The Defendant has invited Court to evaluate the constitutional and common law validity of the third party delictual actio iniuriarum claim based on adultery pertaining to a civil marriage, in the light of the changing mores of our society.
This is in response to a lawsuit for damages filed by the Plaintiff against the Defendant in which the Plaintiff alleges adultery between the Defendant and the Plaintiff’s husband. In specific terms, the Defendant’s plea is that the Plaintiff’s claim for damages arising out of the delict of adultery is invasive and violates her right to privacy, freedom of association, freedom and security of the person as enshrined in sections 7, 9 and 13 of the Constitution of the Republic of Botswana. The Defendant also alleges that the actio injuriarum in adultery no longer reflects the moral convictions of society.
The Plaintiff on the other hand argued that the delictual claim of actio injuriarum in adultery serves to protect the integrity of the marital institution and that it must be left intact. The legal question before the court is therefore whether there is still legal justification for the continued existence of the delict of actio injuriarum based on adultery in terms of which the non-adulterous spouse has an actio iniuriarum action in delict against the third party for insult to the self-esteem (contumelia) and loss of comfort and society (consortium) of the spouse. As I begin this judgment, it is appropriate that I acknowledge the assistance offered by both learned counsels Manyothwane for the Defendant and Mizha for the Plaintiff. I found their heads of arguments useful.
The current position of the law
The current legal position in Botswana is that a non-adulterous spouse has an actio iniuriarum action in delict against the third party for insult to the self-esteem (contumelia) and loss of comfort and society (consortium) of the spouse. The foundation of the delict lies in common law. Botswana’s common law is Roman – Dutch Law.
Unmarried woman and adultery
The gravity of the offence of adultery was influenced partly by the marital status of the adulterous woman. An adultery by a married woman was regarded as a greater sin because a third party’s child might be introduced into the marriage. It was thus punished more severely. An unmarried woman who slept with a married man was regarded as an adulterer and punished. The man was spared.
Evolution of punishment for adultery
The influence of Christianity led to the abandonment of the killing of an adulterous spouse even when caught in flagrante delicto. Lesser punishments were introduced which included a fine, monetary damages to the husband where the wife of another gave birth to a child.
Canon law remained relevant and marriage as an institution fell within the realm of the church.
Adultery and marriage
The delict of actio injuriarum in adultery focuses on the injury occasioned to the innocent spouse because of an adulterous relationship with a third party. The delict permits an innocent spouse to recover damages for loss of consortium as well as any patrimonial loss suffered and personal injury or contumelia suffered by such innocent spouse, inclusive of loss of comfort, society and services. Contumelia is the injury, hurt, insult and indignity that occurs to an innocent spouse where the other commits adultery.
Once there is evidence of injury, insult and indignity by way of a result of the adulterous relationship, then the innocent spouse is entitled to damages for contumelia. Once contumelia is established, then the next issue would be whether or not there is loss of consortium, that is, loss of comfort and society. Adultery damages, whether classified as falling under contumelia or consortium, are delictual damages arising from a delictual wrong occasioned to an innocent married party.
Boni mores as the basis for legislation
Every society is governed by commonly acknowledged norms and values. These govern relationships between members of the society. Society’s daily practices then ossify into a culture which is a way of life of a given people at a given time.
Justice and its enforcement lies at the heart every society. Therefore, every society has legal convictions in terms of which a panacea for justice is set. These are also known as “the community’s general sense of justice”, “the boni mores of society”, or “the legal convictions of the community.”
These boni mores traverse all manner of acts or omissions. They evolve with society. For it to be meaningful and effective, law and legal remedies ought to reflect the boni mores of the society it is serving. Law must be a reflection of culture. In determining whether conduct should be regarded as wrongful, ie whether delictual liability should follow, courts are more sensitive to have regard to the dynamic and changing nature of the norms of our society. The test for wrongfulness is objective and the reasonableness criterion has to be used to test the conduct against the mores of society to determine whether it can still be regarded as wrongful for purposes of the delictual claim.
