Abstract
A case of anti-constitutional common-law development. This case tells the story of an egotistical husband and the fading principle of the horizontal application of the Bill of Rights. The husband alleged that his wife had an affair with the managing director (MD) of her firm (par 3). He claimed damages for both loss of consortium and insult from the MD (par 2). After an eight day trial, luridly exposing the private sex lives of the three people involved, Vorster AJ held that the MD was liable to compensate the husband for both heads of damage (par 2). On appeal, Brand JA overturned that decision. There are two moments in the unanimous Supreme Court of Appeal (SCA) judgment.
Highlights
IntroductionThe husband alleged that his wife had an affair with the managing director (“MD”) of her firm (par 3)
This case tells the story of an egotistical husband
The husband alleged that his wife had an affair with the managing director
Summary
The husband alleged that his wife had an affair with the managing director (“MD”) of her firm (par 3) He claimed damages for both loss of consortium and insult from the MD (par 2). The second moment of the judgment explains that even though it appeared that the husband could succeed in claiming for insult, that the court has to determine the foundational issue of whether the delictual claim for adultery still has a place in our law. The short answer, given by the SCA, is that the “changing mores of our society” demand that our law no longer recognise claims of this nature (par 40). I limit the analytical part of my discussion to this aspect of the judgment, and base my line of reasoning on the transformative method developed by Van der Walt (“Development of the common law of servitude” 2013 SALJ 722) in the context of property law
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