Seroot v Pieterse (33377/05) [2005] ZAGPHC 67 (13 June 2005)

IN THE HIGH COURT OFSOUTH AFRICA(TRANSVAALPROVINCIAL DIVISION)Date argued : 8,15 February 2005Judgment delivered : 13 June 2005CASE NO: 33377/2005In the matter between:THOMAS JOHANNES SEROOTPLAINTIFFandDESMOND PIETERSEDEFENDANTDamages – for loss of consortium – enticement not proved – alienation of affectionVan Rooyen AJ[1] The Plaintiff served a summons on the defendant for damages resulting from the defendant’sadultery with the wife of the plaintiff which resulted in theenticementof the wife of the Plaintiffto leave the matrimonial homeandtheissuingof divorcesummonsby his wife.Defendant had either caused the disintegration of the marriage or contributed to such disintegration.He claimsR150000 for the loss ofconsortium, the hurting of his feelings, the violation of his dignity and his humiliation in the eyes of the public.At the commencement of the proceedingsMs Delport, for the plaintiff,indicated thatshe would not persist in the claim for R150 000 and thatR15000, which accorded with the general trend of awards in these matters, would seem more appropriate.[2] Since this matter came beforethe Courtas an application for default judgment on the unopposed roll, evidencehad to be led by plaintiffso as to prove the delict plus the damages in terms of Rule 31(2)(b). Proper service had taken place.[3] Iinitiallyheard the testimony of the plaintiff and a friend of his, a Mr Isaacs.

The couple were married in1989 and theyhavetwo children, aged 16 and 23.Plaintiffdescribed the marriage as one of “caviar and prawns”before the defendantcommencedspending weekends with them.They had known the defendant since 1995. After the defendant had been involved in the killing of his brother andexperienced trauma as a result of this deed,theSeroots, having compassion with him,invited him to spend weekends with them. He slept in a caravan in the garden, butshared their table with him.As from 1999 plaintifffelt that the relationship between him and his wife was deteriorating. In 2000, after a quarrelonNew-Year’sEveshe left him for a week.He testified that she had left with the defendant. He obviously inferred this from what had taken place later and was not, at the time, aware that she had been away with the defendant.A month after she returned, his wife told him that she was tired (of him) and was leaving.Before the divorce he saw themin a streetunder suspicious circumstances; when they saw himtheyran away andhe found his wifehidingbehinda dog shed.She explained that she was merely on her way to fetch their daughter.After she leftthe common homeshelivedwith an auntfor a period.Although he initiallydid not realize what the cause of the problem was, he now knows that the defendant lives with his wife.Before the divorce his daughter broke the news to him.He saw their

commonbedroom himself. In fact, they had their earlier bedroom suitein that room, since after he sold the house,his wifetook the furniture.He also testified that his business was ruined, since he had become depressed and no longer had an interest in running the business.[4]A friend of the family, aMr Isaacs,testified that the plaintiff wasaffected seriously by what had happened. His zest for doing business deterioratedand he became a quiet and unhappy person: “He has golden teeth, but nowadays one doesn’t see them anymore” he observed, clearly implying that the plantiff had stopped smiling.He could not testify as to whether the defendantwas living with theex-wife.[5]Since I was not satisfied that there was direct evidence that the defendanthad beenliving with the ex wife of the plaintiffbefore the divorce, the son was called to testify. He liveswith his mother. He confirmed that the defendant was living in the house of the erstwhile spouse of the plaintiffand had lived thereeversince.They did not share a room as far as he knew. However, the defendant calls his mother “his wife”. He also confirmed that thematter had affected his father and that his father had been in a “morbid spin” after hismotherhad left him.[6]Ms Delportargued that the mere fact that the matter was not opposed justified the inference that the defendant had been involved in the coaxing away of Mrs Seroot. I do