The significance of marriage
In Botswana, as no doubt is the case in many countries of the world, the family is regarded as the bedrock upon which society is founded. Marriage between a man and a woman is considered to be sacrosanct. The protection of marriage and the foundational role marriage plays in the formation of the family unit forms part of Botswana’s national and international obligations. Botswana is among others a member of the African Union (AU). Article 18 of the African Charter on Human and Peoples’ Rights (African Charter) enjoins states parties to protect and assist “the family”: “The family shall be the natural unit and basis of society. It shall be protected by the State which shall take care of its physical health and morals.”
“The State shall have the duty to assist the family which is the custodian of morals and traditional values recognized by the community.
In furtherance of its duties, the Republic of Botswana has not only legislated enactments whose aim is to safeguard marriage and the family, it has also provided structures for the adjudication of marital disputes. These includes, Chiefs (Dikgosi) District Commissioners who also serve as marriage officers, Church based persons such as Priests or pastors.
Statement of issues
The issue is whether the delict of adultery is still valid given the change in the boni mores of the society. As part of the resolution of the question whether the delict of adultery is still legally valid, is a need to evaluate developments of similar claims in foreign jurisdictions. The claim of actio injuriarum in adultery has been abolished in England, Scotland, New Zealand, Australia, most provinces in Canada, the Republic of Ireland, Barbados, Bermuda, Jamaica, and Trinidad and Tobago.
If we focus on England for the obvious reason of the influence of English Law in our jurisdiction, all reference to adultery has been deleted from the law. It is no longer a crime; and does not give rise to third party claim for tort / delictual claim for damages; and is no longer included in divorce statutes. The English Matrimonial Causes Act of 1973 included adultery as a possible evidence that a marriage has broken down irretrievably. This remnant was deleted from the Family Law Act 1996.
The delict has either been abolished or restricted in more than 80% of the states in the USA. Several European countries – France, the Netherlands, Germany and Austria – have abolished the crime of adultery and no civil claim has ever been possible. African legal systems, however, are not consistent. In Cameroon, adultery is a criminal offence. Closer to home, the Republics of Namibia, and South Africa have abolished it. The Seychelles abolished both criminal prosecution and the civil claim.
The Roman-Dutch law, that is common law of Botswana is a legal transplant from the Cape of Good Hope consequent to Proclamation No. 36 of 1909. In terms of the Proclamation, the law of the Colony of the Cape of Good Hope was to be administered in the Bechuanaland Protectorate to the exclusion of Cape Statutes promulgated after 10th June 1891.
Mention need however be made that the law on adultery as administered in contemporary Botswana also has English Law influence. This is in part because the very law of the Cape of Good Hope itself had English influence and also the fortuitous fact of the origins of the early judges who sat at the High Court of Botswana, Judges from English common law background tended to cross- pollinate Roman –Dutch Law with English Common Law.
Therefore, both English and South African case law profoundly influenced the development of the common law of Botswana in the area of adultery as a tort or delict. The evolution of the law on the actio injuriarum of adultery in this jurisdiction is closely linked to the development of the law on the subject in the Roman-Dutch jurisdictions of Southern Africa.
Until recently, the law has been applied without much question. Law grows with the people it is intended to serve. Society is not static and so are the values and norms that hold society together. To be of any use, the law must answer to the needs of the society. The Plaintiff in this case alleges that the boni mores of society have out-paced the law on adultery rendering it unsuitable.
The question is whether there has been any fundamental shift in the boni mores of the society that is Botswana to warrant the abandonment of the delict of actio injuriarum in adultery from our common law.
As I begin the resolution of this question, I should mention that I have read authorities from across the world on this point. Of particular interest is the case law on similarly placed jurisdictions such as Namibia, Zimbabwe and South Africa, and the Seychelles because of many shared demographic traits and cultures. Without doubt the Namibian case of Sibonga v Chaka and Another SA 77/14  NASC 16, the South African case of RH v DE both the Supreme Court case and the Constitutional Court cases have been profoundly useful particularly on the history of the delict of adultery.
