The South African action for adultery - common law, customary law, and constitutional perspectives

Abstract

South Africa's highest courts recently abolished the common law action for adultery. In 2014, the Supreme Court of Appeal abolished the action on the ground that the conduct did not satisfy the wrongfulness requirement for delictual liability In 2015, the Constitutional Court confirmed abolition of the adultery remedy on constitutional grounds. These judgments did not consider the customary law adultery actions. South Africa's customary law systems will retain their adultery remedies unless these actions are also abolished. The Supreme Court of Appeal's reasoning might not be applicable to the customary law actions. It is also not certain that the Constitutional Court's reasoning will necessarily have the outcome that customary law actions for adultery must be abolished on constitutional grounds. It might be possible to argue that the sexual delicts in customary law are integrally linked to traditional customary marriage and thus protected by the constitutional right to culture. However, this argument appears weak in the context of the adultery remedy, as that remedy is not linked to core features of traditional culture. Thus the customary law action for adultery should also be abolished on constitutional grounds.