Abolishment of the adultery claim– out with the old.

In 2014 the Supreme Court of Appeal ruled that a delictual claim based on adultery will no longer be part of South African law. The Appeal court ruled that a delictual claim for loss of consortium (damages due to the loss of family and or relationship) will no longer be available, but that a claim based on contumelia (damages suffered as result of insult of injury) would still be available.

The Constitutional Court of South Africa, being the highest court in South Africa, has  finally settled the matter on whether any delictual claim should be available to a . In considering the matter the court analysed the judgment delivered by the Appeal Court and agreed with the reasons and evaluation.

In essence a claim based on adultery would be against the third party that committed adultery “with” one of the spouses. One of the reasoning behind the Appeal court abolish the claims was the fact that an “innocent” party is being punished for an act that a married spouse has committed i.e the married spouse is not reprimanded for the adultery.

When considering whether the delictual act is wrongful the court held that there can be no delictual action without the element of wrongfulness. It is here where public policy needs to be taken into account. Does the public see the act as wrongful? After discussing various public policy considerations the Constitutional court came to the conclusion that times have changed and the act of adultery is no longer seen as morally incomprehensive as it was years ago.

When weighing up the competing rights of all parties involved the court held that: “Nevertheless, the potential infringement of dignity [of the non-adulterous spouse] must be weighed against the infringement of the fundamental rights of both the adulterous spouse and the third party to privacy, freedom of association and freedom and security of the person. These rights demand protection from state intrusions in the intimate choices of, and relationships between, people. This must be viewed in light of current trends and attitudes towards both nationally and internationally. These attitude also demonstrate a repugnance towards state interference in the intimate personal affairs of individuals.”

The court came to the final conclusion that both delictual claims of contumelia and loss of consortium as result of adultery should be abolished in South Africa. Thus bringing an end to the delictual action based on adultery. Thus as from 2015 there will be no claim for damages based on adultery.

 

Anye Jansen van Rensburg, SchoemanLaw Inc (Cape Town)

Tel: +27 (0) 21 425 5604

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About The Author

Anye Jansen van Rensburg

Anye holds a LLB and LLM both from the University of Stellenbosch. Her LLM focused in the field of private law. Her dissertation was done in the Law of Trusts and focused on the question of whether a trust is nothing more than a stipulatio alteri, namely a contract for the benefit of a third party. She is an admitted Attorney of the High Court RSA. She joined the firm as a junior associate in July 2014. While she was at the University of Stellenbosch she was selected to be part of the Legal Aid Clinic. She is passionate about the community and assisting the less fortunate with pro bono legal advice. Anye is passionate about the law, women’s rights and mentorship for young women. She is devoted to provide her clients with the best legal advice and assistance.

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