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A critique of Moroka J’s abolition of the delict of Adultery

Ndulamo Anthony Morima
EAGLE WATCH

In a recent land mark judgement in Precious Kgaje v Oreneile Phindile Mhotsha, CVHFT-000237/17, Moroka J made two Orders which may, unless the judgment is appealed and quashed by the Court of Appeal, forever change Batswana’s family institution.

Moroka J’s judgment is undoubtedly of historical moment in our jurisprudence. His Orders were short, yet far reaching. His first Order was that “the delict of adultery is no longer consistent with the boni mores (good morals) of contemporary Botswana.” In other words, according to Moroka J, Batswana’s general sense of justice and legal convictions today view adultery favorably and condone it and such evolution of Batswana’s culture should be reflected in our law.

The second was that “the actio iniuriarum based on adultery which affords the innocent spouse a claim for contumelia (insult to the self-esteem) and loss of consortium ( comfort and society) is no longer wrongful and thus no longer available as part of our law.” In resolving the question whether the delict of adultery is still valid given the change in the boni mores of society, Moroka J answered in the negative influenced, inter alia, by the fact that many countries including England, Namibia, South Africa and Seychelles have abolished the delict of adultery.

Moroka J was also persuaded by the argument that highly personal relations should not be regulated by the law but should be left to the sphere of ethical self-regulation of the community through unwritten norms and values. According to Moroka J it is the quality of the citizen, his or her integrity and voluntary respect for the marital institution and not the fear of sanction that sustains tranquility in the marriage.

Moroka J cites the Setswana proverb which says ‘matlo a na otlhe’, translated to mean all houses have leaky roofs, to demonstrate that Batswana accept adultery since the proverb is often used to counsel the innocent spouse in cases of adultery. This, he says, shows that while Batswana condemn adultery family preservation is encouraged as opposed to impulsive breakdown through divorce, stating that marriage is a union of forgivers.

He also cites the Setswana saying ‘Nyatsi e tiisa lelwapa’, translated to mean that an adulterer strengthens a marriage, to demonstrate Batswana’s tolerance of adultery. But, in admitting that Batswana regard adultery as wrong he states that “this is by no means an encouragement of an otherwise reprehensible conduct but an expression of attitudes towards it.” Before critiquing the judgment, it is apposite that I address some of the things that have been said about the judgment itself and the judge generally.

Some have wondered why one person, a judge, can change a law, arguing that only Parliament should have the preserve to make and change law. Judges have the power to develop the common law provided they do so in a manner that promotes the spirit, purport and objects of the Constitution, and in accordance with public policy. I, however, suggest that the law be amended to provide that decisions of the lower courts which have constitutional implications, as this one does, should be referred to a panel of three judges to confirm it before they have effect.

Others have, while accepting that Moroka J had the power to change the law, argued that he became overzealous and considered matters that were not before him, arguing that it is as if he had been waiting for the case to make a land mark judgment for his own legacy. At paragraph 1 of the judgment, the judge states that “the Defendant has invited this court to evaluate the constitutional and common law validity of the third party delictual actio iniuriarum claim based on adultery pertaining to a civil marriage, in the light of the changing mores of our society.”

The question is: did the judge do that and nothing more? Though one is not privy to the evidence led during the trial and the heads of arguments submitted by the parties, one wonders at the judge’s conclusion that Batswana’s morals have changed to the extent that they no longer consider adultery as wrongful. There is no reference, in the judgment, of evidence led during the trial which supports such a conclusion. There is also no reference to any empirical report or survey which supports such a conclusion.

Moroka J also, at paragraphs 53 and 54 of the judgment, refers to reasons for the support of the remedy and reasons against, which he says are, in part, from the readings of legal and sociological books and material, but such books and material are not referenced in the judgment. It has also been asked whether Moroka J’s judgment abolished the delict of adultery for both civil and customary marriages. Some argue that it only abolished adultery in civil marriages because the case dealt with the actio iniuriarum based on adultery which relates to civil marriages and not customary marriages.

If that interpretation is correct, does it mean the claim is still available for those who contracted their marriage under customary law? If that is the case, won’t we see those who are in support of the continued outlawing of adultery opting for customary marriages? But, some say because the judgment said the actio iniuriarum based on adultery which affords the innocent spouse a claim for contumelia and loss of consortium is no longer wrongful and thus no longer available as part of our law means that it applies to both customary and civil marriages because they are both ‘part of our law.’

