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[2017] ZAGPJHC 236
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Nhlapo v Zimu (2016/8478) [2017] ZAGPJHC 236 (1 September 2017)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE
NO
: 2016/8478
In
the matter between:
NHLAPO
,
FALICLITY
NONCEBO
Plaintiff
and
ZIMU
,
MTSHENGU
WILBEFORCE
Defendant
Coram:
Adams J
Judgment:
Adams J
Heard
on:
1 & 2 June 2017
Decided
on:
1 September 2017
Summary:
Marriage
—
Promise to marry — Breach —
Contractual damages — Law no longer permitting claim for
prospective loss.
ORDER
1.
The defendant
shall pay to plaintiff the sum of R123 149.63.
2.
The defendant
shall pay to plaintiff interest on the amount of R123 149.63 at
the legal rate of 10.5 per centum per annum from
date of judgment to
date of final payment.
3.
The defendant
shall pay the plaintiff’s cost on the appropriate Magistrate’s
Court scale
JUDGMENT
ADAMS
J
[1].
In this action
the plaintiff claims payment from the defendant of the following sums
in the alternative: R2 620 631.80,
alternatively
R120 631.80, further alternatively R74 189.10, together
with
mora
interest thereon and cost of suit. The plaintiff’s claims are
founded on two alternative causes of action. The first two
alternative claims are for damages for breach of promise and the
third alternative claim is based on unjust enrichment.
[2].
Plaintiff’s
main cause of action is for damages, including both ‘special
damages’ relating to certain out of pocket
wasted expenses
incurred by the plaintiff in anticipation of her marriage to the
defendant and future losses to be suffered by
the plaintiff as well
as general damages in the form of
contumelia
for
inuria,
based on breach of promise.
[3].
In the
alternative, plaintiff claims R120 631.80, being actual losses,
including an amount of R104 131.80 for half of
the wasted cost
of the unsuccessful
in
vitro
fertilisation treatment for the plaintiff at fertility clinics, also
based on breach of promise.
[4].
Further
alternatively, the plaintiff claims an amount of R74 189.10
based on unjust enrichment.
[5].
Before me Ms
Bergenthuin appeared on behalf of the plaintiff and Mr Masipa
appeared on behalf of the defendant.
[6].
The
plaintiff’s claims based on the defendant’s alleged
breach of his promise to marry her can also conveniently be
categorised into three groups, namely:-
(a)
Claims for
contractual prospective losses arising from defendant’s breach
of promise;
(b)
Claims for
contractual actual past losses arising from defendant’s breach
of promise; and
(c)
The
plaintiff's claim for damages based on the
actio
iniuriarum.
[7].
Plaintiff
alleges and testified at the trial that during or about September
2012 and at Pretoria the defendant orally proposed marriage
to her,
whereafter they had become engaged to get married. In terms of the
oral agreement of engagement the parties had agreed
to marry each
other within a reasonable time, and that their marriage would have
been in community of property. The plaintiff furthermore
alleges
that, in terms of the engagement agreement, the parties agreed to
undergo
in
vitro
fertility treatment, the cost of which would be borne by them
equally. Pursuant to the engagement agreement and in preparation
for
their envisioned marriage the plaintiff incurred certain expenses,
relating
inter
alia
to
improvements effected to the house of the defendant, to which she had
relocated from Pretoria. Plaintiff also subjected herself
to
in
vitro
fertility treatment and paid all of the costs relating to such
treatment. During 2015, so it is alleged by the plaintiff, the
defendant breached his promise to marry her by getting romantically
involved with another woman and by ordering her (the plaintiff)
on or
about the 23
rd
October 2015 to leave their common home.
[8].
By reason of
the defendant’s breach of his promise to marry her, the
plaintiff alleges that she suffered damages totalling
R2 620 631.80,
which amount includes both actual and prospective losses, as well as
general damages in the form of
contumelia
for
iniuria
.
[9].
In his plea
the defendant denies that he promised to marry the plaintiff. It is
alleged by the defendant that any engagement agreement
existed only
in the mind of the plaintiff and it was never his intention to agree
to marry her. The plaintiff gave evidence in
support of her claims
that, after they moved in together during September 2013, and even
before then, he promised her that they
would get married as soon as
his finances had improved. He had bought a new house, they had a
house warming party and after they
had moved in together, the
defendant would always and inevitably introduce her (the plaintiff)
to other people as ‘his wife’.
