De v RH

• Jurisdiction: South Africa
• Citation: 2015 (5) SA 83 (CC)

De v RH
2015 (5) SA 83 (CC)

2015 (5) SA p83

Citation	2015 (5) SA 83 (CC)
Case No	CCT 182/14; [2015] ZACC 18
Court	Constitutional Court
Judge	Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J, Jappie AJ, Khampepe J, Madlanga J, Molemela AJ, Nkabinde J and Theron AJ
Heard	June 19, 2015
Judgment	June 19, 2015
Counsel	DA Smith SC (with O Ben-Zeev) for the applicant.; S Kuny (with Z Ndlokovane) for the respondent.

Flynote : Sleutelwoorde B

Delict — Specific forms — Injuria — Adultery — Delictual action for adultery (contumelia and loss of consortium) obsolete and unconstitutional — Abolition of action confirmed. C

Headnote : Kopnota

The innocent spouse's delictual action for adultery (contumelia and loss of consortium) against the third party is obsolete and unconstitutional, and its abolition by the Supreme Court of Appeal [*] would be confirmed. (See paras [22] – [27] at 91G – 93A of the main judgment on changing public attitudes to adultery; paras [28] – [38] at 94A – 97F on trends in foreign jurisdictions; paras [52] – [55] at 101F – 103B on the applicable constitutional D norms; and para [63] at 105B – C read with paras [17] – [21] at 90D – 91G on the resulting absence of wrongfulness.)

Cases Considered

Annotations

Case law

Southern Africa E

Argus Printing and Publishing Co Ltd v Inkatha Freedom Party 1992 (3) SA 579 (A) ([1992] ZASCA 63): referred to

Barkhuizen v Napier 2007 (5) SA 323 (CC) (2007 (7) BCLR 691; [2007] ZACC 5): dictum in paras [28] – [29] applied

Bester v Calitz 1982 (3) SA 864 (O): referred to

Biccard v Biccard and Fryer (1892) 9 SC 473: overruled F

Brisley v Drotsky 2002 (4) SA 1 (SCA) (2002 (12) BCLR 1229; [2002] 3 All SA 363; [2002] ZASCA 35): dictum in para [91] applied

Bruwer v Joubert 1966 (3) SA 334 (A): overruled

Carmichele v Minister of Safety and Security and Another (Centre for Applied Legal Studies Intervening) 2001 (4) SA 938 (CC) (2002 (1) SACR 79; G 2001 (10) BCLR 995; [2001] ZACC 22): dictum in para [36] applied

Coronation Brick (Pty) Ltd v Strachan Construction Co (Pty) Ltd 1982 (4) SA 371 (D): referred to

Dawood and Another v Minister of Home Affairs and Others; Shalabi and Another v Minister of Home Affairs and Others; Thomas and Another v Minister of Home Affairs and Others 2000 (3) SA 936 (CC) (2000 (8) BCLR 837; [2000] ZACC 8): considered H

Delange v Costa 1989 (2) SA 857 (A): referred to

Dendy v University of the Witwatersrand and Others 2005 (5) SA 357 (W) ([2005] 2 All SA 490): referred to

Du Plessis and Others v De Klerk and Another 1996 (3) SA 850 (CC) (1996 (5) BCLR 658; [1996] ZACC 10): dictum in para [61] applied

E v H [2013] ZAGPPHC 11: overruled I

Eerste Nasionale Bank van Suidelike Afrika Bpk v Saayman NO 1997 (4) SA 302 (SCA) ([1997] 3 All SA 391): referred to

Foulds v Smith 1950 (1) SA 1 (A): overruled

2015 (5) SA p84

Fourie and Another v Minister of Home Affairs and Others 2005 (3) SA 429 (SCA) (2005 (3) BCLR 241; [2005] 1 All SA 273; [2004] ZASCA 132): considered A

Green v Fitzgerald and Others 1914 AD 88: considered

Groundland v Groundland and Alger 1923 WLD 217: considered

H v Fetal Assessment Centre 2015 (2) SA 193 (CC) (2015 (2) BCLR 127; [2014] ZACC 34): dictum in para [32] applied B

