COURT OF NAMIBIA, MAIN DIVISION, WINDHOEK
No. I 6056/2014
25 AUGUST 2016
the matte between:
citation: Van Straten v Bekker (I 6056-2014)  NAHCMD 243 (25
12 August, 21 August, 03 and 25 September 2015
25 August 2016
FAMILY LAW- Divorce – action for adultery based on
contumelia and loss of consortium – whether still
sustainable in the modern era.
The plaintiff a married woman sued the defendant for loss of
consortium and contumelia. She alleged that after the husband
met the defendant, his attitude and affection towards her changed. He
started staying away from home and refused to afford her marital
privileges. Furthermore, the defendant on occasion passed snide
remarks at her. On one occasion she fell gravely ill but her husband
neglected to offer her support. He subsequently asked her to sign a
divorce settlement, as he could no longer continue living with her as
husband and wife, as the substratum of the marriage on his part, had
that- the action of contumelia and loss of consortium had
lost their lustre, as they are no longer in consonance with the
constitutional values of privacy, dignity and equality.
further that- there were other means available to society for
protecting the family other than through the claim based on adultery.
further that – Society no longer views the act of adultery
with the same degree of disapprobation, as has always been the case.
further that – that the role of the guilty spouse in the
disintegration of the marriage is often underplayed, giving
prominence to the role of the third party, when the guilty spouse may
have been the one who initiated the extra-marital affair.
The plaintiff’s claims for contumelia and loss of
consortium are dismissed.
There is no order as to costs
history and nature of the dispute
The plaintiff in this matter is a woman who was married to one George
Andrew Van Straten in Walvis Bay, within this court’s
The marriage between the two was solemnized on 31 April 2008. The
marriage was until 19 January 2015, still subsisting, meaning that at
the time of the issuance of the combined summons in this matter i.e.
on 16 December 2014, the plaintiff and Mr. Van Straten were still
locked within the bonds of matrimony as husband and wife.
The defendant is Nicolette Cornelia Van Bekker, an adult female who
resides within this court’s jurisdiction also in Walvis Bay.
This action, which is virtually undefended, is a claim instituted by
the plaintiff for payment of damages by the defendant, based on
allegations that the latter has been and continues to commit adultery
with the plaintiff’s spouse since July 2014 in Walvis Bay. In
her particulars of claim, the plaintiff seeks payment of an amount of
N$ 100,000 being N$ 50 000 for contumelia and the balance
being in respect of a claim for loss of comfort, society and services
of her spouse.
I say the claim is undefended for the reason that at the inception of
the proceedings, the defendant was represented by Delport-Nederlof
legal practitioners who subsequently withdrew as legal practitioners
of record for the defendant. Because of the difficulties in locating
and serving their client with the notice of withdrawal, this court
authorized service of the said notice via substituted service, being
the publication of the notice in a newspaper circulating in Namibia,
being the Namibian. The notice was published on 27 July 2015. The
publication of the notice elicited no response whatsoever from the
defendant to proceed with the defence of the claim.
By notice dated 1 July 2015, this court authorized service of the
notice of withdrawal by the defendant’s legal practitioners and
further postponed the matter to 29 July 2015 for a status hearing.
The court order stipulated that if the defendant did not appear on
that date, her defence may be dismissed and a final judgment may be
issued in favour of the plaintiff in terms of the provisions of rule
53 (1) and (2) of this court’s rules. Needless to say, the
defendant, notwithstanding the publication of the notice and the
order of court, did not attend court on the date stipulated. Her name
was called out three times but she did not respond. Her defence was
thus struck out and it is on that basis that I say the matter is
Although the matter, as previously pointed out, is undefended, the
court mero motu requested the plaintiff’s legal
practitioner to address the court on whether the courts in Namibia
should still continue awarding claims such as that prayed for by the
plaintiff. This question arose as a result of the winds of change
that are currently blowing in some jurisdictions, including our
neighbour South Africa, with whom we share a lot in terms of legal
heritage. A recent judgment of the Constitutional Court in South
Africa, upholding a judgment of the Supreme Court of Appeal of that
country, both of which shall be adverted to in due course in this
judgment, held that no damages should henceforth be recoverable from
a claim such as the one presently serving before this court.
It must be understood that the judgments from South Africa are not
binding on this court. They are, however, of high persuasive value
and it often benefits our jurisprudence to consider their approach to
new legal developments for the sake of deciding whither the interests
of justice in our jurisdiction lie. In this regard, we are to be
circumspect and not to adopt hook, line and sinker all the legal
developments that take place in South Africa for there is a
contextual issue always at play and the difference of the peoples and
societies in the said countries that should always not sink into
oblivion. It is therefore not a case of the adage, ‘What is
sauce for the goose must be sauce for the gander’.
By the same token, we live in a global village and to totally shut
our eyes and ears to the legal developments in other jurisdictions
which might develop our jurisprudence and the cause of justice and to
consider ourselves to live in an ivory tower, albeit one without
windows, might be retrogressive and suicidal, amounting to a huge
disservice to the peoples of this country by its judiciary. A
balanced approach to this issue is therefor called for and the courts
are eminently placed to do so by holding the scales evenly, and
tilting them one direction or the other, depending on the facts and
nuances of the case at hand in accordance with the dictates of public
I propose, at this nascent stage, to briefly chronicle the facts
disclosed by the plaintiff, which as I have said have not been
controverted by the defendant in the light of the striking of her
defence. To that extent, it is safe to say that the plaintiff’s
evidence adduced under oath during the hearing is not contested or
challenged. I am, in the circumstances fortified in relying on same
for the purpose of determining the law applicable to those facts.
