Adultery as actionable ground of action

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At common law adultery constituted an actionable iniuria against the innocent spouse. In RH v DE the supreme court of appeal made a radical turnabout. On the basis that the court has a duty to develop the law in accordance with the contemporary boni mores as delictual criterion for wrongfulness and the bill of rights, Brand JA, in a considered judgment, came to the conclusion that in light of the boni mores adultery can no longer be regarded as wrongful, and that it may accordingly no longer ground the actio iniuriarum. This conclusion is supported by the position in most Western countries and the conviction of the majority of South African writers. Some of the other reasons that Brand JA gave for his decision are: the origin of the action is archaic as the husband was considered to have some proprietary interest in his wife and later because of the view that both husband and wife were entitled to the sole use of each other’s body; it is a clear anomaly that the action is available against the third party only and not against the adulterous spouse; the action does not protect the institution of marriage and does not have a deterrent effect against adultery; even though the innocent spouse’s feelings (of dignity) may be subjectively infringed by the adultery, a reasonable person would not be hurt by the adultery and it is therefore not wrongful; and the hurt and harm brought about by the action (for example, for the children involved and the defendant) would far outweigh the advantage which the action may have for the innocent spouse. One can accept that since adultery is no longer wrongful, the interdict would also not be at the disposal of the innocent spouse, as wrongfulness is a requirement for the interdict. What has, however, been retained, is that the innocent spouse should be able to institute a claim with the Aquilian action for patrimonial loss, such as the loss of supervision over the household and children. It is also submitted that enticement as a ground of action should be retained in our law, and that the fact that the action for adultery has been abolished does not mean that the circumstances surrounding an adultery may be of such a nature that it may be regarded as an actionable iniuria. Finally, it is unfortunate that Brand JA, without sufficient justification, was critical of recognising and protecting feelings as an independent personality interest.

Keywords: Actio iniuriarum; actio legis Aquiliae; adultery; alienation of affection; bill of rights; boni mores; breach of promise; consortium; constitutional dispensation; contumelia; dignity; enticement; feelings; iniuria; insult; interdict; marriage; personality rights; reasonable person test; solatium; wrongfulness

Read the article in Afrikaans: Vonnisbespreking: Owerspel as gedingsvatbare aksiegrond

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