In yet another interesting adultery matter, the Court of Appeal (CoA) has said that one can sue for marriage wrecking.
While many people had welcomed a previous High Court ruling by Justice Lot Moroka that adultery should be resolved by families rather than the courts, the highest court in the land on Friday overturned that decision, as it ruled that “our society still regards marriage as bringing with it the right to dignity which is to be protected by our courts”. CoA Justice Isaac Lesetedi alongside Justices Monametsi Gaongalelwe and Leatile Dambe agree that adultery by nature inflicts a heavy blow to the personality of the innocent spouse, as such the aggrieved parties are liable to compensation.
The Justices made this judgement in a matter in which one Molebi Chepete had appealed a decision to award Otaatia Tshukudu compensation after the latter had sued for adultery and marriage wrecking. Chepete had been found guilty of wrecking Tshukudu’s marriage and ordered to pay 30 beasts or P90,000 as compensation by the Senior Customary Court in Serowe and later on, the High Court in 2020. Chepete could not accept defeat hence he noted an appeal with CoA on the grounds that the High Court fell into a grave error of upholding an appeal. He contended that the appeal was filed out of time without the requisite leave to appeal out of time that the court a quo fell into grave error of disregarding the entirety of the evidence led before the Customary Cort.
This showed that he was not liable for the claim of marriage wrecking and that the court fell into grave error of granting damages to Tshukudu without subjecting the claim to assessment under the known principles
However, CoA dismissed Chepete’s appeal stating that the amount of evidence adduced by the respondent regarding adultery having been committed and marriage wrecking was overwhelming.
The Justices said indeed the action for damages flowing from adultery still subsists in the country.
“This court is fully conversant with the views of late expressed by the courts in South Africa holding that the action has become obsolete.
The constitutional court of South Africa held in that case that in their country the morals of society no longer regard a marriage relationship as sacrosanct.
It must always be borne in mind that Botswana is a sovereign country with its own culture, traditions and moral values.
Our society still regards marriage as bringing with it the right to dignity which is to be protected by our courts,” read the CoA judgement in part.
The court reasoned that entering into a marriage relationship necessarily means one has voluntarily opted to limit his or her freedom of association.
It further noted that an innocent spouse filing for divorce bases his action on grounds of loss of consortium and or contumelia connoting being degraded in the eyes of the community for which he is to be compensated.
Although CoA dismissed the appeal, it regarded the quantum amount as excessive and reduced the damages to just P6,500.
In light of this conclusion, the CoA directed that this judgement should be shared with the president of customary court of appeal for its own consumption and apprising the other customary courts of the current position of the law in this jurisdiction on the subject of adultery and marriage wrecking.