not agree. The mere fact that a defendant does not oppose a matter is insufficient to base such an inference on. There may be other reasons for suchalack of opposition. The question is whether, on a balance of probabilities, I can conclude on the evidence led that the defendanthad committed adultery with mrs Seroot andcontributed to the break up of the marriage and the losses averred by the plaintiff.[7]The sontestified that the defendant moved into the house of his motherin July 2001.The defendant was, to his knowledge,sleeping in the lounge.A decree of divorce was only granted in May 2004.However, the defendant was referring to his mother as “his wife”.He also testified that his mother had warned him that if he came to testify she would not speak to him again; nevertheless he testified and this must count in his favour.Some weight must also be attached to the testimony of Isaacs who said that although he had not seen this himself, the son had told him thatthe defendantwas living withhismother.Of course, the plaintiffalsoheard from his children that the defendant was living with his wife. His daughter, according to him, was the one who broke the news to him.The suspicious behaviour of the wife and the defendant when plaintiff came across them in a street, also points towards a relationship.I believe that there are sufficient facts before the Court which justify an inference on

the probabilitiesthatan intimate relationshipdeveloped between the defendant and Mrs Serootwhile the marriage still subsisted.[8] In so far as enticement is concerned, the followingwas stated by Kannemeyer J inGower v Killian1977(2) SA 393(E) at 395:“It must be shown that the defendant coaxed the plaintiff’s wife away from him, that he talked her over and persuaded her to leave him.”Milne J ( as he then was) said inWoodwiss v Woodwiss1958(3) SA 609 (D) at 617:“ It would not be enough for the plaintiff to prove that the first defendant left him after frequent and continued association with the second defendant, or even in consequence of such association, for a wife might leave her husband of her own sweet will in order to make herself more accessible to the other man especially if he had, up till then, had some scruples about ‘ breaking up a happy home’.”[9] I am not convinced on a balance of probabilities that the defendant coaxed Mrs Seroot away. She might just as well fallen in love with him and coaxed him into a relationship. I am, however, of the view that on the probabilities it has been shown that there was more than a mere friendship between defendant and Mrs Seroot and that an intimate relationship had developed between the two whilst the marriagesubsisted. In arriving at this conclusion I was assisted by the following statement of Miller J inVanDeventer v Van Deventer

and Another1962 (3) SA 969(N)at972:“The law is clearly settled that the inference of adultery may and should be drawn if, with due caution, the Court is satisfied that that inference is the correct one on the probabilities, notwithstanding that there are doubts of the sort which are invariably present when the Court, being unable to say that it is satisfied beyond reasonable doubt that the inference drawn by it is the necessary and only one which could be drawn, nevertheless considers that it is the one which is shown on a preponderance of probabilities to be the correct one.”Also compare what Scott JA said inHlse-Reutter and Others v Gdde2001(4) SA 1336(SCA) at para [14]:“The inquiry in civil cases is, of course, whether the inference sought to be drawn from the facts proved is one which by balancing probabilities is the one which seems to be the more natural or acceptable from several conceivable ones. (SeeGovan v Skidmore1952 (1) SA 732(N) at 734B-D as explained by Holmes JA inOcean Accident and GuaranteeCorporation Ltd v Koch1963 (4) SA 147(A) at 159B-D.) While there need not be rigid compliance with this standard, the inference sought to be drawn, as I have said, must at least be one which may reasonably be drawn from the facts alleged.”[10] The plaintiff averred that his action was based onaloss ofconsortium, invasion of his dignity and an attack on his reputationin the

community. Althoughconsortium, which has been describedViviers v Kilian1927 AD 449at 455.as the “comfort,society and services” of a marital partner, has patrimonial facets to it, it is essentially a right of personalityGenerally compare Neethling, Potgieter and VisserDeliktereg(2001)at386;NeethlingPersoonlikheidsreg (1998)254.and, if not part of dignity, is closely related to it and, in any case,derives from this right which is centralto our Constitutional dispensation.InKhumalo v Holomisa2002(5) SA 401(CC) O’Regan J statedthe following at para [27]:

