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By Nozipho Ndebele
‘Our courts, on the whole, do not look with much favour on the breach of promise actions, and it has been suggested that they have no place in modern law’ (Hahlo ‘Breach of promise actions in modern law’ (1946) SALJ 379 in Thulani Nkosi ‘The Life and Times of the Breach of Promise to Marry and the Plight of a Betrothed Woman – Cloete v Maritz’ (2014) 77 THRHR 677).
For more than a century, South African courts have remained open to considering breach of promise claims (CA Epstein and N Zaal ‘End of the road for breach of promise claims? Cloete v Maritz 2013 (5) SA 448 (WCC) and Cloete v Maritz SAFLII [2014] ZAWCHC 108’ (2016) 30 SPECJU 80). A promise to marry is an agreement between two parties to marry each other at a determined future date, and if not determined, within a reasonable period. It has been acknowledged that ‘an agreement to marry is a contractual relationship of considerable importance to the parties, so much so that its unjustifiable repudiation may attract, and often does attract, both contractual and delictual damages’ (Nkosi (op cit) at 680). It has long been accepted that an engagement may be cancelled without financial consequences provided there is a just cause and a just cause is defined as ‘any event or condition or actions of the other party which would jeopardise a long and happy marriage and which can induce any right-minded member of society to rescind the engagement’ (Van Jaarsveld v Bridges 2010 (4) SA 558 (SCA) at para 5).
In the past, when granting delictual damages, the court could compensate the jilted party (usually the woman) for breach of promise because it would have resulted in that jilted party’s time and effort being wasted, the humiliation suffered by being strung along for a long period and the fact that it would be harder for the woman to find a husband now that she was older (Epstein and Zaal (op cit) 89). In addition, the courts could award contractual damages in the form of actual loss and prospective loss incurred, as a result of such breach.
An overview on the reasoning of courts in the claims for breach of promise
In this case, the plaintiff claimed for breach of promise in the form of delictual damages for emotional harm and contractual damages for loss of financial benefits that she would have been entitled to had the parties concluded a marriage in community of property. The parties had been cohabiting for several years, they had pooled their incomes and settled the household expenses equally. The plaintiff claimed an amount that totalled more than a million rands as half of the shared property to which she would have been entitled to had they married in community of property. The court had to decide on the plaintiff’s claims.
The High Court concurred that the action for contractual damages resulting from a breach of promise requires a reconsideration and reference was made to the passages of Sinclair The Law of Marriage (Cape Town: Juta 1996) at 313 on the reasons in other jurisdiction’s for the abolishment of a breach of promise action. Some of these reasons are that such an action can open doors for ‘gold diggers’ and the law should not consider causes of action that could constitute a threat, which may push parties to enter into a marriage (p 330). It was also highlighted that the ‘repudiation of a promise to marry is, however, no longer seen in the serious light that it was when marriage was regarded as the only proper course for all women and where breach of promise was likely to prejudice their reputation’ (p 330). In spite of these comments against the prospective contractual remedy for breach of promise, the action was not done away with in this case as the court awarded prospective contractual damages.
The parties to this case were engaged and Van Jaarsveld notified Bridges through a text message that he was no longer willing to marry her because he did not feel the same way as he did before and his mother did not approve of the relationship because of, among other reasons, Bridges had in the past been involved in four failed marriages and this would have been her fifth marriage. Van Jaarsveld repudiated the contract when the invitations for the wedding had already been sent to the guests. Consequently, Bridges claimed for damages that were in excess of R1 million. The court referred to Davis J’s comment made in the Sepheri judgment that the time had come to reconsider the action for breach of promise because the historic approach to engagements has become outdated and it does not recognise the mores of our time. The criticism against the action of breach of promise was levelled based on certain factors. First, Harms DP asserted that morals have changed, considering that guilt was no longer an issue in divorce. Hence there is no reason for not recognising the ‘lack of desire to marry … irrespective of the “guilt”’ of either party as a just cause for ending an engagement because unwillingness to marry shows the ‘irretrievable breakdown of the engagement’ (para 6). Secondly, it was expressed that it is ‘illogical to attach more serious consequences to an engagement than to a marriage’ because a marriage does not give rise to a rigid contractual relationship (para 6-7). Thirdly, it was considered unthinkable that when parties promise to marry each other, they would contemplate that a breach of their engagement would have financial consequences as if they had been married because an engagement is a time to get to know one another better and to decide whether or not to marry (para 6-8). In addition, Harms DP expressed disapproval of the contractual prospective loss remedy in cases of breach of promise where a person claims for losses based on probabilities that the marriage would have been in community of property. The prospective loss aspect was not considered ideal because it is speculative in nature, and it is difficult to ascertain as its assessment depends on the length of the anticipated marriage and the orders that would have been made on such dissolution thereof (para 10). The court also deemed the action speculative in that even if parties had agreed to marry in community of property, one party could still change his or her mind before the marriage without financial consequences. As a result, since prospective losses are ‘not capable of ascertainment, or are remote and speculative, and therefore, not proper to be adopted as a legal measure of damage’, it was opined that ‘courts should not involve themselves with speculation on such a grand scale by permitting claims for prospective losses’ (para 9-10).