But, was the issue before the court adultery in customary marriages? Did the judge make his enquiry in relation to customary marriages? Now, back to the substantive critique of Moroka J’s judgment. The question is: was Moroka J right in holding that there is no longer need for the continued existence of the delict of adultery.

Mandla J, in DE v RH [2015] ZACC 18, was right in concluding that, in essence, this is the only issue to be determined. The question is whether or not in contemporary Botswana the act of adultery meets the element of wrongfulness in order for delictual liability to attach. In determining whether or not the act complained of is wrongful the Court applies the criterion of reasonableness.

As was held in the case of Delange v Costa 1989 (2) SA 857 (A), this is an objective test which requires the conduct complained of to be tested against the prevailing norms of society in order to determine whether such conduct can be classified as wrongful.  Since the element of wrongfulness is cardinal for delictual liability, by holding that the delict of adultery is no longer consistent with the boni mores of contemporary Botswana Moroka J is effectively saying adultery no longer meets the element of wrongfulness for delictual liability to attach. I disagree.

Moroka J is saying the majority of Batswana no longer find adultery wrong and distasteful; they find it right. This cannot be correct. Below I give examples of practices and sayings that demonstrate that adultery is as much abominable for Batswana today as it was in the past. In Tswana culture, when newlyweds go through ‘go laiwa’, that is, when they are counselled by elders on how to conduct themselves in marriage one of the things that is emphasized is faithfulness to their spouse.

In Setswana, the third party adulterer is called Nyatsi, which is from the word go nyatsega which means something which is to be belittled. I disagree with Moroka J’s statement that the fact that the Childrens’ Act, Cap.28:04 does not permit discrimination of children born of adultery means that in Botswana both adultery and its fruits are no longer regarded with sort of inflexible moral fundamentalism.

Firstly, the Childrens’ Act was meant to protect the innocent child, not the adulterer. Secondly, despite the Childrens’ Act’s existence children born of adultery still face discrimination. Thirdly, even in cases where such children face no discrimination it does not mean that the adultery itself is condoned. Moroka J has held that the continued existence of the delict of adultery does not protect the marital institution, holding that it is only the parties themselves who, through fidelity, should protect their marriage.

I disagree with the judge’s assertion that adultery has nothing to do with the culpability of the third party and that it is the adulterous spouse that would have pierced the veil of unavailability. Granted, married persons should themselves abide by their marital vows. But, are we saying a third party who, knowing full well that a person is married, gets involved in an adulterous relationship with such person does no wrong and should not suffer any recrimination?

I agree with Moroka J that the fact that the actio iniuriarum of adultery renders the guilty spouse beyond the reach of the law despite clear culpability is an anomaly and that there are instances where the guilty spouse assists the third party to pay damages. But, should such anomaly warrant abolition of the actio iniuriarum of adultery itself?

Shouldn’t Moroka J have developed the common law to provide that both the third party and guilty spouse are liable in damages to the innocent spouse? Of course some would argue that that would be of no effect because the guilty spouse would pay from the joint estate. I take the point, but a provision could be made that the guilty spouse pays from sources other than the joint estate. But, can a spouse married in community of property own anything not part of the joint estate? No.

Or, a provision could be made that a guilty spouse’ share of the joint estate is reduced, and such would have consequence in the division of the joint estate during divorce. But, what if the spouses never divorce? Moroka J states that no threat of sanction may protect the marriage from a spouse who is no longer willing to live by the marriage vows. That is not wholly correct. Some marriages have been saved by the fear of the delict of adultery.

Imagine a situation where, as a result of this judgment, adulterers would fear no legal repercussion! It would result in anarchy, the so-called passion killings, murder-suicides and all manner of immorality. Moroka J argues that because of the principle of Botho which is based on self-respect, self-restraint and respect for others and sacred institutions, Batswana respect the law not out of fear of sanctions, but out of self-respect.

But, the very Batswana, governed by the very Botho still commit rape, murder, theft, e.t.c and laws exist for punishment, deterrence, reform, rehabilitation and even retribution. Where is their self-respect and self-restraint in such cases? Why should we only talk of self-respect and self-restraint in the case of marriage?         