The defendant, according
to the plaintiff, had also made a promise to her mother that he (the
defendant) would marry her (the plaintiff).
The aforegoing was
confirmed by the mother of the plaintiff, who testified that the
defendant told her that he intended to get
married to her daughter.
She put it thus: ‘He was the one who told me that he wants to
get married to my daughter’.
This evidence was uncontested and
unchallenged by the defendant, who himself did not give evidence
during the trial.
[10].
The parties
were engaged during September 2012 although there was no formal
ceremony to mark the occasion or to celebrate their
engagement. The
uncontested evidence of the plaintiff was that the agreement was that
they would get married as soon as the defendant
was financially
stable. Implicit in the agreement was consensus between the parties,
so the plaintiff alleges, that the marriage
would happen within a
reasonable time. In my view, it is not a legal requirement that there
should have been a formal ceremony
or a ritual to bring into
existence an engagement, nor is it a requirement that the engagement
should be formalised by for example
the exchange of engagement rings.
It is not about the symbolism. What is important is that the
plaintiff should prove that the
defendant had promised, either
expressly or tacitly, to marry the plaintiff. There are no specific
formalities which need to be
complied with in order for an engagement
agreement to come into existence.
[11].
The plaintiff
and the defendant, who are related in that the defendant is the uncle
of the plaintiff’s mother, started a romantic
relationship on
or about the 3
rd
August 2012. They had known each other for all of the plaintiff’s
life. As she puts it, the defendant who, at age 48, is
much older
than her, whose date of is the [...], making her 40 at present, saw
her growing up. During September 2013 they moved
in together. She
relocated from her mother’s home in Pretoria to the defendant’s
home in Witbank. Before then, the
defendant had asked her to move in
with him and he had also asked the permission of the plaintiff’s
mother for her to move
in with him. The plaintiff testified that
whilst living together in Witbank, they were in love and planning a
life together. There
would have been no legal or other impediments to
them getting married. The defendant was a widower and she was a
divorcee. It was
during this time when they were staying together
that the defendant again confirmed with the plaintiff that he
intended marrying
her as soon as they were financially sound.
According to the plaintiff, they talked about getting married all the
time. She specifically
recall an incident during 2013, she was not
very specific about the date though, when the defendant asked her in
Pine Ridge, Witbank,
to marry her. They wanted to have children and
this was why they agreed that the plaintiff would receive in vitro
fertilisation
treatment.
[12].
In all of
these circumstances I am satisfied that the plaintiff has proven that
the defendant promised to marry her, which resulted
in the conclusion
of an engagement agreement. I am therefore persuaded that the
plaintiff has proven the existence of an engagement
agreement in
terms of which the defendant promised to marry her.
[13].
During or
about August 2015 the defendant breached his promise to marry her by
engaging in a romantic relationship with another
woman. The defendant
also began treating the plaintiff really badly and with indignation.
He showed no more love and affection
towards her and showed
absolutely no interest in and had no regard for her physical, medical
and mental well – being. As
an example of but one deliberate
insult against the plaintiff, the defendant removed her from his
medical aid and replaced her
with his then new girlfriend. On or
about the 25
th
September 2015 the relationship was finally severed when the
defendant took the plaintiff back to her mother’s home. It
requires emphasising that all of the evidence of the plaintiff was
uncontested in that the defendant chose not to testify in his
defence.
[14].
The question then is whether the
plaintiff is entitled to be compensated for any losses which she has
suffered as a result of the
defendant’s breach of promise, and,
if so, which of the losses she would be able to recover from the
defendant.
[15].
A breach of promise may give rise to two
distinct causes of action. The one is the
actio
iniuriarum
. The 'innocent' party is
entitled to sentimental damages if the repudiation was contumelious.
This requires that the 'guilty' party,
in putting an end to the
engagement, acted wrongfully in the delictual sense and
animo
iniuriandi
. It does not matter in
this regard whether or not the repudiation was justified. What does
matter is the manner in which the engagement
was brought to an end.
The fact that the feelings of the 'innocent' party were hurt or that
she or he felt slighted or jilted is
not enough. I shall revert to
this issue presently.
[16].
The second cause of action is for breach
of contract. 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 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.
[17].
One has to distinguish in this regard
between claims for prospective losses and those for actual losses.
Prospective
Losses for Breach of Contract
[18].
