Viviers v Kilian

• Jurisdiction: South Africa
• Judge: Solomon CJ, De Villiers JA, Wessels JA and Curlewis JA
• Judgment Date: 26 April 1927
• Hearing Date: 14 April 1927
• Court: Appellate Division

Solomon, C.J.:

This is an appeal from a judgment of the O.F.S. Provincial Division, awarding the respondent the sum of 250 damages for adultery committed by the appellant with the wife of the respondent. The case is certainly a remarkable one in more than one respect. It is the case in South African Courts, as far as I know, in which damages have been claimed by an injured husband who had condoned his wife's offence, and was not suing her for a divorce. It has not been contended, however, by counsel for the appellant that in these circumstances no action lies, nor indeed could such a contention have been successfully raised. It is true that the general practice is to join in one action a claim for damages with one for divorce. But the two actions are separate and distinct: the one against the wife and the other against the co-respondent. And on principle there is no reason why the latter claim should not be proceeded with even though no action is taken against the wife for a divorce. A husband may forgive his wife and condone her misconduct, but he does not thereby necessarily forgive her paramour for the injury inflicted upon himself. That a person who commits adultery with a married woman inflicts an injury upon the husband for which the latter may be compensated in damages is now settled law, though at one time it seems to have been doubted. In the case of Biccard v Biccard and Fryer (9 J. 473) DE VILLIERS, C.J., said that "in the case of Wagner v Kotze, WATERMEYER, J., is reported to have said that actions by husbands against persons committing adultery with their wives were unknown in the Dutch law, but if the report be correct the learned Judge must have overlooked the remarks of Grotius (3.35: 9), who says that whoever commits adultery with a married woman, even with her consent, inflicts an injury upon the husband, and is, therefore,

Solomon, C.J.

in this respect liable to the husband, besides the compensation, for the losses which the husband or the children sustain by the same." And indeed this very question has been decided by the Privy Council in the case of Norton v Spooner (9 Moore, P.C. 104), where in an appeal from British Guiana it was held that a civil action for recovery of damages against a defendant for criminal conversation had with the plaintiff's wife lies by the Dutch law, prevailing in British Guiana, the judgment being based mainly upon the passage from Grotius already cited. It is true that this decision is no direct authority for saying that an action is competent where the plaintiff is not Suing his wife for a divorce; but as I have already said, on principle there is no reason for holding that because a husband condones his wife's misconduct he thereby loses his right of proceeding against the person who has injured him by committing adultery with her. It was said by DE VILLIERS, C.J., in the case of Nanto v Malgass (5 J. 108): "I am by no means satisfied that under our law a husband can maintain an action for damages against an adulterer with his wife without suing her for divorce." But in Biccard v Biccard and Fryer, after referring to this passage, he proceeds: "further consideration has led me to the conclusion that this ought not to be an absolute bar to his claim for damages." It is interesting to find that under the English Common Law condonation of a wife's misconduct was no bar to an action for criminal conversation by a husband against her paramour, but went only in mitigation of damages. (Bernstein v Bernstein (1893, P.D at p. 104).) It was, however, there decided by the Court of Appeal that the case was different under the Divorce and Matrimonial Causes Act, 1857, which abolished the old action for criminal conversation, and that, where a divorce is refused on the ground that the adultery has been condoned, the petitioner is not entitled to a judgment, even for nominal damages, against the co-respondent. An Act of Parliament, however, was required to bring about that result, and we have no corresponding statute in South Africa. I am satisfied, therefore, that under our law condonation of a wife's misconduct is no bar to an action by a husband for damages against the person who has committed adultery with his wife, but only goes in mitigation of damages. That being so, I proceed to consider the arguments addressed to us by counsel for the appellant against the judgment pronounced by the Provincial Division.

Solomon, C.J.

It is contended in the first place that on the evidence the trial Court was not justified in finding that adultery had been established. Much reliance was placed on the remarks of DE VILLIERS, C.J., in Biccard's case, where he says that "although the fact of the husband not suing his wife for divorce is not an absolute bar to his claim for damages against the adulterer, it raises a presumption of collusion which ought to be rebutted by satisfactory evidence to the contrary." It would be more correct, in my opinion, to say that this fact raises a, suspicion, not a presumption, of collusion. For the onus must always be on the party who sets up such a case to prove collusion; not on the opposing party to disprove it. That the danger of collusion was present to the minds of the trial Judges appears...