A brief note on the primacy of the Constitution in the common law’s development : DE v RH [2015] ZACC 18 / 2015 (5) SA 83 (CC) / 2015 (9) BCLR 1003 (CC)

• Published date: 01 January 2016
• Date: 01 January 2016
• DOI: 10.10520/EJC-c6c0d2c6a
• Record Number: sapr1_v31_n1_a12
• Pages: 232-239
• Author: Emile Zitzke

232

CASE NOTE

A BRIEF NOTE ON THE PRIMACY OF THE

CONSTITUTION IN THE COMMON LAW’S

DEVELOPMENT:

DE V RH [2015] ZACC 18 / 2015 (5) SA 83 (CC) /

2015 (9) BCLR 1003 (CC)

Emile Zitzke

University of Pretoria

1. INTRODUCTION

In E v H1 a husband successfully claimed R75 000 in damages from a man who committed

adultery with his wife. On appeal, the Supreme Court of Appeal (SCA) in RH v DE,2 on

the law as it was, held that the husband could have succeeded with his claim for insult

resulting from the adultery. However the SCA then proceeded to abolish the delictual

claim for adultery on the basis that it was outdated in light of changing social norms.3

The husband nally and unsuccessfully appealed to the Constitutional Court where the

abolition of the claim was upheld but on modied grounds in comparison with those

provided by the SCA.4 In this note I briey recapitulate (and problematise) the reasoning

of the SCA on the common law’s development in so far as it is relevant for purposes of

properly appreciating the judgment of the Constitutional Court.

2. ANTI-CONSTITUTIONALISM IN THE SCA

Read as a whole the SCA’s approach to the development of the common law can be

described as being ‘anti-constitutional’. It is anti-constitutional in the sense that Brand

JA, writing for a unanimous bench, decided to develop the common law on a non-

1 (39407/2010) [2013] ZAGPPHC 11.

2 2014 (6) SA 436 (SCA).

3 See J Neethling, ‘Owerspel as Gedingsvatbare Aksiegrond’ (2015) 12 LitNet Akademies 397.

4 DE v RH [2015] ZACC 18 / 2015 (5) SA 83 (CC) / 2015 (9) BCLR 1003 (CC).

https://doi.org/10.25159/2219-6412/2656

ISSN 2219-6412 (Print)

© Unisa Press 2017

Southern African Public Law

https://upjournals.co.za/index.php/SAPL/index

Volume 31 | Number 1 | 2016 | pp. 232–239