Be that as it may, Botswana is a sovereign state with its own peculiar norms and values. The law must answer to the peculiar boni mores of this society. The question will therefore be answered purely from the perspective of Botswana. Brand JA offers a word of caution in RH v DE Case No: 594/2013 at paragraph 18: “… in determining whether conduct should be regarded as wrongful, ie whether delictual liability should follow, courts are more sensitive to have regard to the dynamic and changing nature of the norms of our society.”
The responsibility therefore rests upon this court to look at the peculiar traits of the society that is Botswana and determine whether or not the time has arrived to change the law. The temptation to follow trends in other jurisdictions without careful regard to the peculiar legal convictions of the society that is Botswana should be resisted. The continued existence of the delict of actio injuriarum in adultery in our law is no doubt a touchy subject with both supporters of its existence and critics presenting formidable reasons for its continuance or abolition. I will lay down both arguments. The following sets of arguments can be distilled from the reading of both legal and sociological books and materials. This is in addition to what the parties before this court have laid before me.
Reasons for the support of the remedy. Marriage and the family that it founds are the most important building blocks of society; They ought to be protected; The delict of adultery protects the institution of marriage; It acts as a deterrent against the commission of adultery; It offers compensation to the innocent spouse for the contumelia (ie insult) which he or she had suffered; the delict serves to protect the wounded feelings of the innocent spouse. This protection is part of the claim for loss of consortium; adultery often gives rise to strong emotions, but for the availability of the action for damages, the innocent spouse may resort to self-help through unlawful means.
Reasons against. Morals cannot be legislated; Subject to some cultural variations, love, trust and fidelity are the bedrock on which a marriage relationship is built; The best protection to marriage consists in voluntary willingness to marital fidelity; If the parties to the marriage have lost that moral commitment, the marriage will fail and punishment meted out to a third party is unlikely to change that; Damages offer no deterrence against adultery. The growing case law on this point attests to this; If deterrence is the main purpose, one would have thought that this could better be achieved by retaining the imposition of criminal sanctions or by the grant of an interdict in favour of the innocent spouse against both the guilty spouse and the third party to prevent future acts of adultery; It is one sided and discriminatory. For instance, no remedy lies against the guilty spouse; an interdict against the guilty spouse is not possible because he or she commits no delict; as against a third party ‘it interferes with, and restricts the rights and freedom that the third party ordinarily has of using and disposing of his body as he chooses; it also affects the relationship of the third party with the claimant’s spouse, who is and cannot be a party to the interdict, and therefore indirectly interferes with, and restricts her rights and freedom of, using and disposing of her body as she chooses; the deterrence argument departs from the mistaken assumption that adultery is the cause of the breakdown of a marriage, while it is now widely recognised that causes for the breakdown in marriages are far more complex.
In answer to the prevention of self- help instinct, the answer is that, the law cannot be expected to create or maintain remedies with the sole purpose of preventing unlawful conduct, even if the motivation for that conduct is understandable. People often feel wronged by others without any available legal remedy to amend that wrong. Yet both the norms and the laws of civilised society expect them to restrain themselves from self-help by means of what would amount to unlawful revenge; Quite frequently adultery is found to be the result and not the cause of an unhappy marital relationship. Conversely stated, a marriage in which the spouses are living in harmony is hardly likely to be broken up by a third party; Its protection consists in the readiness, founded in morals, of the parties to the marriage to create and to maintain it; If the parties to the marriage have lost that moral commitment, the marriage will fail and punishment meted out to a third party is unlikely to change that.
Analyses and resolution
In the Republic of Botswana, the offence of adultery is not part of the criminal code. In its wisdom, legislature has refrained from enforcing respect for marital vows through criminal sanctions. This conforms to the conviction that highly personal relations should not be regulated by law but should be left to the sphere of ethical self - regulation of the community through unwritten norms and values.