The story related by the plaintiff in her witness’ statement is
to the effect that she and her husband, who sings for a living, had a
fairly stable marriage until he started being withdrawn from the
plaintiff. These withdrawal symptoms affected the plaintiff who
suggested that they see a counsellor which her husband refused to
submit to, telling her that he did not love her anymore. She later
discovered that her husband had an intimate love affair with the
defendant, who was a married woman and the plaintiff, on some
occasions, saw the two openly flirting and in manners that were
inappropriate and hurtful to her.
It was also her version that her husband began to spend less time
with her and when he was at home at night, he would be fiddling with
his mobile telephone and stopped being intimate with her. He began to
spend more hours away from home at night, citing work pressure as the
reason therefor. She began to notice that the defendant was a
frequent patron at her husband’s music shows and when she had
taken one too many, she would often accuse the plaintiff of being
‘crazy’, which was very hurtful to her.
Around June 2013, her husband sent her an email in which he requested
her to sign an attached divorce settlement agreement, which the
plaintiff refused to do. Her husband told her that he no longer loved
her, he was no longer happy in the marriage and that she no longer
fitted into his lifestyle. The plaintiff refused to sign the
agreement and tore it up. In March 2014, the plaintiff fell ill after
being diagnosed with kidney infection and got no support or help from
her husband who gave flimsy excuses for not being able to be with and
to support her. He continued with the flirtatious behavior with the
defendant and when the plaintiff confronted him about it, he would
always accuse her of being too possessive and jealous, refusing him
any reasonable measure freedom.
The plaintiff’s husband began making excuses for where he was
going only for the plaintiff to find that he was with the defendant.
In September 2014, the plaintiff then received a divorce summons from
the plaintiff which she was advised not to defend in order to cut
down on costs. He later openly admitted to the plaintiff that he had
an intimate relationship with the defendant and that when she was
sick with kidney problems, he had had sexual intercourse with the
defendant on the plaintiff’s marital bed. He proceeded to
announce his relationship with the defendant on his face book page
and even referred to her on occasion as his wife.
The plaintiff states that this conduct on the part of her husband
affected her detrimentally, in terms of her health, privacy, dignity
and reputation within the community where she lived. Her story, she
states, became well known to the surrounding community and the manner
in which they perceived and dealt with her began to change for the
worse, suspecting that she had done something to push her husband
into the adulterous arms of the defendant, as it were. From September
2014, her husband began to be violent towards her and threatened to
break down the house to get his belongings from the house and this
necessitated that she obtain a protection order. The foregoing,
chiefly represents the reasons why the plaintiff seeks the damages of
contumelia and loss of comfort and society of her husband.
I will not move the heavens to come up with some definition of this
term, what it entails and its application. It has been defined in
case law. In Van
Wyk v Van Wyk,
A.J. dealt with the concept of contumelia in the following terms:
on the other hand simply related to the infringement of the
plaintiff’s right to privacy, dignity and reputation. In Foulds
v Smith the court stated that contumelia is rather a question
of fact than a question of law.’
relying on Viviers
where Solomon CJ said:
. . whoever commits adultery with a married woman, even with her
consent, inflicts an injury upon the husband, and is therefore in
this respect liable to the husband. . .’
should hasten to mention that although the above authority relates to
a man having coitus with a married woman and knowing her to be so
married, it does not detract from the equation that where the roles
are reversed and it is a woman who has a sexual relationship with a
married man, knowing him to be so married, that also constitutes
In this regard, the Webster’s New College Dictionary
defines adultery as ‘voluntary sexual intercourse between a
married man and a woman not his wife, or between a married woman and
a man not her husband’.
I am of the view that in the instant case, there can be no doubt that
the plaintiff’s husband and the defendant did have sexual
intercourse during the endurance of their relationship and while the
plaintiff’s husband was still bound by the bonds of matrimony
to the plaintiff. This much, it appears was confessed to by the
plaintiff’s husband as stated above. Furthermore, it is
apparent that the defendant knew that the plaintiff’s husband
was married to the plaintiff at the time they engaged in that amorous
relationship, which at times kept the plaintiff’s husband away
from the marital home and bed. A case of contumelia is
accordingly proven on the evidence before court.
Regarding the question of loss of comfort and society, or consortium,
den Heever J stated the following regarding that claim in Grobbelaar
. . this concept of consortium is, as I appreciate it, an abstraction
comprising the totality of a number of rights, duties and advantages
accruing to spouses of a marriage. It was, in my judgment, well
described by LORD JUSTICE BIRKETT in Best’s case in the
Court of Appeal, (1951) 2 KB 639 at p.665, as follows:
love affection, comfort, mutual services, sexual intercourse –
all belong to the married estate. Taken together, they make up the
consortium; but I cannot think that the loss of one element,
however grievous it may be, as it undoubtedly is in the present case,
can be regarded as the loss of the consortium within the meaning of
the decided cases. Still less could any impairment of one of the
elements be so regarded. Consortium, I think, is one and
indivisible. The law gives a remedy for its loss, but nothing short
In Pearce v Kevan, Selke J, dealt with the claim in the
. . It is the duty of the wife to reside and consort with her
husband, and any third person, who intentionally causes her to
violate this duty, commits a wrong against the husband for which the
latter is entitled to recover damages unless the third person acted
from lawful motives, e.g. to protect her husband’s
ill-treatment, real or genuinely supposed. . .’
indicated above, this claim is similarly available to a wife whose
husband’s comfort and society has been alienated.
