Fetal Assessment Centre
[2014] ZACC 34
;
2015 (2) SA 193
(CC);
2015 (2) BCLR 127
(CC) at para
32. See also
Sanderson v
Attorney-General, Eastern Cape
[1997]
ZACC 18
;
1998 (2) SA 38
(CC);
1997 (12) BCLR 1675
(CC) at paras 26-7
and
S v Makwanyane and Another
[1995] ZACC 3
;
1995 (3) SA 391
(CC);
1995 (6) BCLR 665
(CC) at para
39.
[47]
RH
above n 2 at
para 24 read with para 26.
[48]
Section 4 of the Law Reform (Miscellaneous
Provisions) Act 1970. Id at para 26.
[49]
RH
above n 2 at
para 27.
[50]
Id.
[51]
Id at para 24.
[52]
Quoted by Tennet above n 20 at 96.
[53]
This is the Federal Court of Justice, Germany’s
highest court of civil and criminal jurisdiction.
[54]
Quoted in
RH
above
n 2 at para 25.
[55]
Bundesgerichtshof (Sixth Civil Senate) on 22
February 1973 (JZ 1973, 668), relying upon the translation of
Markesinis and Unberath
The German Law
of Torts: A Comparative Treatise
4 ed
(Hart Publishing, Oxford and Portland 2002) (
Bundesgerichtshof
668
) at 364-5.
[56]
RH
above n 2 at
para 27.
[57]
In 1981 – section 1(1) of the Family Law
Act, number 22 of 1981.
[58]
In 1982 – section 96 of the Family Law Act
29/1981.
[59]
In 1977 – section 4 of the Law Reform
(Miscellaneous Provisions) Act 1977.
[60]
In 1989 – section 35 of the Matrimonial
Causes Act (1
February
1989).
[61]
In 1972 – section 19(2)(b) of the
Matrimonial Proceedings and Property Act 2 of 1972.
[62]
This exercise does not purport to be
comprehensive. But I think a sufficient enough number of
countries was considered to
give us an idea of the trends. I
can only hope that the available research tools yielded information
that is as up to date
as possible.
[63]
Section 361 of the Cameroon Penal Code provides
that—
“
(1)
any married woman having sexual intercourse with a man other than
her husband
shall be punished”; and
“
(2)
any married man having sexual intercourse in the matrimonial home,
or habitually
having sexual intercourse elsewhere, with a woman
other than his wife or wives, shall be punished”.
[64]
Chapter 152, 1962 at section 23(1).
[65]
4 of 2014.
[66]
Seeing that the act of sexual intercourse can
hardly ever be negligent, can adultery be committed negligently?
If a person
engages in sexual relations with a married person
unaware that that person is married but in circumstances where she
or he ought
reasonably to have been aware, the failure to establish
the true facts would constitute negligence. Adultery may
result
in a spouse losing the companionship of the other. If
that be so, “negligent adultery” may well be covered by
the section. Happily, I do not have to resolve the
interpretive issues on this.
[67]
These are countries which were influenced by the
English “criminal conversation” action.
[68]
As recently as 2010 the Zimbabwean High Court
upheld the claim in
Jhamba v Mugwisi
[2010] ZWBHC 1.
[69]
Jaspert v Siepker
[2013] NAHCMD 267 and
Van Wyk v Van Wyk
and Another
[2013] NAHCMD 125 (
Van
Wyk
)
.
[70]
Madidimalo v Madidimalo and
Another
2006 (2)
BLR 102
(HC) and
Malikita
v Webb
1996 BLR
986
(HC). In
Medupe
v Baakanyang
1996
BLR 612
(HC) the High Court extended the action to allow a wife to
claim against a third party, in light of constitutional provisions.
[71]
3 of 1992, Chapter 124 at section 26.
[72]
Rose v Valentin
[1999]
SCSC 8;
1999 SLR 99
, quoting
Cosgrow v
Cosgrow
SCA 12/1992 (New Zealand).
[73]
Van Wyk
above n
69 at para 26.