IN THE HIGH COURT OF

SOUTH AFRICA

(

TRANSVAAL

PROVINCIAL DIVISION)

Date argued : 8,15 February 2005Judgment delivered : 13 June 2005CASE NO: 33377/2005

Date argued : 8,15 February 2005Judgment delivered : 13 June 2005

CASE NO: 33377/2005

In the matter between:

In the matter between

:

THOMAS JOHANNES SEROOTPLAINTIFF

THOMAS JOHANNES SEROOT

PLAINTIFF

and

DESMOND PIETERSEDEFENDANT

DESMOND PIETERSE

DEFENDANT

Damages – for loss of consortium – enticement not proved – alienation of affection

Van Rooyen AJ

[1] The Plaintiff served a summons on the defendant for damages resulting from the defendant’sadultery with the wife of the plaintiff which resulted in theenticementof the wife of the Plaintiffto leave the matrimonial homeandtheissuingof divorcesummonsby his wife.Defendant had either caused the disintegration of the marriage or contributed to such disintegration.He claimsR150000 for the loss ofconsortium, the hurting of his feelings, the violation of his dignity and his humiliation in the eyes of the public.At the commencement of the proceedingsMs Delport, for the plaintiff,indicated thatshe would not persist in the claim for R150 000 and thatR15000, which accorded with the general trend of awards in these matters, would seem more appropriate.[2] Since this matter came beforethe Courtas an application for default judgment on the unopposed roll, evidencehad to be led by plaintiffso as to prove the delict plus the damages in terms of Rule 31(2)(b). Proper service had taken place.

[1] The Plaintiff served a summons on the defendant for damages resulting from the defendant’s

adultery with the wife of the plaintiff which resulted in the

enticement

of the wife of the Plaintiff

to leave the matrimonial home

the

issuing

of divorce

summons

by his wife.

Defendant had either caused the disintegration of the marriage or contributed to such disintegration.

He claim

s

R150

000 for the loss of

consortium

, the hurting of his feelings, the violation of his dignity and his humiliation in the eyes of the public.

At the commencement of the proceedings

Ms Delport

, for the plaintiff

,

indicated that

she would not persist in the claim for R150 000 and that

R15

000

, which accorded with the general trend of awards in these matters, would seem more appropriate.

[2] Since this matter came before

the Court

as an application for default judgment on the unopposed roll, evidence

had to be led by plaintiff

so as to prove the delict plus the damages in terms of Rule 31(2)(b). Proper service had taken place

.

[3] Iinitiallyheard the testimony of the plaintiff and a friend of his, a Mr Isaacs. The couple were married in1989 and theyhavetwo children, aged 16 and 23.Plaintiffdescribed the marriage as one of “caviar and prawns”before the defendantcommencedspending weekends with them.They had known the defendant since 1995. After the defendant had been involved in the killing of his brother andexperienced trauma as a result of this deed,theSeroots, having compassion with him,invited him to spend weekends with them. He slept in a caravan in the garden, butshared their table with him.As from 1999 plaintifffelt that the relationship between him and his wife was deteriorating. In 2000, after a quarrelonNew-Year’sEveshe left him for a week.He testified that she had left with the defendant. He obviously inferred this from what had taken place later and was not, at the time, aware that she had been away with the defendant.A month after she returned, his wife told him that she was tired (of him) and was leaving.Before the divorce he saw themin a streetunder suspicious circumstances; when they saw himtheyran away andhe found his wifehidingbehinda dog shed.She explained that she was merely on her way to fetch their daughter.After she leftthe common homeshelivedwith an auntfor a period.Although he initiallydid not realize what the cause of the problem was, he now knows that the defendant lives with his wife.Before the divorce his daughter broke the news to him.He saw their commonbedroom himself. In fact, they had their earlier bedroom suitein that room, since after he sold the house,his wifetook the furniture.He also testified that his business was ruined, since he had become depressed and no longer had an interest in running the business.

