And now for something completely different….

I see a Pretoria high court judge has ruled that marriage is still a sacred institution and that the instituting of damages claim by an aggrieved spouse resulting from adultery was not outdated. Judge Ben du Plessis’ judgment comes in the wake of a damages claim instituted by Albertus Wiese against Chris Moolman who allegedly had an adulterous relationship with Wiese’s wife Lente between April 2001 and May 2002.

Moolman’s lawyer argued that the legal convictions of the community had changed and that it could not be said to constitute a wrongful action for the purposes of claiming delictual damages to have sex with a married spouse.

He said the question raised in this case was whether the morals of the community had changed so much in modern times that adultery was no longer seen as wrong. Du Plessis said it is clear that the community still viewed marriage as sacred and that it is important that the law protected innocent spouses against the interference from outside into their marriages.

Given decisions handed down by the Constitutional Court in various cases – Volks v Robinsone, Dawood v Minister of Home Affairs, Minister of Home Affairs v Fourie – in which the institution of marriage was said to have a special place in our society, I am not too surprised by this judgment. If marriage is an important, even pivotal, institution for society, then the law may well be seen as an appropriate instrument to try and protect spouses from the hurt suffered because of the infidilities of their loved one (or ones).

Personally I believe marriage should become a social and/or religious institution rather than a legal one and that intimate relationships between people should be regulated by the law regardless of whether they have chosen to get married or not. Why should the law regulate marriage when so many people in South Africa decide to live together instead of getting married or cannot get their partner to marry them and then do not have the protection afforded by the law? Surely the state should not give special rights to some couples merely because they obtained a piece of paper from the Department of Home Affairs.

Especially vulnerable woman whose partners refuse to marry them suffer immensely because the law – when dishing out protection to intimate relationships – fixates on marriage in stead of focusing on the nature of the relationship and the obligations engendered by that relationship.

In any case, as a matter of public policy I am not sure anybody should be allowed to claim for damages for pain and suffering from the person who had sex with their spouse. As far as I know, at least two people are involved in infidelity and one of those people is the spouse of the person now wanting money from the third party. Why should the unmarried partner suffer because of actions by a cheating married partner?

Is the married partner who committed adultery not perhaps more blameworthy than the unmarried partner? After all the unmarried partner did not promise anybody that he or she would remain faithful, and is not cheating on anyone. In a society based at least partly on the values of freedom and equality, surely it is unwise to make an unmarried person pay damages for sleeping with a married man or woman, as this curtails that person’s freedom and treats the married person – the one presumably being dishonest! – as if he or she is completely blameless.

So when Jacob Zuma (you thought I was going to get through an entire post without mentioning him – forget it!) sleeps with someone who is not one of his wives, his wives will have a right to sue that person for damages while Jacob Zuma will be completely blameless from a legal point of view. This seems deeply unfair to me and sends the wrong signal about how the law should deal with honesty and dishonesty. But I am sure some of Mr. Zuma’s defenders will argue that the rule is just hunky dory.

It is probably also a rule that is inspired by patriarchal values in which married men are never blamed for lying and cheating, while the poor unmarried woman who sleep with them are. I bet the judge who wrote this decision is married and has rather old fashioned views of the world. He probably does not know that many younger people do not get married and that marriage has gone a bit out of fashion – unless one is in a same-sex relationship of course. Wonder what he thinks of gender equality and whether the woman’s place is in the home?

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