TRUE or FALSE?: Cheating and Adultery is Legal in South Africa!

Wronged spouses can no longer sue for damages in the event of an adulterous affair in South Africa.  The court stated that there can be no monetary value placed on marital fidelity and the third party involved in the infidelity can not be sued for damages. So the title of this article is TRUE.

"I  am  led  to  the  conclusion  that the  act  of  adultery  by  a  third  party  lacks wrongfulness for purposes of a delictual claim of contumelia and loss of consortium it  is  not  reasonable  to  attach delictual  liability to  it.

That is what  public policy dictates. At this day and age it just seems mistaken to assess marital fidelity in terms of money."

This was recorded in a written judgement.

The case that brought this ruling about is that of a woman referred to as Mrs H in court documents who left her marital home and her spouse Mr DE in March 2010.

Evidence showed that Mrs H left after years of serious problems including physical assault and rape.  She then began a relationship with a Mr RH which led to her husband suing Mr RH for a R1 million for the “insult” of the “infidelity” as well as for the “loss of comfort and society of his spouse”.  

The written judgement continues to say:

"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.

South Africa has joined a string of countries all over the world including England, New Zealand, Scotland, and Canada amongst many, where adultery is no longer a criminal offence.

Some of the African countries where it is still a legal offence are Cameroon, Kenya, Botswana, Namibia, and Zimbabwe.

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