SEX and the law aren’t easy companions – I almost said ‘bedfellows’. Our highest courts have often spoken about the private nature of sex and how prying infringes human dignity. But what do you do when someone forces the law itself to pry?

That’s the situation in South Africa however. Despite our now long-established ‘no fault’ divorce regime, a spouse whose partner has had an intimate – sexual – relationship with someone else can go to court and sue the third party for damages. And when that happens the resulting legal action can involve detailed cross-examination on excruciatingly private details.

You could expect relentless probing of where and when and how often the illicit sex took place and the intricacies of the marriage breakdown. In addition, canvassed in pitiless detail, would be everything disclosed by the cellphone records and emails between the so-called ‘guilty spouse’ and the third party that the so-called ‘innocent spouse’ will have obtained as necessary to the damages action.

There would be cross-examination on the text and frequency of SMS messages, all collated and presented as evidence of when the relationship began, who was the ‘initiating’ partner, whether either party was ‘enticed’, and you would be asked how these communications indicated the ebb and flow of illicit relations against events taking place in the actual marriage.

Few people realise that, strictly speaking, if someone is involved in a sexual relationship with a married man or woman at any time up to the finalisation of divorce by a court, the so-called ‘innocent spouse’ may sue the third party for damages. This regardless of the reasons for the divorce. Even where someone has been abusive, for example, this would apply – though according to some experts proven abuse might well lead to substantially lower damages or even to none.

This whole sordid issue was canvassed in the Supreme Court of Appeal last week after the high court in Pretoria ruled that the third party had to pay R75 000 to the ex-husband in such a case. That high court trial had lasted eight days, during which all the parties were subjected to an intense and at times almost obscene grilling about intimate matters.

When they heard the appeal the five appeal judges considered not only the particular case before them and the particular award, but also the principle involved, and whether to scrap the law allowing this kind of legal action. Judging from their questions the judges too felt uncomfortable about aspects of the law as it stands.

Apparently such actions are more common that you might think despite the fact that there have been only about five reported cases in the last 30 years. Dave Smith SC, who acted for the so-called ‘innocent spouse’ in this most recent case assured the judges that there were ‘plenty’ of such actions in which a third party was sued. Most however never got as far as a court hearing. In his view this made it worthwhile maintaining the law: it stood as a warning that marriage should be taken seriously and that there should be no extra-marital sex.

Smith, who seems to have considerable experience in such cases, said that the ‘guilty party’ tended to settle out of court and pay damages. A settlement in this kind of case, he said, was an acknowledgment that ‘I have committed fault’.

By contrast the judges heard argument by Steven Kuny, who appeared for the third party, that the law could be misused as an instrument of blackmail, and that most people, if sued for adultery, would be forced to settle.

As Judge Fritz Brand, presiding in the appeal, asked Smith, wasn’t it very likely that the third party in such a matter wouldn’t be able to pay the vast fees associated with an eight day trial, and would have to settle? And, added Judge Azhar Cachalia, such a case would inevitably involve an army of researchers to ‘delve into the marriage and research family and friends’.

There was also argument that such cases seriously impacted on any children of the couple: intimate details of their parents’ sex lives were interrogated by the court and this was not in the best interests of the children. This was one of the reasons that the evidence required in a divorce had been curtailed, yet it would still be part of a damages claim.

In this particular case the woman had already left the martial home and had indicated that she had no further interest in trying to save her marriage before she and the third party began their intimate relationship. Nevertheless the husband was able to persuade the high court that he was entitled to damages.

In the appeal court Smith based much of his argument on the fact that the parties were all Christian and on the need to have regard to the Christian view of adultery as a sin. Judge Brand wasn’t impressed however: ‘We cannot possibly have legal action to enforce a Biblical command,’ he said.

Despite that comment there was something strangely Biblical – was it a subliminal reference to the person who was without sin casting the first stone? – when the court turned to consider the fact that adultery had long ceased to be a ‘crime’ in South Africa. They changed the law because otherwise all the jails would have been full, one of the bench quipped, and for the only time in the whole day there was general laughter in court.

A strange anomaly in such cases, discussed by the appeal judges during the hearing, is that the so-called ‘guilty spouse’ cannot be sued for damages by the ‘guilty spouse’ for ‘reasons of social policy’ that have never been properly explained by any court.

Other issues emerging in the appeal were even more perplexing. Why, for example, did the high court judge permit Smith to address the ex-wife, the so-called ‘guilty spouse’ in this matter, at least eight times during the high court trial by the demeaning title, ‘Mevroutjie’?

Why did the high court judge allow Smith to make insulting references to the intimate relations between the wife and the third party? Smith contended that sex must have taken place between them because ‘there is no such thing as wind pollination’? The appeal judges told Smith they wouldn’t tolerate such language – but why did the trial judge not make the same point?

Perhaps that’s because the high court judge didn’t notice the offensive language since he expressed himself in terms that women will find just as demeaning: at one stage the woman was cross-examined on whether she and her ex-husband had sex before they were married. She tried to explain that they had ‘tried’, but that there had been problems. As Smith persisted with his questions on this subject, despite the obvious difficulty of the woman in providing an answer he found acceptable, the judge intervened: ‘Let’s make this more understandable. He (the ex-husband) has said that you can’t buy a car if you haven’t first taken it on a test drive. Now was there a test drive or wasn’t there?’

In this case the ex-wife earned a significant salary. Yet each month her husband removed the money from her account and assumed complete control of the funds. The judge in the high court, however, appeared to find nothing unusual or objectionable about this and his judgment at the end of the initial trial made little of her unhappiness at the situation.

The trial judge, who painted a picture of a happy Christian marriage, also made no mention of the ex-wife’s evidence of her problems with the pornography she found on her husband’s computer, nor of the threats by him of which she complained. And her complaints of forced or inopportune sex by him – immediately after a gynaecological operation for example – were mentioned without comment by the judge in his decision.

Refusing leave to appeal against his decision the judge showed great confidence that his view was correct. He said he didn’t think ‘there is any probability or possibility of success’. It was only thanks to persistence by the third party and his lawyers that the matter eventually ended at the appeal court.

The appeal judges are still writing their decision but don’t be surprised if they favour the final extinction of this destructive legal dinosaur.