I think it convenient to deal firstly
with the plaintiff’s prospective losses. In that regard the
plaintiff has claimed the
following sums under the following
headings:
(a)
R500 000 – for loss of the
benefits of being registered as a beneficiary on defendant’s
medical fund scheme for
the duration of plaintiff’s life.
(b)
R1 000 000 – in respect
of the loss of the benefits of defendant’s contributions to the
communal household
for the duration of defendant’s life as well
as loss of the benefit of the infrastructure of defendant’s
home and lifestyle.
(c)
R500 000 – for the loss of
the benefit of defendant’s pension fund.
[19].
As was said by Harms DP in
Van
Jaarsveld v Bridges
, 2010(4) SA 558
(SCA), it is not easy to rationalise claims for prospective losses.
One of the problems concerns the intended marital
regime. It would be
unusual for parties to agree on the marital regime at the time they
promise to marry each other. If nothing
was agreed, on what
assumption must the court work? I believe that the court cannot work
on any assumption, especially not one
that the marriage would on the
probabilities have been in community of property. And if the
agreement was to marry in community,
can one party not change her or
his mind without commercial consequences?
[20].
Harms DP in
Van
Jaarsveld v Bridges
at 560G –
561B and states that:
'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 relating to breach of promise.
In what
follows I intend to give some 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 . . .
.'
[21].
After discussing the two causes of
action that a breach of promise gives rise to as alluded to by me
supra
,
Harms DP at para 7 comments as follows:
'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 rigidly contractual relationship.'
[22].
He says further that he is unable to
accept that parties when promising to marry each other at that stage
of their relationship
would contemplate that a breach of their
engagement would have financial consequences as if they had in fact
married. The assumption
of the two parties is that their marital
regime will be determined by their subsequent marriage. Harms DP then
concludes that in
his view an engagement is more of an unenforceable
pactum de contrahendo
providing a
spatium deliberandi
— a time to get to know each other better and in which they
would decide whether or not to finally get married.
[23].
With reference to prospective losses,
Harms DP's judgment further comments as follows at para 10:
[10]
An agreement to enter into an antenuptial contract is not binding
because it must be entered into notarially. How can legal
consequences flow from the refusal to enter into the notarial
agreement? And what would the consequences be if the parties cannot
agree on the detailed terms of the agreement? The matter becomes more
complicated if one considers the claim for loss of support.
In
divorce proceedings the award is a matter of discretion; but in a
breach of contract situation it becomes a matter of commercial
entitlement. Imponderables abound. 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. They depend on the
anticipated length of the marriage and the probable orders
that would
follow on divorce, such as forfeiture and the like. I do not believe
that courts should involve themselves with speculation
on such a
grand scale by permitting claims for prospective losses
.
[24].
In interpreting and
applying the dicta in
Van
Jaarsveld v Bridges
,
I find myself in agreement with the view adopted and the reasoning
followed by the Western Cape Division of the High Court (Henney
J) in
Cloete v
Maritz
,
2013 (5) SA 448
(WCC). I have borrowed liberally from this judgment
as I could do no better than to quote directly from Henney J’s
judgment.
In that case Henney J answered the following question in
the affirmative:
Whether the
pronouncement of Harms DP in
Van
Jaarsveld v Bridges
, 2010(4) SA 558
(SCA), can be regarded as sufficiently binding authority that an
action for prospective losses based on a breach
of promise to marry
no longer forms part of our law. Having answered this question in the
affirmative, Henney J went on and found
that, as our law stands at
present, a party cannot claim for prospective losses as a result of a
breach of a promise to marry.
[25].
As pointed out by
Henney J, rightly so in my view, while the guidelines set out in the
Van Jaarsveld matter are perhaps not binding
on another court, as the
obiter
dicta
of a unanimous decision of the SCA they can be seen as strong
persuasive precedent. In this regard see
Alternators
(SA) (Pty) Ltd v Boulanger
,
1969 (3) SA 75
(W) at 79B – C;
ANC
Umvoti Council Caucus and Others v Umvoti Municipality
,
2010 (3) SA 31
(KZP) in para 27; and
Barclays
Western Bank Ltd v Pretorius
,
1979 (3) SA 637
(N) at 651D – E. Also see Hahlo & Khan
The
South African Legal System and its Background
at 270 – 1.
[26].
