A jurisprudential analysis of the delict of adultery.

Introduction

The delict of adultery has sparked considerable debate in recent years in Zimbabwe largely due to the fact that Seychelles, South Africa and Botswana have recently done away with the delict. Questions have been levelled at the doctrine on whether it still has relevance in the Zimbabwean society. In the case of Njodzi v Matione, the High Court of Zimbabwe maintained the delict of adultery, on the basis of public policy. Mwayera, J rejected the South African approach arguing that public policy considerations differ from country to country and that Zimbabwe has not yet expressed an intention to abolish the delict and still wishes to maintain it as a safeguard for the marriage institution. This write up will juxtapose the Zimbabwean position with the South African and Botswana position in the context of the legal philosophical question on whether adultery should be maintained as a remedy for the bruised ego of an innocent spouse hinges and whether or not the law should be used to punish deeds perceived as immoral by society and whether the moral convictions of the society should be used as justification for the law to intrude on intimate details of a person’s private life. In this regard two prominent legal philosophers H.L.A Hart and Lord Patrick Devlin provide valuable insight on whether the law should be used to enforce the morals of the given society.

Njodzi v Matione: The position of Zimbabwean Courts

The plaintiff claimed delictual damages from the defendant for the latter’s adultery with the plaintiff’s husband. The adultery resulted in a child. The plaintiff claimed damages for contumelia and loss of consortium. At the trial the defendant made an application on the constitutionality or otherwise of the plaintiff’s claim. It was argued that it was improper to sue the defendant to the exclusion of the plaintiff’s spouse, although he was the main architect of the relationship. This was discriminatory and therefore contrary to the constitutional provisions of equality before the law. It was further argued that the claim amounted to infringement into privacy of the defendant’s sexual life, thus violating not only the right to privacy, but also the right to freedom of association. She argued that the claim by the plaintiff was archaic and unconstitutional.

 The plaintiff argued that the institution of marriage was recognised by the Constitution and adultery was a threat to the existence of a marriage. The court held that Marriage is a contract sui generis entered into by two willing parties. The sanctity of this contract is what an adultery damages claim seeks to protect. The claim should not be viewed in isolation but from the view point of its purpose, being to protect the sanctity of marriage. In suing the third party, the claimant will be seeking a personal remedy for hurt, injury, iniquity of company and comfort occasioned by the third party’s association with the claimant’s spouse. The court held further that, Adultery claims are very much in sync with the present day social and legal reality in Zimbabwe. Public policy is infused with constitutional values and norms. It is apparent that public policy often represents the legal convictions of the community.

The court’s view with regards to adultery in this case clearly expressed how, in its view, the general public still abhorred the act of adultery and still sought censure for third parties who violated the sanctity of marriage, a constitutionally enshrined instituion whose protection was in the interests of society as a whole rather than the two contracting parties. 

The South African Position: RE v DH

The court was seized with a delictual claim for adultery damages and like the Zimbabwean case illustrated above also had to deal with the constitutionality of the matter. The Supreme Court however differed from the Zimbabwean position by declaring the delict of adultery unconstitutional and outdated. The rationale was that the delict had lost its raison d'être and as such it had lost relevance in the South African society. The court highlighted that the original goal of the delict to act as a deterrent against the (then) criminal act of intruding into a sacrosanct marriage, had now over time become defunct due to the evolving nature of society and of marriage itself, nowadays there exists the remedy of divorce for adultery and the action against the third party is unnecessarily intrusive and a sorry attempt at revenge by the cuckold for hurt feelings.

Lord Devlin and Legal Moralism

Devlin states the case for legal moralism, the view that certain kinds of conduct ought to be prohibited and punished by the law simply because they are immoral according to the prevailing moral norms of a given society. For Devlin, the immorality of an act is a sufficient reason for its legal proscription, even when the act is performed in private and apparently harms no one in particular, not even the actor himself. He thinks that immoral practices are capable of injuring society, and that the law's tolerance of activities which are considered morally wrong can lead to society's disintegration. Devlin holds, therefore, that it is morally right, and even obligatory, for the government to preserve society by means of “morals legislation”. 

According to Devlin’s view, the mere fact that adultery is considered morally wrong by our Zimbabwean society justifies the use of the law to punish those who would have breached that moral rule. The Zimbabwean jurisprudence on the status of marriage is well defined and illustrated in a number of cases which highlight the public interest in protecting the sanctity of marriage. In the case of Rattigan v Chief Immigration Officer the court a quo held that marriage is “an institution, in the maintenance of which in its purity the public is deeply interested, for it is the foundation of the family and of society,...”. Furthermore the constitution of Zimbabwe in section 25 says that the state and its institutions must “protect and foster” the institution of the family. This is indicative of the general public perception of the importance of the family and the interest that the public has in its protection. Adultery is a threat to this institution and society condemns it and as such the law should continue to punish adultery to deter third parties from infringing on the rights of the married couple by violating its sanctity by engaging in illicit sexual conduct with the spouse. 

