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Fidelis Munyoro Harare Bureau
A RECENT ruling by the South African Supreme Court calling for the abolition of a law permitting civil litigation for damages for adultery has generated debate among legal experts in Zimbabwe.The Supreme Court of Appeal in South Africa ruled that the law permitting civil damages for adultery was “archaic” and that “the time for its abolition has come”.

“In the light of the changing morals of our society, the delictual action based on adultery of the innocent spouse has become outdated and can no longer be sustained,” ruled Justice Fritz Brand adding: “The time for its abolition has come.”

The ruling means adultery is no longer a legal basis for claiming compensation for harm in South Africa.

The ruling followed an appeal by a man ordered by the South Gauteng High Court to pay R75,000 in damages to another man with whose wife he had an illicit affair.

A three-judge panel reversed the High Court decision and abolished the law.

The ruling has elicited divergent views from Zimbabwean legal experts, with some hailing it while others are strongly opposed.

“I don’t think our courts will be persuaded by the ruling in South Africa. Whilst we share the same common law as SA, namely Roman Dutch law, our constitutions have very different value systems,” said prominent lawyer, Terence Hussein.

“SA has since the end of apartheid gone from extreme conservatism to extreme liberalism. This has seen it downgrade the sanctity of key human norms such as marriage, pregnancy and sexual orientation.

“Zimbabwe’s constitution is categorical on these key issues. It prohibits same sex marriages, abortion and gives protection to the institution of family and marriage.”

Hussein said adultery was a civil wrong in the country’s laws and gave an injured spouse the right to sue for damages.

The law, he said, was thousands of years old and had been an effective guardian of an institution that is important to spouses, their children and for the good order of society.

“The law does not stop you from committing adultery but should you wish to indulge in this activity you should have very deep pockets and a thick skin,” said Hussein.

Another legal expert, Chris Mhike, said SA’s precedent did not have a binding effect on Zimbabwean courts because Zimbabwe’s bench enjoyed judicial sovereignty in respect to the institution of marriage and other laws.

“South African judgments still have very persuasive value in our legal system, just as Zimbabwean judgments sometimes hold sway under South Africa’s judicial processes,” he said.

In that context, said Mhike, it was prudent for Zimbabwean lawyers, judges and the general public to take note of legal developments on family law from across the border.

“Whether the judgment is progressive or retrogressive is to be defined by each concerned society,” he said. “Those who cherish personal choice ahead of family and societal cohesion could view this as progressive, while traditionalists, guided by religious and cultural values, might look at this ruling as an absolute disaster.”

Mhike said it was important to remember that there was a relationship between law and morality.

“Natural law holds that law and morality are connected. If legislation is not moral, then it is not law, and has no authority,” said Mhike. “The moral standard that determines the probity of law is derived from the people upon whom the relevant pieces of legislation and legal precedent are applied.”

Nunudzai Masunda, another Harare-based lawyer, had a different view and said the South African Supreme Court made a very progressive decision.

“It’s about time our courts adopted a similar approach as they follow a no-fault system in divorce matters,” she said.

“If courts cannot salvage marriages, I don’t see the purpose to be served by an order of damages against a party which is not a part of the marriage contract.”

Masunda added: “While the law regulates marriage as between parties, the extension of observing the sanctity of marriage to third parties is unjust in my opinion.”

Third parties, she said, could not be the custodians of other people’s marriages. Only those in a marriage contract had duties and obligations to each other.

“Non observance of those duties cannot be imputed on a third party. Maintaining damages for adultery is no different from maintaining claims for restoration of conjugal rights and such other archaic remedies.”

In his judgment, Justice Brand analysed reasons given for keeping the civil action and the various arguments for scrapping it.

The ruling noted the history of civil action revealed its “archaic” origin, disclosing elements of old English law that suggested the husband “has some proprietary interest in the person and the services of the wife”.

The judge said older judgments suggested that the existence of adultery law was influenced by biblical notions and canon law that husband and wife are “entitled to the sole use of each other’s body”, “akin to some kind of servitude”.

“If parties have lost that moral commitment, the marriage will fail and punishment meted out to a third party is unlikely to change that,” said Justice Brand.

He said adultery was often the result, rather than the cause, of an unhappy marriage.

Under Zimbabwean family law, it is permissible for a spouse to sue for adultery damages against a paramour.

The quantum of the claim is entirely up to the claimant and the amount to be awarded is at the presiding judicial officer’s discretion.