Topic 1: The Engagement
Definition of Engagement:
Definition: The engagement (or promise to marry) in respect of a civil marriage is an agreement between a man and
a woman to marry each other on a specific or determinable date. A valid engagement is not a prerequisite for the
conclusion of a valid civil marriage, but most civil marriages are preceded by an engagement.
Layman’s definition: Simply put, an engagement is when a man and a woman agree to marry each other on a certain
date. However, it's important to know that you don't need to be engaged to get married officially. Even though many
couples do get engaged before they marry, it's not a requirement for the marriage to be legal. It's more like a
common practice or tradition for most couples.
Requirements for a valid engagement:
1) Consensus: There must be an ‘agreement’ between the two individuals to be engaged.
2) Offer and acceptance: The offer must be made by one party and accepted by another party. The individuals do
not need to be in the presence of one another like a marriage.
3) Capacity to act: Both parties must have their ability to exercise their legal rights and obligations. (Minor,
mental illness)
4) Be in a position to conclude a civil marriage: Both parties may not be married at the time of the engagement,
must not be related, below the age of puberty and must be of the opposite sex.
a. If the unmarried party was unaware of the other party’s marriage, he or she can sue the married party for
contumelia (that is, insult).
b. A promise by a married person to marry a third party after obtaining a divorce or after his or her spouse’s
death is void because it is contra bonos mores (that is, against good morals).
Termination of the engagement:
The engagement is terminated when/ by:
→ The parties marry each other.
→ If either party is a minor and if the parents withdraw consent to the marriage.
→ By death of either of the parties.
→ Mutual agreement amongst the parties.
Valid reasons, Justa Causa:
Ending an engagement can be either lawful or unlawful. It's considered lawful if there's a valid reason, known as a
"justa causa." In such cases, ending the engagement doesn't break the promise made during the engagement.
,However, if one party ends the engagement without a valid reason or violates the implicit commitments of the
engagement, such as being involved with someone else romantically or getting married to someone else, it's seen as
breaching the promise.
A "justa causa" refers to any event or action by one party after the engagement that jeopardizes the chance of a
happy and lasting marriage, something that any reasonable person would see as a reason to end the engagement.
Examples of "justa causa" include serious health issues, mental illness, or addiction. Disagreements over the future
matrimonial property system might also qualify as a valid reason.
In Van Jaarsveld v Bridges the Supreme Court of Appeal stated in an obiter dictum that lack of desire by one of the
parties to proceed with the marriage should also be a justa causa regardless of whose “fault” it is that the
marriage is no longer desired. If this lenient view were to be adopted, the reason for terminating an engagement
would become more or less irrelevant, because a party’s lack of desire to proceed with the marriage is inexorably
evident simply from the fact that he or she terminates the engagement.
This lenient view implies that the focus should be on the outcome—a party's lack of desire to marry—rather than
assigning blame or scrutinizing the reasons behind it.
Consequences of Termination of the engagement:
1) Delictual damages for personality infringement:
The action that the injured party may use is the action iniuriarum – if the termination of the engagement
wounded the dignity of the injured party. The injured party has solatium claim which is a claim for sentimental
damages or satisfaction.
It is irrelevant whether or not the termination had a justa causa. In order to succeed with the action, the
injured party has to prove not only iniuria (that is, injury) but also animus iniuriandi (that is, intention to
injure).
The amount awarded as sentimental damages is within the court’s discretion and cannot be computed
beforehand with mathematical precision. In order to arrive at a decision, the court takes into account such
factors as the way in which the termination occurred; the motives behind that course of action; the social
status of the parties; their previous life experience, and so on.
2) Contractual damages for breach of promise:
In the past, the courts awarded contractual damages to the jilted party if the other party committed breach of
promise. The courts adopted a sui generis (that is, one of a kind) approach to calculating the damages. It
awarded the jilted party both the prospective loss of the benefits of the marriage and the actual loss incurred
or to be incurred as a result of the breach. As far as prospective loss was concerned, the jilted party was
placed in the position he or she would have been in had the marriage taken place.
