FRANCISTOWN: Justice Lot Moroka of the High Court here Wednesday ruled that adultery law is no longer consistent with the good morals of contemporary Botswana.
Moroka made the observation in a case in which Oreneile Phindile Mhotsha had wanted the 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.
Delictual actio iniuriarum is a legal phrase meaning an action for delict, which not only seeks to protect an individual’s dignity and reputation but also their physical integrity.
This was in response to a lawsuit for damages filed by Precious Kgaje against Mhotsha in which the plaintiff alleged adultery between the defendant and the plaintiff’s husband.
The defendant, Moroka noted, also alleged that the delictual actio injuriarum in adultery no longer reflects the moral convictions of society today.
Said Moroka: “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 plaintiff on the other hand, Moroka said, 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 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, said the Judge.
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, he said.
“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,” he stated.
“As I begin the resolution of this question, I should mention that I have read authorities from across the world on this point.”
Moroka added that be that as it may, Botswana is a sovereign State with its own peculiar norms and values, adding that the law must answer to the peculiar boni mores of this society. The question will therefore, Moroka emphasised, be answered purely from the perspective of Botswana.
“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 come to change the law.”
He noted: “It is the quality of the citizen, his or her integrity and voluntary respect for the marital institution and not the fear of sanction that sustains tranquility in the marriage…it is not in all instances where one spouse commits adultery that divorce follows.
The Tswana counselling key word on this point is ‘matlo a na otlhe’. Literally translated to mean, ‘all houses have leaky roofs’. The message to the aggrieved spouse being that all families are formed of fallible human beings capable of erring”.
“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,” Moroka said.
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 judge observed.
“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,” he added.
Moroka added that, “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…The second observation to make is that today’s marriage is a contract of equals and the women’s place is no longer in the kitchen”.
Moroka explained that the dynamics have changed, adding that 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 largely depends on the health of the marriage and the resolve of the parties to fidelity,” he said.
Moroka emphasised that the effects of globalisation have been felt in all spheres of life.
“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 lovebirds have developed. New ways of romantic engagements and lovemaking are developing and with them, new forms of infidelity. The smart phone 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?
Loss of consortium, the judge posited, 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 remedies are there 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.”
Justice Moroka further noted that, “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”.
“Consortium and the society of the spouse are lost to multiple sources. Adultery is just a small percentage of these threats. Given these complexities, the remedy of actio injuriarum is out of step with the realities faced by modern families. Therefore, consensual sex with another irrespective of marital status is not viewed with an eye of turpitude as it used to,” Moroka said.
“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 foundation 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, he noted. Moroka said 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,” he said.
Going forward, Moroka advised, there is need for moral regeneration to strengthen the moral fibre of society.
“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…
“How do we justify his insulation from lawsuit by his aggrieved wife? 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.”
The duty to marital fidelity lies with the married couple. It cannot be out-sourced to outsiders, he said.
Moroka emphasised that the policy of the courts is 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, adultery is unhappily of most frequent occurrence.
“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,” he said citing another case law adding that he aligns himself with the case.”
He, thereby issued an order that, “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.”
Attorney Mbiganyi Mizha represented Kgaje while Mhotsha was represented by counsel Mboni Manyothwane.