I agree with the view
of the Western Cape High Court that the current approach to
engagements does not reflect the current
boni
mores
or
public policy considerations based on the values of our Constitution,
that is, to see a party's failure to honour his / her
original
promise to marry purely within the context of contractual damages.
[27].
Also, Sinclair
Law
of Marriage
at 314 (fn 8) questions the justification for this action based on
contract in the context of society's values at the end of the
20
th
century and in the beginning of the 21
st
century. The learned author at 314, in referring to the position in
England, Scotland, Australia and most American jurisdictions,
then
goes on and conclude that 'the appropriateness of the retention of
this action, given the substitution of irretrievable breakdown
for
fault as the basis for divorce, is highly questionable'.
[28].
Sinclair then
says the following at 314 fn 8:
'In
England, Scotland, Australia and most European jurisdictions breach
of promise actions have been abolished. The main reasons
for the
abolition of actions based on breach of promise are that they give
opportunity for claims of a 'gold-digging' nature, and
that the
"stability of marriage is so important to society that the law
should not countenance rights of action the threat
of which may push
people into marriages which they would not otherwise undertake"
. . . They are consonant with the substitution
of irretrievable
breakdown for fault as the basis of divorce in the above
jurisdictions. South Africa has not, so far, followed
suit in
abolishing breach of promise actions, but it is suggested that it
should. . . . 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 when breach
of promise was
likely to prejudice their reputation.'
[29].
Similarly,
Harms DP points out in para 6 of
Van
Jaarsveld v Bridges
that society's values have changed such that divorce is now available
in the event of irretrievable breakdown of a marriage, where
in the
past it was available only in the event of adultery or desertion.
Guilt is no longer the issue. Harms DP goes on to state
that likewise
lack of desire to marry should constitute a 'just cause' to break an
engagement and similarly guilt on the part of
the other should not be
a necessity. Harms DP went on to reason that it would be 'illogical
to attach more serious consequences
to an engagement than to a
marriage'.
[30].
Clearly, to
hold a party therefore accountable on a rigid contractual footing
where such a party fails to abide by a promise to
marry does not
reflect the changed mores or public interest. Even more so if the law
relating to damages that can be claimed on
a breach of promise to
marry is based on a pre – constitutional heterosexual
definition of marriage which traditionally placed
women on an unequal
footing to men.
[31].
In this
particular matter the plaintiff claims R2 000 000 damages,
on a purely contractual basis, based on the prospective
losses she
might have suffered, as a result of the defendant’s breach of
promise. She seeks to be placed in a position she
would have been if
the defendant had not breached his promise to marry her. As pointed
out by Sinclair, to hold a party liable
for contractual damages for
breach of promise may in fact lead parties to enter into marriages
they do not in good conscience want
to enter into, purely due to the
fear of being faced with such a claim. This is an untenable situation
[32].
And further,
as was pointed out by Sinclair and Harms DP, it would be illogical to
recognise the irretrievable breakdown of marriage
as a ground for
divorce, while not doing so in respect of the breaking of an
engagement, and requiring guilt on the part of the
other.
Considerations of public policy and our changed mores cannot, in my
judgment, permit a party to be made to pay prospective
damages on a
purely contractual footing, where such a party wants to resile from a
personal relationship and thus commits a breach
of promise to marry.
Such a situation in my view would be untenable.
[33].
Therefore, a
claim for prospective losses founded on breach of promise to marry
and based on a rigid contractual footing is, in
my view, not
sustainable and should no longer be permissible.
In
applying the reasoning and guidelines as set out in the
Van
Jaarsveld v Bridges
judgment, such a claim is not a valid cause of action in our law any
more.
[34].
For these
reasons I am in agreement with the view of Henney J in
Cloete
v Maritz
that 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. In other words, the principle that a party to an
engagement
agreement can successfully claim prospective losses on the basis of
breach of contract no longer forms part of our law.
[35].
Accordingly
and for all of these reasons, the plaintiff’s R2 000 000
claim for prospective losses should fail.
Actual
Losses for Breach of Contract
[36].
As Harms DP noted in
Van
Jaarsveld v Bridges
,
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 contract. What
usually springs to mind are costs or losses incurred by agreement,
actual or
by necessary implication, between the parties, such as
those relating to wedding preparations. These losses do not flow from
the
breach of promise per se, but from a number of express or tacit
agreements reached between the parties during the course of their
engagement. To be recoverable the losses must have been within the
contemplation of the parties. The 'innocent' party must be placed
in
the position in which she or he would have been had the relevant
agreement not been concluded; and what the one has received
must be
set off against what the other has paid or provided.
