Carmel Rickard looks at an appeal court hearing on whether a wronged spouse can sue for damages.
Pretoria - Sex and the law aren’t easy companions. Our highest court has often spoken about the private nature of sex and how prying infringes on human dignity. But what do you do when someone forces the law to pry?
That’s the situation in South Africa because a spouse whose partner has had an intimate relationship with someone else can go to court and sue the third party for damages.
And when that happens, the resulting legal action can involve detailed cross-examination on excruciatingly private details.
Few people realise that, strictly speaking, if someone is involved in a sexual relationship with a married man or woman at any time up to the finalisation of divorce by a court, the so-called “innocent spouse” may sue the third party for damages.
And it was exactly this issue that was challenged in the Supreme Court of Appeal last week after the North Gauteng High Court in Pretoria had ruled that the third party had to pay R75 000 to the former husband in the case. During argument the five appeal judges considered not only the particular case before them, but also the principle involved and whether to scrap the law allowing this kind of legal action.
It’s more common than you might think, according to Dave Smith SC, who acted for the so-called innocent spouse in the case.
He assured the judges that there were “plenty” of such actions in which a third party was sued. Most, however, never got as far as a court hearing.
Smith, who seems to have considerable experience in such cases, said that the “guilty party” tended to settle out of court and pay damages. Such a settlement, he said, was an acknowledgment that “I have committed fault”. By contrast, the judges heard argument by Steven Kuny, who appeared for the third party, that the law could be misused as an instrument of blackmail, and that most people would be forced to settle.
As Judge Fritz Brand, presiding in the appeal, asked Smith, wasn’t it very likely that the third party in such a matter wouldn’t be able to pay R500 000 in fees and would have to settle?
Smith based much of his argument on the fact that the parties were all Christian and on the need to have regard to the Christian view of adultery as a sin.
Judge Brand wasn’t impressed however: “We cannot possibly have legal action to enforce a biblical command.”
Other painful issues emerged in the appeal. Why, for example, did the high court judge permit Smith to address the former wife, the so-called guilty spouse in this matter, using the demeaning term “Mevroutjie” at least eight times?
Why did the judge allow insulting references by Smith to his contention that sex must have taken place because “there is no such thing as wind pollination”?
The appeal judges told Smith they wouldn’t tolerate such language, but why did the trial judge not make the same point? Perhaps he didn’t notice since he expressed himself in terms that women will find just as demeaning: at one stage the woman was cross-examined on whether she and her former husband had sex before they were married. She tried to explain that they had “tried” but that there had been problems. As Smith persisted with his questions on this subject, the judge intervened: “Let’s make this more understandable. He (the former husband) has said that you can’t buy a car if you haven’t first taken it on a test drive. Now was there a test drive or wasn’t there?”
The former wife earned a significant salary. Yet, each month her husband removed the money from her account and assumed complete control of the funds. The trial court, however, appeared to find nothing unusual or objectionable about this and made little of her unhappiness at the situation.
The judge painted a picture of a happy Christian marriage, with no mention of the ex-wife's evidence of her problems with pornography she found on her husband's computer or the threats by him and her evidence of forced and inopportune sex.
Refusing leave to appeal against his decision the judge said he didn’t think “there is any probability or possibility of success” and it was only thanks to persistence by the third party and his lawyers that the matter eventually ended at the appeal court.
The appeal judges are still writing their decision but don’t be surprised if they favour the final extinction of this destructive legal dinosaur.
Pretoria News
* Carmel Rickard is a legal affairs specialist. [email protected], www.tradingplaces2night.co.za
** The views expressed here are not necessarily those of Independent Newspapers.