There is no doubt in my mind, having regard to issues pointed out in
the preceding paragraphs, that the plaintiff in this case suffered
from the loss of comfort and society of her spouse, as a result of
the relationship that existed between her husband and the defendant.
The plaintiff’s husband withdrew his love and affection towards
her, offered her no support even when she was gravely ill and even
started staying away from the matrimonial home under the ruse that he
was busy with work. A case for such a claim is accordingly made out
from the evidence before court. There appears to have been no lawful
reason for the deprivation of the plaintiff’s spouses’
consortium in the circumstances. The inference, from the defendant’s
behavior is irresistible that it was intentional as she wanted to
covert and appropriate his love and affection and other incidentals
he could offer for her own personal benefit, whilst she was also
married at the time.
law in Namibia
There are a number of cases in this jurisdiction in which the courts
have dealt with the twin claims of contumelia and loss of
comfort and society. I intend to refer to a few of these cases and
consider the issues at play that appear to have persuaded the court
to make the orders it did. I will deal with these cases in no
Wyk v Van Wyk.
this case, the plaintiff sued the 2nd defendant for
adultery and loss of comfort and society. The plaintiff alleged that
the 2nd defendant had had sexual intercourse with her
husband knowingly and in total disregard of the matrimonial status
and as a result of which she lost the love and affection from her
husband. It was proved in evidence that the 2nd defendant
went on a provocative spree, amongst other things and sent
provocative and hurtful messages to the plaintiff about her
relationship with the latter’s husband. She sent messages to
the effect that the plaintiff was on account of her weight and size a
‘full moon’ which caused the 1st defendant to
be interested in her because she was ‘sexy and [had] an ass
that drives him crazy’. She also said, to rub salt to injury,
‘That which you get, I also get LOL’.
court found this behavior distasteful and a desecration of the
marriage institution, particularly considering that the 2nd
defendant had attended the parties’ wedding and therefor
knowingly had sexual intercourse with the plaintiff’s spouse.
The court also found that as a result of the 2nd
defendant’s actions, the plaintiff had lost the comfort and
society of her husband and therefore awarded the plaintiff N$ 20 000
in respect of each head of claim.
this case, the plaintiff was married and had two children born in
wedlock. The plaintiff’s wife left her husband and went to live
with the defendant. The court found that the defendant and the
plaintiff’s wife admitted that they started having a sexual
relationship before the plaintiff and his wife obtained a divorce.
Adultery was thus proved. The court, however, found that the evidence
of the plaintiff regarding the loss of comfort and society was
contrived and thus unsatisfactory. The plaintiff’s wife’s
evidence that she was being ill-treated by the plaintiff was
corroborated by independent witnesses and the court thus found that
there was no causal connection between the adultery and the loss of
consortium. The plaintiff had thus failed to prove the loss of
consortium. The court thus granted the plaintiff nominal damages in
the amount of N$ 1.00
this matter, the plaintiff sued the plaintiff for N$ 1 500 000 for
damages for adultery and loss of consortium. The court found that the
defendant knew that the plaintiff was married but nonetheless
proceeded to have a sexual relationship with the plaintiff’s
wife. The defendant believed that he had had no role in the
disintegration of the plaintiff’s marriage as his position was
that it was over by the time he befriended the plaintiff’s
wife. The court held that loss of consortium had not been proved but
granted damages in the amount of N$ 10 000 for contumelia.
this case, the plaintiff sued for an award of N$ 30 000 as damages
for adultery and contumelia as a result of the defendant
having committed adultery with the plaintiff’s spouse and for
loss of consortium. The court found that only one instance of
adultery was proven but that condonation of that adultery had taken
place. As a result, though the court found that the consortium was,
to some extent, repaired after the condonation, it could not be said
that the defendant was forgiven for the injury inflicted on the
plaintiff and the contumelia she suffered. The court awarded
the plaintiff damages in the amount of N$ 30 000 for this claim.
v Burger and Another
this matter, a suit for N$ 50 000 adultery and N$ 50 000 for loss of
consortium was instituted against the 2nd defendant. A
concession was made on the plaintiff’s behalf that a case of
loss of consortium had not been made out against the said defendant
as the marriage between the parties had been strained even before the
advent of the relationship alleged between the plaintiff’s wife
and the defendant.
the issue of contumelia, it had been admitted that a
relationship between the two existed but that it was merely platonic
and that a sexual angle to it only developed after the marriage broke
down. The court had to decide the matter based on circumstantial
evidence as to whether contumelia had been proven. The court
found that contumelia was proven as the plaintiff’s wife
and the defendant had been found together at a function by the
plaintiff in a rather compromising position with the defendant’s
left hand tucked between the plaintiff’s wife’s legs. The
defendant, on being confronted by the plaintiff about this behavior,
apologized and promised not to interfere in the relationship. Shortly
thereafter, at another function, the parties were again found by the
plaintiff in an embrace, kissing each other and once again the
defendant’s hands between the plaintiff’s wife’s
court also considered that there was regular telephonic contact
between the defendant and the plaintiff’s wife and that she
stayed out of the matrimonial home at times, returning in the small
hours. At some point, he found her at the defendant’s house
during the night, the defendant having stated on enquiry by the
plaintiff in a telephone conversation that she was not with him. In
the circumstances, the court found that the probabilities of the
evidence pointed inexorably in the direction that the relationship
was more than platonic and that it was in fact a sexual relationship,
showing that adultery had been proved. The court awarded the
plaintiff an amount of N$ 10 000 as compensation.