[74]
Id.
[75]
Dawood
above n
45.
[76]
Fourie
above n
45.
[77]
Dawood
above n
45 at paras 30-1. See also
Fourie
id at paras 63-74. In
Volks
above n 45 at para 52 this Court said:
“
Marriage and family are important
social institutions in our society. Marriage has a central and
special place, and forms
one of the important bases for family life
in our society.”
[78]
Dawood
id at
paras 36-7.
[79]
Dawood id.
[80]
Fourie
above n
45.
[81]
I am by no means suggesting that that is the only
form of protection the law can afford to marriage relationships.
I am
addressing myself to the limited question of the applicant’s
reliance on cases like
Dawood
and demonstrating why those cases are not suited to his proposition.
[82]
Carnelly above n 19 at 203. (Footnote
omitted.)
[83]
Compare
RH
above
n 2 at para 30.
[84]
Bundesgerichtshof 668
above n 55 at 365.
[85]
In marriages under certain cultures the one or
other of the characteristics I next refer to may only come to the
fore as a marriage
blossoms. Here I have in mind arranged
marriages.
[86]
In terms of section 39(1)(b) of the Constitution
this Court is bound to consider international law when interpreting
the Bill
of Rights. To the extent that the claim based on
adultery concerns impairment of
dignitas
,
the right to dignity contained in section 10 of the Bill of Rights
is implicated; and section 39(1)(b) finds relevance.
[87]
African Charter on Human and Peoples’
Rights, June 1981. South Africa ratified the African Charter
on 9 July
1996. It has not yet been enacted in terms of
section 231(4) of the Constitution such that it “becomes law
in the
Republic”, but section 39(1)(b) nevertheless still
enjoins this Court to consider the provisions of this instrument
when
interpreting the Bill of Rights.
[88]
In
Fourie
,
this Court cited the majority judgment, per Cameron JA, in the
Supreme Court of Appeal decision in the matter:
“
[F]amily
as
contemplated by the Constitution can be constituted in different
ways and legal conceptions of the family and what constitutes
family
life should change as social practices and traditions change;
permanent same-sex partners are entitled to found their
relationships in a manner that accords with their sexual orientation
and such relationships should not be subject to unfair
discrimination; and same-sex life partners are ‘as capable as
heterosexual spouses of expressing and sharing love in its
manifold
form.
’”
Fourie
above
n 45 at para 15, citing
Fourie
and Another v Minister of Home Affairs and Others
[2004] ZASCA 132
;
2005 (3) SA 359
(SCA)
at para 13.
[89]
Volks
above n 45
at para 52 (emphasis added).
[90]
The
Civil Union Act 17 of 2006
recognises civil
unions entered into by same-sex couples, which encompasses civil
marriages and civil partnerships.
[91]
Universal Declaration of Human Rights, 1948.
[92]
International Covenant on Civil and Political
Rights, 1966.
[93]
Article 16(1) and (3) of the Universal
Declaration of Human Rights and Article 23(1) and (2) of the
International Covenant on
Civil and Political Rights.
[94]
Dawood
above n
45.
[95]
See, for example,
Meskin,
NO v Anglo-American Corporation of SA Ltd and Another
1968
(4) SA 793
(W) at 800B, 800D and 804B-E, quoted by
Eerste
Nasionale Bank van Suidelike Afrika BPK v Saayman NO
[1997] ZASCA 62
;
1997 (4) SA 302
(SCA) at 320I-J; and
Bester
v Calitz
1982 (3) SA 864
(O) (
Bester
)
at 880A.
[96]
Bester
id.
[97]
Minister van Polisie v Ewels
1975
(3) 590 (A) at 597B, which refers to “die regsoortuiging van
die gemeenskap” (“the legal convictions of
the
community”), and
Barkhuizen
above
n 13 at para 28.
[98]
See
Delange
above
n 34 at 862B-G and
Loureiro
above
n 13 at para 53.
[99]
At [24] to [38].
