Wiese v Moolman

The plaintiff (A.H.A. Wiese) married Lettie Wiese in 1987. The marriage was dissolved by divorce in 2003. The plaintiff alleged that the defendant (C. Moolman) committed adultery with Lettie Wiese during the subsistence of the marriage and instituted an action for damages under the actio iniuriarum. The defendant raised a special plea contending that the action based on adultery no longer exists in South African law and should be abolished. The parties agreed to present the issue as a stated case. For the purposes of the stated case, the defendant admitted that he had committed adultery with the plaintiff's spouse on various occasions between April 2001 and May 2002. The legal question referred to the court was whether an action based on adultery has any validity in South African law, or whether it should be abolished.

• Whether the actio iniuriarum based on adultery still exists in South African law or should be abolished.
• Whether societal norms (boni mores) have changed to such an extent that adultery is no longer wrongful (onregmatig).
• Whether an action based on adultery is inconsistent with the Constitution, particularly sections 9 (equality), 10 (human dignity), 15 (freedom of conscience, religion, thought, belief and opinion), and 18 (freedom of association).
• Whether a High Court may depart from Appellate Division precedent if convinced that community standards were different when those decisions were handed down.
• Whether it is anomalous that the innocent spouse may sue the third party but not the guilty spouse.

The defendant's special plea is dismissed with costs, including the costs of two advocates.

An action based on adultery under the actio iniuriarum continues to exist in South African law and has not been abolished by changed societal norms or by the Constitution. Adultery constitutes a wrongful infringement of the innocent spouse's personality rights, including the rights to honour, dignity and consortium. The action is not inconsistent with the Bill of Rights (ss 9, 10, 15 and 18 of the Constitution). In developing the common law in accordance with the spirit, purport and objects of the Bill of Rights (s 39(2)), the adultery action remains valid; it has evolved to protect the personality rights of all spouses equally. The voluntary undertaking of sexual exclusivity within marriage deserves legal protection against intentional third-party interference.

The court raised, but expressly declined to decide, the interesting question of whether a High Court may depart from decisions of a higher court if convinced that those decisions were handed down at a time when community standards were different. The court observed that loss of consortium might technically be claimed under the actio legis Aquiliae rather than the actio iniuriarum, but that it concentrated on personality rights for the purposes of the judgment. The court commented that the law provides a necessary outlet for the intense feelings caused by adultery, and that without such an outlet those feelings might be vented in other unlawful ways. It also noted that, for legal-policy reasons, the innocent spouse cannot institute the actio iniuriarum against the guilty spouse, although the guilty spouse's adultery nonetheless constitutes a wrongful act towards the innocent spouse, whose remedy lies in divorce proceedings under the Divorce Act 70 of 1979.

The case is a leading High Court decision confirming the continued existence of the actio iniuriarum for adultery in post-Constitution South Africa. It holds that adultery is an iniuria infringing the innocent spouse's personality rights (honour, dignity and consortium) and that this is consistent with the Constitution. The judgment clarifies that the development of the common law under s 39(2) does not require abolition of the adultery action, and that the action applies equally to all spouses regardless of gender or sexual orientation. It underscores that the institution of marriage, including its undertaking of sexual exclusivity, is constitutionally protected and that third-party interference remains wrongful.