Introduction
The right of a spouse to sue a third party for damages due to adultery remains a contentious issue in legal systems that retain this principle. Historically rooted in common law, this right reflects outdated societal values concerning marriage and personal honour, yet it persists in certain jurisdictions, most notably in South Africa. This essay critically examines the position of this legal right, with a specific focus on South African jurisprudence and case law. Adopting the perspective of the law of evidence, this discussion evaluates the relevance and applicability of evidence in pursuing such claims, alongside the broader legal and ethical implications. The essay is structured to first outline the legal framework and historical context of this right in South Africa, followed by an analysis of key case law. It then discusses the evidential challenges inherent in these claims before concluding with a personal stance on whether this law should be abolished. The primary contention is that, while this right persists, its relevance in contemporary society and the practical difficulties of evidencing such claims raise significant concerns about its continued application.
Historical and Legal Framework in South Africa
In South African law, the right of a spouse to claim damages against a third party for adultery falls under the delictual action known as the “action for adultery.” This remedy originates from Roman-Dutch law, which historically allowed a husband to seek damages for the loss of consortium—a term encompassing companionship, affection, and services—due to a third party’s interference via adultery (Neethling et al., 2006). The legal basis for this claim lies in the protection of marriage as a societal institution, viewing adultery as an injury to the innocent spouse’s dignity and personal rights. Unlike many jurisdictions, such as the United Kingdom, where such claims were abolished with the Law Reform (Miscellaneous Provisions) Act 1970, South Africa retains this right, albeit with evolving judicial scrutiny.
The action for adultery in South Africa requires proof of wrongful conduct by the third party, typically evidenced by the extramarital relationship itself. The claimant must demonstrate that the adulterous relationship caused harm, often in the form of emotional distress or loss of marital companionship (Van der Merwe and Olivier, 1989). However, as will be discussed later, the evidential burden of proving such harm poses significant challenges, particularly in the context of the law of evidence, where admissibility and reliability of personal testimony are central concerns.
Key Case Law and Judicial Developments
South African jurisprudence offers critical insights into the application and limitations of the action for adultery. A seminal case in this area is Wiese v Moolman (2009) 6 SA 235 (T), where the court upheld a claim for damages by a husband against a third party for an adulterous relationship with his wife. The court awarded damages for the loss of consortium and emotional harm, reinforcing the principle that marriage deserves legal protection from external interference. However, the judgment also highlighted contemporary discomfort with the action, with the court noting that societal values have shifted towards viewing marriage as a private rather than public institution.
More recently, the case of RH v DE (2014) 6 SA 436 (SCA) marked a pivotal development. In this case, the Supreme Court of Appeal (SCA) abolished the related action for alienation of affection and enticement, reasoning that these claims were outdated and contrary to modern notions of personal autonomy and equality within marriage. Although the action for adultery was not directly addressed, the reasoning in RH v DE casts significant doubt on its continued relevance, with the court emphasising that personal relationships should not be subject to commodification through damages (South African Law Reports, 2014). This judicial trend suggests a reluctance to uphold traditional delictual claims rooted in antiquated gender norms, though the specific action for adultery remains intact for now.
Evidential Challenges in Adultery Claims
From the perspective of the law of evidence, pursuing a claim for damages due to adultery presents substantial difficulties. Firstly, proving the fact of adultery often relies on circumstantial evidence, such as witness testimony, communications, or photographic evidence. However, the admissibility of such evidence is frequently contested. For instance, private communications obtained without consent may breach privacy rights under the South African Constitution, specifically Section 14, which protects the right to privacy (Constitution of the Republic of South Africa, 1996). Courts must therefore balance the claimant’s right to pursue a remedy with the third party’s constitutional protections.
Secondly, establishing causation between the adulterous act and the alleged harm (loss of consortium or emotional distress) is inherently subjective. Emotional harm, while a recognised head of damages, is challenging to quantify and often depends on the claimant’s testimony, which may lack corroboration. This raises questions about the reliability and weight of such evidence, particularly in a legal system that prioritises objectivity (Schwikkard and Van der Merwe, 2016). Indeed, the law of evidence demands a rigorous approach to proof, and the deeply personal nature of adultery claims often fails to meet this standard.
Furthermore, the burden of proof lies with the claimant, requiring them to demonstrate not only the adulterous relationship but also the resultant harm. In practice, this can lead to invasive and distressing court proceedings, where intimate details of a marriage are scrutinised publicly. Such a process arguably exacerbates the emotional harm it seeks to redress, calling into question the utility of the legal remedy itself.
Should the Law Be Abolished?
Considering the foregoing analysis, I contend that the action for adultery should be abolished in South Africa. Firstly, its historical basis in Roman-Dutch law reflects outdated patriarchal norms that view a spouse—particularly a wife—as property subject to protection through damages. Modern conceptions of marriage, grounded in equality and mutual consent, render such a perspective obsolete, as evidenced by judicial commentary in RH v DE (2014). Secondly, the evidential challenges outlined above highlight the practical difficulties of fairly adjudicating these claims. The reliance on subjective testimony and potentially inadmissible evidence undermines the integrity of the judicial process, particularly within the framework of the law of evidence.
Moreover, the persistence of this action risks trivialising serious emotional harm by reducing it to a monetary award. Instead of fostering reconciliation or resolution, it often fuels animosity, as litigation becomes a tool for vengeance rather than justice. In this regard, alternative mechanisms, such as mediation or counselling, may better serve the interests of affected parties. Therefore, following the example set by jurisdictions like the United Kingdom, South Africa should abolish this delictual action to align its legal framework with contemporary societal values.
Conclusion
In conclusion, the right of a spouse to claim damages against a third party for adultery remains a feature of South African law, rooted in historical principles of Roman-Dutch law. However, as demonstrated through key cases like Wiese v Moolman (2009) and RH v DE (2014), judicial attitudes are shifting towards questioning the relevance of such claims in a modern context. From the perspective of the law of evidence, the challenges of proving adultery and resultant harm further undermine the action’s viability, often leading to invasive and unreliable proceedings. Given these considerations, this essay argues for the abolition of the action for adultery, proposing that it is an outdated remedy incompatible with contemporary values of personal autonomy and equality. The implications of retaining such a law are not merely academic but affect real individuals navigating personal distress within an adversarial legal framework. A progressive legal system should prioritise mechanisms that support rather than commodify personal relationships, marking a clear path towards reform in South African delictual law.
References
- Constitution of the Republic of South Africa. (1996) Act 108 of 1996. Government Printer.
- Neethling, J., Potgieter, J.M., and Visser, P.J. (2006) Law of Delict. 5th ed. LexisNexis Butterworths.
- Schwikkard, P.J. and Van der Merwe, S.E. (2016) Principles of Evidence. 4th ed. Juta & Co.
- South African Law Reports. (2014) RH v DE (2014) 6 SA 436 (SCA). Juta & Co.
- Van der Merwe, N.J. and Olivier, P.J.J. (1989) The Law of Persons and the Family. Juta & Co.
