The respondent (plaintiff in the trial court) sued the appellant (defendant) in the North Gauteng High Court for delictual damages arising from adultery committed with the plaintiff’s wife. The plaintiff claimed damages under the actio iniuriarum for contumelia (injury to dignity) and loss of consortium. The wife had left the common home in March 2010, divorce proceedings followed, and the marriage was dissolved in 2011. The defendant and the wife admitted a romantic and adulterous relationship, but contended that it commenced after separation and after the marriage had irretrievably broken down. The High Court accepted the plaintiff’s version, found adultery, and awarded a composite amount of R75 000 for contumelia and loss of consortium. The defendant appealed to the Supreme Court of Appeal.
The appeal was upheld with costs. The High Court order was set aside and replaced with an order dismissing the plaintiff’s action, with each party ordered to pay his own costs.
This landmark decision abolished the common-law delictual action for adultery in South African law. It represents a major development of the common law under section 39(2) of the Constitution, aligning delictual liability with constitutional values, public policy, and contemporary social norms. The case marked the end of civil claims against third parties for adultery.