Judgment on adultery reserved

Bloemfontein - Judgment was reserved in the Supreme Court of Appeal on Wednesday on whether adultery should be retained in South African law as a wrongful and blameworthy act causing harm in relationships.

The question came up during an appeal by a Gauteng man, only identified as R, who was ordered in the North Gauteng High Court to pay R75 000 in damages to another man, identified as D, with whose wife he had an affair.

Earlier in the high court it was ordered that the parties in the litigation could not be identified as D had two young children. D's wife left him and conducted an affair with R.

D, aggrieved, turned to court for damages for losing his wife's affections.

R felt that D's wife was in any event unhappy and that he did not contribute to the break-up of their marriage.

Sanctity of marriage

The SCA on accepting an appeal hearing asked that the legal counsel for the parties also address the issue of whether adultery should remain part of the law - seen against the morals of society, the Constitution and marriage as an institution.

Legal counsel to D, Dave Smith, submitted that adultery was still a cause of action committing the aggrieved party to receive damages, in fitting circumstances, for the wrong perpetrated against him or her and for the sanctity of marriage.

Smith submitted the sanctity of marriage and the responsibilities and duties flowing therefrom remained the cornerstone of the South Africa's society.

Steven Kuny, legal counsel to R, argued that this was a narrow approach which relied on old fashioned and outdated views of society and marriage.

Kuny submitted that the call for the retention of the delict (a civil wrong permitting compensation) of adultery started out on the assumption that the action was valid and necessary to protect the sanctity of the marriage.

It further attempted to justify it on the grounds that the convictions of the community demand that exclusive sexual relationships brought about in a marriage must be respected and that interference was unlawful.

Breakdown of marriage

This argument, submitted Kuny, did not take into mind the radical changes to the way in which marriage and human relationships were viewed in the country's law.

Kuny argued that adultery and malicious desertion were for the most part only the ultimate acts, indicating a marriage had already broken down.

It was more often the effects of a marriage having broken down and not the cause of the breakdown.

Kuny argued the action for adultery was often an attempt to place the blame for the break-up of a marriage on a third party, when one or both of the spouses were rather primarily to blame for the disintegration of the marriage.

He argued if one party was susceptible to the advances of another, the marriage was probably already in a state of disintegration.

R's counsel submitted that the action of adultery punished a third party for breaking up the marriage of a plaintiff and his or her spouse.

Kuny submitted that for an aggrieved spouse to prosecute actions for adultery against a third party, as the law stood now, in fact could lead to abuse.

It was submitted where there was sexual intimacy between a married person and a third party, there was ordinarily a very heavy evidence burden on the third party defendant to justify the intimacy and satisfy a court that he or she was not liable for the loss of the right of companionship with one's husband or wife.

Adultery as a cause of action

On Wednesday, Kuny reiterated adultery could not be given as a reason for divorce action and that it was more a symptom of something else than a cause for legal action.

Kuny submitted that internationally adultery was already abolished as a cause of action and that adultery was not seen as a necessary way to prevent a marriage break up.

"The court should take a bold step and suspend adultery as a cause of action," he submitted.

Smith submitted that adultery should remain and that a court could decide on the facts of each divorce case whether a delict of adultery claim was valid and what role it played in the alleged relationship break-up.

"It is my opinion that our society has not closely reached the stage to get where other countries are," submitted Smith on the argument to abolish adultery as a cause of delict.

The SCA reserved judgment.

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Thuto Moloi 2014/08/28 08:13:06 AM
Why chase another man's wife, victims of infidelity in a marriage should be favoured by the law. You spend your whole life building a home and synchronizing finances and then this happens. Divorce is very expensive and life after it financially challenging. So if infidelity is the course, the perpetrators must pay. Cheaters always try to blame the victims for their actions, at the end of the day, they had a choice.
Bri 2014/08/28 08:15:24 AM
Affairs are damaging to the entire family - it is very rare that a person is held accountable in court such as this. People should do things right, if you are unhappy then leave and then do what you want. People are cowards, they are terrified to be alone so they generally do not leave unless they have somewhere to leave to, hence the affair. Some people are fine with such things but others get left devastated in the cheaters wake!
How To 2014/08/28 08:18:03 AM
When you marry under SA law you are bound to stay faithful however, blaming the other party is wrong. If a wife cheats on a husband then the person that she cheated with is not to blame (he has no contract with the husband) however the wife has a contract and should be able to be sued or divorce and lose the children. Just like in real life breaking a contract is unlawful and getting hooked up legally means signing a contract in court (the contract is of faithfulness). If you don't want the legal problem then don't sign the legal contract (don't get married in court).
How To 2014/08/28 08:21:41 AM
In this case the member that was forced to pay was the man that had no binding contract with the wife, so the husband should not be able to sue him but should be able to apply for separation and keep the children. I don't agree with the law that states that the other party should pay, the other party has no binding contract and may have not known if the woman was married when he ****** her.
No Sugarcoating 2014/08/28 08:32:43 AM
The term married couples is rather loose, me and my girl are a married couple.... except not to each other.
Bheki Dladla 2014/08/28 08:39:05 AM
"R felt that D's wife was in any event unhappy and that he did not contribute to the break-up of their marriage." I think this needs to be taken further so as to actually find out the root of this unhappiness. amongst other things, its very possible that Mr D was not rising up to the occasion when it comes to the bed chamber and was failing to satisfy his wife. This is a serious problem and I know many may disagree with me but some of us men are just useless and need some serious help.
John Sekgobela Stalwart 2014/08/28 08:43:17 AM
Indeed a man or a woman who causes damage to another man or woman's marriage by reason of them benefiting from the consortium that does not belong to them must be caused to pay; R's counsel's argument and suggestion that the Court should take a bold step and demolish all claims for damages and satisfaction is far fetched, it cannot be condoned in law. A man should know that he must not meddle with a married woman and the same goes to a woman, and the law recognises claims for damages and satisfaction for contumelia to subject these women stealers and men stealers to own up to their actions. Adultery with all its results should be criminalised and both udulterer and adulteress should be charged, the 17th century placateen of Holland even forbade them to marry; an irretrivable breakdown of marriage which causes an a gogo of divorces cannot and must not be protected under law, this is a social cancer that must be curbed or even cut off at all costs, it is not about living in the Stone Age as the learned counsel allerge but about upholding morality and channelling respect in the institution of marriage, which marriages are recognised and regulated by law.
Ngqukuva Mthombo 2014/08/28 08:43:40 AM
I am not in this life to live to anyone's expectations, so do you! I am me and you're you! I do my thing and you do your thing! if we happen by chance that we meet each other, that is fine and if it did not help did not meet each other, it's still fine because it can't be helped! Life goes on, so Move on!
Nawhal Umm Fiyaaz Majiet-Armien 2014/08/28 08:55:41 AM
infidelity is wrong so we need punishment for it
Amanda Terblanche 2014/08/28 09:00:45 AM
Morally and according to religious believes adultery is damaging and not acceptable. This is however a consensual relationship between 2 adults. There is various reasons for such affairs. Reality is it happens and in many cases there is more to the reason behind adultery than we want to believe.I am not getting into a discussion with any one on this! We just need to ask why it happens?