Adultery and divorce
Section 15 (1) of the Matrimonial Causes Act (Cap 29:06) of the Laws of Botswana provides that: “The court hearing an action for divorce shall hold the marriage to have broken down irretrievably unless the plaintiff satisfies the court of one or more of the following facts, that is to say- “that the defendant has committed adultery and the plaintiff finds it intolerable to live with the defendant.”
For adultery to constitute a ground for divorce, the innocent spouse must not condone it. Otherwise in terms of the law, it is only when the innocent party finds it intolerable to live with the adulterous spouse that it can be a basis for divorce. The innocent spouse may condone the adultery and continue with the marriage. Where divorce results from the adultery, the adulterer suffers no patrimonial consequence. The reason for the breakup of the marriage has no bearing on the division of the joint estate upon dissolution of the marriage. This represents a climb down from the fault based principle. It is not in all instances where one spouse commits adultery that divorce follows.
Children and adultery
The status of children born of an adulterous relationship has not been static both in Botswana and internationally. The shift in the status of children born of adultery is one of the important indicators of the state of society’s boni mores on this subject.
In bygone years, children born of adultery to were referred to as bastards for life.In contemporary Botswana, the status of all children is regulated by statute law. In this regard the Children’s Act (Cap 28:04) is the primary instrument of child protection. It permits no discrimination between children. The circumstances of their birth do not determine their legal status. There is no difference in law between children born of adultery and those born of the marriage. Society’s view of children born of adultery is an indicator of its climb down from a puritanical fundamentalist position. Therefore, in Botswana, both the adultery and its fruits are no longer regarded with sort of inflexible moral fundamentalism.
The obligation to protect the marital institution
Increasingly, society reinforces the message that, the marriage vows belong to the married couple. In almost all marriages contracted in Botswana, one form or another of pre-marital counselling is done either by a pastor, District Commissioner or elderly relatives and peers. There is in many marriage ceremonies a place for an item called “go laiwa ga banyalani.” The newly - weds are either jointly or individually subjected to counselling on how to deal with the inevitable ups and downs of the marriage institution. Fidelity to marriage vows is instilled in the couple. Therefore, the primary obligation to protect the sanctity of the vows rests upon the couple. The rest of society can only provide support. Society wants the newly-weds to understand that tying the knot does not render any of the newly-weds unattractive to third parties but that marriage makes them unavailable.
Infidelity is therefore a result of the piercing of the veil of unavailability by a married person rendering him or herself romantically available to third parties. It is a conscious voluntary act that has nothing to do with the culpability of the third party. Adultery is therefore the crowning moment of this availability. In this case, it is the Plaintiff’s husband that pierced the veil of unavailability and fell in love with the Defendant. He was not taken.
The actio injuriarum of adultery renders the guilty spouse beyond reach of the law despite clear culpability. Herein lies its weakness. There is no disincentive for the adulterous spouse to desist from his or her conduct for no sanction beyond divorce may befall him or her. But unless the guilty spouse broke the veil of unavailability, and approached a third party or consented to the overtures of the third party, adultery cannot result. The remedy of damages against the third party is ineffectual for it leaves a critical co-perpetrator off the hook. There are cases in Botswana where the guilty spouse would assist the third party to pay damages.
No threat of sanction may protect the marriage from a spouse who is no longer willing to live by the marriage vows. The obligation to be faithful belongs to the spouses and not the third party. In the absence of any consent to sexual relations with others it cannot happen.
Other forms of challenges to marital fidelity
In present day Botswana, the challenges to the institution of marriage are much more complex than love affairs with identifiable third parties. It would be tragic for any court dealing with the issue of adultery and marital infidelity to look at the problem wearing 18th century goggles. If the court does not step out of the capsule of time which the law books have become and look at contemporary Botswana, the court will get it completely wrong.
Botswana is a country of high literacy and education levels. The majority of the population have attained one level or another of education. The people of Botswana subscribe to strong cultural values. The principle of Botho – “You are because I am”; is the over-arching value that holds the nation together. It is based on self-respect, self-restraint and respect for others and sacred institutions. Batswana respect the law not out of fear of sanctions, but out of self -respect.
