It’s gone: the Supreme Court of Appeal has ruled that the law permitting civil damages for adultery is “archaic” and “the time for its abolition has come”.
Its abolition means the law in South Africa has followed many significant legal jurisdictions around the world, and comes after judgment delivered on Thursday in an appeal heard by five judges last month.
The case concerned an unhappy triad: DE, the husband, sued RH, the man with whom his wife had had a sexual relationship. In the high court RH was ordered to pay the husband R75 000 in damages as well as both parties’ legal costs.
RH appealed this outcome and his legal team argued that the law should go. It was also unreasonable for RH to have to pay damages, his advocate Steven Kuny told the appeal judges, given that the sexual relationship began after the wife had already left the common home, and shortly before she filed for divorce.
The appeal judges have now overturned the high court decision and abolished the law. This means the husband loses the R75 000 he was initially awarded and must pay his own high court costs. There are even more serious implications – he must also pay both parties’ appeal costs.
The judgment, written by Judge Fritz Brand, looks in detail at the reasons offered for keeping the civil action and the various arguments for scrapping it.
He wrote that the history of the civil action “reveals its archaic origin”, disclosing elements of old English law, which suggested that the husband has some “proprietary interest in the person and the services of the wife”.
Older judgments suggest its existence is influenced by biblical notions and canon law that husband and wife are “entitled to the sole use of each other’s body”, “akin to some kind of servitude”.
The appeal judges rejected argument by the husband’s advocate, David Smith SC, that the law should be maintained to protect the institution of marriage, and quoted German authors on why that country has dismissed a similar plea: marriage is regulated and protected by law, but in essence it consists “in the readiness, found in morals, of the parties to the marriage to create and maintain it”.
“If the parties have lost that moral commitment, the marriage will fail and punishment meted out to a third party is unlikely to change that,” Brand wrote. He added that adultery is often the result, rather than the cause, of an unhappy marriage.
He said hurt and damage are often caused where a civil action was brought for adultery, as seen in the case before the court: young children of the marriage were exposed to harmful publicity and emotional trauma.
The evidence led in such a case seriously affects the dignity and privacy of those involved, he noted. In this case, the woman was “subjected to embarrassing and demeaning cross-examination, suffered the indignity of having her personal and private life placed under a microscope and being interrogated in an insulting and embarrassing fashion”.
Brand wrote that it seemed the husband in this matter was motivated by anger and a desire for revenge, and that it is likely that this is often the case.
It is also enormously costly to bring such a claim, he said. Any damages likely to be awarded pale in comparison with the legal costs involved, making it far beyond the means of most people.
Commenting on the result, the attorney acting for RH said it had been a “long and ugly fight” and that he was sure his client, now overseas, would be relieved to hear the outcome.