Three appeal judges of the Supreme Court of Namibia have said that unlike in the past adultery can no longer be used to claim damages in a court.
Judge Dave Smuts who wrote the judgment, with Chief Justice Peter Shivute and Judge of Appeal Sylvester Mainga concurring, said in an appeal judgment in the Supreme Court that the act of adultery by a third party lacks wrongfulness for the purposes of a delictual claim of contumella and loss of consortium.
The decision flows from a divorce case in which the husband wanted to sue his wife’s alleged lover for N$100 000. The judge in the divorce proceedings refused to allow the wife of the aggrieved person to testify on behalf of the defendant in the matter while the marriage was still in subsistence. The defendant then asked for leave to appeal that ruling from the bar which was refused and the matter was stood down for a decision on the way forward.
However, the next day, the presiding judge informed the parties that he had further considered the matter and his research revealed there is nothing prohibiting the defendant to call the wife as a witness. He further postponed the matter to give the husband a chance to abandon the ruling on the issue of his wife testifying.
He however denied the opportunity. Leave to appeal to the Supreme Court against the ruling was then granted. The appeal judges had to decide whether the wife can give evidence against her husband in respect of the claim and whether the claim itself is still sustainable in law.
The appeal judges found that marital privilege as set out in the Civil Proceedings Act and the Constitution did not prevent the wife being called as a witness and as a result the appeal against the ruling succeeded. On the question of whether monetary damages can still be claimed for adultery, the judges addressed the question to the lawyers as the ruling appealed against was acknowledged to be incorrect by the High Court and supported by the husband on appeal.
According to Judge Smuts, action for adultery has its origin in an “archaic” action called criminal conversation, which was abolished in England in 1970. That action was rooted in the antiquated notion of a husband’s propriety rights in his wife which is essentially viewing wives as mere chattels who are to provide services. He further said the action was not only abolished in England, but shortly afterwards in most Commonwealth jurisdictions.
Its continued presence was questioned in South Africa in 1944, but it formed part of a common law applied in Namibia before independence and continued to be applied after independence by virtue of Article 140 of the Constitution.
“This action is however totally outdated and not compatible with our constitutional values of equality in marriage and human dignity.
“With reference to the legal convictions of the community informed by our constitutional values and norms it is no longer reasonable to impose delictual liability for a claim founded on adultery,” the judge stated.