Gaborone - Namibians who commit adultery with married people are no longer be at risk of being sued for damages by aggrieved parties to the marriages they interfered with as third parties, the Supreme Court has ruled.
Delivering judgement in a case in which a husband was demanding N$100 000 in adultery damages from a man who allegedly slept with his wife, Namibian Supreme Court judge Dave Smuts abolished the legal grounds for adultery claims saying they were based on outdated Namibian morals and values which considered wives to be the property of their husbands.
“An examination of the origin of the action (demanding compensation for adultery) and its development reveals that it is fundamentally inconsistent with our constitutional values of equality in marriage, human dignity and privacy.
“That examination also demonstrates that the action has also lost its social and moral sub-stratum, and is therefore no longer sustainable,” Smuts ruled.
He said the court also found that grounds for adultery compensation claims were based on an archaic English legal action called “criminal conversation”, which the English courts abolished in 1970.
He said adultery claims were rooted in the “antiquated notion” that a husband enjoyed property rights over his wife, which could be interpreted as viewing wives as mere chattels and “service providers” for their male counterparts.
Smuts noted that several other countries which had inherited the adultery law from English law had long since abolished it. These include South Africa, New Zealand, Australia, Scotland and Canada.
Further, Smuts said while the right to marry and found a family was a fundamental value of the Namibian Constitution, any legal action based on adultery could not protect any marriages since it did not strengthen the weakened or breathe life into disintegrating ones. He noted that in most cases, adultery resulted from, and was therefore not a cause for, the break-up of unhappy marriages.
African News Agency