Wiese v Moolman (31117/2003) [2008] ZAGPHC 246 (5 August 2008)

Wiese v Moolman (31117/2003) [2008] ZAGPHC 246 (5 August 2008)

The court held that the action for damages based on adultery remains valid in South African law. The existence of appellate authority supporting the action binds the court, and the defendant's argument that societal views have changed does not justify abolishing the action. The court found that the action protects the unique personality rights arising from marriage, including dignity and consortium, and that the exclusivity of sexual relations within marriage is still respected by the community. The action does not violate constitutional rights, as those who enter marriage voluntarily accept its obligations, and the law must provide a remedy for the emotional harm caused by adultery. The...

Citation
[2008] ZAGPHC 246
Parties
Plaintiff: A. H. A. Wiese; Defendant: C. Moolman
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
5 August 2008
Case Number
31117/2003
Procedural Posture
Civil Trial / Special Plea on Existence of Adultery Based Action
Outcome
The defendant's special plea is dismissed with costs, including the costs of two counsel.
Judges
B R Du Plessis
Legal Topics
Actio Iniuriarum, Adultery, Constitutional Rights, Personality Rights
Delict Family and Children Actio Iniuriarum Adultery Constitutional Rights Personality Rights

Case Brief

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Parties

A. H. A. Wiese

Plaintiff

C. Moolman

Defendant

Procedural Posture

Civil Trial / Special Plea on Existence of Adultery Based Action

Legal Issues

  1. 1 Whether an action based on adultery still exists in South African law.
  2. 2 Whether the action for damages based on adultery should be abolished.
  3. 3 Whether the action for adultery is inconsistent with the Constitution, specifically the Bill of Rights.

Ratio Decidendi

The court held that the action for damages based on adultery remains valid in South African law. The existence of appellate authority supporting the action binds the court, and the defendant's argument that societal views have changed does not justify abolishing the action. The court found that the action protects the unique personality rights arising from marriage, including dignity and consortium, and that the exclusivity of sexual relations within marriage is still respected by the community. The action does not violate constitutional rights, as those who enter marriage voluntarily accept its obligations, and the law must provide a remedy for the emotional harm caused by adultery. The...

Court Disposition

The defendant's special plea is dismissed with costs, including the costs of two counsel.

Orders

  • The defendant's special plea is dismissed.
  • The defendant is ordered to pay the costs of the special plea, including the costs of two counsel.