RH v DE

The respondent (plaintiff) instituted a delictual action for damages against the appellant (defendant) in the North Gauteng High Court based on the defendant committing adultery with the plaintiff's wife (Ms H). The plaintiff and Ms H married on 30 April 2005 and had two minor children. Ms H left the common home on 23 March 2010, and divorced the plaintiff in September 2011. Ms H met the defendant when she commenced employment at his company in April 2009. The defendant and Ms H admitted they became romantically involved after Ms H left the marital home and admitted to adultery, but claimed this only started on 17 July 2010, after divorce proceedings had commenced. The plaintiff alleged the adulterous relationship started much earlier and caused the breakdown of his marriage. The trial ran for eight days with extensive evidence about when the marriage deteriorated. The court a quo accepted the plaintiff's version and awarded damages under both headings of contumelia (insult) and loss of consortium (loss of comfort and society of spouse) in a composite amount of R75,000 plus interest and costs. The defendant appealed with leave of the SCA.

• Whether the delictual action for damages based on adultery should continue to exist in South African law
• Whether damages for contumelia (insult) were properly awarded
• Whether damages for loss of consortium were properly awarded
• Whether adultery occurred before or after the irretrievable breakdown of the marriage
• Whether the factual findings of the court a quo should be disturbed on appeal

1. The appeal is upheld with costs, including the costs of two counsel. 2. The order of the high court is set aside and replaced with: 'Plaintiff's action is dismissed. Each party to pay his own costs.'

The delictual action based on adultery derived from the actio iniuriarum, which afforded the innocent spouse a claim for both contumelia and loss of consortium, is no longer wrongful in the sense that it attracts liability and is thus no longer available as part of South African law. Wrongfulness in delict ultimately depends on a judicial determination of whether it would be reasonable to impose liability on a defendant for damages flowing from specific conduct, and that reasonableness depends on considerations of public and legal policy in accordance with constitutional norms and the prevailing boni mores of society. Courts have a duty to develop the common law to reflect changing social, moral and economic fabric of society and cannot perpetuate legal rules that have lost their social substratum. The action for adultery has lost its justification because: (1) it stems from archaic notions of proprietary interests in spouses inconsistent with modern values; (2) it creates an illogical anomaly by imposing liability on third parties but not guilty spouses; (3) its purported purposes (protecting marriage, providing compensation for insult, deterrence) are not achieved; (4) adultery is rarely objectively insulting to the innocent spouse under contemporary social norms; (5) the action causes disproportionate harm to children, dignity, privacy and involves excessive costs relative to any benefit achieved.

The court made several non-binding observations: (1) The court expressed no view on the continued existence of other actions based on the actio iniuriarum relating to marriage, such as actions for abduction, enticement and harbouring of a spouse, leaving these for consideration on another occasion. (2) The court made no comment on the continued existence of claims against third parties based on adultery for patrimonial harm suffered through loss of consortium (such as loss of supervision over household and children), which may be available under the lex Aquilia. (3) The court noted but did not decide that academic authors have argued the action may conflict with constitutional norms, stating there could be merit in such arguments. (4) The court commented that the action for enticement is distinct from adultery and requires proof that the defendant induced or persuaded the spouse to leave, which is "a very formidable onus to discharge." (5) The court observed that adultery frequently occurs as a result rather than a cause of marital breakdown, and that causes of marriage breakdown are complex. (6) The court noted that an interdict against future adultery has never been granted by South African courts for reasons that would apply equally to claims for damages.

This landmark judgment abolished the delictual action for adultery in South African law, bringing South Africa into line with most other modern legal systems. The case represents a significant development of the common law through judicial recognition that changing societal mores and constitutional values require abandonment of archaic legal remedies. It demonstrates the court's willingness to develop the common law incrementally where actions have lost their social substratum and no longer conform to contemporary notions of public policy, reasonableness and the boni mores of society. The case is particularly significant for: (1) abolishing a remedy that had been explicitly recognized by the courts for nearly a century since Viviers v Kilian (1927); (2) comprehensive comparative analysis showing South Africa was out of step with international trends; (3) identifying the harmful consequences of maintaining outdated remedies; (4) emphasizing that declaring conduct not wrongful (regmatig) does not constitute moral condonation but merely reflects that legal policy does not warrant imposing liability. The judgment leaves open questions about related actions such as enticement and harbouring, and claims for patrimonial loss under the lex Aquilia.