The long and short of it, is that court’s in this jurisdiction
have and appear to continue to grant damages in appropriates case
where it has been found that adultery has taken place and where loss
and comfort and society is proved as a result of the adultery.
winds of change
Adultery has, for a long time, been viewed rather critically and
treated as a serious issue in many societies. To this extent, it has
been treated as a criminal offence in some and a civil wrong in
others. The approach to adultery has been largely informed by
religious and cultural notions of the inviolability of marriage. The
civil action of contumelia is thus touted to be geared to
protect marriages and family values through the award of damages
against a paramour who is adjudged to have violated and desecrated
marriage and the marital bed as it were. In some societies, in the
17th century, adultery attracted the death penalty and
later, the flogging of women.
In recent years, the attitude towards the inviolability of marriage
appears to have thawed somewhat as adultery as a matrimonial offence
or civil wrong seems no longer to serve its purpose i.e. of
preventing break-ups in marriage by adulterous elopers or debarring
would-be adulterers. As a result, there has been a call from sexual
libertarians, feminists and right activists for individual sexual
privacy, freedom of association, gender equality, non-discrimination
and the abrogation of adultery as a civil wrong due to the effects it
has on a woman. The
refrain in that connection is that the prurient view of sexual
intercourse outside marriage by a free moral agent or a consenting
adult is no longer a tenable position in a modern age.
During the reform of English divorce law for instance, it was held
commission of a matrimonial offence follows the breakdown of marriage
and is not the cause of it. In a happy marriage the parties rarely
commit adultery; even if they do divorce proceedings are unlikely to
follow unless the marriage has already broken up.’
a result, the punishing of marital infidelity has often been seen as
some kind of State interference in what is a purely private realm of
Burbury C.J. says the
following in this regard:
modern law is a product of our modern society; it has in no sense
caused more broken marriages, it is symptomatic of the changed
outlook in society upon the institution of marriage – a society
in which many no longer subscribe to the Christian concept of
marriage. . . Modern divorce legislation must be taken to be the
democratic expression of the will of the majority of the community.
To abolish divorce or make it easy would not be to repair broken
marriages. We may regret the decline in spiritual, moral and social
values which has occasioned the modern legislation. But . . . the law
must be adjusted to social conditions as they exist. . .’
I now intend to carry out a brief survey in other jurisdictions in
order to find out how this issue has been handled and whether the
views relating to adultery as an actionable civil wrong still hold
In Nigeria, the law still takes a very strict view of adultery. The
legal system there is pluralist in nature and consists of English,
customary and Islamic laws which regard adultery as a matrimonial
wrong and a ground for divorce. The Matrimonial Causes Act
in s. 114 (1) (c) deals with ‘damages in respect of adultery’.
A party may, in a divorce petition based on adultery join the other
party as a respondent and claim damages for the adultery.
Damages are not, however, awarded if the adultery has been condoned,
whether subsequently revived or not or if a decree of divorce based
on the adultery is not granted,
or the adultery was committed more than three years before the date
of the petition.
Issues taken into account in assessing the damages were set out in
the Nigerian case of Mohammed
the actual value of the adulterous spouse to the petitioner i.e. both
pecuniary and consortium; injury to the claimant’s feelings and
the blows to his or her honour; the co-respondent’s means and
conduct; the conduct of the spouses themselves, especially the
adulterous spouse and whose harshness or cruelty might have
undermined the non-adulterous spouse and the co-respondent’s
knowledge that the adulterous party is married. In Adeyinka
the Supreme Court of Nigeria stated that the said damages are ‘to
compensate for . . . loss of consortium . . and outrage of. . .
honour and family caused by adultery and not to punish the
The law in Zimbabwe is akin to the law that presently obtains in this
jurisdiction as discussed above.
In this regard, there has been some degree of consternation from some
feminists who incline to the view that the some judges appear to take
a lackadaisical approach to adultery cases, considering the fact that
it affects Zimbabwean women more than men. In this regard, they take
the view that ‘the law has treated the issue of adultery with
less seriousness than it deserves’.
United States of America
Shirley Glass opines that
the United States is experiencing a ‘crisis of unfaithfulness’.
In this regard, she noted that some courts had defined adultery as
not involving moral turpitude and thus not inherently prejudicial.
Social science surveys depict that at least 20 to 50% of American
adults admit to committing adultery, whereas some studies place the
adultery rate at 70%. The
U.S. Supreme Court has held that the State has an interest in
protecting the institution of marriage, while, at the same time
bearing the duty to uphold the freedom of association as a
fundamental right protected by the U.S. Constitution. As a result,
from the 1980s, most states in the U.S. had de-recognised adultery-
based torts like alienation of affection and criminal
There is, accordingly, ‘an emerging awareness that liberty
gives substantial protection to adult persons in deciding how to
conduct their private lives in matters pertaining to sex’.
Issues that informed the approach included the need to emphasise
personal choice; to keep the courts out of the bedroom;
decrimininalise sex acts; to remove the use of the law to legislate
morality. That notwithstanding, U.S law still recognizes the
adultery-based tort of ‘intentional infliction of emotional
distress’ (IIED), as any intentional, reckless or negligent
conduct of a person that is outrageous or exceeds all bounds of
tolerance or decency and causes another person severe emotional
From a traditional perspective, English law considered adultery to be
an act with serious consequences.
For that reason, husbands could sue in trespass for deprivation of
the wife’s services. The Matrimonial Causes Act,
provided that a party to a marriage could obtain a decree of divorce
on proving that the spouse had committed a matrimonial offence. The
only offence that entitled a husband to obtain the decree was
adultery by his wife. For a wife, on the other hand, it was not
enough for her to prove adultery against her husband, there was an
onus on her to prove that the husband was guilty of incestuous
adultery, meaning adultery and another offence on top, e.g. rape,
bigamy, sodomy, bestiality, cruelty or desertion for more than two
years would then suffice.
