End of a long-running marital charade...

Carmel Rickard

Carmel Rickard Carmel Rickard is a writer and specialist law journalist. She has an LLM in Constitutional Law, and is the author of Thank You, Judge Mostert! - a biography of the life and times of Anton Mostert, the judge who blew the whistle on the apartheid government's InfoGate scandal. Among others, she writes for Legalbriefs and the Finanacial Mail.   

This article was first published in Legalbrief: A Matter of Justice 

Archaic marriage laws in Namibia, complained about by that country’s judges who must administer what they often regard as unjust, even ludicrous legislation, were given a resounding klap this week: Namibia’s highest court threw out as unconstitutional the long-established action in terms of which an offended spouse could sue for damages over the other spouse’s adultery.

The decision quotes extensively from an important South African case on the same issue, finalised by the Constitutional Court in 2015, and concludes that adultery could no longer sustain an action for damages. The three judges, including Chief Justice Peter Shivute, said such a provision was ‘incompatible with the constitutional values of equality of men and women in marriage and right to freedom and security of the person, privacy and freedom of association’. The judges also referred to the ‘patriarchal origin’ of such a claim and that it was ‘not compatible with our constitutional values of equality in marriage and human dignity’.

The Supreme Court’s decision followed a stunning critique of Namibia’s marriage laws delivered in 2013 by Judge President Petrus Damaseb. In the case of Voigts v Voigts, he said Namibia’s divorce law was an anachronism, urgently needing reform. The government had ‘inexplicably failed to initiate’ much needed reform, and the law as it stood imposed a ‘ludicrous state of affairs’ on the courts and on couples in unhappy marriages.

Under Namibia’s divorce law it did not matter that spouses no longer loved each other, he said, or that the marriage had broken down irretrievably. Whatever the state of the marriage, a court could only grant divorce on proof that a spouse had committed a ‘matrimonial offence’. Usually this would mean proving malicious desertion or adultery, and this was a recipe for the abuse of women in marriages, said Damaseb.

The divorce laws have not changed, however. On the contrary, the last five years in particular have seen a flurry of Namibian cases in which one spouse has sued the adulterous partner of the other spouse. Judges hearing these recent cases, when estimating what damages to award, often quoted a 1977 judgment from South Africa laying down the factors to be considered in such a case. These included: ‘If the spouse that has strayed was in any event a poor bargain, (the other spouse) cannot expect substantial damages’ and the injunction that ‘courts apparently regard the loss of a modern ‘liberated’ woman less seriously than that of her predecessor’.

One such case in 2013 involved a claim for N$1.5m, resulting in an award of N$10 000 plus legal costs. And in another finalised in 2014 the husband, who claimed N$95 000 but was found to have lied to the court and to have been involved in an adulterous relationship himself, was given nominal damages of merely one dollar and was ordered to pay the legal costs of the case.

Finally, however, in the latest landmark case of JS v LC, at least one part of this charade has come to an end.

The case involved a husband who wanted to divorce his wife and who sued her alleged partner in adultery for N$100 000 in damages. At the same time as arguing he should be compensated for her behaviour, however, he asked for ‘condonation’ for his own adultery, committed ‘during or about June 2011 to August 2011 and again since February 2012’.

The matter landed at the Supreme Court over an interesting technical question – whether the wife could be called by the third party to give evidence against the husband. Having decided that question – there was no bar to her giving evidence in such a case – the judges said they wanted to consider the broader issue of whether an action for damages over alleged adultery was constitutionally acceptable in Namibia. The court gave all the parties notice that they should be prepared to argue this point and they filed detailed, written heads of argument on the issue.

Having heard full argument, the court has now ruled that it would be ‘entirely inappropriate’ to send the case back to trial in the High Court if the grounds for action were no longer valid and if claims based on adultery no longer formed part of the common law.

The three judges held that the origins of the action for adultery and its later development showed it was ‘fundamentally inconsistent with our constitutional values of equality in marriage, human dignity and privacy’, and was ‘no longer sustainable’.

The family was of course entitled to protection by society and the state but the judges questioned whether it provided any protection for marriages to permit one spouse to sue for damages should the other spouse be involved in a sexual relationship with someone else: ‘I do not consider that the action (permitting one spouse to sue the third party) can protect marriage as it does not strengthen a weakening marriage or breathe life into one which is in any event disintegrating,’ said Judge Dave Smuts, writing for the court.

The Namibian court said it agreed with the reasoning of South Africa’s Supreme Court of Appeal and its Constitutional Court in deciding that the action was unconstitutional. In addition such cases caused hurt and damage to children of the marriage who would be exposed to harmful publicity and emotional trauma by a damages action. Then there was the problem that the alleged adulterous spouse would be exposed to ‘embarrassing and demeaning cross-examination, impacting upon her dignity and privacy’.

In the case being considered by the Namibian court the husband, who had brought the action, appeared to be motivated by ‘vindictiveness and anger’ and saw the third party as a ‘scapegoat for that anger’. In addition, the husband had admitted his own adultery at the relevant time.

The court quoted South Africa’s Chief Justice Mogoeng Mogoeng who, in a separate concurring judgment on the same issue when it was considered by his court last year, wrote, ‘The law cannot shore up or sustain an otherwise ailing marriage. It continues to be the primary responsibility of the parties to maintain their marriage. For this reason the continued existence of a claim for damages for adultery by ‘the innocent spouse’ adds nothing to the lifeblood of a solid and peaceful marriage’.

The Namibian decision has sparked wide-ranging reaction including comments that it would help defuse domestic violence, and on the other hand that judges ‘needed to read the Bible’.