I am aware that there is an adage which says ‘monna ke selepe oa hapaanelwa’, loosely translated to mean a man is an axe who is exchanged, which has been used to justify adultery, stating that it means that like an axe which is exchanged a man or husband can be shared by women. This interpretation is erroneous. Tradition has it that the adage means that a man should be of assistance in the community so that even unmarried women or families without a male should not suffer when it comes to male related duties when there is a male in the community.

I am also aware of the adage which says ‘monna ga a botswe ko a tswang teng’, loosely translated to mean that a man or husband is not asked where he is from, which is interpreted to mean that a man or husband can leave the home or even spend a night away from home, even for adulterous escapades, and he should not be asked where he is from.

This too is an erroneous interpretation. The correct interpretation is that a responsible man or husband always communicates his whereabouts or is, if away from home, does so for the family’s good such that there is no need for him to be asked about his whereabouts. Even today, in some cultures a guilty spouse is regarded as not only having defiled his or her body, but also brought insult to the innocent spouse, and, as a pre-condition for  forgiveness, is required to compensate the innocent spouse by giving him or her a cow. In some cultures, a cleansing ceremony is performed to cleanse the adulterer of the evil and filth that is adultery.           

Moroka J canvassed the changing societal norms mainly in terms of such new forms of sexual indiscretions as sexting and cybersex which are neither regarded as moral by the majority of Batswana nor are they forms of adultery. Besides, these sexual indiscretions were not before the court. Neither was the issue of adultery with a prostitute. What was before the court was adultery in relation to an ordinary married person and a third party.

Moroka J’s argument that the fact that the lurid details of adultery have become a source of amusement in tabloids and social media platforms means that adultery has ceased to be regarded with shock and revulsion cannot be sustained. On the contrary, it shows that it is not condoned, hence the desire to name and shame the culprits. The same applies to his argument that the right to privacy, entrenched in section 9 of the Constitution, which recognizes that human beings have a right to a sphere of intimacy and autonomy that should be protected from invasion, should be used to protect adulterers.  

Moroka J talked of consortium and society of the spouses, today, being lost to multiple sources and adultery being just a small percentage of these threats. But, that was not the issue before him. The issue before him was consortium and society of the spouses lost through adultery.

When the CoA, in Mabote and another v Mabote [1999] 1 BLR 386 (HC), approved Watermeyer JA’s views that “…in modern times and in the so-called permissive age there is now no inherent improbability per se about two persons in love, although not married to each other, committing adultery…”, it did not say Batswana no longer regarded adultery as wrongful. It was merely commenting on the increased existence of the vice.

Also, when the CoA said “…there can be no doubt that in many modern societies adultery no longer carries the stigma that it did 50 years ago. This in turn has impact on the loss of dignity sustained by the innocent party…” it was talking of the reduction in stigma, not that adultery was no longer wrong. Also, the comment was made not mainly in relation to the moral blameworthiness of adultery, but mainly in relation to the determination of the quantum of damages against the third party. In my view, therefore, this judgment would better be served by an appeal or referral by the Attorney General, failing which the legislature should intervene by legislation. I may be wrong. 

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Is COVID-19 Flogging an Already Dead Economic Horse?

9th September 2020

The Central Bank has by way of its Monetary Policy Statement informed us that the Botswana economy is likely to contract by 8.9 percent over the course of the year 2020.

The IMF paints an even gloomier picture – a shrinkage of the order of 9.6 percent.  That translates to just under $2 billion hived off from the overall economic yield given our average GDP of roughly $18 billion a year. In Pula terms, this is about P23 billion less goods and services produced in the country and you and I have a good guess as to what such a sum can do in terms of job creation and sustainability, boosting tax revenue, succouring both recurrent and development expenditure, and on the whole keeping our teeny-weeny economy in relatively good nick.

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Union of Blue Bloods

9th September 2020

Joseph’s and Judah’s family lines conjoin to produce lineal seed

Just to recap, General Atiku, the Israelites were not headed for uncharted territory. The Promised Land teemed with Canaanites, Hittites, Amorites, Perizzites, Hivites, and Jebusites. These nations were not simply going to cut and run when they saw columns of battle-ready Israelites approach: they were going to fight to the death.

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Security Sector Private Bills: What are they about?

9th September 2020

Parliament has begun debates on three related Private Members Bills on the conditions of service of members of the Security Sector.

The Bills are Prisons (Amendment) Bill, 2019, Police (Amendment) Bill, 2019 and Botswana Defence Force (Amendment) Bill, 2019. The Bills seek to amend the three statutes so that officers are placed on full salaries when on interdictions or suspensions whilst facing disciplinary boards or courts of law.

