RH v DE

• Jurisdiction: South Africa
• Judge: Brand JA, Cachalia JA, Tshiqi JA, Majiedt JA and Mbha JA
• Judgment Date: 25 September 2014
• Docket Number: 594/2013 [2014] ZASCA 133
• Hearing Date: 27 August 2014
• Counsel: S Kuny (with Z Ndlokovane) for the appellant. DA Smith (with JA van Tonder) for the respondent.
• Court: Supreme Court of Appeal

Brand JA (Cachalia JA, Tshiqi JA, Majiedt JA and Mbha JA concurring): A

(Cachalia JA, Tshiqi JA, Majiedt JA and Mbha JA concurring):

[1] The respondent instituted an action for damages against the appellant in the North Gauteng High Court, Pretoria. To avoid confusion B I shall refer to the parties as they were cited in the court a quo, ie to the respondent as the plaintiff and to the appellant as the defendant. The plaintiff's cause of action was that the defendant had committed adultery with the plaintiff's wife. Prior to the institution of this action the plaintiff's wife divorced him and reverted to her maiden name. Minor children are born of the marriage between the plaintiff and his wife. In C order to protect them against adverse publicity flowing from this litigation, the names of the parties shall not be disclosed in the citation of the case. For the same reason I refer to the plaintiff's wife just as Ms E.

[2] As has become customary in matters of this kind, damages were D claimed under two headings: (a) contumelia and (b) loss of consortium. In the court a quo LI Vorster AJ awarded damages under both headings, but in a composite amount of R75 000, together with interest and costs on the high court scale. The present appeal against that order is with the leave of this court.

E [3] The background facts that turned out to be relevant appear from what follows. The plaintiff and Ms E were high-school friends. They were married on 30 April 2005 when he was 26 and she 25. Two children were born of their marriage, a daughter in May 2006 and a son in October 2008. On 23 March 2010 Ms E left the common home and F cohabitation between her and the plaintiff ceased, never to be resumed again. In June 2010 Ms E instituted action for an order of divorce which was eventually granted in September 2011. On 15 April 2009 Ms E started employment with a company where she met the defendant, who was the managing director of an affiliated concern operating from the same building. The defendant and Ms E, who both testified at the trial, G admitted that they became romantically involved, but this only happened, so they said, after Ms E left the common home on 23 March 2010. They also admitted that they subsequently entered into an adulterous relationship, but this only started, so they said, on 17 July 2010. That was after Ms E had instituted action for divorce and the plaintiff had filed his plea in that action in which he admitted that the H marriage had irretrievably broken down.

[4] The plaintiff's case was, by contrast, that the adulterous relationship must have started much earlier; that he had a happy marriage until the commencement of that relationship, which was the cause of Ms E I leaving the common home on 23 March 2010. In answer to these allegations Ms E contended that there were serious problems in the marriage which started shortly before the birth of their son in October 2008. As a result, she testified, she went for marriage counselling in August 2009, but that, in spite of her efforts, the marriage kept on deteriorating until it finally broke down in March 2010. This deterioration J and breakdown of the marriage, she said, had nothing to do with the

Brand JA (Cachalia JA, Tshiqi JA, Majiedt JA and Mbha JA concurring)

relationship between her and the defendant. Despite the narrow ambit of A the real issues, the trial ran for eight days. The record of evidence alone exceeded 800 pages with a further 400 pages of pleadings and documents. The parties succeeded in building this substantial record by an endless debate on when the marriage between the plaintiff and Ms E became unhappy and the heavily disputed reasons for that unhappiness, B seemingly with little regard for the relevance of these debates to the outcome of the case.