Uganda, for a long time also operated in terms of the Ugandan Divorce
Act, which took its ancestry form the Matrimonial Causes Act of 1857
of England. In 2004, the Constitutional Court of Uganda declared
certain portions of it unconstitutional and therefore null and
void. It was
accordingly easier for a husband to divorce his wife based on
adultery than the converse, in which case an additional misdemeanour
was required. Under the ss
5, 21, 22 of the Divorce Act, a husband was required to name a
co-respondent to his petition so that he could compensated in terms
of damages and costs ‘for trespassing to his goods’!.
Such a cause as however not available to a wife petitioner.
The Penal Code Act, under s. 154 classified adultery as an offence
against morality and imposed double standards of sexual norms in that
it afforded sexual freedom for men than women reflecting the
patriarchal nature of the society. In Uganda
Association of Women Lawyers and 5 Others v The Attorney-General
it was declared that the Divorce Act was discriminatory on the basis
of sex and therefore contravened the provisions of Art. 21 (1) and
(2) which provide for equality. Tellingly, the court did not find
that adultery was no longer a matrimonial wrong or a ground for
divorce under the Divorce Act.
Coming closer home, in South Africa, the Constitutional Court, in DE
a judgment of the Supreme Court of Appeal
in which the latter court overturned a judgment of the North Gauteng
High Court granting damages arising from adultery between Mr. RH and
Ms. H in actio
loss of consortium and contumelia.
Constitutional Court came to the conclusion that ‘. . . in the
light of the changing mores
our society, the delictual action based on adultery . . . has become
outdated and can no longer be sustained. . .’
In its analysis, the court held that the issue of liability for
adultery was predicated on moral turpitude or wrongfulness of the
adulterous act. It found that the ever softening attitude of society
to adultery called for its nullification. Core, in the
decision-making process in this regard were the following factors:
The development of constitutional norms, including the right to
security of person; the right to privacy and freedom of association.
These were to be observed regardless of the reprehensible nature of
The need to weigh the potential infringement of the dignity of the
plaintiff against the infringement of the fundamental right of the
adulterous spouse and the third party ‘in the light of current
trends and attitudes towards adultery both nationally and
The changing mores and attitudes towards adultery;
The need to prevent State intervention in intimate or personal
That the law can protect marriages by removing legal obstacles that
impede its enjoyment but may not prop up a failed marriage.
The question that needs to be determined at this stage, is the
approach that this country should adopt in the light of the various
approaches to adultery in other jurisdictions. As indicated earlier,
Namibian courts have always granted such claims and this has been
based on the traditional approach to the issues at play, without in
particular, considering the trends in internationally and regionally,
particularly in consideration of our Bill of Rights.
The first issue to consider is the judgment of this court in Voigts
where Damaseb J.P. decried the state of our divorce laws as being out
of touch with the modern approach which is no longer based on the
fault principle, but that irretrievable breakdown of marriage has
become the operative criterion. Although this was on the basic issue
of divorce simpliciter,
it is a pointer that it may well be time to consider whether we
should allow the state of the law relating to adultery in the
anachronistic state in which it is presently.
In expressing his exasperation at the present state of affairs,
although in a different context, as mentioned above, but one not
totally irrelevant to the present issue, the learned Judge President
expressed himself in the following powerful terms:
divorce law of Namibia is archaic and demonstrably in need of reform.
The government of the day has inexplicably failed to initiate the
much-needed reform. Under our current divorce law, when it comes to
considering dissolution of a marriage, it matters not that the
spouses do not love each other or that the marriage has irretrievably
broken down. A court may only grant divorce upon proof that a spouse
committed a matrimonial offence.’
I am of the view that the proper manner in which the question has to
be approached is to consider the issue of adultery from the alleged
premise of protecting the sanctity of marriage. This will be viewed
against an array of other factors such as the modern morals of the
society towards adultery; the current trends in Namibia towards the
monogamous marriage; the fundamental rights of parties to privacy;
the right to freedom of association of both parties, including the
interloper and more importantly, the values espoused in the Namibian
One fact that sticks out like a sore thumb, with most of the cases,
is that the action is almost invariably there to assuage the wounded
pride of a man, whose ‘property’ has been invaded by a
stranger, gate crashing into marriage bed as it were. That the action
was primarily geared to protect men can be seen from Viviers
For the most part, even from the array of cases that I have referred
to, the plaintiffs have predominantly been men who are aggrieved that
their spouses have been ‘violated’ by other men. It
appears to have been coined to protect men primarily and
correspondingly relegates the woman to a person who cannot exercise a
right to remain in a marriage even if does not seem to be working. To
this extent, the issue of equality enshrined in our Constitution
In Burger v Burger (supra), Miller A.J. stated the
following at para  of the cyclostyled judgment in the assessment
will also take into account the fact that modern society has become
more tolerant towards incidences of adultery and that must reflect on
the amount of damages I must award.’
in my view, is an acknowledgement that even in this jurisdiction,
regardless of the fact that our marriage laws remain to some extent
archaic, the attitude of society regarding adultery is softening as
noted by the court. In this regard, although Mr. Justice Miller did
not refuse to grant damages altogether, he pertinently found it fit
to factor in the thawing attitudes of society towards adultery into
account and to award a quantum that reflects the modern day approach
to the issue of adultery.
