RH v DE 2014 6 SA 436 (SCA) : recent case law

• Author: E. Zitzke
• DOI: 10.10520/EJC182690
• Published date: 01 January 2015
• Date: 01 January 2015
• Pages: 467-480

Onlangse regspraak/Recent case law 467

statute in which the provision appears or those provisions with which it is

interrelated … (emphasis added).

The decision in Maccsand (3) should be a timely warning to drafters,

courts, practitioners (and the public) about the complexities of the

current South African legal landscape. Practitioners might even rue the

fact that they did not take interpretation of statutes more seriously during

their studies, and given more attention to the continuing changes to local

government law in South Africa since 1994.

B BEKINK

University of Pretoria

C BOTHA

University of Pretoria

RH v DE

2014 6 SA 436 (SCA)

A case of anti-constitutional common-law development1

1Introduction

This case tells the story of an egotistical husband and the fading principle

of the horizontal application of the Bill of Rights. The husband alleged

that his wife had an affair with the managing director (“MD”) of her firm

(par 3). He claimed damages for both loss of consortium and insult from

the MD (par 2). After an eight day trial, luridly exposing the private sex

lives of the three people involved, Vorster AJ held that the MD was liable

to compensate the husband for both heads of damage (par 2). On appeal,

Brand JA overturned that decision. There are two moments in the

unanimous Supreme Court of Appeal (“SCA”) judgment.

The first moment involves an exposition of the common-law position:

The husband did not prove that the MD incited the wife to leave the

common household and, therefore, could not succeed with his claim for

loss of consortium. The wife left of her own accord before the adulterous

relationship occurred (parr 10 & 13). In principle, according to the court,

the husband, however, did prove that the adulterous affair took place

while they were married, albeit after the wife had moved out and after

divorce proceedings had been instituted. At first glance, therefore, it

1 The financial assistance of the National Research Foundation (“NRF”)

towards this research is hereby acknowledged. Opinions expressed and

conclusions arrived at, are those of the author and are not necessarily to be

attributed to the NRF.

How to cite: Zitzke ‘RH v DE 2014 6 SA 436 (SCA)’

2015 De Jure 467-480

http://dx.doi.org/10.17159/2225-7160/2015/v48n2a12

468 2015 De Jure

appeared that the husband could succeed with his claim based on insult

(par 15).

The second moment of the judgment explains that even though it

appeared that the husband could succeed in claiming for insult, that the

court has to determine the foundational issue of whether the delictual

claim for adultery still has a place in our law. In other words, should the

common law be developed in such a way that the husband in this case

should be left without a legal remedy for his bruised ego? The short

answer, given by the SCA, is that the “changing mores of our society”

demand that our law no longer recognise claims of this nature (par 40).

This short answer is commendable. However, the problem that I

identify with regard to this case is the approach of Brand JA to common-

law development – an approach that I describe as conservatively “anti-

constitutional”, as I explain later in this piece. Consequently, I limit the

analytical part of my discussion to this aspect of the judgment, and base

my line of reasoning on the transformative method developed by Van

der Walt (“Development of the common law of servitude” 2013 SALJ

722) in the context of property law.

2 Rising to the Occasion of Common-law Development

After emphasising that courts are under a duty to develop the common

law in an incremental way, Brand JA provides two occasions upon which

the common law may be developed (par 17). The first occasion is based

on the decision in Carmichele v Minister of Safety and Security & another

(Centre for Applied Legal Studies Intervening) (2001 4 SA 938 (CC) par 40)

that the common law must be developed if the section 39(2) objectives

so require. The second occasion is based on the guidance provided in Du

Plessis v De Klerk (1996 3 SA 850 (CC) par 61) that the “common law [can

and should be adapted] to reflect the changing social, moral and

economic fabric of the country. Judges should not be quick to perpetuate

rules whose social foundation has long since disappeared”. Two

interrelated issues arise from this suggestion. Does Du Plessis have

binding force in light of the fact that it was decided in terms of the 1993

Constitution and not the 1996 Constitution? Are the two occasions that

prompt common-law development listed by the SCA really two very

different and unrelated occasions? There is a relatively simple combined

answer to these issues.

The above quotation from Du Plessis that was transcribed from the

Canadian judgment of R v Salituro (1992 8 CRR (2d) 173 ([1991] 3 SCR

654)) has value, however it must be read with the following cautionary

note. As Ackermann and Goldstone JJ point out in Carmichele (par 36):

Under our Constitution the duty cast upon Judges is different in degree to that

which the Canadian Charter of Rights cast upon Canadian Judges. In South

Africa, the [1993 Constitution] brought into operation, in one fell swoop, a

completely new and different set of legal norms.