The court awarded actual damages for money spent on wedding preparations and wasted costs of the appellant’s relocation to live with the responded in anticipation of their marriage. Similarly, as to the judgments pronounced prior to this case, there was criticism levelled against the breach of promise action. However, despite such criticism and the reasoning, therefore, the Supreme Court of Appeal did not abolish the action although it appeared to lean towards its abolishment.
In this case, the parties were engaged to be married. As a result of the defendant’s repudiation of their agreement, the plaintiff instituted an action for damages for both delictual and contractual damages. In terms of contractual damages, the plaintiff claimed for loss of financial benefits of the marriage in relation to the right of enjoyment of an immovable property of a value equal to the lifestyle and standard of living enjoyed and maintained by the parties at the time. The defendant averred that a breach of promise no longer exists as a cause of action in our law.
Based on the views expressed by Davis J in the Sepheri case and Harms DP in the Van Jaarsveld case, Henney J concurred that a reassessment of the breach of promise action is necessary. The obiter dicta set out in the Van Jaarsveld case was found not binding on another court, but nevertheless provided a strong persuasive value as it was made by the Supreme Court of Appeal. Henney J similarly accepted that the current approach to engagements that a party’s failure to honour their original promise to marry can result in contractual damages does not reflect the current public policy considerations based on the values of our Constitution. It was held that it is an untenable situation to hold a party liable for contractual damages based on breach of promise because this may result in parties unwillingly concluding marriages due to the fear of facing this action (para 55). Thus, this case did away with the aspect of prospective losses resulting from breach of promise.
The Nhlapo case dealt with the plaintiff’s claims for contractual actual and prospective losses. The parties had intended to marry in community of property so the claim for prospective losses totalling R 2 million was claimed for among other reasons, the loss of the benefit of defendant’s pension fund and the loss of the benefits of being registered as a beneficiary on the defendant’s medical fund scheme for the duration of the plaintiff’s life. Therefore, all the claims for prospective loss were based on the expectation that the plaintiff would have enjoyed them had the parties married in community of property.
When dealing with the claim for prospective losses, the court interpreted and applied the dicta in Van Jaarsveld case and the decision of the Cloete case, agreeing with the views and reasoning followed in these two cases, the current law was said not to mirror our current constitutional policy considerations in upholding that a party’s failure to honour a promise to marry can be contextualised within contractual damages (para 26). The court further held that based on the Cloete judgment, ‘a party to an engagement agreement is no longer legally entitled to claim prospective losses from a “guilty party” on the basis of breach of contract arising from a breach of promise to marry’ (para 34). Thus, the plaintiff’s claim of R 2 million for prospective losses failed (para 35).
However, the court was willing and in fact awarded actual contractual losses, but it pointed out that such losses should have been agreed on expressly or implicitly and they should have been contemplated by the parties thereof to the engagement (paras 43-46). In addition, delictual damages were awarded on the ground that when the defendant started another romantic relationship with a third party, he ordered the plaintiff to leave the house they both lived in, causing the plaintiff to face embarrassment as she had relocated to live with her husband-to-be only to return ‘dumped’ and adding insult to her injury, the defendant had also sired a child with his new girlfriend (paras 50-51).
Conclusion
Generally speaking, a breach of promise can result in claims for both delictual and contractual loss. In terms of delictual damages, there is a remedy namely the actio iniuriarum where the innocent party is entitled to sentimental damages if the repudiation was contumelious. In order to succeed in claiming delictual damages, it must be proven that the breach was injurious. It is the manner in which the engagement was brought to an end that matters, as opposed to the fact that the feelings of the ‘innocent’ party were hurt (Van Jaarsveld at para 4). Contractual damages resulting from breach of promise can be in the form of actual losses, which encapsulates those losses that had already taken place, such as those relating to wedding preparations. In order to succeed with a claim for contractual damages, the plaintiff needs to allege and prove on a balance of probabilities, the existence of an agreement to marry and the breach thereof. Notably, the claims for prospective loss, where the jilted party could claim for benefits, they would have been entitled to have the repudiation of promise to marry not ensued, have been abolished and no longer forms part of our law (Nhlapo at para 34). Like other jurisdictions, South African courts have started to express increasing resistance to breach of promise claims and modern judgments show a process of this action’s erosion (Epstein and Zaal (op cit) 84).
Nozipho Ndebele LLB (cum laude) LLM (Private Law) (UFS) is a law lecturer at the Great Zimbabwe University in Masvingo.
This article was first published in De Rebus in 2024 (June) DR 22.