The court in Njodzi v Matione(supra) admitted that adultery damages are a compensation for loss of consortium and contumelia, rather than a means to prop up or repair a broken marriage. The court also expanded the scope of the duty to protect the marriage institution (in the Zimbabwean context) to include the public rather than just the parties themselves. The issue at question then is whether, the interests of the public or the society’s fervent moral beliefs in the protection of the marriage institution are a consideration in the legality or otherwise of the delict. 

The legal moralism advocated for by Devlin says that if the behaviour of an individual is morally repugnant to society then the state should sanction that behaviour through the law. Devlin like most natural law theorists is of the belief that law should be moral and that immoral acts should be proscribed by the law. The law in essence should be used to enforce the moral beliefs of society. He believes that society would collapse if the society loses sight of its moral beliefs. Devlin holds that there is in principle no realm of conduct which should be immune from legal control and punishment: "Any immorality is capable of affecting society injuriously and in effect to a greater or lesser extent it usually does; this is what gives the law its locus standi . It cannot be shut out." Hence Devlin holds that society has a moral right to preserve itself and should possess the unlimited legal right to enforce the positive morality necessary to its existence.

H.L.A. Hart: Separation of Law and Morals

Hart's view is that the law should never prohibit and punish conduct merely because it is thought to be morally wrong by a large segment of society. For Hart, the "immorality" of a practice is never a sufficient reason for the enactment of legislation proscribing it. Rather, other conditions must be present in order to justify the use of the law in proscribing that act. Among these criteria, says Hart, are the harm to others and even to the actor himself which an activity can cause.

In the case of RH v DE, the South African Supreme Court dismissed the delict of adultery on the basis that it was archaic and had lost its reasoning to time and the evolution of society. In the Court’s view, the delict had lost its relevance due to the change in the way marriage is viewed by society and the changing perception in how adultery is viewed generally. Previously the purpose of the delict was to protect the rights of husband in his wife by ensuring that third parties did not disturb his exclusive dominion over his wife. This version of marriage has more or less evolved to an equal partnership in which both parties to a marriage maintain their autonomy and individuality. In the South African view, the delict has been maintained because the public has seen it fit not punish adultery by proscribing it.

Similarly in the Botswana case of Kgaje v Mhostha(supra), the court held the view that the delict was no longer necessary in their society due to the evolution of marriage and of how adultery itself is committed. The court held that the delict was no longer an effective means of protecting the institution of marriage. their reasoning can be deduced from the maxim cessante ratione legis cessat ipsa lex, which simply means that the reason for a law ceasing, the law itself ceases, this is one of the most ancient maxims known to our law and it is constantly followed by our courts. This means that no law can survive the reason on which it is founded. It needs no statute to change it; it abrogates itself. With this view in mind it can be said that since the ancient conception of punishment for adulterous behaviour is no longer viewed with the same disdain as it was when it was promulgated in 19th Century England and as such society(even the Zimbabwean society), is no longer as zealous in its punishment as it was before. The primary remedy now for cuckolded spouses now is divorce, which seems a more effective remedy than obtaining compensation from a third party who has no duty to uphold the marriage. In Kgaje v Mhotsha(supra), the court held that the duty to protect a marriage lies not in society or third parties, but rather on the good will and moral integrity of the parties involved. Adultery is not an involuntary act and in many cases the cheating spouse would have initiated the adulterous relationship but they escape all liability based on the reasoning that in a marriage the persons are one estate, and a spouse suing their own spouse amounts to suing themselves. 

On the same reasoning, particularly in marriages in community of property, if the spouses do not get a divorce the guilty spouse may end up benefitting from their own wrongdoing. This runs counter to the rule espoused in Riggs v Palmer, where the court held that a person cannot benefit from the fruits of his own evil deeds. This leaves open the law to abuse as spouses can connive to commit adultery and sue third parties and benefit jointly.

 Furthermore, spouses cannot be compelled to abide by their marriage vows by threat of sanction, the basis of marriage stems from the love, integrity and trust of the spouses and no sanction can compel a spouse to abide by their marriage commitments. The issues of fidelity and love between spouses should be between the spouses and the law has no business compelling spouses to honour such obligations. The law with regards to marriage should be limited to ensuring that there is justice between the parties in issues such as maintenance. The feelings and relationship of the parties should remain outside the scope of the law as it often leads to gross absurdities.

Conclusion

Hence, the delict of adultery should be abolished in Zimbabwe because even though the public still views it as abhorrent. Morals should be taken into account when promulgating laws and interpreting the law but only to a certain extent. The issue of adultery is a private affair between two married people, society has no business meddling in it. The married parties are best equipped to deal with the matter themselves, rather than the law. As for the betrayed spouse, monetary compensation can never soothe a broken heart and is an attempt at revenge against a person who would have wronged them. The issue then becomes whether the law should be used to compensate people for hurt feelings and broken trust, in my opinion this should not be the case, feelings are subjective and trust cannot be regained after it has been lost, the best recourse for the spouse is divorce or forgiveness.