The second observation to make is that today’s marriage is a contract of equals. Women’s place is no-longer in the kitchen. In contemporary Botswana many women are highly educated, and occupy various levels of professional positions. They are capable of making rational decisions fully conscious of their consequences. In 1966 when Botswana attained its independence, more men than women occupied formal employment. Generally, men were bread-winners and women stayed at home under the care and tutelage of the husband’s relatives.
The dynamics have changed. Now both men and women spent time away from home working, at times in different towns and cities and only meet occasionally. The interaction between married women and third parties is heightened by many hours of absence from home at work. Because marriage does not end attractiveness, the woman becomes exposed and attracted to third parties. So is the man. The maturation of this attraction to a romantic relationship does not depend on the presence or absence of the threat of sanctions presented by the actio injuriarum of adultery. It depends largely on the health of the marriage and the resolve of the parties to fidelity.
When the formulation of the actio injuriarum of adultery was done and bequeathed to our jurisdiction, men lorded over women. By and large men were bread winners and women home-makers. The woman was at all times at the disposal of her husband. He literally enjoyed her society and consortium. Adultery was a one dimensional act between one spouse and a third party. This is no longer the case. In this day and age, loss of consortium and the contumelia that comes with infidelity comes from multiple sources incapable of protection by the actio injuriarum in adultery. The contemporary woman in Botswana is independent and enters into a marriage for inter-dependence; meaning that her husband depends on her as much as she depends on him.
The effects of globalization on the family
Families in Botswana are no-longer hidden in inaccessible villages. Demographically, the country in not homogenous. There has been rapid connectivity with the world both in terms of transportation and communication technology. New ways of doing things are constantly emerging. Marriage partners own personalised cellular phone, and have personal email addresses with which they are in touch with the world.
The effects of globalisation have been felt in all spheres of life. The family and sexual relations between spouses have been profoundly impacted upon by the development of communication technology particularly smart phones, computers and the internets upon which a variety of cyber interactions between persons are forged.
A variety of social media platforms have developed upon which strangers become friends. Social media platforms such Twitter, Facebook, WhatsApp, Instagram etc. are increasingly becoming enablers to the development of many love affairs between persons who may have not met physically.
A reading of newspapers, magazines and law reports attest to the growing trend in the use of cyberspace to develop love affairs between persons in Botswana. Marital disputes have developed and continue to develop over the use of the smart phone in extra-marital affairs. Transcripts of phone, conversations including nude pictures are a common feature of divorce cases.
New forms of romantic engagements such as sexting; which is the exchange of sexually explicit messages and sexually explicit images between love birds have developed. New ways of romantic engagements and love making are developing and with them, new forms of infidelity. The smartphone has become an instrument of cybersex. Hard pornography circulates from under the noses of slumbering husbands or vice versa. New forms of infidelity are constantly developing making actio injuriarum a wooden plough in a tractor age.
How does the actio injuriarum in adultery assist a man whose wife engages in a cyber-romantic relationship with a man based in Brazil and is emotionally elsewhere? How does actio injuriarum of adultery come to the aid of a woman whose husband’s attention is stolen by romantic cybersex with a phantom woman in Abuja? They are sitting or lying next to each other but in sexting interactions with others elesewhere. As the Temptations sang: “Your body is here with me but your mind is on the other part of town: You’re messing me around.” Loss of consortium has taken a new form which cannot be remedied by actio injuriarum of adultery.
Over and above these realities studies have documented that some married men solicit the services of sex workers also known as prostitutes. What remedy lies for a woman whose husband has solicited the services of a sex worker? Can she sue for damages? In between these challenges is the preference of some married person to use sex toys over and above the sexual provisions of their partners.
These are practical realities which the institution of marriage in Botswana has to grapple with. Therefore, any evaluation of the boni mores of present day Botswana has to be alive to the practical dynamics at play. The traditional values of marriage have been supplanted by new norms which no longer consider sex a preserve of the married.