In this regard, I must also add my voice and state that the
perniciousness of the act of adultery has, in the course of time
become more tolerable than it previously was and this, in my view, is
a factor that must be taken into account even in this jurisdiction,
in deciding whether the damages for adultery should continue to be
awarded by the courts in this day and age. Has the action not lost
As early as the Viviers
in 1927, Solomon C.J. had already noted the possibly debilitating
consequences of such actions and stated the following:
is not desirable that actions of this nature should be encouraged:
but on the other hand, it is only right that profligate men should
realize that they cannot commit adultery with married women with
is an indication that from that time, the propriety of continuing
with this action was a cause for concern, regardless of how strongly
adultery was viewed at that time. The court was nonetheless equally
conscious that it should not be seen to encourage the launching of
such actions and this brings us to consider whether this is an action
to be continued in this day and age.
Furthermore, in 1944, in Rosenbaum
the court, in an era where issues of human rights may not have been
high on the judicial agenda, if at all, had the following to say
about adultery, in perpetuation in part of what Solomon CJ had said
in the excerpt quoted above:
is something . . . to be said for the view that an action for damages
against an adulterous third party is out of harmony with modern
concepts of marriage and should be abolished.’
has unfortunately taken so very long for the courts to take the
proper cue from the views of the luminaries who spoke in emphatic
fashion so many decades ago about the need to reconsider whether
adultery as an action ought to continue being recognized and enforced
as a matrimonial wrong.
I am of the view that although well recognizing and accepting, as
stipulated in the Constitution of Namibia that, ‘The family is
the natural and fundamental group unit of society and is entitled to
protection by society and the State’,
it is a sad fact of life that marriages do break down for a variety
of reasons. In some instances, if not in most, once a party to the
marriage engages in adulterous conduct, it is normally a pointer that
the marriage is navigating on tempestuous seas. In such cases, the
guilty party is not inveigled or coerced into the other party’s
bed but does so willingly and with full knowledge that his or status
is at odds and does not permit the pernicious conduct he or she is
The remedy, in my view, does not lie in enforcing court orders of
damages on persons no longer willing or able to stick to their
marital vows. The society, with the help of the State should invest
considerably in innovative ways and make appropriate interventions to
assist couples whose marriages are struggling for whatever reason. In
point of fact, pre-marital counselling may be even more helpful to
persons intent on getting married by preparing them for what they are
going to face in marriage rather than trying to assist when the
problems that were previously unseen have set in. Furthermore,
continuous assistance should be made available to parties facing
hurdles in their marriages.
The setting up of marital counselling and other support systems are,
in my view the way that should be adopted by the State in part in
order to protect the family as stated in the Constitution. The award
of damages, even if it may in a sense assuage the wounded feelings of
the cheated spouse, does not, correspondingly serve to restore a
marriage that is on the rocks evidenced by the one party engaging in
an adulterous affair. Awarding damages may actually be tantamount to
treating the symptom rather than the disease. The court cannot be a
shepherd cracking a whip to nudge errant spouses back into the rails
of marriage when they are no longer willing for whatever reason.
As the act of adultery comes about from a conscious decision of the
party desecrating the marital bed with open eyes as it were, whatever
it is that the law can do by issuing orders, including interdicts and
awarding damages in a bid to try to protect the marriage will be an
exercise in futility. No amount of damages, even at a punitive scale,
may, in my view, serve as a deterrent when a party is no longer
interested, for whatever reasons, to stay committed to the oath taken
when the marriage covenant was entered into.
Another issue that in my view should not escape scrutiny is that the
assumption or presumption operating normally is that the third party
is the one who is responsible for wrecking the marriage, and worthy
of being censured therefor by an award of damages for desecrating the
marital bed as it were. That is not always the case. There may be
instances where the spouse is the one who sticks his or her neck out
from the bonds of matrimony and entices a third party to partake of
the fruits of what should remain to be enjoyed within the bounds of
the marriage. Once the marriage breaks down, the court is moved to
punish the third party who may have been deliberately enticed by the
guilty spouse, leaving the said spouse blameless and possibly
benefitting from the damages order that the court may award against
the third party. This spouse does not reap what he or she has sown,
which is against the normal rules of nature.
This may also have some unintended consequences, namely the action in
question being a gold mine for unscrupulous couples who may be facing
perilous financial circumstances. They may decide to entice unwary
parties to enter into an adulterous relationship with their spouse
and then later turn to sue them, knowing that the courts generally
award damages to the non-adulterous spouse. To this extent, the
availability of this action may become a weapon of extortion in the
hands of unscrupulous parties wishing to make one more dollar without
working for it.
Furthermore, it appears to me that adults have a right to choose whom
they associate with, conscious, of course, of the implications of the
associations in question. If they decide to associate themselves with
other people in a manner that violates their marriage vows, the
choice they make should, in my view be respected, however hurtful and
injurious it may be to the feelings of others connected to them. And
this is so despite the reprehensions of adultery. No amount of
censure at the personal, family, cultural or State level may change
what is otherwise considered by others to be reprobate behavior, if
they have set their minds at doing so.
Furthermore, I am of the considered view that although marriages are
instituted and given recognition and force by the law, it is odious
for the courts or the processes of the law to be used to peer into
and attempt to regulate matters in the secret chambers of a married
couple. In this regard, the Constitution protects and outlaws
interference with the privacy of the home.
Courts should steer away from intervening in matters that are
intimate in nature and which to some extent amount to personal
choices. It is accordingly my considered view that when the court
descends into the deep recesses of the bed-chamber of a couple and
issues orders in what should be a private domain not only amounts to
interference, it may also have the potential to harm the dignity of
the persons involved in the debacle, including the children who are
for the most part innocent passengers in the vehicle headed for doom.