The Supreme Court of Appeal stated in an obiter dictum in Van Jaarsveld v Bridges that the time had arrived “to
, recognise that the historic approach to engagements is outdated and does not recognise the mores of our time”.
This was so inter alia because it is illogical to consider fault in respect of engagements by imposing an
economic sanction for breach of promise while divorce is no longer based on fault. The court also stated that
public policy considerations demand reassessment of the law rel ating to breach of promise.
In providing guidelines for the future development of breach of promise laws, the Supreme Court of Appeal
emphasized several key points. Firstly, it expressed skepticism towards the idea of treating engagements as
commercial transactions, noting that marriages don't typically involve rigidly contractual relationships.
Regarding claims for prospective loss, the court rejected the notion that parties entering into an engagement
anticipate financial consequences similar to those of a marriage. It pointed out the difficulty in predicting future
matrimonial property arrangements, as well as the speculative nature of claims for prospective loss.
As for claims for actual loss, the court highlighted that such losses don't directly result from the breach of promise
itself but rather from agreements, whether explicit or implied, made during the engagement. While the court didn't
specify the nature of these agreements, it emphasized the principle of restoring the jilted party to the position they
would have been in had the relevant agreement not been made, and balancing what each party has received against
what they have provided.
Overall, the court's guidelines suggest a departure from viewing engagements as purely contractual arrangements
and emphasize the need to consider the specific circumstances and agreements between the parties when
determining claims for breach of promise.
I.e. too much speculation to actually award a claim for a prospective loss. Applying the reasoning and guidelines set
out in Van Jaarsveld, the court developed the common law to hold that a claim for contractual damages for
prospective loss based on breach of promise is no longer recognised.
3) Return of engagement gifts:
If the parties mutually agree to terminate the engagement or if the engagement is terminated due to a justa
causa, all gifts made with a view to the marriage (that is, the sponsalitia largitas),as well as the engagement
ring and other gifts presented to show the seriousness of the promise (that is, the arrhae sponsalitiae), must
be returned by both parties.
Small gifts to which no specific meaning is attached (so-called “out-and-out gifts” or outright gifts) and which
have already been used up, alienated or lost, need not be returned. If one of the parties has committed breach
of promise, the injured party may reclaim the sponsalitia largitas and arrhae sponsalitiae he or she gave to the
guilty party and may retain the sponsalitia largitas and arrhae sponsalitiae he or she received from the guilty
party.
, Small out-right gifts may be retained by the recipient regardless of whether he or she is the guilty or the
injured party. If the injured party claims damages, the value of the gifts he or she retained must be set off
against the damages claimed.
Satisfaction and damages on the ground of selection:
→ South African Law recognises an action for satisfaction and damages on the ground of seduction.
→ Seduction is extra-marital sexual intercourse with a virgin with her consent.
→ To be successful in the action, the women must provide that she was a virgin prior to the seduction, that she was
seduced, and that sexual intercourse occurred as a result.
→ The action is available regardless of whether the parties were engaged to each other when the seduction took
place.
→ An action on the ground of seduction comprises two separate claims:
o Satisfaction for defloration and reduction of the woman’s chances of entering into a suitable and successful
marriage; and
o If the woman gave birth to a child as a result of the seduction, the seducer is also responsible for lying-in
expenses (that is, expenses incurred in respect of the child’s birth, such as doctors’ fees and hospitalisation
costs) and his share of the child’s maintenance.
→ Because the action on the ground of seduction can be instituted only by a woman, it constitutes inequality before
the law and discriminates unfairly against men on the ground of sex, thus violating section 9 of the Constitution.
Another, even stronger, ground for attacking the constitutionality of the action is that it discriminates unfairly
against women and violates their right to dignity by perpetuating sexual stereotypes and being premised on the
notion that women have diminished responsibility for their actions. Because of the serious violation of dignity
and equality that the action entails, its retention cannot be justified. The action should therefore be abolished.
