Durban - Accusing someone of committing adultery - even if it is not true - cannot be said to be defamatory because society no longer views such conduct with disdain.
That was the upshot of a judgment by Durban High Court Judge Mokgere Masipa in a matter in which a local doctor had tried to sue a close family friend for accusing him of having an affair with his wife.
The judge’s ruling builds on a Constitutional Court pronouncement “that in light of the changing mores of our society” adultery is no longer an offence and aggrieved spouses can no longer sue a “third party” in a relationship for damages.
This shift in society meant the doctor could not claim that his reputation, status and good name had been harmed, Judge Masipa said.
Evidence before her was that the couple - who have one child - had been married for 16 years at the time of their divorce earlier this year.
Initially in the divorce action, the husband also sued the doctor but was forced to withdraw that after the Constitutional Court ruling.
The doctor counter-sued for defamation which resulted in a five-day trial during which both men gave evidence.
The husband said he first became suspicious when his wife started talking privately on her phone and coming home late.
One Valentine’s Day, he found two cards in her handbag, but he only received one. He also found a ring in her bag. She later produced it claiming she had just bought it and “took off her wedding band and replaced it with the ring”.
Without her knowledge the husband installed a tracking device on her car which proved regular trips to a street where the doctor’s surgery was located. Telephone records showed that about 60% of all her calls were made to him.
A key witness was the domestic worker who testified that once she had seen the wife and the doctor “kissing like lovers kiss” in the passageway at 7am.
A few weeks later - when the husband was away - she got up to use the bathroom at 5am and saw the doctor’s car turning from the driveway into the road.
“No one was sick in the house,” she said.
The doctor denied it all. He said the wife phoned him “about nine times a day” to discuss the stock market, her assisting his children with their school projects and his “activist activity” because they worked together on a political project.
He said the wife had visited him at his surgery to collect data.
But the judge said the husband’s suspicions were “reasonable considering the circumstances”.
Excessive
“It became common cause that there were excessive interactions between them,” she said. “The doctor denied the existence of a relationship but could not proffer an explanation for the countless and excessive phone calls and visits. He only tendered an explanation during his own case as an afterthought and in an attempt to sustain his version.”
Further, she said, the doctor had not even proved “publication” of the alleged defamation because the husband had only told his mother “in an attempt to understand why his marriage was disintegrating” and the doctor’s wife, because he wanted to warn her that he was planning to sue the doctor.
The next question, the judge said, was whether the “words complained of” conveyed a defamatory meaning to a reasonable person.
“Even if the husband was wrong (about the affair), the shift in society in respect of adultery negates the doctor’s defamation claim and he led no evidence to prove that his reputation was indeed injured.”
She said on the face of it the husband could have succeeded in his claim against the doctor had the law not changed. She dismissed the case, ordering the doctor to pay the costs.
The Mercury