A claim for R95 000 boomerangs as court awards just R1 to ‘aggrieved’ former husband, writes Carmel Rickard.
Suing the lover of your spouse or ex-spouse for damages can be dangerous. It’s expensive if you lose; it can be equally costly even if you win. And that’s just the money – the personal and social costs in embarrassment and pain to all involved can’t ever be calculated.
Earlier this month the high court in Windhoek ruled on a R95 000 damages claim brought by Hendrick Useb against George Gawaseb for adultery with Useb’s former wife, Charmaine.
Useb said his marriage was a “normal average relationship”, with “no significant discord apart from occasional differences”.
But on November 27, 2011, Charmaine came home after staying out all night and refused to explain where she’d been.
They argued, she collected her clothes and then left home to move in with Gawaseb.
Useb was the only one to give evidence in his case and he called no other witnesses. For their part, Gawaseb and Charmaine freely admitted that they were involved in a romantic relationship that started after Charmaine left Useb, but before the marriage formally ended in divorce. Gawaseb said they had known each other since school days.
Some years later, he met Charmaine and Useb. He began to communicate with her in December 2011 and she told him of the bad marital experiences as a result of which she had moved out of the joint home in November 2011. Gawaseb said he played no role in ending the Useb marriage – when the relationship between them began there was no chance of reconciliation with her husband.
She told him she had started divorce proceedings and that the relationship between her and her husband had irretrievably broken down.
Also, when the love relationship between the two of them started in May or June 2012, it was already “months after she moved out of the common home”.
Charmaine gave evidence of Useb’s abuse and his adulterous affairs, and how each time she decided to leave him he persuaded her to stay by apologising and getting friends to intercede on his behalf.
Finally she decided to quit because of his affairs, failure to pay his share of family expenses and his dislike of her two daughters from a previous relationship – he told her that she had to give away the children if she wanted to continue the relationship with him.
After a friend tried unsuccessfully to mediate he said he would seek a divorce.
Though she then left the joint home, he did nothing about a divorce and eventually she brought a divorce action.
The breakdown of the marriage had nothing to do with Gawaseb, she said, but was caused by Useb’s constant affairs and his “cruel and harsh treatment of her and her children”.
Her evidence was backed by two witnesses, who said they had personal knowledge of what happened in the Useb household, having been sometimes called in to mediate between the couple.
Judge Shafimana Uitele said that legally, Gawaseb and Charmaine committed adultery. However, this did not necessarily mean Useb was entitled to damages.
In such a case damages could be awarded on two grounds: for the injury to dignity inflicted on the “innocent” spouse and for the actual damage that might have been sustained because of the “loss of comfort and assistance by his wife in consequence of the adultery”.
But Useb would have to prove that these rights were infringed.
The judge said he could not find that Gawaseb had “enticed” Useb’s wife away.
With regard to the injury to Useb’s dignity and feelings, the evidence showed his “cavalier attitude” towards marriage generally and to his wife in particular.
The judge also considered Useb’s extramarital affairs and his attempt to mislead the court by fabricating stories about Gawaseb and Charmaine.
“I am not disposed to accept… that the adultery… caused him humiliation and depression.
“The admitted adultery provided him with a good cause of action that he attempted to exploit, but I am not satisfied that it caused him any distress whatsoever.”
The court ordered Useb to pay Gawaseb’s legal costs and awarded him nominal damages of just R1.
A recent Supreme Court of Appeal decision scrapped the law that allowed similar legal action in South Africa.
But if you thought that was the end of the issue – think again.
The husband in the local case has approached the Constitutional Court to appeal: so stand by for a re-hash of the whole excruciating, humiliating saga.
* Carmel Rickard is a legal affairs specialist. Email [email protected] or visit www.tradingplaces2night.co.za
** The views expressed here are not necessarily those of Independent Media.