Van Jaarsveld v Bridges

• Jurisdiction: South Africa
• Judge: Harms DP, Nugent JA, Van Heerden JA, Majiedt AJA and Seriti AJA
• Judgment Date: 27 May 2010
• Docket Number: 344/09
• Hearing Date: 11 May 2010
• Counsel: PE Jooste (with T Zietsman) for the appellant. MC Erasmus SC for the respondent.
• Court: Supreme Court of Appeal

Van Jaarsveld v Bridges
2010 (4) SA 558 (SCA)

2010 (4) SA p558

Citation	2010 (4) SA 558 (SCA)
Case No	344/09
Court	Supreme Court of Appeal
Judge	Harms DP, Nugent JA, Van Heerden JA, Majiedt AJA and Seriti AJA
Heard	May 11, 2010
Judgment	May 27, 2010
Counsel	PE Jooste (with T Zietsman) for the appellant.; MC Erasmus SC for the respondent.

Flynote : Sleutelwoorde D

E Husband and wife — Betrothal — Repudiation — Just cause — Lack of desire to marry.

Husband and wife — Betrothal — Repudiation — Action for damages — Claims F for prospective losses impermissible.

Headnote : Kopnota

The time has arrived to recognise that the historic approach to engagements is outdated and does not recognise the mores of our time, and that public policy considerations require that our courts must reassess the law relating to breach of promise. What follows is guidance to courts faced with such claims without G reaching any definite conclusion. (Paragraph [3] at 560G - 561A.)

A breach of promise may give rise to two distinct causes of action. The one is the actio iniuriarum. The second cause of action is for breach of contract. Two aspects arise for discussion. The first is that an engagement may be cancelled without financial consequences if there is a just cause for the cancellation. Just cause is usually defined as any event or condition or H actions of the other party which would jeopardise a long and happy marriage and which could induce any right-minded member of society to rescind the engagement. The origin of this restricted meaning is to be found in Canon Law and Germanic Law influences at a time when churches controlled the lives of people, when a woman was deemed to be of a lower status than a man, and when a party to a promise to marry could be obliged to marry by I an action for specific performance. (Paragraphs [4] - [5] at 561B - F.)

The world has moved on and morals have changed. Divorce, which in earlier days was available in the event of adultery or desertion only, is now available in the event of an irretrievable breakdown of the marriage. Guilt is no longer an issue. There is no reason why a just cause for ending an engagement should not likewise include the lack of desire to marry the particular person, J irrespective of the 'guilt' of the latter. Unwillingness to marry is clear

2010 (4) SA p559

evidence of the irretrievable breakdown of the engagement. It appears A illogical to attach more serious consequences to an engagement than to a marriage. (Paragraph [6] at 561G.)

The second aspect that has to be considered in the context of contractual damages is the justification for placing an engagement on a 'rigid contractual footing'. It is difficult to justify the commercialisation of an engagement in view of the fact that a marriage does not give rise to a commercial or B rigidly contractual relationship. It cannot be accepted that parties, when promising to marry each other, contemplate that a breach of their engagement would have financial consequences, as if they had in fact married. They assume that their marital regime will be determined by their wedding. An engagement is more of an unenforceable pactum de contrahendo providing a spatium deliberandi — a time to get to know each other better and to C decide whether or not to marry finally. (Paragraphs [7] - [8] at 561H - 562B.)

One has to distinguish in this regard between claims for prospective losses and those for actual losses. It is not easy to rationalise claims for prospective losses, and courts should not involve themselves with speculation on such a grand scale by permitting claims for prospective losses. Claims for actual losses are easier to justify but difficult to rationalise in terms of ordinary principles relating to the calculation of damages in the case of breach of D contract. (Paragraphs [9] - [11] at 562B - G.)

Cases Considered

Annotations

Reported cases E

Southern Africa

Bull v Taylor 1965 (4) SA 29 (A): referred to

Delange v Costa 1989 (2) SA 857 (A): referred to

Douglas v Douglas [1996] 2 All SA 1 (A): referred to

Guggenheim v Rosenbaum (2) 1961 (4) SA 21 (W): referred to

Hurwitz v Taylor 1926 TPD 8: referred to F

Linvestment CC v Hammersley and Another 2008 (3) SA 283 (SCA) ([2008] 2 All SA 493): referred to

Mainline Carriers (Pty) Ltd v Jaad Investments CC 1998 (2) SA 468 (C) ([1997] 3 All SA 451): referred to

Ndamase v University College of Fort Hare and Another 1966 (4) SA 137 (E): referred to G

Paddock Motors (Pty) Ltd v Igesund 1976 (3) SA 16 (A): referred to

Probert v Baker 1983 (3) SA 229 (D): referred to

Sepheri v Scanlan 2008 (1) SA 322 (C): referred to.

United States H

Holt v United Security Life Insurance & Trust Co (1909) 72 Atlantic Reporter 301: referred to.

Case Information

Appeal from the North Gauteng High Court (Pretoria) (Raulinga J). The facts appear from the judgment of Harms DP.

PE Jooste (with T Zietsman) for the appellant. I

MC Erasmus SC for the respondent.

Cur adv vult.

Postea (May 27). J

2010 (4) SA p560

Judgment

Harms DP: A

Introduction

[1] This appeal relates to a claim for damages instituted by the respondent, Ms Sunette Bridges, against the appellant, Mr Deon van Jaarsveld, B on the ground of a breach of promise to marry. The claim was upheld by the court below and it awarded an amount (in the words of the learned judge) of 'only' R110 000 in relation to iniuria. In addition it awarded R172 413 in respect of contractual damages. The award carried mora interest and costs.

C [2] The court below granted leave to appeal against its order but limited the issues on appeal to quantum. This court, however, notified the parties that it wished to hear argument on other relevant issues and decided to broaden the scope of the appeal. [1] The one issue concerned the question whether the breach was contumelious - a requirement for delictual damages. The other arose from a dictum by Davis J in Sepheri v Scanlan D 2008 (1) SA 322 (C) at 330I - 331A:

'In general I would agree with these views, namely, that our law requires a reconsideration of this particular action. It appears to place the marital relationship on a rigid contractual footing and thus raises questions as to whether, in the constitutional context where there is E recognition of diverse forms of intimate personal relationships, it is still advisable that, if one party seeks to extract himself or herself from the initial intention to conclude the relationship, this should be seen purely within the context of contractual damages.'

[3] Courts have not only the right but also the duty to develop the F common-law, taking into account the interests of justice, and at the same time to promote the spirit, purport and objects of the Bill of Rights. [2] In this regard courts have regard to the prevailing mores and public-policy considerations. [3] Davis J felt the time had come for a reconsideration of the action, but felt uncomfortable to take a lead in the matter. However, having had regard to the views expressed by the authors quoted by the G learned judge (at 329G - I and 300H - I), [4] to which can be added an incisive article by JMT Labuschagne, [5] I do believe that the time has arrived to recognise that the historic approach to engagements is outdated and does not recognise the mores of our time, and that public policy considerations require that our courts must reassess the law

2010 (4) SA p561

Harms DP

relating to breach of promise. In what follows I intend to give some A guidance to courts faced with such claims without reaching any definite conclusion, because this case is not affected by any possible development of the law and can be decided with reference to two factual issues, namely in relation to iniuria, whether the breach was contumacious and, secondly, whether Bridges has suffered any actual loss as a result of the breach. B

[4] A breach of promise may give rise to two distinct causes of action. [6] The one is the actio iniuriarum. The 'innocent' party is entitled to...