[37].
Under this head of
damages, the plaintiff claims the following amounts:-
(a)
R104 131.80 –
in respect 50% of the cost of
in
vitro
fertilisation treatment at the MedFem Fertility Clinic during the
period 2013 to 2014.
(b)
R10 500 –
in respect of the cost of improvement to the defendant’s house
in preparation for the marriage.
(c)
R6 000 –
being in respect of the cost of a new bed which the parties used in
the common home.
[38].
The biggest claim
under this head of damages is that relating to the cost of the
in
vitro
fertility treatment which the plaintiff underwent with a view to
enable them to conceive.
[39].
It is alleged by the
plaintiff in her particulars of claim that she and the defendant had
agreed that, in an attempt to conceive
a child, the parties should
subject themselves to
in
vitro
fertility
treatment at the MedFem Clinic in Johannesburg and that they would be
equally responsible for the cost of such treatment.
Pursuant to the
aforesaid agreement, so the plaintiff alleges, she subjected herself
to the
in
vitro
treatment, at a total cost of R208 263.60, which amount she paid
in full, with the defendant not making any contribution towards
such
costs.
[40].
In his plea,
the defendant denies the agreement, as alleged by the plaintiff,
relating to the
in
vitro
treatment. He also avers that the plaintiff persisted with the
treatment in Johannesburg after the initial treatment proved
unsuccessful.
She persisted despite his refusal to participate in the
further procedures, and incurred the further costs without his
approval
and despite defendant’s unwillingness to be a part of
the further procedures. In amplification of his denial of the
‘engagement
agreement’ and the agreement that he would be
liable for half of the expenses relating to the
in
vitro
treatment, the defendant alleges that, after the plaintiff was
advised that the treatment would fail, he (the defendant) withdrew
his involvement from the procedures, but the plaintiff persisted. The
only treatment, in respect of which he agreed to be liable
for, was
the initial treatment, which proved to be unsuccessful and which he
paid for from his medical aid.
[41].
The plaintiff
gave
viva
voce
evidence that they, as a couple, had agreed to undergo
in
vitro
fertility
treatment and that the cost of such treatment would be borne by them
equally. To that end, they approached a Fertility
Specialist, and
they also received counselling at the MedFem Clinic in Sunninghill,
Johannesburg. In support of her claim that
the defendant had agreed
to pay half of the cost relating to the
in
vitro
treatment the plaintiff referred in her evidence to ‘MedFem
Clinic’ documents, which were all co – signed by
her and
the defendant during December 2013, which she interpreted to mean
that he had agreed to the procedures and to share in
the costs.
Importantly, these signed documents belie the claim by the defendant
that he had not agreed to the procedures at MedFem
Clinic.
[42].
In total the
charges by the MedFem Clinic in respect of the treatment came to
R196 299.26. The plaintiff gave evidence indicating
how this
total amount is arrived at with reference to a schedule, supported by
statements and invoices. Her evidence in that regard
was not
seriously challenged. She also confirmed that she paid the amounts
due to MedFem Clinic without any assistance from the
defendant,
[43].
Applying the
principles enunciated in the
Van
Jaarsveld
matter to these expenses, the questions which need to be asked are as
follows. Were these costs or losses incurred by agreement,
actual or
by necessary implication, between the parties? Having regard to the
uncontested evidence of the plaintiff, I am of the
view that this
question can safely be answered in the affirmative. These losses do
not flow from the breach of promise
per
se
, but
from an express or tacit agreement reached between the parties during
the course of their engagement.
[44].
To be
recoverable, the plaintiff is required to prove that the losses must
have been within the contemplation of the parties. Again,
if regard
is had to the evidence of the plaintiff and the documents handed up
by her when she was giving evidence, there can be
little doubt that
the damages were within the contemplation of the defendant and the
plaintiff.
[45].
The plaintiff
must be placed in the position in which she would have been had the
relevant agreement not been concluded. In order
to achieve that the
plaintiff should be refunded the amount of R98 149.63.
[46].
I am therefore
satisfied that, applying the principles relative to loss for breach
of contract arising from the defendant’s
breach of promise, the
plaintiff should be compensated the amount of R98 149.63.
