RH v DE (594/2013) [2014] ZASCA 133; 2014 (6) SA 436 (SCA) (25 September 2014)

RH v DE (594/2013) [2014] ZASCA 133; 2014 (6) SA 436 (SCA) (25 September 2014)

The Supreme Court of Appeal held that the delictual action based on adultery, which afforded the innocent spouse a claim for both contumelia and loss of consortium, is no longer justified in light of changing societal mores and constitutional norms. The court found that the action is outdated, causes undue harm to the parties and their families, and does not effectively protect the institution of marriage or serve as a meaningful deterrent. The court concluded that the time for abolition of the action has come, and it should no longer be available as part of South African law. The award for loss of consortium was set aside, and the plaintiff's action was dismissed.

Citation
[2014] ZASCA 133
Parties
Appellant: RH; Respondent: DE
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
25 September 2014
Case Number
594/2013
Procedural Posture
Civil Appeal / Appeal From North Gauteng High Court, Pretoria
Outcome
Appeal upheld; the order of the high court is set aside and replaced with dismissal of the plaintiff's action.
Judges
Brand, Cachalia, Tshiqi, Majiedt, Mbha
Legal Topics
Actio Iniuriarum, Adultery Claims, Loss of Consortium, Contumelia, Development of Common Law, Constitutional Norms
Delict Family and Children Actio Iniuriarum Adultery Claims Loss of Consortium Contumelia Development of Common Law Constitutional Norms

Case Brief

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Parties

RH

Appellant

DE

Respondent

Procedural Posture

Civil Appeal / Appeal From North Gauteng High Court, Pretoria

Legal Issues

  1. 1 Whether the delictual claim for damages based on adultery should be maintained as part of South African law.
  2. 2 Whether the award for loss of consortium was justified under the circumstances.
  3. 3 Whether the continued existence of the adultery action aligns with current constitutional and societal norms.

Ratio Decidendi

The Supreme Court of Appeal held that the delictual action based on adultery, which afforded the innocent spouse a claim for both contumelia and loss of consortium, is no longer justified in light of changing societal mores and constitutional norms. The court found that the action is outdated, causes undue harm to the parties and their families, and does not effectively protect the institution of marriage or serve as a meaningful deterrent. The court concluded that the time for abolition of the action has come, and it should no longer be available as part of South African law. The award for loss of consortium was set aside, and the plaintiff's action was dismissed.

Court Disposition

Appeal upheld; the order of the high court is set aside and replaced with dismissal of the plaintiff's action.

Orders

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