[5] In the event the court a quo found it impossible and unnecessary to deal in its judgment with all the disputes of fact that arose. Broadly speaking, however, it accepted the plaintiff's version in preference to that C of the defendant and Ms E on all the major issues. This court's reluctance to interfere with factual findings by trial courts has become well established. One of the underlying reasons for this reluctance is precisely that trial courts are simply not able to motivate their eventual credibility findings with reference to every aspect of the evidence. At the D same time, this court is equally conscious of the fact that an entirely uncritical approach to the factual findings of the trial court will render appeals on fact illusory. In this case I cannot avoid the impression that the court a quo had considerable personal sympathy for the plaintiff and his plight while at the same time it found the conduct of the defendant and Ms E unpalatable. Since these rather personal sentiments seem to E have influenced the court's whole approach to factual findings, I believe those findings should be treated with caution. As it happens, however, and for reasons that will soon become apparent, I think the determination of the numerous factual disputes that arose is for the most part not relevant to the outcome of this appeal. It will suffice, therefore, to highlight only a few aspects in the judgment of the court a quo to F illustrate why I do not regard my criticism of the court's approach as unwarranted or unfair.

[6] The plaintiff's version, as we now know, was that the marriage between him and Ms E was a happy one until shortly before she left the G marital home in March 2010. Ms E's version, on the other hand, was that the marriage started to deteriorate in October 2008 and by August 2009 was in serious trouble. In support of his version the plaintiff relied on a bundle of photographs comprising almost 100 pages of the trial record. The court a quo describes the import of this bundle in the following way: H

'At the outset I must say that the photographs to which I have referred above depict a happy family consisting of both the plaintiff and [Ms E], their children and their relatives over a lengthy period of time since 2008 up and until at least February 2010. If no more is said, those photographs are prima facie evidence of a happy marriage relationship between the plaintiff and [Ms E].' I

[7] Further evidence relied upon by the plaintiff in corroboration of his version that the marriage was a happy one until Ms E left in March 2010, stemmed from a transcript of a speech made by Ms E on the celebration of her 30th birthday on 3 October 2009. During this speech she described the plaintiff as 'her soul mate' and declared her undying love J

Brand JA (Cachalia JA, Tshiqi JA, Majiedt JA and Mbha JA concurring)

A for him. With regard to the photographs Ms E's response was in essence that appearances can be deceptive; that she is an outgoing person who is eager to please; who often smiles even when she is hurting inside; that people normally smile when they are photographed; and that they normally look happy when they smile. As to her speech on her 30th B birthday party, her answer was that she was putting up a front before family and friends on an occasion which was supposed to be a happy one. The court's comment on this evidence shows the extent to which it was unimpressed by her answers. It said:

'When the text of the speech was put to her in cross-examination she C was constrained to deny the truth of what she had said about the plaintiff and explained that it was just a front she had put up to create the impression of happiness to the family and friends who attended the occasion. She was constrained to maintain the same stance in relation to all the other photographs handed in by the plaintiff and which depicted her and the plaintiff and their family and friends as in a state D of complete happiness and harmony.'

[8] What the court seems to have lost sight of was the undisputed evidence that Ms E consulted a marriage counsellor on three occasions in August and September 2009. The court's only comment on this evidence is that —

E 'those problems clearly did not terminate the cohabitation of [Ms E] and the plaintiff or cause the disintegration of their marriage'.

But, as I see it, this comment misses the point. The point is that it clearly corroborates Ms E's evidence that, despite what the photographs may show and in spite of what she said in her speech, the marriage was in F serious trouble, at the latest in August 2009. Other objective evidence that the court a quo seemed to have lost sight of was an email which Ms E sent to the plaintiff on 20 August 2009 where she pleaded with him that they must make time to talk about their difficulties. There was also the uncontroverted evidence of Ms E of a meeting between her and the plaintiff which she called for on 14 October 2009. The measure of her G despair on that occasion appears from the agenda she prepared for that meeting in which she enumerated the difficulties she experienced in the marriage, which she proposed to discuss at the meeting and which happened to coincide with what she described in her evidence as the main reasons for the eventual breakdown of the marriage.

H [9] Another example of where the court a quo missed the point again relates to the bundle of photographs. What Ms E marked as the beginning of the end of their marriage relationship was an incident shortly before the birth of their son in October 2008 when they attended the wedding of friends in the KwaZulu-Natal Midlands. That night at I the reception, she testified, she began to feel seriously ill. Subsequently this proved to have been the start of pneumonia while she was heavily pregnant. She asked the plaintiff to take her back to the guesthouse where they were staying. He refused to do so and told her to lie down in the car. Upon their return to Johannesburg she asked him to take her to hospital. Again he refused...