CCT182/14

[2015] ZACC 18

2015 (5) SA 83 (CC)

2015 (9) BCLR 1003 (CC)

Madlanga J Majority judgment

Mogoeng CJ separate judgment

19 June 2015

http://hdl.handle.net/20.500.12144/3793

Application for leave to appeal against a decision of the SCA: RH v DE (594/2013) [2014] ZASCA 133; 2014 (6) SA 436 (SCA) (25 September 2014).

Law of delict — actio iniuriarum — injury to personality — contumelia — loss of consortium — development of common law of delict based on public policy — must consider constitutional values — wrongfulness of adultery Delictual claim against third party based on adultery — continued existence of claim for adultery in South African law — right to dignity — right to privacy — protection of marriage — constitutional rights of spouses and third party. Application for leave to appeal against an order of the Supreme Court of Appeal abolishing a spouse’s action for damages for adultery against a third party as it can no longer be sustained in our law. The Court found that it is open to it to develop the common law to align it with public policy which is based on constitutional values and norms. Public policy informs the wrongfulness element of delictual liability. Thus the central question was whether society still regarded it as legally unacceptable for a third party to commit adultery with someone’s spouse; and whether it was reasonable to impose delictual liability for damages. The global trend was towards the abolition of civil claims based on adultery. Additionally, adultery entails a significant intrusion into a person’s most intimate relationship. The intrusion is not made less severe by present-day attitudes to adultery. Nevertheless, the potential infringement of dignity by adulterous acts is outweighed by the infringement retaining the claim would inflict against various rights of adulterous spouses and the intruding third party. These include the rights to dignity, freedom of association and freedom and security of person, and privacy. Accordingly, the Court held that it is not reasonable to attach delictual liability to adultery. The adultery lacks wrongfulness for purposes of a delictual claim for damages. In a concurrence, Mogoeng CJ emphasised that marriage hinges on the commitment by the parties to create and sustain it. And that it is the spouses’ loss of moral commitment to sustain the marriage that leads to its failure, rather than the continued existence of a claim for damages for adultery by the “innocent spouse”. Judgment: Madlanga J (unanimous). Separate Concurrence: Mogoeng CJ (Cameron J concurring).