11/19/23, 9:53 AM Abolishion of adultery claims
THE IMPACT OF THE ABOLITION OF THE THIRD PARTY DELICTUAL CLAIM
FOR ADULTERY BY THE CONSTITUTIONAL COURT IN DE v RH (CCT 182/14)
[2015] ZACC 18
Professor Marita Carnelley
BA LLB (Stell), LLM (UNISA), PhD (Amsterdam)
Dean of Research, College of Law and Management Studies, University of KwaZulu-Natal
1 INTRODUCTION
With any defining judgment, once the dust settles, questions are raised about the broader
impact of the decision. The Constitutional Court (CC) judgment in DE v RH1 is no different.
In this matter the court abolished the third party delictual actio iniuriarum claim based on
adultery pertaining to a civil marriage, in the light of the changing mores of our society.
This article firstly discusses the CC judgment and the arguments raised in the ground-
breaking decision itself, and secondly, the impact of the decision on similar claims vis-à-vis
civil unions and customary marriages. Thirdly, although the order itself is limited to actio
iniuriarum claims, the article also considers its influence on possible future (adultery) claims
based on the actio legis Aquiliae, and delictual claims for enticement and harbouring. Finally,
the article reflects on the effect of the finding on the remnants of possible references to
adultery, generally in the form of “substantial misconduct” in South African divorce law –
particularly as a punitive factor when determining the financial consequences of a divorce,
and notably in calculating possible forfeiture of benefits, redistribution and/or spousal
maintenance orders.
Subsequent case law is not ad idem. References are made to MC v JC 2 dealing with a
forfeiture of benefits order, LEM v MSM 3 relating to spousal maintenance; as well as RP v
PP4 and McFarlane v Matisonn5 concerning redistribution orders.
1
DE v RH (CCT 182/14) [2015] ZACC 18 confirming RH v DE 2014 6 SA 436 (SCA).
2
2016 (2) SA 227 (GP).
3
Unreported case number A3046/2016 dated 12 February 2016 (GJ).
4
2016 (4) SA 226 (KZP).
5
Unreported case number 4022/16 dated 20 July 2016 (KZNP).
1
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, 11/19/23, 9:53 AM Abolishion of adultery claims
SPECULUM JURIS VOLUME 30 PART 1 2016
2 THE CONSTITUTIONAL COURT JUDGMENT
The legal question before the court was whether a non-adulterous spouse had an actio
iniuriarum action in delict against the third party for insult to the self-esteem (contumelia)
and loss of comfort and society (consortium) of the spouse. And, if so, was there justification
for the continued existence of the action?
The preceding SCA judgment did not engage with the constitutional issues, even though the
matter raised several constitutional and public policy issues.6 The applicant in the CC argued
that the SCA’s decision to abolish the claim failed to develop the common law in line with
the constitutional principles, did not adequately consider the innocent spouse’s right to
dignity, and failed to take heed of the value and importance of marriage and family in terms
of s 15(3) of the Constitution – the right to freedom of religion, beliefs and opinion.7
The CC confirmed that in considering whether the claim should remain, the court must
develop the common law in a manner that promotes the spirit, purport and objects of the Bill
of Rights – in terms of s 39(2) of the Constitution. This means developing the law in
accordance with existing public policy, infused with constitutional values and norms – which
reflects the changing social, moral and economic fabric of society and does not merely
preserve rules without existing social underpinnings.8
This public policy, the court argued, informs the wrongfulness element of delictual liability9
of both the Aquilian action 10 and actio iniuriarum. 11 The test for wrongfulness is objective
and the reasonableness criterion has to be used to test the conduct against the mores of
society to determine whether it can still be regarded as wrongful for purposes of the delictual
claim.12 The mores of society thus have to be assessed to determine whether adultery can still
6
For a full discussion of the SCA judgment, see Carnelley “Die doodskoot vir of slegs die verwonding van die
eis teen die derdeparty-egbreker?” 2015 Litnet Akademies 333-346; Zitske “RH v DE 2014 6 SA 436 (SCA). A
case of anti-constitutional common-law development” 2015 De Jure 467-480; Barnard-Naude “The pedigree of
the common law and the ‘unnecessary’ Constitution: A discussion of the Supreme Court of Appeal’s decision in
RH v DE” 2016 SALJ 16-28 and Barratt “Teleological pragmatism, a historical history and ignoring the
Constitution – recent examples from the Supreme Court of Appeal” 2016 SALJ 189-221. The arguments relating
to the lack of consideration of constitutional issues will not be repeated here.
7
Para [9].
8
Para [16] with reference to Du Plessis v De Klerk [1996] 3 SA 850 (CC) para 61.
9
Para [17] with reference to Le Roux v Dey 2011 (3) SA 274 (CC) para 122.
10
Para [18] with reference to Coronation Brick (Pty) Ltd v Strachan Construction Co (Pty) Ltd 1982 4 SA 371
(D) 377.
11
Para [19] with reference to Delange v Costa 1989 2 SA 857 (A) 862E-F.
12
Para [19] with reference to Delange v Costa 1989 2 SA 857 (A) 862E-F.
