A brief note on the primacy of the Constitution in the common law' s development : DE v RH [2015] ZACC 18 / 2015 (5) SA 83 (CC) / 2015 (9) BCLR 1003 (CC)

Abstract

In E v H1 a husband successfully claimed R75 000 in damages from a man who committed adultery with his wife. On appeal, the Supreme Court of Appeal (SCA) in RH v DE,2 on the law as it was, held that the husband could have succeeded with his claim for insult resulting from the adultery. However the SCA then proceeded to abolish the delictual claim for adultery on the basis that it was outdated in light of changing social norms.3 The husband finally and unsuccessfully appealed to the Constitutional Court where the abolition of the claim was upheld but on modified grounds in comparison with those provided by the SCA.4 In this note I briefly recapitulate (and problematise) the reasoning of the SCA on the common law’s development in so far as it is relevant for purposes of properly appreciating the judgment of the Constitutional Court.