[100]
Section 12 of the Constitution provides:
“
(1)
Everyone has the right to freedom and security of the person . . . .
(2)
Everyone has the right to bodily and psychological integrity, which
includes the right—
. . .
(b)
to security in and control over their body”.
[101]
Section 14 of the Constitution reads:
“
Everyone has the right to privacy”.
This is how this Court captured the right in
Khumalo
above n 5 at para 27:
“
The right to privacy, entrenched in
section 14 of the Constitution, recognises that human beings have a
right to a sphere of intimacy
and autonomy that should be protected
from invasion.” (Footnote omitted.)
[102]
Section 18 of the Constitution provides:
“
Everyone has the right to freedom of
association.”
Taylor v Kurtstag NO and Others
2005
(12) BCLR 1269
(W);
[2004] 4 All SA 317
(W) at para 37 describes
this right in the following terms:
“
The right articulated in section 18 of
the Constitution is ‘freedom of association’, a
guarantee of a choice, not
an absolute right. The guarantee
applies to ‘everyone’ . . . . Thus, section 18 of
the Constitution guarantees
both an individual the right to choose
his or her associates, and a group of individuals their rights to
choose their associates.”
[103]
RH
above n 2 at
para 39.
[104]
Compare the Namibian case of
Van
Wyk
above n 69 at para 26 where the
Court said:
“
It may well be that in this age,
society views with less disapprobation than in the past the
commission of adultery.
There
are also degrees of reprehensibility in the delict of violating the
marital relationship ranging from the isolated
chance encounter to
the sustained continuing invasion of the sanctity of the marital
relationship.” (Emphasis added.)
[105]
Compare
RH
above
n 2
at para 13 citing
Groundland
v Groundland and Alger
1923 WLD 217.
In
Groundland
at
220 the Court held:
“
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 & McMehon
1909 TH 292
,
where the plaintiff had abandoned his wife.”
[106]
See
Wiese
above
n 2 at 129D-F:
“
[A]rtikel 18 bepaal elkeen ‘het
die reg op vryheid van assosiasie’. Dit is betoog dat
die aksie gegrond op owerspel
inbreuk maak op die derde en die
skuldige eggenoot se reg om hulle liggame volgens hulle eie
oortuigings aan te wend. Die
betoog verloor uit die oog dat
die skuldige eggenoot vrywillig daardie reg beperk het deur in die
huwelik te tree en dat die
derde daarvan bewus was. Laasgenoemde
is so omdat die reg opset aan die kant van die derde vereis.”
I would translate this as follows:
“
Section 18 provides that everyone has
‘the right to freedom of association’. It is
argued that the action based
on adultery infringes on the third
party and the guilty spouse’s right to use their bodies
according to their own beliefs.
The argument loses sight of
the fact that the guilty spouse voluntarily restricted that right
through entering into the
marriage and that the third party was
aware of this. The latter is so because the law requires
intention on the part of
the third party.”
[107]
Section 10 of the Constitution provides:
“
Everyone has inherent dignity and the
right to have their dignity respected and protected.”
Although the view is that “
dignitas
”
– the impairment of which is what the claim is about –
is not quite the same as “dignity”, the
section 10 right
is what would be at issue under the Constitution.
Dendy v
University of Witwatersrand and Others
[2005] ZAGPHC 39
;
2005 (5) SA 357
(W) at
para 14.
[108]
MM v MN and Another
[2013]
ZACC 14
;
2013 (4) SA 415
(CC);
2013 (8) BCLR 918
(CC) at para 74.
[109]
See the discussion on changing attitudes at [23]
to [38].
[110]
At [21] to [36].
[111]
See
Delange
above
n 34 at 862B-G and
Loureiro
above
n 13 at para 53.
[112]
Tennet above n 20 at 96.
[113]
Wiese
above n 2.
[114]
Bundesgerichtshof 668
above
n 55.
[115]
RH
above n 2 at
para 34.
[116]
Dawood
above n
45 at paras 36-7.
[117]
Bundesgerichtshof 668
above n 55.