2
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THE IMPACT OF THE ABOLITION OF THE THIRD PARTY DELICTUAL CLAIM
FOR ADULTERY BY THE CONSTITUTIONAL COURT IN DE v RH (CCT 182/14)
[2015] ZACC 18
Professor Marita Carnelley
BA LLB (Stell), LLM (UNISA), PhD (Amsterdam)
Dean of Research, College of Law and Management Studies, University of KwaZulu-Natal
1 INTRODUCTION
With any defining judgment, once the dust settles, questions are raised about the broader
impact of the decision. The Constitutional Court (CC) judgment in DE v RH1 is no different.
In this matter the court abolished the third party delictual actio iniuriarum claim based on
adultery pertaining to a civil marriage, in the light of the changing mores of our society.
This article firstly discusses the CC judgment and the arguments raised in the ground-
breaking decision itself, and secondly, the impact of the decision on similar claims vis-à-vis
civil unions and customary marriages. Thirdly, although the order itself is limited to actio
iniuriarum claims, the article also considers its influence on possible future (adultery) claims
based on the actio legis Aquiliae, and delictual claims for enticement and harbouring. Finally,
the article reflects on the effect of the finding on the remnants of possible references to
adultery, generally in the form of “substantial misconduct” in South African divorce law –
particularly as a punitive factor when determining the financial consequences of a divorce,
and notably in calculating possible forfeiture of benefits, redistribution and/or spousal
maintenance orders.
Subsequent case law is not ad idem. References are made to MC v JC 2 dealing with a
forfeiture of benefits order, LEM v MSM 3 relating to spousal maintenance; as well as RP v
PP4 and McFarlane v Matisonn5 concerning redistribution orders.
1
DE v RH (CCT 182/14) [2015] ZACC 18 confirming RH v DE 2014 6 SA 436 (SCA).
2
2016 (2) SA 227 (GP).
3
Unreported case number A3046/2016 dated 12 February 2016 (GJ).
4
2016 (4) SA 226 (KZP).
5
Unreported case number 4022/16 dated 20 July 2016 (KZNP).
1
about:blank 1/15
, 11/19/23, 9:53 AM Abolishion of adultery claims
SPECULUM JURIS VOLUME 30 PART 1 2016
2 THE CONSTITUTIONAL COURT JUDGMENT
The legal question before the court was whether a non-adulterous spouse had an actio
iniuriarum action in delict against the third party for insult to the self-esteem (contumelia)
and loss of comfort and society (consortium) of the spouse. And, if so, was there justification
for the continued existence of the action?
The preceding SCA judgment did not engage with the constitutional issues, even though the
matter raised several constitutional and public policy issues.6 The applicant in the CC argued
that the SCA’s decision to abolish the claim failed to develop the common law in line with
the constitutional principles, did not adequately consider the innocent spouse’s right to
dignity, and failed to take heed of the value and importance of marriage and family in terms
of s 15(3) of the Constitution – the right to freedom of religion, beliefs and opinion.7
The CC confirmed that in considering whether the claim should remain, the court must
develop the common law in a manner that promotes the spirit, purport and objects of the Bill
of Rights – in terms of s 39(2) of the Constitution. This means developing the law in
accordance with existing public policy, infused with constitutional values and norms – which
reflects the changing social, moral and economic fabric of society and does not merely
preserve rules without existing social underpinnings.8
This public policy, the court argued, informs the wrongfulness element of delictual liability9
of both the Aquilian action 10 and actio iniuriarum. 11 The test for wrongfulness is objective
and the reasonableness criterion has to be used to test the conduct against the mores of
society to determine whether it can still be regarded as wrongful for purposes of the delictual
claim.12 The mores of society thus have to be assessed to determine whether adultery can still
6
For a full discussion of the SCA judgment, see Carnelley “Die doodskoot vir of slegs die verwonding van die
eis teen die derdeparty-egbreker?” 2015 Litnet Akademies 333-346; Zitske “RH v DE 2014 6 SA 436 (SCA). A
case of anti-constitutional common-law development” 2015 De Jure 467-480; Barnard-Naude “The pedigree of
the common law and the ‘unnecessary’ Constitution: A discussion of the Supreme Court of Appeal’s decision in
RH v DE” 2016 SALJ 16-28 and Barratt “Teleological pragmatism, a historical history and ignoring the
Constitution – recent examples from the Supreme Court of Appeal” 2016 SALJ 189-221. The arguments relating
to the lack of consideration of constitutional issues will not be repeated here.
7
Para [9].
8
Para [16] with reference to Du Plessis v De Klerk [1996] 3 SA 850 (CC) para 61.
9
Para [17] with reference to Le Roux v Dey 2011 (3) SA 274 (CC) para 122.
10
Para [18] with reference to Coronation Brick (Pty) Ltd v Strachan Construction Co (Pty) Ltd 1982 4 SA 371
(D) 377.
11
Para [19] with reference to Delange v Costa 1989 2 SA 857 (A) 862E-F.
12
Para [19] with reference to Delange v Costa 1989 2 SA 857 (A) 862E-F.
2
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