[3] I

initially

heard the testimony of the plaintiff and a friend of his, a Mr Isaacs. The couple were married in

1989 and the

y

ha

ve

two children, aged 16 and 23.

Plaintiff

described the marriage as one of “caviar and prawns”

before the defendant

commenced

spending weekends with them.

They had known the defendant since 1995. After the defendant had been involved in the killing of his brother and

experienced trauma as a result of this deed

t

he

Seroots

, having compassion with him,

invited him to spend weekends with them. He slept in a caravan in the garden

, but

shared their table with him

As from 1999 plaintiff

felt that the relationship between him and his wife was deteriorating. In 200

0

, after a quarrel

on

New-

Y

ear’s

E

she left him for a week.

He testified that she had left with the defendant. He obviously inferred this from what had taken place later and was not, at the time, aware that she had been away with the defendant.

A month after she returned, his wife told him that she was tired (of him) and was leaving.

Before the divorce he saw them

in a street

under suspicious circumstances; when they saw him

they

ran away and

he found his wife

hid

ing

behind

a dog shed.

She explained that she was merely on her way to fetch their daughter.

After she left

the common home

lived

with an aunt

for a period.

Although he initially

did not realize what the cause of the problem was, he now knows that the defendant lives with his wife.

Before the divorce his daughter broke the news to him.

He saw their common

bed

room himself. In fact, they had their earlier bedroom s

uite

in that room

, since after he sold the house,

his wife

took the furniture.

He also testified that his business was ruined, since he had become depressed and no longer had an interest in running the business.

[4]A friend of the family, aMr Isaacs,testified that the plaintiff wasaffected seriously by what had happened. His zest for doing business deterioratedand he became a quiet and unhappy person: “He has golden teeth, but nowadays one doesn’t see them anymore” he observed, clearly implying that the plantiff had stopped smiling.He could not testify as to whether the defendantwas living with theex-wife.[5]Since I was not satisfied that there was direct evidence that the defendanthad beenliving with the ex wife of the plaintiffbefore the divorce, the son was called to testify. He liveswith his mother. He confirmed that the defendant was living in the house of the erstwhile spouse of the plaintiffand had lived thereeversince.They did not share a room as far as he knew. However, the defendant calls his mother “his wife”. He also confirmed that thematter had affected his father and that his father had been in a “morbid spin” after hismotherhad left him.[6]Ms Delportargued that the mere fact that the matter was not opposed justified the inference that the defendant had been involved in the coaxing away of Mrs Seroot. I do not agree. The mere fact that a defendant does not oppose a matter is insufficient to base such an inference on. There may be other reasons for suchalack of opposition. The question is whether, on a balance of probabilities, I can conclude on the evidence led that the defendanthad committed adultery with mrs Seroot andcontributed to the break up of the marriage and the losses averred by the plaintiff.

[4]

A friend of the family, a

M

r Isaacs

testified that the plaintiff was

a

ffected seriously by what had happened. His zest for doing business de

teriorated

and he became a quiet and unhappy person

: “He has golden teeth, but nowadays one doesn’t see them anymore” he observed

, clearly implying that the plantiff had stopped smiling.

He could not testify as to whether the defendant

w

as living with the

ex-

wife.[5]

Since I was not satisfied that there was direct evidence that the defendant

had been

living with the ex wife of the plaintiff

before the divorce

, the son was called to testify. He live

with his mother. He confirmed that the defendant was living in the house of the erstwhile spouse of the plaintiff

and had lived there

ever

since

They did not share a room as far as he knew. However, the defendant calls his mother “his wife”. He also confirmed that the

matter had affected his father and that his father had been in a “morbid spin” after his

mother

had left him.