There has been massive shift in the boni mores of society around sexual relations between persons. While marriage and its significance remains, the society’s view of adultery has evolved with the times. Consortium and the society of the spouse is lost to multiple sources. Adultery is just a small percentage of these threats. In this regard the words of the German Courts as referred to by Brand JA in RH v DE at paragraph 25 encapsulate this position: “‘. . . [In an earlier case the] Fourth Division points out that without the co-operation of one of the spouses no interference with the marriage can occur and that, therefore, it constitutes essentially an internal marital matter, which is not sought to be protected by inclusion among the situations attracting liability in tort. In view of its strong link with the conduct of the unfaithful spouse the participation of the third party must be coloured by it as well. It is inadmissible to divide the activities into misbehaviour of the spouse governed by matrimonial law and a tort committed by the third party rendering him liable to pay damages.”
Given these complexities, the remedy of actio injuriarum is out of step with the realities faced by modern families.
The Court of Appeal for Botswana registered its awareness of the softening attitudes of the society towards adultery. Therefore, consensual sex with another irrespective of marital status is not viewed with an eye of turpitude as it used to. The Court of appeal makes it even clearer at page 415 when the Justices of Appeal say: “There can be no doubt that in many modern societies adultery no longer carries the stigma that it did 50 years ago. This in turn has impact on the degree of loss of dignity sustained by the innocent party.”
There is need for a relook at this delict. On this point, Kentridge J Du Plessis v De Klerk  3 SA 850 (CC0): “Judges can and should adapt the common law to reflect the changing social, moral and economic fabric of the country. Judges should not be quick to perpetuate rules whose social foundations has long disappeared.”
Courts cannot perpetuate legal rules that have lost their social substratum. All indicators point to the realisation that a law suit to a third party cannot save a crumbling marriage. The holier than thou, puritanical view of adultery has yielded to a more pragmatic approach. Therefore, the moral foundations upon which the delict of actio injuriarum in adultery is based no longer exists.
Its continuance is becoming increasingly absurd. Take for an example, where parties are married in community of property, the damages paid to the innocent party for the adultery form part of the joint estate. The adulterous spouse would literally enjoy fruits of his or her labour. Illogical common traditional songs and folklore make light of the turpitude around adultery when they say; “nyatsi e tiisa lapa.” (Secret lover fortifies the family). This is by no means an encouragement of an otherwise reprehensible conduct but a reflection of attitudes towards it.
Society is replete with examples of the adulterous spouse assisting the third party pay damages levied against him or her by the court. The dictum of Gubbay ACJ is apt. He said: "Law in a developing country cannot afford to remain static. It must undoubtedly be stable, for otherwise reliance upon it would be rendered impossible. But at the same time if the law is to be a living force it must be dynamic and accommodating to change. It must adapt itself to fluid economic and social norms and values and to altering views of justice. If it fails to respond to these needs, and is not based on human necessities and experience of the actual affairs of men rather than on philosophical notions, it will one day be cast off by the people because it will cease to serve any useful purpose. Therefore, the law must be constantly on the move, vigilant and flexible to current economic and social conditions.”
Consequently, from the common law perspective, the social stratum upon which the remedy of actio injuriarum in adultery no longer exists. The future of marriage and strong families lies in strong values and the readiness of the married partners to abide by the marriage vows and not in fear of sanctions. The strength of society and its longevity lies not in threats or fear of sanctions but in the willingness of the citizenry to protects the institutions upon which society is founded.
Going forward, there is need for moral regeneration to strengthen the moral fibre of society which on its own will engender self-respect and respect for sacred institutions. In this regard traditional leaders, religious leaders and all civil society formations must be mobilised to revive ebbing moral standards. Threat of sanctions will do very little.
The right to equality before the law
Learned counsel Manyothwane has on behalf of the Defendant argued that adultery cannot occur without the participation of one of the spouses. But the law insulates the adulterous spouse from any delictual claim for the adultery against him or her. Therefore, when two people commit a wrong and action is taken against only one of them, this constitutes unequal treatment. This in turn offends against the constitutional principle of equality before the law. The husband of the Plaintiff is a co-perpetrator to the adultery. How do we justify his insulation from lawsuit by his aggrieved wife?
