SUING the lover of your spouse or ex-spouse for damages can be dangerous. It’s very, very expensive if you lose; it can be equally costly even if you win. And that’s just the money. The personal and social costs in embarrassment and pain to all involved – sometimes there are children whose lives are deeply affected as well – can’t ever be calculated.
Earlier this month the high court in Windhoek decided a case like this. A R95 000 damages claim brought by Hendrick Useb against George Gawaseb for adultery with Useb’s former wife, Charmaine.
Useb said his marriage was a ‘normal average relationship’, with ‘no significant discord apart from occasional differences’. But on 27 November 2011 she came home after staying out all night and refused to explain where she’d been. They argued, she collected her clothes and then left home to move in with Gawaseb.
Useb was the only one to give evidence for his case and he called no other witnesses.
For their part, Gawaseb and Charmaine freely admitted they were involved in a romantic relationship that started after Charmaine left Useb but before the marriage formally ended with a divorce.
Gawaseb said they knew each other from school days. Some years later, he met Charmaine and Useb. He began to communicate with her during December 2011 and she told him of the bad marital experiences as a result of which she had moved out of the joint home in November 2011.
Gawaseb said he played no role in ending the Useb marriage: when the relationship between them began there was already no chance of reconciliation with her husband. She told him she had begun divorce proceedings and that the relationship between her and her husband had irretrievably broken down. Also, when the love relationship between the two of them started in May or June 2012, it was already ‘months after she moved out of the common home’.
Charmaine gave evidence of Useb’s abuse and his adulterous affairs, and how each time she decided to leave him he persuaded her to stay by apologising and getting friends to intercede on his behalf.
Finally she decided to quit because of the affairs, his failure to pay his share of the family expenses and his dislike of her two daughters by a previous relationship – he told her that she had to give away the children if she wanted to continue in a relationship with him. After a friend tried unsuccessfully to mediate he said he would seek a divorce.
Though she then left the joint home he did nothing about a divorce and eventually she brought a divorce action herself. The breakdown of the marriage had absolutely nothing to do with Gawaseb, she said, but was caused by Useb’s constant affairs and his ‘cruel and harsh treatment of her and her children’.
Her evidence was backed up by two witnesses who said they had personal knowledge of what happened in the Useb household, having been sometimes called in to mediate between the couple.
Judge Shafimana Uitele said that, legally, Gawaseb and Charmaine had committed adultery. However, this did not necessarily mean Useb was entitled to damages.
In such a case damages could be awarded on two grounds: for the injury to dignity inflicted on the ‘innocent’ spouse and for the actual damage that may have been sustained because of the ‘loss of comfort and assistance by his wife in consequence of the adultery’. But Useb would have to prove these rights were infringed.
The judge said he could not find Gawaseb had ‘enticed’ Useb’s wife away. As to the injury to Useb’s dignity and feelings, the evidence showed his ‘cavalier attitude’ towards marriage generally and to his wife in particular. The judge also considered Useb’s extra marital affairs and his attempt to mislead the court by fabricating stories about Gawaseb and Charmaine.
‘I am not disposed to accept … that the adultery … caused him humiliation and depression. The admitted adultery provided him with a good cause of action that he attempted to exploit, but I am not satisfied that it caused him any distress whatsoever.’
The court ordered Useb to pay Gawaseb’s legal costs and awarded him nominal damages of just R1.
A recent Supreme Court of Appeal decision scrapped the law that allowed similar legal action in South Africa.
But if you thought that was the end of the issue – think again. The husband in the local case has approached the Constitutional Court to appeal: stand by for a re-hash of the whole excruciating, humiliating saga.