DE v RH

Mr DE sued Mr RH in the North Gauteng High Court for damages arising from adultery between Mr RH and Mr DE's wife, Ms H, claiming loss of consortium and contumelia under the actio iniuriarum. Mr DE successfully sued in the High Court. The marriage between Mr DE and Ms H deteriorated, with Ms H leaving the matrimonial home in March 2010 and divorce proceedings being instituted in June 2010, culminating in a divorce order in September 2011. Mr DE claimed the marriage breakdown was due to the adulterous relationship, while Ms H claimed the marriage had begun deteriorating in late 2008. The Supreme Court of Appeal raised mero motu whether the delictual claim based on adultery should continue to exist in South African law, and concluded it should be abolished. Mr DE sought leave to appeal to the Constitutional Court.

• Whether the delictual action against a third party based on adultery should continue to exist in South African law
• Whether adultery meets the element of wrongfulness for delictual liability in light of constitutional values
• Whether the common law of delict should be developed in accordance with section 39(2) of the Constitution
• Whether the right to dignity of the non-adulterous spouse justifies the continuation of the action
• Whether the rights to privacy, freedom of association, and bodily integrity of the adulterous spouse and third party outweigh the dignity interest of the non-adulterous spouse
• Whether international law obligations to protect marriage and family require retention of the delictual action

1. Leave to appeal is granted. 2. The appeal is dismissed.

The act of adultery by a third party lacks wrongfulness for purposes of a delictual claim of contumelia and loss of consortium. Wrongfulness must be determined by reference to public policy, which is now infused with constitutional values and norms. While adultery may infringe the non-adulterous spouse's right to dignity, this must be weighed against the fundamental rights of the adulterous spouse and third party to privacy (section 14), freedom of association (section 18), and freedom and security of the person (section 12). When these competing constitutional rights are balanced, taking into account changing societal attitudes toward adultery both nationally and internationally, it is not reasonable to impose delictual liability for adultery. The delictual claim is particularly invasive of privacy rights. Marriage is maintained primarily by the moral commitment of the spouses themselves, not by law imposing punitive measures against third parties. It is one thing for law to protect marriages by removing legal obstacles to marital enjoyment, but quite another for spouses to expect the law to prop up a marriage that is weakening or disintegrating for reasons unrelated to legal barriers.

Mogoeng CJ, in a concurring judgment joined by Cameron J, emphasized that the essence of marriage consists in the readiness, founded in morals, of the parties to create and maintain it. The law can create a regulatory framework for marriage and remove barriers to family life, but the rest is in the hands of the spouses. The law cannot shore up an ailing marriage - it is the primary responsibility of the parties to maintain their marriage. The continued existence of a claim for damages for adultery adds nothing to the lifeblood of a solid and peaceful marriage. The Court also noted, obiter, that the claim's origins were deeply rooted in patriarchy, with wives originally viewed as mere chattels, which explained why the claim was originally available only to husbands and only against the third party, not the co-wrongdoer wife. The Court observed that section 15(3) of the Constitution recognizes various forms of marriage, and the concept of family is much wider than married heterosexual couples, including same-sex couples whether married or not, with or without children. The Court did not address the action for enticement, as this was not properly raised before it.

This judgment represents a historic development of the common law of delict in line with constitutional values. It abolished a delictual action that had existed in South African law since 1927 (and in the Cape Colony since 1892). The decision demonstrates the Constitutional Court's willingness to develop common law substantially when required by constitutional norms. It establishes that public policy, informed by constitutional values including dignity, privacy, freedom of association, and bodily integrity, must be the touchstone for determining wrongfulness in delict. The case illustrates the balancing of competing constitutional rights between the injured party and alleged wrongdoers. It reflects modern attitudes toward adultery, marriage, and state interference in intimate personal relationships. The judgment emphasizes that while marriage is protected and valued as a social institution, its maintenance is primarily the responsibility of the spouses themselves through moral commitment, not through legal sanctions against third parties. The decision brings South African law in line with international trends toward abolition of similar claims.