DE v RH 2015 (5) SA 83 (CC)

DE v RH 2015 (5) SA 83 (CC)

Facts

DE and RH were married. During the marriage, RH committed adultery with Ms H. DE sued RH for damages for adultery, claiming that the adultery had caused him emotional distress and a loss of consortium (i.e., the benefits of marriage).

The Supreme Court of Appeal (SCA) held that DE could not sue RH for damages for adultery. The SCA reasoned that the delict of adultery (the legal claim for damages for adultery) was outdated and discriminatory. The SCA also held that the delict of adultery was not consistent with the right to dignity enshrined in the South African Constitution.

DE appealed to the Constitutional Court.

Issues

The main issue in the case was whether the delict of adultery was constitutional.

Reasons

The Constitutional Court held that the delict of adultery was unconstitutional. The court reasoned that the delict of adultery was discriminatory against women, as it only allowed husbands to sue their wives for adultery. The court also held that the delict of adultery was not consistent with the right to dignity enshrined in the Constitution.

The court noted that adultery is a private matter between spouses and that the state should not interfere in the private lives of citizens. The court also held that the delict of adultery did not deter adultery and that it caused more harm than good.

Conclusion

The Constitutional Court allowed DE's appeal and set aside the SCA's decision. The court held that the delict of adultery was unconstitutional and invalid.

500-Word Summary

The case of DE v RH is a landmark case in South African law. It is the first case in which the Constitutional Court has considered the constitutionality of the delict of adultery.

The Constitutional Court's decision in DE v RH is based on the following principles:

• The principle of non-discrimination: The court held that the delict of adultery was discriminatory against women, as it only allowed husbands to sue their wives for adultery. This is inconsistent with the right to equality enshrined in the Constitution.
• The right to dignity: The court held that the delict of adultery was not consistent with the right to dignity enshrined in the Constitution. Adultery is a private matter between spouses and the state should not interfere in the private lives of citizens.
• The principle of legal certainty: The court held that the delict of adultery was outdated and uncertain. It was no longer clear which acts constituted adultery or which spouses could sue for damages for adultery. This uncertainty was unfair to spouses and made it difficult for them to enforce their rights.

The Constitutional Court's decision in DE v RH has a number of implications. First, it means that spouses can no longer sue each other for damages for adultery. Second, the decision means that the state will not interfere in the private lives of spouses. Third, the decision means that the law of adultery is now more certain and predictable.

The decision has been welcomed by some commentators, who argue that it is a victory for women's rights and individual privacy. However, other commentators have criticized the decision, arguing that it undermines the institution of marriage and that it will lead to an increase in adultery.

Overall, the decision in DE v RH is a significant case in South African law. It is likely to have a lasting impact on the law of adultery and on the relationship between the state and the family.

Additional Considerations

The decision in DE v RH also raises a number of other considerations, such as:

• The impact of the case on the institution of marriage. Some commentators argue that the decision will undermine the institution of marriage by making it easier for spouses to commit adultery. Others argue that the decision will have no impact on the institution of marriage, as adultery is already a common occurrence.
• The role of the state in regulating the private lives of citizens. The decision in DE v RH is a step towards a more liberal approach to state regulation of the private lives of citizens. This approach is based on the principle that the state should not interfere in the private lives of citizens unless there is a compelling public interest to do so.
• The relationship between the Constitution and the common law. The decision in DE v RH is an example of how the Constitutional Court can use its powers to strike down common law rules that are inconsistent with the Constitution. This shows that the Constitution is the supreme law of the land and that it takes precedence over all other laws, including the common law.