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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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DIS Parley Committee selection disingenuous 

25th November 2020

Intelligence and Security Service Act, which is a law that establishes the Directorate of Intelligence and Security Service (DIS), provides for establishment of a Parliamentary Committee. Recently, the President announced nine names of Members of Parliament he had appointed to the Committee.

This announcement was preceded by a meeting the President held with the Speaker and the Leader of Opposition. Following the announcement of Committee MPs by the President, the opposition, through its leader, made it clear that it will not participate in the Committee unless certain conditions that would ensure effective oversight are met. The opposition acted on the non-participation threat through resignation of its three MPs from the Committee.

The Act at Section 38 provides for the establishment of the Committee to examine the expenditure, administration and policy of the Directorate. The law provides that the Parliamentary Committee shall have the same powers and privileges set out under the National Assembly (Powers and Privileges) Act.

On composition, the Committee shall consist of nine members who shall not be members of Cabinet and its quorum shall be five members.  The MPs in the Committee elect a chairperson from among their number at their first meeting.

The Members of the Committee are appointed by the President after consultation with the Speaker of the National Assembly and Leader of the Opposition in the National Assembly. It is the provision of the law that the Committee, relative to its size, reflect the numerical strengths of the political parties represented in the National Assembly.

The Act provides that that a member of the Committee holds office for the duration of the Parliament in which he or she is appointed.  The Committee is mandated to make an annual report on the discharge of their functions to the President and may at any time report to him or her on any matter relating to the discharge of those functions.

The Minister responsible for intelligence and security is obliged to lay before the National Assembly a copy of each annual report made by the Committee together with a statement as to whether any matter has been excluded from that copy in pursuance of the provision of the Act.

If it appears to the Minister, after consultation with the Parliamentary Committee, that the publication of any matter in a report would be prejudicial to the continued discharge of the functions of the Directorate, the Minister may exclude that matter from the copy of the report as laid before the National Assembly.

So, what are the specific demands of the Opposition and why are they not participating in the Committee? What should happen as a way forward? The Opposition demanded that there be a forensic audit of the Directorate. The DIS has never been audited since it was set up in 2008, more than a decade ago.

The institution has been a law unto itself for a longtime, feared by all oversight bodies. The Auditor General, who had no security of tenure, could not audit the DIS. The Directorate’s personnel, especially at a high level, have been implicated in corruption.  Some of its operatives are in courts of law defending corruption charges preferred against them. Some of the corruption cases which appeared in the media have not made it to the courts.

The DIS has been accused of non-accountability and unethical practices as well as of being a burden on the fiscus.  So, the Opposition demanded, from the President, a forensic audit for the purpose of cleaning up the DIS.  They demand a start from a clean slate.

The second demand by the Opposition is that the law be reviewed to ensure greater accountability of the DIS to Parliament. What are some of the issues that the opposition think should be reviewed? The contention is that the executive cannot appoint a Committee of Parliament to scrutinize an executive institution.

Already, it is argued, Parliament is less independent and it is dominated by the executive. It is contended that the Committee should be established by the Standing Orders and be appointed by a Select Committee of Parliament. There is also an argument that the Committee should report to Parliament and not to the President and that the Minister should not have any role in the Committee.

Democratic and Parliamentary oversight of the intelligence is relatively a new phenomenon across the World. Even developed democracies are still grappling with some of these issues. However, there are acceptable standards or what might be called international best practices which have evolved over the past two or so decades.

In the UK for instance, MPs of the Intelligence and Security Committee are appointed by the Houses of Parliament, having been nominated by the Prime Minister in consultation with the Leader of the Opposition. This is a good balancing exercise of involvement of both the executive and the legislature. Consultation is taken for granted in Botswana context in the sense that it has been reduced to just informing the Leader of Opposition without much regard to his or her ideas; they are never taken seriously.

Furthermore, the current Committee in the UK has four Members of the ruling party and five MPs from the opposition. It is a fairly balanced Committee in terms of Parliamentary representation. However, as said above, the President of Botswana appointed six ruling party MPs and three from the opposition.

The imbalance is preposterous and more pronounced with clear intentions of getting the executive way through the ruling party representatives in the Committee. The intention to avoid scrutiny is clear from the numbers of the ruling party MPs in the Committee.

There is also an international standard of removing sensitive parts which may harm national security from the report before it is tabled in the legislature. The previous and current reluctance of the executive arms to open up on Defence and Security matters emanate from this very reason of preserving and protecting national security.

But national security should be balanced with public interest and other democratic principles. The decision to expunge certain information which may be prejudicial to national security should not be an arbitrary and exclusive decision of the executive but a collective decision of a well fairly balanced Committee in consultation with the Speaker and the minister responsible.

There is no doubt that the DIS has been a rogue institution. The reluctance by the President to commit to democratic-parliamentary oversight reforms presupposes a lack of commitment to democratization. The President has no interest in seeing a reformed DIS with effective oversight of the agency.

