For what it is worth, Batswana from all walks of life must henceforth read the groundbreaking judgment delivered by Justice Lot Moroka of the Francistown High Court striking out the awarding of damages in adultery cases because the punishment is not in sync with the norms and values in contemporary Botswana.
Striking out the redundant law awarding damages to an aggrieved spouse, Justice Moroka held that all indicators point to the realization 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 action injuriarum in adultery is based no longer exists.
Justice Moroka said its continuance is becoming increasingly absurd citing 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.
In that particular scenario, the adulterous spouse would literally enjoy fruits of his or her labour adding that society is replete with examples of the adulterous spouse assisting the third party to pay damages levied against him or her by the court.
The presiding judge said the redundant law is oblivious to the fact that where the parties are married in community of property the guilty party stands to benefit from damages paid to the innocent spouse.
“The adultery becomes a lucrative fund raiser for the family. Where the adultery is condoned and the parties reconcile they jointly enjoy the “blood money”, observed Justice Moroka rhetorically.
Defending the approach he adopted in scraping off the intrusive and discriminatory adultery laws, Justice Moroka aligned his approach to the dictum of Gubbay ACJ in Zimnat Insurance Company Limited versus Chawanda (1990) (2) ZLR 143 where he held that “law in a developing country cannot afford to remain static” and “if the law is to be a living force it must be dynamic and accommodating to change, adapting itself to fluid economic and social norms and values and to altering views of justice”.
Gubbay buttressed that the law must be constantly on the move and flexible to current economic conditions.
Justice Moroka averred that the future of marriage 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 protect the institutions upon which society is founded.
Offering a solution to the impasse, Justice Moroka appealed for moral regeneration to strengthen the moral fibre of society which on its own will engender self-respect and respect for sacred institutions. In this regard traditional leaders, religious leaders and all civil society formations must be mobilized to revive ebbing moral standards.
The presiding judge cautioned that threat of sanctions will do very little to remedy the societal malady of adultery.
He further observed that adultery is sexual relationship between two consenting adults. It is not possible without the cooperation and perhaps importuning of the other spouse who may be the initiator of the adulterous affair.
Elucidating the reasons for striking out the offensive law, Justice Moroka said the adultery of the 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.
Pleading, seduction and or initiation by the guilty party offers the third party nothing. This offends against the principle of equality before the law.
Not only that in Justice Moroka’s view as it intrudes the right to privacy for the adulterous spouse and the third party do not weigh less because merely the two committed adultery.
According to the judge, the duty of fidelity lies with the married couple as it cannot be outsourced to outsiders.
The policy of our courts is no doubt 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 marriage. In Botswana as it is elsewhere around the world, adultery is unhappily of most frequent occurrence.
Judge Moroka further held that the right to privacy entrenched in section 9 of the constitution recognizes that human beings have a right to a sphere of intimacy and autonomy that should be protected from invasion.
The said there is need to observe that adultery remains and will always be objectionable conduct. From a religious perspective it remains a sin. It is important to observe that, adultery is not possible without the willing participation of the guilty spouse. The absence of the remedy of damages is no licence to adultery. There alternative remedies available to protect the family from third party intrusion.
Throwing a life line to aggrieved parties, Justice Moroka implored innocent spouses troubled by the intrusive conduct of a third party to explore other available legal remedies to put an end to the intrusion.
He suggested that aggrieved party could approach the court for a restraining order against the third party as it may prove more effective than an order for damages in that upon violation of the restraining order, the innocent party may seek consequential enforcement of the restraining order which may result even in imprisonment of the adulterous third party for contempt or violation of the restraining order.
Carefully scrutinized, where need arises, the marriage still has protection of the courts through the enforcement of the restraining order once granted.
On costs, Justice Moroka said it is only fair and just that there should be no order for costs as the plaintiff approached the court on the basis of the position of the law as it existed with each party being ordered to bear its own costs.