[38] In its analysis, the held that the issue of liability for adultery was predicated on moral turpitude or wrongfulness of the adulterous act. It found that the ever softening attitude of society to adultery called for its nullification. Core, in the decision-making process in this regard were the following factors: (a) The development of constitutional norms, including the right to security of person; the right to privacy and freedom of association. These were to be observed regardless of the reprehensible nature of adultery; (b) The need to weigh the potential infringement of the dignity of the plaintiff against the infringement of the fundamental right of the adulterous spouse and the third party the light of current trends and attitudes towards adultery both nationally ‘in and internationally; (c) The changing mores and attitudes towards adultery; (d) The need to prevent intervention in intimate or personal choices; (e) That the law can protect marriages by removing legal obstacles that impede its enjoyment but may not prop up a failed marriage. Whither Namibia? [39] The question that needs to be determined at this stage, is the approach that this country should adopt in the light of the various approaches to adultery in other jurisdictions. As indicated earlier, Namibian courts have always granted such claims and this has been based on the traditional approach to the issues at play, without in particular, considering the trends in internationally and regionally, particularly in consideration of our Bill of Rights. [40] The first issue to consider is the judgment of this court in Voigts v Voigts, where Damaseb J.P. decried the state of our divorce laws as being out of touch with the modern approach which is no longer based on the fault principle, but that irretrievable breakdown of marriage has become the operative criterion. Although this was on the basic issue of divorce simpliciter, it is a pointer that it may well be time to consider
[38] In its analysis, the held that the issue of liability for adultery was predicated on moral turpitude or wrongfulness of the adulterous act. It found that the ever softening attitude of society to adultery called for its nullification. Core, in the decision-making process in this regard were the following factors: (a) The development of constitutional norms, including the right to security of person; the right to privacy and freedom of association. These were to be observed regardless of the reprehensible nature of adultery; (b) The need to weigh the potential infringement of the dignity of the plaintiff against the infringement of the fundamental right of the adulterous spouse and the third party ‘in the light of current trends and attitudes towards adultery both nationally and internationally; (c) The changing mores and attitudes towards adultery; (d) The need to prevent intervention in intimate or personal choices; (e) That the law can protect marriages by removing legal obstacles that impede its enjoyment but may not prop up a failed marriage. Whither Namibia? [39] The question that needs to be determined at this stage, is the approach that this country should adopt in the light of the various approaches to adultery in other jurisdictions. As indicated earlier, Namibian courts have always granted such claims and this has been based on the traditional approach to the issues at play, without in particular, considering the trends in internationally and regionally, particularly in consideration of our Bill of Rights. [40] The first issue to consider is the judgment of this court in Voigts v Voigts, where Damaseb J.P. decried the state of our divorce laws as being out of touch with the modern approach which is no longer based on the fault principle, but that irretrievable breakdown of marriage has become the operative criterion. Although this was on the basic issue of divorce simpliciter, it is a pointer that it may well be time to consider
Van%20Straten%20v%20Bekker%20(I%206056-2014)%20[2016]%20NAHCMD%20243%20(25%20August%202016).docx