The Constitutional Court has confirmed the ruling of the Supreme Court of Appeal (SCA) that the act of adultery by a third party lacks wrongfulness for the purposes of a damages claim, in particular that of loss of companionship of the spouse.
The husband instituted legal proceedings against the third party for damages on the basis of an adulterous relationship between the third party the husband’s former wife. The husband was successful in the High Court.
The third party appealed to the SCA, where a claim based on adultery was abolished. The husband appealed to the Constitutional Court.
Justice Madlanga concludes that the potential infringement of dignity on the innocent spouse must be balanced with the right to privacy and freedom of association:-
“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. These attitudes also demonstrate a repugnance towards state interference in the intimate personal affairs of individuals.
I am led to the conclusion that the act of adultery by a third party lacks wrongfulness …That is what public policy dictates. At this day and age it just seems mistaken to assess marital fidelity in terms of money.”
Read the full judgment here:- http://www.saflii.org/za/cases/ZACC/2015/18.pdf