That is not all. This may have the potential to do grievous damage to
the institution of marriage and by extension, the family. Where these
matters of the immoral behavior of the parents are laid bare for
public scrutiny, as often is the case, this may render the prospects
of restoration rather extreme. Furthermore, it may deeply hurt and
negatively affect the children of the marriage, contrary to the
constitutional provision that calls for the protection of the family.
As a result, children, who are innocent and who have had no role to
play in the embarrassing and hurtful scenes playing themselves out
may be the greatest sufferers.
In cases such as the Van Wyk matter (supra), there is
no reason, in my view, why, if the third party insults or defames the
spouse of the person whose marriage he or she has interfered in, the
ordinary law of delict should not be invoked if all the elements of
the action alleged are proved. I am of the view that whatever insults
are hurled at the plaintiff should be capable of redress by the law
in other manners rather than using the marriage setting to settle
those delictual claims by awarding damages.
I accordingly incline to and endorse the view expressed by the
Supreme Court of Appeal in RH
. . that in the light of the changing mores of our society, the
delictual action based on adultery . . . has become outdated and can
no longer be sustained; that the time for its abolition has come.’
I also agree with the sentiments expressed by the unanimous judgment
of the Constitutional Court of South Africa in DE
v RH (supra):
am led to the conclusion that the act of adultery by a third party
lacks the wrongfulness for purposes of a delictual claim of
contumelia and loss of consortium; it is not reasonable to
attach delictual liability to it. That is what public policy
dictates. At this day and age it just seems mistaken to assess
marital fidelity in terms of money.’
In the circumstances, and having regard to the foregoing, I am of the
view, notwithstanding how subjectively and maybe objectively impaired
the plaintiff’s feelings and dignity may have been by the
actions of the defendant in the instant case, I am of the view that
for the reasons advanced above, it would be inconsistent with modern
trends of thinking to continue to hold on to the outmoded claim of
damages for adultery. This is more the case considering the other
competing and maybe more forceful solicitudes expressed by the
Legislature in this country’s Constitution.
The courts should and actually bear the responsibility to carry and
light the torch even in the dark alleys informed by custom,
entrenched sexist ethos and sensibilities, which are steeped in the
patriarchal perceptions and practices of the past. In this regard,
the duty to shine the constitutional light in areas that may have
been canopied and pervaded by what may now be outmoded and
unconstitutional ethos remains critical. This should particularly be
the case where these actions and practices run counter to the values
and ideals espoused in the Constitution of this great Republic.
Reverting to this case at hand, it is clear that the plaintiff’s
husband tried his utmost best to convey the situation from the deep
recesses of his heart that he could no longer have a meaningful
marriage relationship with the plaintiff but she would simply not
accept this change of position and status. What would have resulted
from an enforced marital union may have been a loveless, oppressive
and possibly violent relationship, which would not serve either of
the parties, their families or the society at large. The end result
of such relationships is normally what is often referred to as
passion killings, which leave the relatives on either end of the
spectrum hurt, disillusioned and broken and the children to some
In the circumstances, although this may be a bitter pill to swallow
for some, the time has come for this Republic to become practical and
proactive on this subject. The claim of adultery can no longer be
justifiably sustained or maintained as a proper cause of action
before our courts. This is so notwithstanding the personal affront,
recrimination and hurt it may leave with the injured party to the
There are, in my considered view, other meaningful, effective and
more efficient means and ways of propagating, nurturing and
protecting the institution of marriage and by extension, the family
than clinging to a claim that runs counter to constitutional
principles and which is more importantly, out of touch with modern
trends and realities. The law must remain relevant and a useful tool
in social engineering. Once it loses its lustre, like salt that has
lost its tastiness, it must be thrown out in the streets and be
trodden under foot by women and men. That is, in my view, the lot of
the delictual claim of adultery and its incidentals of loss of
consortium and contumelia.
As I close, I find it appropriate, in order to demonstrate the levels
of unfairness and lopsidedness of such claims, to quote from a
judgment in Botswana in Mofokeng
the court expressed itself in the following terms regarding the
absence of the man who was the cause of the matter serving in court
in the first place:
interesting feature to this case, which may apply to other such
cases, is that the person who initiated this catastrophe is not in
court to see the fruits of his labour. He is sitting in the serenity
of his office or of the matrimonial home, far removed from the
tensions and stresses of the courtroom atmosphere as he was not cited
nor called as a witness. All things being equal, he is likely to
benefit, even if marginally, from the fruits of the plaintiff’s
judgment. This is a paradox.’
paradox it indeed is. In this case as well, here a battle of the
women is raging and the man at the centre of the debacle sits
ensconced in an air-conditioned room, maybe playing the game of
solitaire as the women in his life sweat and slug it out in court.
Supreme Court judgment
Just before the judgment was handed down by this court, the Supreme
Court of Namibia, delivered its judgment in James
Sibongo v Lister Lutombi Chaka and Another.
that judgment, it would seem that the Supreme Court was made aware of
this judgment and would have preferred to allow this court to first
make its pronouncement on the issues that arise for determination
herein. The Supreme Court, however inclined to the view that there
was nothing inherently wrong in it dealing with the question
notwithstanding the fact that this court had not had the opportunity
to deal with the question of the sustainability of the question in
I am heartened to observe that the Supreme Court, for substantially
similar reasons, came to the same conclusion that the claim of
adultery can no longer form part of our law. I do not need to
expatiate on the Supreme Court judgment, save to identify the main
findings of the said Court. It only remains to state that the Supreme
Court placed, for the large part, heavy reliance on the cases of the
Supreme Court of Appeal of South Africa and the Constitutional Court
for its ultimate position.
