De v RH

• Jurisdiction: South Africa
• Judge: Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J, Jappie AJ, Khampepe J, Madlanga J, Molemela AJ, Nkabinde J and Theron AJ
• Judgment Date: 19 June 2015
• Citation: 2015 (5) SA 83 (CC)
• Docket Number: CCT 182/14 [2015] ZACC 18
• Hearing Date: 19 June 2015
• Counsel: DA Smith SC (with O Ben-Zeev) for the applicant. S Kuny (with Z Ndlokovane) for the respondent.
• Court: Constitutional Court

Madlanga J (unanimous): D

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 E 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. F

[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 G 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 H

Madlanga J (Unanimous)

A 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 B 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 C 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 —

Madlanga J (Unanimous)

'in the light of the changing mores of our society the delictual action A based on adultery . . . has become outdated and can no longer be sustained . . . 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] B

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. C 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. D

[7] Ms H claims that the marriage began to deteriorate late in 2008. By late in 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 E 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 F 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 G 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 H

Madlanga J (Unanimous)

A 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 B spouse. Finally, that court failed to take heed of the value and importance of marriage and family, acknowledged in s 15(3) of the Constitution, [14] which he claims should be protected — under s 8 of the Constitution — from interference through the continued existence of the delictual claim. [15]

C [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. D 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 E though my discussion has a number of headings, the pivotal question concerns wrongfulness, and all those headings relate to it.

Madlanga J (Unanimous)

[12] From this point onwards I borrow extensively from the A 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 B 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 C 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 D 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? E

[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 s 39(2) of the Constitution, which F

Madlanga J (Unanimous)

A 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 B 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 judiciary 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 judiciary should confine itself to C 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]

D [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. E 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.]

F Also, public policy does inform the wrongfulness element of delictual liability. [31]

Madlanga J (Unanimous)

[18] In this court, although expressing himself in the context of the A 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...