[

6

]

argued that the mere fact that the matter was not opposed justified the inference that the defendant had been involved in the coaxing away of Mrs Seroot. I do not agree. The mere fact that a defendant does not oppose a matter is insufficient to base such an inference on. There may be other reasons for such

lack of opposition. The question is whether, on a balance of probabilities, I can conclude on the evidence led that the defendant

had committed adultery with mrs Seroot and

contributed to the break up of the marriage and the losses averred by the plaintiff.

[7]The sontestified that the defendant moved into the house of his motherin July 2001.The defendant was, to his knowledge,sleeping in the lounge.A decree of divorce was only granted in May 2004.However, the defendant was referring to his mother as “his wife”.He also testified that his mother had warned him that if he came to testify she would not speak to him again; nevertheless he testified and this must count in his favour.Some weight must also be attached to the testimony of Isaacs who said that although he had not seen this himself, the son had told him thatthe defendantwas living withhismother.Of course, the plaintiffalsoheard from his children that the defendant was living with his wife. His daughter, according to him, was the one who broke the news to him.The suspicious behaviour of the wife and the defendant when plaintiff came across them in a street, also points towards a relationship.I believe that there are sufficient facts before the Court which justify an inference on the probabilitiesthatan intimate relationshipdeveloped between the defendant and Mrs Serootwhile the marriage still subsisted.

[7]

The son

testified that the defendant moved into the house of his mother

in July 2001.

The defendant was, to his knowledge

sleeping in the lounge.

A decree of divorce was only granted in May 2004.

However, the defendant was referring to his mother as “his wife”.

He also testified that his mother had warned him that if he came to testify she would not speak to him again; nevertheless he testified and this must count in his favour.

Some weight must also be attached to the testimony of Isaacs who said that although he had not seen this himself, the son had told him that

the defendant

was living with

his

mother.

Of course, the plaintiff

also

heard from his children that the defendant was living with his wife. His daughter, according to him, was the one who broke the news to him.

The suspicious behaviour of the wife and the defendant when plaintiff came across them in a street, also points towards a relationship.

I believe that there are sufficient facts before the Court which justify an inference on the probabilities

that

an intimate relationship

developed between the defendant and Mrs Seroot

while the marriage still subsisted.

[8] In so far as enticement is concerned, the followingwas stated by Kannemeyer J inGower v Killian1977(2) SA 393(E) at 395:

8

] In so far as enticement is concerned, the following

was stated by Kannemeyer J in

Gower v Killian

1977(2) SA 393(E) at 395:

“It must be shown that the defendant coaxed the plaintiff’s wife away from him, that he talked her over and persuaded her to leave him.”Milne J ( as he then was) said inWoodwiss v Woodwiss1958(3) SA 609 (D) at 617:“ It would not be enough for the plaintiff to prove that the first defendant left him after frequent and continued association with the second defendant, or even in consequence of such association, for a wife might leave her husband of her own sweet will in order to make herself more accessible to the other man especially if he had, up till then, had some scruples about ‘ breaking up a happy home’.”

Milne J ( as he then was) said in

Woodwiss v Woodwiss

1958(3) SA 609 (D) at 617:

[9] I am not convinced on a balance of probabilities that the defendant coaxed Mrs Seroot away. She might just as well fallen in love with him and coaxed him into a relationship. I am, however, of the view that on the probabilities it has been shown that there was more than a mere friendship between defendant and Mrs Seroot and that an intimate relationship had developed between the two whilst the marriagesubsisted. In arriving at this conclusion I was assisted by the following statement of Miller J inVanDeventer v Van Deventer and Another1962 (3) SA 969(N)at972:

9

] I am not convinced on a balance of probabilities that the defendant coaxed Mrs Seroot away. She might just as well fallen in love with him and coaxed him into a relationship. I am, however, of the view that on the probabilities it has been shown that there was more than a mere friendship between defendant and Mrs Seroot and that an intimate relationship had developed between the two whilst the marriage

subsisted. In arriving at this conclusion I was assisted by the following statement of Miller J in

Van

Deventer v Van Deventer and Another

1962 (3) SA 969(N)

1962 (3) SA 969

at

972

“The law is clearly settled that the inference of adultery may and should be drawn if, with due caution, the Court is satisfied that that inference is the correct one on the probabilities, notwithstanding that there are doubts of the sort which are invariably present when the Court, being unable to say that it is satisfied beyond reasonable doubt that the inference drawn by it is the necessary and only one which could be drawn, nevertheless considers that it is the one which is shown on a preponderance of probabilities to be the correct one.”