At para  Smuts J.A., who wrote for the judgment for the majority
of the court said the following:
I have said, this court has likewise made it clear that public policy
and the legal convictions of the community are informed by our
constitutional values and norms. An examination of the origin of the
action and its development reveals that it is fundamentally
inconsistent with our constitutional values of equality in marriage,
human dignity and privacy. That examination also demonstrates that
the action has also lost its social and moral substratum and is no
At para , the court asked a rhetorical question in the following
does the action protect marriages from adultery? For the reasons
articulated by both the SCA and the Constitutional Court, I do not
consider that the action can protect marriage as it does not
strengthen a weakening marriage or breathe life into one which is in
any event disintegrating.’
proceeded to quote quite generously from the SCA judgment in support
of the above conclusion.
Finally, and in putting the last nail to the coffin of the action,
the Supreme Court said the following at para :
ultimately, it is in respect of the determination of wrongfulness –
with reference to the legal convictions of the community informed by
our constitutional values and norms – that it is no longer
reasonable to impose delictual liability for a claim founded on
adultery. Whilst the changing societal norms are represented by a
softening attitude towards adultery, the action is incompatible with
the constitutional values of equality of men and women in marriage
and rights to freedom and security of the person, privacy and freedom
of association. Its patriarchal origin perpetuated in the form of the
damages to be awarded are furthermore not compatible with our
constitutional values of equality in marriage and human dignity.’
In the valedictory paragraph, the Supreme Court said the following:
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
I should, however mention that a misinterpretation of the content and
effects of the judgment may understandably take place. It must be
made clear that the court has not, by saying adultery is not
actionable against a third party, it has thereby allowed or legalized
adultery nor decriminalized it as some may have it. The courts have
merely stated that the action is not sustainable in the modern day
and age but they have not encouraged nor given a licence to the
commission of adultery to the detriment of the institution of
marriage. It is up to the parties in marriage to ensure that they
comply with their undertakings as married persons.
Lastly, I need to acknowledge the scholarship and assiduity of Ms.
Lubbe for the remarkable work and assistance she rendered to the
court. That the plaintiff’s claim has been dismissed is no
reflection whatsoever on the lack of effort or endeavor on her part.
She was the epitome of what courts have, over the years come to
expect of an officer of the court.
Lastly, I do need to apologise to the plaintiff in particular, for
the delay in handing down the judgment. This has been due to a very
tight roll, including conducting trials from the turn of the year and
dealing in the process with many and for most of the time,
complicated interlocutory judgments within stringent time limits. It
must also not sink into oblivion that this was a watershed case that
demanded very close and careful consideration as it had the potential
to change significantly, the landscape in matters of adultery in this
jurisdiction. The matter was thus approached with a degree of
trepidation, considering also that the defendant ended up not being
represented. It would have been easier for the court to deal with the
matter if the equality of arms had been observed, by the defendant
being represented through to the end of the matter.
In the premises, and now with the imprimatur, as it were, of the
highest court in the land, I issue the following order:
The plaintiff’s claims for contumelia and loss of
consortium are dismissed.
There is no order as to costs.
by Du Pisani Legal Practitioners
(I 3793/2012)  NAHCMD 125 (14 May 2013.
(I 670/2012)  NAHCMD 267 (30 September 2013.
1964 (3) SA 522 (N) at 525 C-E.
(I 3793/2012)  NAHCMD 125 (14 May 2013).
(I 1625/2012)  NAHCMD 283 (1 October 2014).
(I 670/2012)  NAHCMD 267 (30 September 2013).
2007 (1) NR 110 (HC).
(I 3742/2010)  NAHCMD 15 (10 October 2012).
Nehal A. Patel, The State’s Perpetual Protection of Adultery:
Examining Koes-Tler V. Pollard and Wisconsin’s Faded Adultery
Torts (2003) Wis.l. Rev.1013 2.
Some Extra-Judicial Reflection Upon two year’s judicial
experience of the Commonwealth Matrimonial Causes Act 1959 (1953) 36
Law Journal 283,284.
S. 32 (1) of the Matrimonial Causes Act.
(1966) 1 All N.L.R. 210 at 212-213.
Takadiini v Maimba 1996 (1) Z.L.R. 737.
Sylvia Chirawu, ‘Till Death Do Us Part: Marriage, HIV/Aids And
the Law in Zimbabwe (2006) 13 Cardozo
J.L. & Gender 29.
Shierly Glass & Jean Coppock Staheli. Not Just Friends:
Rebuilding Trust and Recovering Your Sanity After Infidelity 329-330
Shirley Glass (op
Nehal A. Patel, ‘The State’s Perpetual Protection of
Adultery: Examining Koes-Tler V. Pollard And Wisconsin’s Faded
Adultery Torts (2003) Wis.
L. Rev. 1013
Wayne Morrison (ed.) William
Blackstone Commentaries on the Laws of England (2001)
Manisuli Ssenyonjo, Towards Non-Discrimination Against Women and De
in Uganda: The Role of Uganda’s Constitutional Court
16 (1) 1-34 at 2.
Manisuli Ssenyolo (supra)
1-34 at 3.
Unreported judgment of 10 March 2004 (Constitutional Court of
(CCT 182/14)  ZACC 18.
HR v DE  ZASCA 133; 2014 (6) SA (SCA).
(I 1704/2009)  NAHCMD 176 (24 June 2013).
At para 63 of the judgment.
2007 (3) BLR 23 (HC).
Case No. SA77/2014 delivered on 19 August 2016