Adultery ceased to be a criminal offence in South Africa about 100 years ago.   But until now the aggrieved spouse has been able to base a claim for damages for ‘humiliation’ against the adulterer.   This may be about to change if the SCA takes the bold move to ‘develop’ the common law and rule that there is no longer any ‘cause of action’ based on such interference in a marriage relationship.   Until 1979 a married person who proved that the spouse had been ‘unfaithful’ could obtain a divorce and an  automatic forfeiture of the benefits of the marriage.   Since then the courts have been allowed to grant divorces without any such proof of ‘fault’.   Now if the marriage relationship has broken down irretrievably the courts may terminate the marriage.   But the important change brought about in 1979 was to split the decision to terminate the marriage from the forfeiture of the benefits of the marriage.   This holistic approach needs to be adopted in employment law.

Carmel Rickard’s article Can adultery still be seen as a crime? first appeared in the Mail & Guardian on 29 August 2014 and here are some extracts.

Adultery is generally a symptom rather than a cause of marital breakdown, the Supreme Court of Appeal heard this week.

Five judges of that court were considering a judgment of the high court that had awarded damages to a man whose wife had “committed adultery” shortly before they were divorced.   Although the “injured husband” originally claimed R1-million in damages, the high court eventually awarded him R75 000 plus costs.

The case has caused considerable public interest: many people are unaware that adultery can still have significant legal consequences and that damages can be awarded against a “third party” for having a sexual relationship with someone who is still married.

During argument, the appeal judges considered whether the high court case had been correctly decided.   But they also heard argument on whether the law allowing a damages claim for adultery should be scrapped because it serves no proper purpose.

. . . .

The judges questioned why . . . . the law only permits the third party to be sued, whereas the spouse with whom a third party had had a relationship is not liable for damages.

. . . .


The judges criticised the language used during the hearing, saying they would not have allowed Smith to address the woman as “mevroutjie” (little missus) as he had done in the high court.   They said he should not make submissions that were both silly and insulting, such as his suggestion that intercourse must have taken place because “wind pollination does not exist”.

“That is not the kind of submission that I want in my court,” presiding judge Fritz Brand said.

The judges asked why a law should exist to compensate someone for the “humiliating fact” that his or her spouse committed adultery, when the wider community would think no less of the “innocent spouse” because of this.   Judge Azhar Cachalia said it might have been an issue 50 years ago, but now people simply say: “Sorry, it didn’t work out.”

See also Judgment on adultery reserved.