In terms of the Public Service Act, 2008 which took effect in 2010, civil servants who are indicted are paid full salary and not a portion of their emolument. Section 35(3) of the Act specifically provides that “An employee’s salary shall not be withheld during the period of his or her suspension”.

However, when parliament reformed the public service law to allow civil servants to unionize, among other things, and extended the said protection of their salaries, the process was not completed. When the House conferred the benefit on civil servants, members of the disciplined forces were left out by not accordingly amending the laws regulating their employment.

The Bills stated above seeks to ask Parliament to also include members of the forces on the said benefit. It is unfair not to include soldiers or military officers, police officers and prison waders in the benefit. Paying an officer who is facing either external or internal charges full pay is in line with the notion of ei incumbit probation qui dicit, non qui negat or the presumption of innocence; that the burden of proof is on the one who declares, not on one who denies.

The officers facing charges, either internal disciplinary or criminal charges before the courts, must be presumed innocent until proven otherwise. Paying them a portion of their salary is penalty and therefore arbitrary. Punishment by way of loss of income or anything should come as a result of a finding on the guilt by a competent court of law, tribunal or disciplinary board.

What was the rationale behind this reform in 2008 when the Public Service Act was adopted? First it was the presumption of innocence until proven otherwise.

The presumption of innocence is the legal principle that one is considered “innocent until proven guilty”. In terms of the constitution and other laws of Botswana, the presumption of innocence is a legal right of the accused in a criminal trial, and it is an international human right under the UN’s Universal Declaration of Human Rights, Article 11.

Withholding a civil servant’s salary because they are accused of an internal disciplinary offense or a criminal offense in the courts of law, was seen as punishment before a decision by a tribunal, disciplinary board or a court of law actually finds someone culpable. Parliament in its wisdom decided that no one deserves this premature punishment.

Secondly, it was considered that people’s lives got destroyed by withholding of financial benefits during internal or judicial trials. Protection of wages is very important for any worker. Workers commit their salaries, they pay mortgages, car loans, insurances, schools fees for children and other things. When public servants were experiencing salary cuts because of interdictions, they lost their homes, cars and their children’s future.

They plummeted into instant destitution. People lost their livelihoods. Families crumbled. What was disheartening was that in many cases, these workers are ultimately exonerated by the courts or disciplinary tribunals. When they are cleared, the harm suffered is usually irreparable. Even if one is reimbursed all their dues, it is difficult to almost impossible to get one’s life back to normal.

There is a reasoning that members of the security sector should be held to very high standards of discipline and moral compass. This is true. However, other more senior public servants such as judges, permanent secretary to the President and ministers have faced suspensions, interdictions and or criminal charges in the courts but were placed on full salaries.

The yardstick against which security sector officers are held cannot be higher than the aforementioned public officials. It just wouldn’t make sense. They are in charge of the security and operate in a very sensitive area, but cannot in anyway be held to higher standards that prosecutors, magistrates, judges, ministers and even senior officials such as permanent secretaries.

Moreover, jail guards, police officers and soldiers, have unique harsh punishments which deter many of them from committing misdemeanors and serious crimes. So, the argument that if the suspension or interdiction with full pay is introduced it would open floodgates of lawlessness is illogical.

Security Sector members work in very difficult conditions. Sometimes this drives them into depression and other emotional conditions. The truth is that many seldom receive proper and adequate counseling or such related therapies. They see horrifying scenes whilst on duty. Jail guards double as hangmen/women.

Detectives attend to autopsies on cases they are dealing with. Traffic police officers are usually the first at accident scenes. Soldiers fight and kill poachers. In all these cases, their minds are troubled. They are human. These conditions also play a part in their behaviors. They are actually more deserving to be paid full salaries when they’re facing allegations of misconduct.

To withhold up to 50 percent of the police, prison workers and the military officers’ salaries during their interdiction or suspensions from work is punitive, insensitive and prejudicial as we do not do the same for other employees employed by the government.

The rest enjoy their full salaries when they are at home and it is for a good reason as no one should be made to suffer before being found blameworthy. The ruling party seems to have taken a position to negate the Bills and the collective opposition argue in the affirmative. The debate have just began and will continue next week Thursday, a day designated for Private Bills.

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