Hoffman and Others v Estate Mechau 1922 CPD 179: considered

Jaspert v Siepker [2013] NAHCMD 267: referred to

Jhamba v Mugwisi [2010] ZWBHC 1: referred to

Khumalo and Others v Holomisa 2002 (5) SA 401 (CC) (2002 (8) BCLR 771; [2002] ZACC 12): referred to

Le Roux v Dey (Freedom of Expression Institute and Restorative Justice Centre as Amici Curiae) 2011 (3) SA 274 (CC) (2011 (6) BCLR 577; [2011] ZACC 4): referred to C

Loureiro and Others v Imvula Quality Protection (Pty) Ltd 2014 (3) SA 394 (CC) (2014 (5) BCLR 511; [2014] ZACC 4): dictum in para [53] applied

Madidimalo v Madidimalo and Another 2006 (2) BLR 102 (HC): referred to D

Malikita v Webb 1996 BLR 986 (HC): referred to

Makholiso and Others v Makholiso and Others 1997 (4) SA 509 (TkS): dictum at 520G – I approved

Medupe v Baakanyang 1996 BLR 612 (HC): referred to

Meskin NO v Anglo-American Corporation of SA Ltd and Another 1968 (4) SA 793 (W): E referred to

Minister of Home Affairs and Another v Fourie and Another (Doctors for Life International and Others, Amici Curiae); Lesbian and Gay Equality Project and Others v Minister of Home Affairs and Others 2006 (1) SA 524 (CC) (2006 (3) BCLR 355; [2005] ZACC 19): discussed

Minister van Polisie v Ewels 1975 (3) SA 590 (A): dictum at 597C applied

O'Keeffe v Argus Printing and Publishing Co Ltd and Another 1954 (3) SA 244 (C): referred to F

MM v MN and Another 2013 (4) SA 415 (CC) (2013 (8) BCLR 918; [2013] ZACC 14): considered

Paulsen and Another v Slip Knot Investments 777 (Pty) Ltd 2015 (3) SA 479 (CC) ([2015] ZACC 5): dictum in paras [20] – [23] applied

RH v DE 2014 (6) SA 436 (SCA) ([2014] ZASCA 133): confirmed on appeal G

Rosenbaum v Margolis 1944 WLD 147: overruled

S v Makwanyane and Another 1995 (3) SA 391 (CC) (1995 (2) SACR 1; 1995 (6) BCLR 665; [1995] ZACC 3): referred to

Sanderson v Attorney-General, Eastern Cape 1998 (2) SA 38 (CC) (1998 (1) SACR 227; H 1997 (12) BCLR 1675; [1997] ZACC 18): referred to

Taylor v Kurtstag NO and Others 2005 (1) SA 362 (W) (2005 (7) BCLR 705; [2004] 4 All SA 317): referred to

Van Jaarsveld v Bridges 2010 (4) SA 558 (SCA) ([2010] ZASCA 76): referred to

Van Wyk v Van Wyk and Another [2013] NAHCMD 125: discussed

Viviers v Kilian 1927 AD 449: overruled I

Volks NO v Robinson and Others 2005 (5) BCLR 446 (CC) ([2005] ZACC 2): discussed

Wiese v Moolman 2009 (3) SA 122 (T) ([2008] ZAGPHC 246): overruled.

Canada

R v Salituro (1992) 8 CRR (2d) 173 (SCC) ([1991] 3 SCR 654): referred J to.

2015 (5) SA p85

Germany A

BGH JZ 1973, 668 VI Civil Senate (VI ZR 172/71): discussed.

Seychelles

Cosgrow v Cosgrow SCA 12/92: referred to

Rose v Valentin [1999] SCSC 8 (1999 SLR 99): referred to. B

Case Information

DA Smith SC (with O Ben-Zeev) for the applicant.

S Kuny (with Z Ndlokovane) for the respondent.

An application for leave to appeal and an appeal against a decision of the Supreme Court of Appeal, reported at 2014 (6) SA 436 (SCA). C

Order

1.

Leave to appeal is granted.

2.

The appeal is dismissed.

Judgment

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

2015 (5) SA p86

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 —

2015 (5) SA p87

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...