STUDY UNIT 2
Sepheri v Scanlan 2007 (1) SA 322 (C)
Facts:
Plaintiff issued claim for damages due to breach of promise : 1) Contractual damages for
loss of financial gain, 2) Delictual damages for injuria
Defendant: counterclaim of defamation and loss of property
Plaintiff and defendant got engaged in 1998 and cohabitated for a number of years
Parties moved to many places together for job opportunities
Plaintiff had invited foreign family to apply for visas for the wedding and had looked for a
venue and dress already
Parties holidayed in Cape Town in 2002 and a property was purchased by the defendant and
kept in his name – the plaintiff understood that the property would become part of the joint
estate after the marriage
Parties moved to South Africa at the end of 2002, and defendant moved to New Zealand
alone for work, while plaintiff remained in South Africa
In 2004 defendant moved to Italy for work again and plaintiff visited him – they fought
about property and infidelity, and the relationship was ended by defendant
Legal Question:
Does the claim for breach of promise to marry still have footing in South African law?
Ratio Decidendi:
Van der Heever (author) rejects the delictual elements of a claim – only consists of
contractual elements
Reconsideration of action for breach of promise (obiter – no actual law changing)
For first claim: prove, on a balance of probabilities, that there was a proposal and a breach
thereof = plaintiff credible and it was proven
Second claim: prove, on a balance of probabilities, that there was injuria
Contractual damages: assumption of marriage in community of property (refer to
Guggenheim case), look at possibility of remarriage = due to this plaintiff is awarded 50% of
her initial claim
Delictual claim: plaintiff gave up career, plaintiff does not seem too emotionally damaged =
nothing awarded
, Universal partnership: Roman law – partnership societas universum bonorum (parties agree
all possessions before and after relationship started joint), partnership societas universum
quae ex quaestru veniunt (parties only join what is acquire during partnership) plaintiff
uses first one
Defendant claims he never planned to give plaintiff’s name to his property
Court concludes there is no joint partnership and plaintiff is given time to move out of
defendant’s house
Judgment:
Plaintiff awarded contractual damages – half of her claim as she has a strong possibility of
remarriage, no delictual damages awarded. Concluded that there is no universal relationship
and plaintiff is ordered to leave property owned by defendant
CLOETE V MARITZ 2013 (5) SA 448 (WCC)
Facts:
Plaintiff: Miss Cloete
Defendant: Mr Maritz
Plaintiff instituted claim based on breach of promise to conclude a marriage
They got engaged in February 1999
Round about April/May 2009 defendant repudiated the agreement by orally refusing to marry
plaintiff. (did not want to see her again and had someone new) plaintiff also alleges he acted
animo injuriandi (harmful intent) during refusal to marry.
Plaintiffs claim:
o Claim 1: R26000 based on donations she made to defendant
o Claim 2: R6050000 for loss of financial benefits of MARRIAGE
o Claim 3: Breach of dignity and reputation
Defendants special plea: denies that breach of promise is still a valid cause of action
Legal Question:
Can a party claim for prospective losses as a result of a breach of a promise to marry?
Ratio Dicidendi:
It is illogical to attach more serious consequences to an engagement than to a marriage.
doing this does not reflect changed mores or public interest
, Claim 2 seeks damages based on prospective losses she may have suffered as result of the
breach of promise. she seeks to be placed in the position she would have been in had the
defendant not breached the promise
Van Jaarsveld V Bridges cannot be applied
Obiter Dicta:
The law relating to promise to marry has to be reconsidered in the light of the prevailing mores
and public policy considerations if regard is to be had to the values that underlie the
Constitution
Decision:
The special plea (made by defendant) is upheld in respect of claim 2
Van Jaarsveld v Bridges 2010 (4) SA 558 (SCA)
Facts:
Appeal case: Van Jaarsveld appeals decision on of Bridges v Van Jaarsveld case
Same as listed above – but Judge Harms finds Court a quo to have been way too generous
on the plaintiff’s behalf
Distinguish between actual and prospective losses – prospective losses should not be so
easily granted, Court’s discretion is too wide
Legal Question:
Does the breach of promise action still have a place in South African law?
Ratio Decidendi:
Courts have the duty to develop common law in the country – public policy considerations
suggest it is time to reassess the validity of the breach of promise action
Actio iniuriarum – action where innocent party is entitled to sentimental damages if the
repudiation was constituted injuria (the fact that the innocent party’s feelings were hurt is
not enough)
Breach of contract – engagement may be cancelled if there is just cause
In a marriage a divorce may be granted if a party no longer wishes to be married, so why
should the same action not be available to the engaged party?
It seems unfair that the engagement ‘contract’ is more strict that the marriage
Claims for prospective losses: Court has to assume the marital regime, but parties can
change their mind? Courts cannot speculate on such a large scale
Claims for actual losses: calculation should be fair, only compensate for what is not equally
covered = ‘what the one has received must be set off against what the other has paid or
provided’
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