oa Litnet Akademies : 'n Joernaal vir die Geesteswetenskappe, Natuurwetenskappe, Regte en Godsdienswetenskappe - Vonnisbespreking : die doodskoot vir of slegs die verwonding van die eis teen die derdepartyegbreker?
2014 6 SA 436 (HHA) : regte

Volume 12, Issue 2
  • ISSN : 1995-5928



The judgment of the Supreme Court of Appeal in abolished the common law third-party adultery claim for delictual damages, based on the , as a result of the changing morals of the South African society. The judgment is analysed in light of the common law position and the opposing opinions of the applicable legal principles that developed over the past few decades. The analysis includes a discussion of the pertinent issues, gaps and anomalies arising from the judgment. The focus of the discussion is on the court's lack of application of section 39(2) of the Constitution, the lack of guidance with regard to similar actions as done previously, as well as the court's superficial legal comparative approach. Although the author agrees with the final finding of the court that the claim against the third party should be abolished, the conclusion of the discussion is that this judgment cannot be the last word spoken in the courts about the action. Although there was a difference of opinion about the pre- common law legal position, there was legal certainty. The supreme court of appeal unfortunately undermined this by ignoring the constitutional principles and not weighing up the common law legal principles against the mores of society and the constitutional principles as required by the Constitution.

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