The Sunday Mail
Tichaona Nyahuma & Ephraim Ndlovu
In the recent past, the subject matter of adultery damages has drawn its fair share of headlines as prominent lawyers and personalities alike exchanged “legal” and “media” blows much to the amazement and sometimes bewilderment of the public.
It is, however, not the aim of this article to contribute to the ongoing wars on adultery among individuals but is merely a critical, social and legal ventilation of this delict in our times with a view to showing that it may have outlived its usefulness and time may have come for it to be thrown into disuse for it is now clearly antiquated.
We are conscious that what we propose herein may very well be ahistorical. The law on adultery damages is premised on a civil wrong known in legal parlance as a delict.
It is to the effect that where a third party engages in sexual intercourse with another who is married in terms of the Marriage Act (Chapter 5;11) or the then Chapter 37, knowing that she/he is married in terms thereof, that third party by such an act, inflicts emotional pain and/or embarrassment upon the married individual’s partner and is, therefore, entitled to compensation by the intruder.
Put differently, it is the view that she/he who ploughs another’s field, by such an act, defrauds the owner.
It is submitted that it is inconceivable and in fact fanciful to imagine that a would-be adulterer would take time to visit the Registrar of Marriages’ office to investigate if their would-be “partner-in-crime” is, in fact, married in terms of the Act.
It is instructive that in the distant past, adultery was actually a criminal offence but this is no longer the case in most jurisdictions today.
The history of adultery damages can be traced to Roman-Dutch law and forms a large part of South African law jurisprudence in a long line of decided cases. It is consequently part of our law as we rely heavily on both Roman-Dutch and South African law.
The starting point in this debate is to place emphasis on the fact that marriage is a sacred institution deserving of respect by third parties. Culturally, persons who commit adultery have always been shunned and condemned.
This is confirmed by many who have suffered the wrath of the chief by being fined many cattle for ploughing into the field of another.
Within the context of religion, adultery forms the core of moral teaching. It is even part of the Ten Commandments. Christians know that the Biblical David was chastised by Yahweh for his tour of that by marriage, belonged to Uriah. Adultery is, therefore, immoral, period!
Undoubtedly, part of jurisprudence is derived from God and or self-evident notions of morality. The classical works of Cicero, Finnies and Fuller bear testimony to the relationship between law and morality.
However, morality is not the only consideration which validates a law. There are some other considerations but these are for debate on another day.
Selective application of law
That the law must and ought to be applied equally to all is a standard that is in the public domain.
In our African culture, where a man commits adultery with a married woman, the intruding man is usually fined some cattle while the woman may be sent back to her family.
Clearly, this system is fair as it punishes both the erring individuals. It also conforms to the penal system applied by most churches where the two wrong doers are both sanctioned if they belong to the same congregation.
This is not what happens in a typical adultery case in the High Court. There, the innocent spouse is entitled to sue the third party while the erring partner is an innocent bystander who can even afford to watch the proceedings from a distance with glee.
We, therefore, contend that this is not only unfair but outright mischief on the part of the law. Surely the erring married party must somehow be visited by some form of sanction as he/she would have gone out of his way to engage in an illicit affair knowing fully well that he/she is married in terms of the Act.
Surely, society in today’s world should take a very dim view of such conduct.
Guilty party should not benefit
In the United States, a judge laid down that one cannot be allowed to benefit through the law through his own misdeeds.
The case of Riggs v Palmer established this common sense principle. In that case, a grandson caused the death of his grandfather upon realising that he stood to benefit immensely from the grandfather’s will. The court rightly disinherited him.
In the case of adultery damages claims, there are many cases where a party successfully prosecutes his/her case and still retains his/her marriage partner thereby benefiting the erring partner.
It is, therefore, our view that where the innocent spouse retains the erring partner after an adultery suit, the law inadvertently creates a road through which that erring partner benefits from his/her own act of, as it were, cheating the law.
Surely the guilty spouse must not be allowed to benefit from his/her own despicable act.
On that basis, therefore, we strongly contend that the delict of adultery in its present form, may now be in need of rethinking and reshaping particularly where there is always the danger that although human kind is one of God’s greatest creations, it is equally true that such creatures have sometimes outdone even the devil in hatching evil for financial gain.
In a situation where a wrong party stands to benefit from their own despicable act without any sanction whatsoever, there is every reason to believe that there are some among us who can hatch and orchestrate plans to trap others and blackmail them to claim adultery damages.
We contend that it is now time that this nonsense is put to an end.