He is insincere. This is because the President loathes the idea losing an iota of power and sharing it with any other democratic institution. He sees the agency as his power lever to sustain his stay in the high office. He thought he could sanitize himself with an ineffective DIS Committee that would dance to his tune.

The non-participation of the opposition MPs renders the Committee dysfunctional; it cannot function as this would be unlawful. Participation of the opposition is a legal requirement. Even if it can meet, it would lack legitimacy; it cannot be taken seriously. The President should therefore act on the oversight demands and reform the DIS if he is to be taken seriously.

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The Maccabean Uprising

25th November 2020
Jewish freedom fighters

 Jews drive away occupying power under the command of guerrilla leader Judas Maccabees but only just

Although it was the Desolation Sacrilege act, General Atiku, that officially sparked the Maccabean revolt, it in truth simply stoked the fires of an already simmering revolution. How so General?

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Atomic (CON)Fusion

25th November 2020

For years I have trained people about paradigm shifts – those light-bulb-switch-on moments – where there is a seismic change from the usual way of thinking about something to a newer, better way. 

I like to refer to them as ‘aha’ moments because of the sudden understanding of something which was previously incomprehensible. However,  the topic of today’s article is the complete antithesis of ‘aha’.  Though I’d love to tell you I’d had a ‘eureka ‘, ‘problem solved’ moment, I am faced with the complete opposite – an ‘oh-no’ moment or Lost Leader Syndrome.

No matter how well prepared or capable a leader is. they often find themselves facing perplexing events, confounding information, or puzzling situations. Confused by developments of which they can’t make sense and by challenges that they don’t know how to solve they become confused, sometimes lost and completely clueless about what to do.

I am told by Jentz and Murphy (JM) in ‘What leaders do when they don’t know what to do’ that this is normal, and that rapid change is making confusion a defining feature of management in the 21st century.  Now doesn’t that sound like the story of 2020 summed up in a single sentence?

The basic premise of their writing is that “confusion is not a weakness to be ashamed of but a regular and inevitable condition of leadership. By learning to embrace their confusion, managers are able to set in motion a constructive process for addressing baffling issues.

In fact, confusion turns out to be a fruitful environment in which the best managers thrive by using the instability around them to open up better lines of communication, test their old assumptions and values against changing realities, and develop more creative approaches to problem solving.”

The problem with this ideology however is that it doesn’t help my overwhelming feelings of fear and panic which is exacerbated by a tape playing on a loop in my head saying  ‘you’re supposed to know what to do, do something’. My angst is compounded by annoying motivational phrases also unhelpfully playing in my head like.

  • Nothing happens until something moves
  • The secret of getting ahead is getting started

and

  • Act or be acted upon

All these platitudes are urging me to pull something out of the bag, but I know that this is a trap. This need to forge ahead is nothing but a coping mechanism and disguise. Instead of owning the fact that I haven’t got a foggy about what to do, part of me worries that I’ll lose authority if I acknowledge that I can’t provide direction – I’m supposed to know the answers, I’m the MD!  This feeling of not being in control is common for managers in ‘oh no’ situations and as a result they often start reflexively and unilaterally attempting to impose quick fixes to restore equilibrium because, lets be honest, sometimes we find it hard to resist hiding our confusion.

To admit that I am lost in an “Oh, No!” moment opens the door not only to the fear of losing authority but also to a plethora of other troubling emotions and thoughts:  *Shame and loss of face: “You’ll look like a fool!” * Panic and loss of control: “You’ve let this get out of hand!” * Incompetence and incapacitation: “You don’t know what you’re doing!”

As if by saying “I’m at a loss here” is tantamount to declaring “I am not fit to lead.” Of course the real problem for me and any other leader is if they don’t admit when they are disoriented, it sends a signal to others in the organisation stating it’s not cool to be lost and that, by its very nature encourages them to hide.  What’s the saying about ‘a real man never asks for direction. ..so they end up driving around in circles’.

As managers we need to embrace the confusion, show vulnerability (remember that’s not a bad word) and accept that leadership is not about pretending to have all the answers but about having the courage to search with others to discover a solution.

JM point out that “being confused, however, does not mean being incapacitated.  Indeed, one of the most liberating truths of leadership is that confusion is not quicksand from which to escape but rather the potter’s clay of leadership – the very stuff with which managers can work.”

2020 has certainly been a year to remember and all indications are that the confusion which has characterised this year will still follow us into the New Year, thereby making confusion a defining characteristic of the new normal and how managers need to manage. Our competence as leaders will then surely be measured not only by ‘what I know’ but increasingly by ‘how I behave when I accept, I don’t know, lose my sense of direction and become confused.

.I guess the message for all organizational cultures going forward is that sticking with the belief that we need all-knowing, omni-competent executives will cost them dearly and send a message to managers that it is better to hide their confusion than to address it openly and constructively.

Take comfort in these wise words ‘Confusion is a word we have invented for an order not yet understood’!

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