SA ConCourt legalises adultery

Johannesburg - For many years, if you cheated on your spouse in South Africa, you could end up being sued by the innocent partner. Not anymore.

The Constitutional Court ruled on Friday that adultery was no longer part of South African law.

The judges ruled unanimously that a wronged spouse could no longer sue for damages, reasoning that marriage was based on the concept of two willing parties and it did not seem appropriate in this day and age to have the law intervene in personal affairs.

The court said you could not attach a monetary value to marital fidelity and the third party involved in the infidelity could not be sued for damages.

In a unanimous judgment written by Judge Mbuyiseli Madlanga, the highest court in the land said it "recognised that, when developing the common law, courts must have regard to societal values which are based on constitutional norms. The central question in this case, then, was whether society would still regard it as legally unacceptable for a third party to commit adultery with someone's spouse."

The judgment found that the global trend was moving towards the abolition of civil claims based on adultery. "Even in South Africa, it is clear that attitudes towards the legal sanction of adultery have been softening.

"Marriages are founded on love and respect, which are not legal rules, and are the responsibility of the spouses themselves.

"In the present case, the breakdown of the marriage was as a result of a failure by the spouses themselves to sustain their marriage and thus it would be inappropriate for the courts to intervene.

"In contrast, maintaining the claim in our law would infringe on various rights of adulterous spouses and the third parties, including the rights to dignity and privacy. Accordingly, adultery should no longer be punished through a civil damages claim against a third party," the judgment said.

A concurring judgment by Chief Justice Mogoeng Mogoeng and Justice Edwin Cameron (concurring) emphasised that marriage hinged on the commitment by the parties to sustain it, rather than the continued existence of a claim for damages for adultery by an "innocent spouse".

When a similar announcement was made in South Korea, the share price surged in the country's biggest condom maker, Unidus.

Author and professional marriage counsellor Dr Buti Makwakwa said the precedent set by the Constitutional Court was a can of worms, opened to destabilise the sanctity of a marital union.

"The court is permitting adultery to be fashionable outside the ambit of our justice system. The court no longer has jurisdiction pertaining to perpetrators who forcefully and intentionally aim at breaking marriages," said Makwakwa.

"We need to stand as a radical army of God in enforcing marriage to reflect the sacredness of the holy matrimonial union as God intended it to be in the garden of Eden."

Former Cosatu secretary-general Zwelinzima Vavi, who was involved in an extramarital affair with a junior staff member, is allegedly being threatened by Jacqueline Phooko and her husband, who want R2 million for their silence.

Vavi has laid charges of extortion against Phooko, who he claimed was his lover.

Phooko's husband, who was the innocent spouse, demanded the money as compensation.

The late South African boxing world champion, Baby Jake Matlala, was in a similar situation and allegedly paid nearly R1m to the husband of a mistress.