Constitutional Court abolishes delictual claim for adultery

Dec 1, 2015 | 2015, News

Although adultery is no longer a criminal offence, the Constitutional Court (CC) recently had to decide whether someone whose spouse commits adultery has a delictual right to claim damages against the third party for injury or insult to self-esteem and loss of comfort and society (consortium) of the spouse.

The issue arose from a judgment in the North Gauteng High Court, where a husband successfully sued a third party for damages after the third party had an adulterous affair with his wife. The High Court awarded the husband R 75 000 for damages with interest and costs.

The matter then went on appeal to the Supreme Court of Appeal (SCA) where the issue about whether this type of delictual claim should continue to exist in our law was raised. The SCA determined that based on the changing views of society, there is no longer a place for a delictual action for adultery in a modern legal system.

The husband of the adulterous spouse disagreed and brought the matter on appeal to the CC. The CC considered the historical trajectory of such claims, the position in foreign legal systems and the evolving societal norms towards adultery and the institution of marriage. The CC found that although South Africa’s neighbouring countries like Zimbabwe, Namibia and Botswana have retained the action for damages for adultery against a third party, internationally, the trend has been to eradicate civil claims for adultery. Justice Madlanaga, in his unanimous judgment, decided that in this day and age, the changes in public policy and the community’s general sense of justice has dictated that the element of wrongfulness in the delictual sense is lacking and therefore, delictual claims for adultery are outdated and should be abolished. Justice Madlanaga also emphasized that a court could not assess marital fidelity in terms of money and that there was a need to develop this area of law to bring it in line with constitutional values. The CC therefore decided that the innocent spouse’s delictual action for adultery against the third party is outdated and unconstitutional.

Read the judgment here: