Pretoria - In a case which could be groundbreaking for cheating spouses, the Supreme Court of Appeal in Bloemfontein will on Wednesday hear arguments as to whether the right to claim damages for adultery is still relevant in our modern society.
If the court decides times have changed, the effect could be that this type of legal action can in future not be used by an aggrieved spouse against a third party.
This question was sparked by judges of the Appeal Court, who are due to hear legal arguments in a case where a Gauteng man, identified only as R, was ordered by the North Gauteng High Court to pay R75 000 in damages to his rival, identified as D, for alienation of affection.
The court at the time ordered that the parties not be identified, as D has two young children. D’s wife left him and conducted an affair with R. Her aggrieved husband turned to court for damages for losing his wife’s affections. R felt that D’s wife was in any event unhappy and that he did not contribute to the break-up of their marriage. A Pretoria judge did not agree and ordered him to pay R75 000.
R wants the Appeal Court to overturn this order, or to at least reduce the amount of damages as he feels he is not at fault.
Before hearing the merits of the case, the judges asked to be addressed on the issue of whether the question of adultery should remain part of the law, weighed against the morals of a modern society, the constitution and the concept of marriage.
Arguing for these type of claims to remain part of our law, advocates Dave Smith and Anton van Tonder say that the institution of marriage is recognised by the constitution and adultery violates this.
“Marriage in the modern society is still of great importance… The law of marriage forms an integral party of family law and both the Supreme Court of Appeal and the Constitutional Court have acknowledged the importance of marriage as a social institution,” they stated in documents filed in Bloemfontein.
The pair will advance the argument that the celebration of a marriage gives rise to moral and legal obligations. In his written submissions, Smith said notwithstanding perceived fluctuations in the morals of modern society, the institution of marriage was still highly relevant and was deserving of protection through our law.
He added that when couples married, they had a legitimate expectation that the community, and especially third parties, would respect the exclusive nature of the marriage and that there were remedies available against any breach of this exclusivity.
“The law has always been aimed at regulating society and to prevent self-help or similar actions… History of humankind indicates that when it created the relationship of marriage, adultery was not far behind.
“Adultery is a universal human occurrence. It is not merely a moral issue, but one which legal systems over the years have addressed.”
Smith will tell the court that all religious denominations in the country recognise marriage and its sanctity and that adultery is a sin. “The sanctuary of marriage and the responsibilities flowing from it remain the cornerstone of our society…”
According to him, an aggrieved party should receive damages and the perpetrator must pay-up.
Countering this argument, counsel for R, advocate Steven Kuny, will argue that this law is outdated. He said in the past 30 years there appears to have been only three reported cases in the SA Law Reports of actions based on adultery.
He will argue that in many cases, such as this one, the marriage would have already broken down before adultery took place. “In reality, the action for adultery is often an attempt to place the blame for the break-up of a marriage on a third party when one or both spouses are often to blame for the disintegration of the marriage.”
He said a third party was then punished for breaking up the marriage, while the perhaps more blameworthy spouse is not held liable.
Kuny will argue that a case such as this is often humiliating for the “cheating” spouse, who has to expose his or her sex life and affair to an open court.