Ms H did not deny the adulterous relationship, but averred that her marriage had begun to deteriorate in 2008 and that she had not become romantically involved with Mr RH until after she left the marital home in 2010.

The South African common law had long recognised a right of action in delict against third parties for adultery on these grounds, most recently affirmed in the Gauteng High Court in Wiese v Moolman.

[1] Relying on Wiese, Acting Judge L. I. Vorster of the Pretoria High Court found in favour of the plaintiff, awarding damages in an amount of R75,000 to Mr DE.

The appeal was heard in August 2014,[3] and Judge Fritz Brand handed down judgement on 25 September 2014 on behalf of a unanimous bench.

However, the Supreme Court raised mero motu the question of "the justification for the continued existence in our law of the delictual claim for adultery", and it concluded that "in the light of the changing [boni] mores of our society, the delictual action based on adultery of the innocent spouse has become outdated and can no longer be sustained; that the time for its abolition has come".

Though Mr DE cited Dawood v Minister of Home Affairs[4] and Minister of Home Affairs v Fourie[5] to show that there was precedent for judicial action in defence of marriage, Madlanga wrote that the present case arose in a different context: In both these cases [Dawood and Fourie], the removal of legal obstacles amounted to the protection of marriage.

For this reason, the continued existence of a claim for damages for adultery by the 'innocent spouse' adds nothing to the lifeblood of a solid and peaceful marriage."