Protecting marriage
It has been contended that the rationale that underpins an action for adultery damages is the need to “protect” the marriage institution, it being a sacred union.
With the greatest of respect, we think that this is outright, for lack of a better word, nonsensical. It is common cause that despite the availability of this action for decades now, cases of adultery have sowed instead of abetting.
We are, of course, aware of the need to compensate the innocent spouse for the emotional pain and humiliation suffered. However, the question that arises is this; to what extent if any, does the action for adultery damages actually “heal” the innocent spouse?
In our view, none at all.
In the cultural and traditional methods of conflict resolution, adultery is often presided over by elders of the community. This achieves secrecy and objectivity in seeking to resolve that marital crisis.
Churches also adopt this style as seasoned elders are often asked to carefully prosecute, mediate, counsel and pronounce sanction of the erring “love birds”.
It is our view that though not totally perfect, the above institutions proffer a more sustainable mechanism of resolving that marital cancer with the ultimate aim being “to preserve and protect” the marriage institution.
The said processes provide a wide space for marital counselling, self-introspection and soul searching on the part of the individuals concerned.
We, therefore, think that these avenues provide better protection to the marriage institution than an action for adultery damages in the form in which it is currently shaped. It is without doubt that the marriage institution suffers more harm through an adultery suit.
The rigours and very often slow court processes involved create a heightened sense of nervousness which breeds resentment and unforgiviness often leading to divorce. And by its very nature, the court process has no room and or time for counselling leading to a further deterioration of the marriage relationship.
The court actually unwittingly contributes to the disintegration of the marriage.
Further, the process by which a party approaches the court for adultery damages neither protects nor strengthens the marriage institution; the opposite being the truth.
What is also certain is that the court is used as a fishing pond for a party to become rich overnight.
It is our view, therefore, that a law which does not cure the mischief it was enacted to curb should be declared redundant as it serves no purpose at all. It is no longer congruent with modern-day jurisprudence and should consequently be superannuated.
Adultery today
At the time that the delict of adultery was developed, people lived in small communities.
The immorality associated with adultery stemmed from the fact that individuals in those communities knew each other. Marriage itself was also a community event which was performed in full view of that community.
It was, therefore, felt that a party who engaged in illicit sexual intercourse with another was in violation of societal norm that was held in high esteem by that community.
The world has evolved.
People now live in large and densely populated communities and it is not uncommon to find that even neighbours may not know each other. Technology has also drastically altered the way society functions today as compared to say only 20 years ago.
The emergence of social media such as Whatsapp, Facebook, Twitter and others mean that it is just too easy for persons to hook up and somehow, end up in adulterous relationships.
At the same time, it follows that these social media make it difficult for people to determine if one is married in terms of the Act.
The world is now susceptible to deceit more than it was only 25 years ago.
The ground is now too fertile for adultery to thrive and in our view, our law has lost the capacity to deal with this societal problem.
Merry-go-round
It is common cause that children have been born out of adulterous unions. In fact the fact that a child was born out of that union is one of the ways by which a claimant in an adultery suit uses as proof that sexual intercourse took place.
In such a scenario, you can then get the “wife” suing the “other woman” for adultery damages while in the same breath, the “other woman” would be suing the husband (the father of the child) for the maintenance of that adulterine child.
It is our view that such a scenario serves no purpose other than the law being used as an instrument to settle unending marital feuds that have other aspects which can be better handled through other processes outside the law.
Divorce option
The Marriage Act provides that a party aggrieved in a marriage is entitled to seek divorce.
This is logical.
We contend that in all objectivity, a party which feels that they are aggrieved beyond what they can sustain must look to the remedy of divorce.
On the other hand, the party that has been cheated, but still loves its spouse may stomach the pain and work towards reconciliation and forgiveness but not the adultery claims route.
The law is not the best arbiter in the circumstances. We do not wish to delve into the Lovemore Madhuku-Welshman Ncube debate on the involvement of the law in matters of love and affection.
We only wish to reiterate that in as far as it relates to the protection, support and mending of marriages, the adultery damages route is the worst option more so as it causes pain and suffering to both the legitimate children of the marriage as well as the adulterine children.
We conclude by making the submission that time is now ripe for social commentators, scholars, lawyers and even judges to now seek to debate and develop a new jurisprudence around the functional viability of the delict known as adultery for clearly up to this point, it is a useless concept which has outlived its welcome and need to be jettisoned.
You can contribute to this debate by writing to [email protected]. Articles should be of reasonable length to be considered for publication.