Also compare what Scott JA said inHlse-Reutter and Others v Gdde2001(4) SA 1336(SCA) at para [14]:

Also compare what Scott JA said in

Hlse-Reutter and Others v Gdde

2001(4) SA 1336

(SCA) at para [14]:

“The inquiry in civil cases is, of course, whether the inference sought to be drawn from the facts proved is one which by balancing probabilities is the one which seems to be the more natural or acceptable from several conceivable ones. (SeeGovan v Skidmore1952 (1) SA 732(N) at 734B-D as explained by Holmes JA inOcean Accident and GuaranteeCorporation Ltd v Koch1963 (4) SA 147(A) at 159B-D.) While there need not be rigid compliance with this standard, the inference sought to be drawn, as I have said, must at least be one which may reasonably be drawn from the facts alleged.”

Govan v Skidmore

1952 (1) SA 732

Ocean Accident and Guarantee

Corporation Ltd v Koch

1963 (4) SA 147

[10] The plaintiff averred that his action was based on

loss of

, invasion of his dignity and an attack on his reputation

i

n the community. Although

, which has been de

scribed

Viviers v Kilian

1927 AD 449at 455.

1927 AD 449

as the “comfort

society and services” of a marital partner

, has patrimonial facets to it, it is essentially a right of personality

Generally compare Neethling, Potgieter and Visser

Deliktereg

(2001)

386

;

Neethling

Persoonlikheidsreg (

1998

)

254.

and, if not part of dignity, is closely related to it and, in any case

derives from this right which is centra

l

to our Constitutional dispensation.

In

Khumalo v Holomisa

2002(5) SA 401(CC) O’Regan J stated

the following at para [27]:

“The value of human dignity in our Constitution is not only concerned with an individual’s sense of self-worth, but constitutes an affirmation of the worth of human beings shared by all people as well as the individual reputation of each person built on his or her own individual achievements. The value of human dignity in our Constitution therefore values both the personal sense of self-worth as well as the public’s estimation of the worth or value of an individual.”

InVan der Westhuizen v Van der Westhuizen and Another1996(2) SA850(C)King J (as he then was) statedat852B-C:

Van der Westhuizen v Van der Westhuizen and Another

1996(2) SA

850(C)

King J (as he then was) stated

852B-C:

Now it may be that society views with less disapprobation than in the past the commission of adultery, 'the act of violating the bed of a married person' (Johnson's Dictionary). There are, one must recognise, degrees of reprehensibility, ranging, one supposes, from the isolated, chance encounter to the sustained, continuing invasion of the sanctity of the marriage relationship.In casu there is nothing which mitigates the second defendant's misconduct. There is much which counts in aggravation thereof; these latter factors may be briefly enumerated:(a) the second defendant was at all times aware of the fact that the plaintiff and the first defendant were married;(b) it would furthermore have been apparent to the second defend-ant, who saw both of them daily, that their marriage was happy and successful;(c) the flaunting of the adulterous relationship was a cause of great humiliation to the plaintiff;(d) that relationship continued unabated despite requests by the plaintiff that the participants desist;(e) as a result of the relationship, the plaintiff lost her job and her husband became antagonistic and violent towards her;(f) the second defendant actually moved into the common home after plaintiff had found the position to be intolerable and moved out;(g) the second defendant acted throughout with complete insensitivity towards the plaintiff and with unconcern for her injured feelings.In short one can hardly imagine a more callous disregard for the marriage relationship or a more blatant intrusion into a previously happy and fulfilled marriage..

