High Court Ruling Reinstates Marriage Wrecking

Lebogang Mosikare | Monday December 2, 2019 08:05

 

Last year, Justice Lot Moroka delivered a judgement in which he was of the view that “in light of the changing mores of our society, the delictual actio iniuriarum (an action for delict, which not only seeks to protect an individual’s dignity and reputation but also his or her physical integrity) claim based on adultery pertaining to a civil marriage lacks constitutional and common law validity”.

“Therefore, the act of adultery by a third party, lacks wrongfulness for the purposes of delictual claim of contumelia (injury or humiliation, etc) and loss of consortium and that the public dictates that it is no longer reasonable to attach delictual liability to it and thus the action is no longer sustainable,” Moroka ruled then.

However, Justice Bashi Moesi – also of the Francistown High Court – recently differed with, Moroka in the matter in which a soldier, James Machangana, had taken Nicholas Botsho to court accusing him of wrecking his marriage and subsequently fathering a child with his wife.

Machangana wanted Botsho to pay him P100,000 for contumelia and P50,000 for adultery and interest at the rate of 10% per annum from the date of judgement, plus costs of the suit. Said Moesi in his ruling: “In light of the foregoing I find that at the time of the affair between the plaintiff’s wife and the defendant, the latter was aware of the woman’s marriage to the plaintiff.

My justification… is that the plaintiff’s evidence that his wife wore a wedding ring at all material times is uncontroverted.” He said: “It is highly probable that the presence of the wedding ring was apparent to the defendant, explaining why he felt the need to ascertain whether or not she had told him the truth when she informed him that her marriage was over.

The nature of the exercise, which the defendant embarked upon to ascertain whether or not the woman had told him the truth is unknown to the court, there being no facts placed before the court by the defendant.” “I accordingly consider the plaintiff’s damages claim as properly proven on a balance of probabilities and therefore award him the general damages sought, being P100,000 and P50,000 as claimed under the two headings of contumelia and consortium respectively, together interest thereon at the rate of 10% per annum from the date of judgement plus costs of suit,” said the judge.