DE v RH

The applicant (DE) sued the respondent (RH), a third party, for damages arising from an adulterous relationship between RH and DE’s former wife. DE relied on the actio iniuriarum, claiming loss of consortium and contumelia. The High Court upheld the claim. On appeal, the Supreme Court of Appeal (SCA) held that DE had no claim for loss of consortium on the facts and raised, mero motu, whether the delictual action based on adultery should continue to exist in South African law. The SCA concluded that the action was outdated and abolished it. DE sought leave to appeal to the Constitutional Court, arguing that abolishing the claim failed to consider constitutional values such as dignity and the protection of marriage.

Leave to appeal was granted, but the appeal was dismissed. The abolition of the delictual claim against a third party for adultery was confirmed.

This case definitively abolished the delictual action for adultery in South African law. It is a landmark decision on the constitutional development of the common law, aligning delictual wrongfulness with contemporary public policy, dignity, and privacy. The judgment reflects the shift away from punitive, patriarchal notions of marriage protection and clarifies the limits of legal intervention in intimate relationships.