Plaintiff's only recourse is to law; in this way she has sought to assuage the pain she has suffered and the indignity she has been subjected to. The plaintiff said in evidence that it was not 'the financial side altogether. I just felt I had to take some steps against what I had suffered.'The plaintiff has undoubtedly suffered. She has experienced the disintegration of her marriage, the hostility of her husband and the hurt and humiliation of a woman whose marriage has been violated in the most grievous manner.Marriage remains the cornerstone, the basic structure of our society. The law recognises this and the Court must apply the law. I regard this as a disgraceful case of conscious and deliberate desecration of the marriage relationship, necessitating an award of damages.”

InBester v Calitz1982(3) SA 864(O)at 867A-BKotzeAJ described the intention of an award of damages in such a case asa“salwing vir die gemoedskrenking”.

Bester v Calitz

1982(3) SA 864(O)

at 867A-B

Kotz

e

AJ described the intention of an award of damages in such a case as

“salwing vir die gemoedskrenking”

[11]The defendant did not take the trouble to defend the action so that theCourt could also hear his version.I was, accordingly, dependent on the testimony by the plaintiff, his friend and his son.As indicated above, I have decided on the probabilities that an intimate relationshipdid exist between the defendant and the wife of the plaintiff during the subsistence of theirmarriage.This relationship was clearly also the cause of the disintegration of the marriage. The defendant knew that the plaintiff was married to his love partner and neverthelessdid not desist from the relationship. The evidence shows that this conduct has seriously affected the life of the plaintiffand hasat least contributed to thealienation ofthe affection of his wife for him: he has suffered the indignity of losing his wife to an intimate relationship with the defendant, he suffered the loss of herconsortiumand also believed that he was insulted in the eyes of the community. I do not believe that the last ground is justifiable. The mere fact that a man is left by his wife does not mean that thereasonablepublic would think less of him. Central tothe present plaintiff’ssuffering lies the attack on hisfeelings, as a facet of dignityand the loss ofconsortium,which is also, partly, a facet of dignity.He has lost his zest for life and work and has become morbidat times; a life of “caviar and prawns” has turned

into a dull, pointless lifeas a result of the alienation of affectioncontributed toby the defendant.Of course, a defendant’s liability is not limitless and not all suffering is legally relevant. The test is an objective one as to when an invasion has occurred and only such damages which reasonably resulted from the conduct of the defendantwould be compensated.InSokhulu v New Africa Publications Ltd and Others2001(4) SA 1357(W))Goldstein J said the following in regard to the impairment of dignity:

[11]

The defendant did not take the trouble to defend the action so that the

C

ourt could also hear his version

I was, accordingly, dependent on the testimony by the plaintiff, his friend and his son.

As indicated above, I have decided on the probabilitie

s that an intimate relationship

did exist between the defendant and the wife of the plaintiff during the subsistence of the

ir

marriage.

This relationship was clearly also the cause of the disintegration of the marriage. The defendant knew that the plaintiff was married to his love partner and nevertheless

did not desist from the relationship. The evidence shows that this conduct has seriously affected the life of the plaintiff

and has

at least contributed to the

alienat

ion of

the affection of his wife for him

: he has suffered the indignity of losing his wife to an intimate relationship with the defendant, he suffered the loss of her

and also believed that he was insulted in the eyes of the community. I do not believe that the last ground is justifiable. The mere fact that a man is left by his wife does not mean that the

reasonable

public would think less of him. Central to

the present plaintiff’s

suffering lies the attack on his

feelings, as a facet of dignity

and the loss of

which is also, partly, a facet of dignity.

He has lost his zest for life and work and has become morbid

at times

; a life of “caviar and prawns” has turned into a dull, pointless life

as a result of the alienation of affection

contributed to

by the defendant.