Adultery is a sexual relationship between two consenting adults. It is not possible without the cooperation and perhaps importuning of the other spouse who may be the initiator of the adulterous affair. This normative incongruity was decried by Van Zyl JP wherein he said: “It is difficult to see why the act of a man committing adultery with another mans’ wife should amount to a delict towards the husband, but the right of a woman’s husband should not be treated as a delict committed by him towards her.”
The inequality is made starker by the fact that it makes no difference whether the guilty spouse initiated the adulterous relationship or whether he was a seducer or was seduced. It is also oblivious to the fact that where the parties are married in community of property the guilty spouse stands to benefit from the damages paid to the innocent spouse. The adultery becomes a lucrative fund raiser for the family. Where the adultery is condoned and the parties reconcile they jointly enjoy the “blood money”.
Further than that, the adultery of the guilty spouse is not a ground for action against him or her. The guilty spouse cannot be interdicted from committing further acts of adultery. It is not even a factor which may mitigate against the quantum of damages claimable. Pleading, seduction and or initiation by the guilty party offers the third party nothing. This offends against the constitutional principle of equality before the law.
The right to privacy, for the adulterous spouse and third party do not weigh less because merely because the two committed adultery. The duty to marital fidelity lies with the married couple. It cannot be out-sourced to outsiders. I agree with Mogoeng CJ when he said that: “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 policy of our courts is no doubt to uphold the sanctity of marriage and not lightly to put an end to what is the very foundation of the most important unit of our social life, the family. Marriage should be founded on love and affection of the married couple themselves. Where there is no commitment to the union by one or both, punishment of third parties can and will never save the marriage. In Botswana as it is elsewhere around the world, aadultery is unhappily of most frequent occurrence.
A cursory reading of both law reports and weekly newspapers attests to this. It has ceased to be regarded with shock and revulsion. The lurid details of the adultery have become more a source and amusement, tabloids headlines and social media gossip that opprobrium. There is no longer any turpitude attached to adultery.
The right to privacy, entrenched in section 9 of the Constitution, recognises that human beings have a right to a sphere of intimacy and autonomy that should be protected from invasion. I agree with the Namibian Supreme Court in its decision that it may well be that in this age, society views with less disapprobation than in the past the commission of adultery. In conclusion Smuts JA with Shivute CJ and Mainga JA agreeing held that: “The conclusion I reach is that the act of adultery by a third party lacks wrongfulness for the purposes of a delictual claim of contumelia and loss of consortium. Public policy dictates it is no longer reasonable to attach delictual liability to it. The action is thus no longer sustainable". These are also my words.
As I conclude, there is need to observe that adultery remains and will always be objectionable conduct. From a religious perspective it remains a sin. It is important however to observe that, adultery is not possible without the willing participation of the guilty spouse. The absence of the remedy of damages is no licence to adultery. There are alternative remedies available to protect the family from third party intrusion.
An innocent spouse troubled by the intrusive adulterous conduct of a third party has various other remedies available to put an end to the intrusion. In this regard approaching the court for a restraining order against the third party may be more effective that an order for damages in that upon violation of the restraining order, the innocent spouse may seek consequential enforcement of the restraining order which may result even in imprisonment of the adulterous third party for contempt or violation of the restraining order. Therefore, where need arises the marriage still has protection of the courts.
The defence raised by the Defendant ought to succeed. It is only fair and just that there should be no order as to costs as the Plaintiff approached the court on the basis of the position of the law as it existed.
The following orders are hereby issued: The delict of adultery is no longer consistent with the boni mores of contemporary Botswana; The actio iniuriarum based on adultery which affords the innocent spouse a claim for contumelia and loss of consortium is no longer wrongful and thus no longer available as part of our law; The Plaintiff’s action is dismissed; Each party shall pay its own costs.
Judge Lot Moroka delivered the decision in Francistown on May 02, 2018.