Of course, a defendant’s liability is not limitless and not all suffering is legally relevant. The test is an objective one as to when an invasion has occurred and only such damages which reasonabl

y resulted from the conduct of the defendant

would be compensated.

Sokhulu v New Africa Publications Ltd and Others

2001(4) SA 1357(W))

Goldstein J said the following in regard to the impairment of dignity:

“The right to an unimpaired dignity is protected by theactio iniuriarum. Such can be invoked when a person is subjected to offensive and degrading treatment or is exposed to ill-will, ridicule, disesteem or contempt.Minister of Police v Mbilini1983(3) SA 705(A) at 715G-716A. InBrenner v Botha1956(3) SA 257(T) Boshoff AJ ( as he then was) said at 261in fin-262:

actio iniuriarum

Minister of Police v Mbilini

Brenner v Botha

in fin-

‘ In cases of verbal injury, otherwise than in cases of defamation, the words complained of must impair the plaintiff’s dignity and must be insulting in the sense that they must amount to degrading, humiliating or ignominious treatment.’

There cannot be an impairment ofdignitaswithout unlawfulness and the question whether this requirement is satisfied or not is an objective one answered by having regard to the prevailing norms of society.De Lange v Costa1989(2) SA 857(A) at 862B-G.”

dignitas

De Lange v Costa

In spite of what I perceive to beamuchgreater tolerancein modern societyof divorce and a greater understanding that marriage relationships are not cast in stone, given the strains ofeveryday life, I remain convinced that the alienation of the affection which a man or a woman has for his or her partner in marriage or another recognizedpartnershipequal to marriage, amounts to an unlawful violation of the dignity of thehumiliatedpartner. If this alienation takes placeanimo iniuriandoit entitles the hurt partner to damages. Large amounts are seldom awarded for such indignity. This is probably related to the fact that the essence of such an action is to afford the plaintiff some form of compensation, even if the compensation in actual fact mainly lies in the recognition by a Court that he or she was cheated and humiliated.

In spite of what I perceive to be

much

greater tolerance

in modern society

of divorce and a greater understanding that marriage relationships are not cast in stone, given the strains of

everyday life

, I remain convinced that the alienation of the affection which a man or a woman has for his or her partner in marriage or another recognized

partnership

equal to marriage, amounts to an unlawful violation of the dignity of the

humiliated

partner. If this alienation takes place

animo in

uriando

it entitles the hurt partner to damages. Large amounts are seldom awarded for such indignity. This is probably related to the fact that the essence of such an action is to afford the plaintiff some form of compensation, even if the compensation in actual fact mainly lies in the recognition by a Court that he or she was cheated and humiliated.

[12] I am of the opinion that R15000 would afford the plaintiffsomebalm to his wounds.The mere fact that the Court has decided in his favour, should also contribute to the redressowingto him. This is an appropriate case for an award of costs on the High Court scale.

[12] I am of the opinion that R1

5

000 would afford the plaintiff

some

balm to his wounds.

The mere fact that the Court has decided in his favour, should also contribute to the redress

owing

to him. This is an appropriate case for an award of costs on the High Court scale.

It is ordered:(a)

It is ordered:

(a)

That the Defendant pay the plaintiff R15000 as damageswith 15,5 % interest p.a. to run from 1 September 2005 up to date of payment, which must be before 1 January 2006.(b)That the defendant pay the plaintiff’s costs of suit at the High Court scale.

That the Defendant pay the plaintiff R1

000 as damages

with 15,5 % interest p.a. to run from 1 September 2005 up to date of payment, which must be before 1 January 2006.

(b)

That the defendant pay the plaintiff’s costs of suit at the High Court scale.

JCW van Rooyen………………..Acting Judge of the High Court13 June 2005For the Plaintiff :adv Isma Delport

JCW van Rooyen………………..Acting Judge of the High Court13 June 2005For the Plaintiff :

adv Isma Delport