[47].
As regards the
plaintiff’s claims relating to the improvements to defendant’s
house and her acquiring a bed, I am not
persuaded that the plaintiff
has proven her entitlement to be compensated for those sums. The
difficulty I have with these claims
is that, on her version, the
plaintiff confirms that between them, she and the defendant shared
chores and expenses. For example,
during March 2013 the plaintiff
went onto the medical aid of the defendant, which meant that he paid
for a period of time contributions
to the medical aid on her behalf.
The defendant also paid for the groceries in the common household,
and he also transported the
plaintiff to and from her place of work
at his expense. Also, the plaintiff confirmed that, as far as the
loan for R60 000
which they took out with Medifin goes, the
defendant paid five of the instalments payable, before she (the
plaintiff) settled the
debt with the proceeds from the sale of her
shares in the company which was employed her at the time. In order
for the plaintiff
to recover her losses, relative to the bed and home
improvements, such losses ought to be set off against what the
defendant has
paid or provided. That exercise had not been done by
the plaintiff, and I am accordingly not persuaded that she has proven
that
the expenses she incurred in respect of these two items are
recoverable by her.
The
Delictual Claim
[48].
Plaintiff has claimed
an amount of R500 000.00 being delictual damages based on the
actio
iniuriarum
,
in terms of which action the plaintiff, being the ‘innocent
party’, would be entitled to sentimental damages if the
repudiation were contumelious.
[49].
A breach of
promise can only lead to sentimental damages if the breach was
wrongful in the delictual sense. This means that the
fact that the
breach of contract itself was wrongful and without just cause does
not mean that it was wrongful in the delictual
sense, i e that
it was injurious. Logically one should commence by enquiring whether
there has been a wrongful overt act.
A wrongful act, in relation to a
verbal or written communication, would be one of an offensive or
insulting nature.
[50].
The plaintiff, in
respect of this claim, is required to allege and prove that the
defendant, being the so – called 'guilty
party', in putting an
end to the engagement, acted wrongfully in the delictual sense and
animo
iniuriandi
.
What matters is the manner in which the engagement was brought to an
end. In that regard, the plaintiff complies with the aforegoing
requirement by alleging that the defendant acted
animo
iniuriandi
in
that he, before calling off the engagement and whilst they were still
living together, started a romantic relationship with another
woman,
thus intending to injure and hurt her feelings, which he in fact then
did. She also gave evidence in support of this allegation
to the
effect that that the defendant, after starting an affair with another
woman, kicked her out of the house, which was hurtful
for her. She
also subsequently had to face family, friends and colleagues, who all
knew that she had relocated to Witbank to be
with her ‘new
man’, only to return during September 2015. This evidence was
uncontested and uncontradicted, and I am
satisfied that the plaintiff
had succeeded in proving that the defendant acted wrongfully in the
delictual sense. The repudiation
was clearly contumelious.
[51].
The plaintiff
felt hurt and insulted especially by the fact that, whilst they were
still together, the defendant had her removed
from his medical aid,
which he had insisted she joined, and then to have her replaced by
the new girlfriend. To add insult to her
injury, the defendant also
fathered a child with his new girlfriend.
[52].
Plaintiff’s
situation was aggravated by the fact that she is family of the
defendant, and she was embarrassed in the extreme
by being ‘dumped’
so unceremoniously by the defendant.
[53].
In determining
whether or not the act complained of is wrongful the court applies
the criterion of reasonableness. This is an objective
test. It
requires the conduct complained of to be tested against the
prevailing norms of society. To address words to another which
might
wound the self – esteem of the addressee, but which are not,
objectively determined, insulting (and therefore wrongful),
cannot
give rise to an action for
iniuria
.
Importantly, the character of the act cannot alter because it is
subjectively perceived to be injurious by the person affected
thereby.
[54].
Applying that
test it appears to me to be clear that the action of defendant was
objectively insulting and contumelious.
[55].
As regards the
amount of the delictual damages to be awarded in favour of the
plaintiff, there are no hard and fast rules. As with
claims for
iniuria and defamation, the amounts awarded generally are at best
modest. I am therefore of the view that an award for
damages for
breach of promise should be made in favour of the plaintiff in the
amount of R25 000.
The
Claim for Unjust Enrichment
[56].
That then
leads me to the plaintiff’s third alternative claim based on
unjust enrichment and
negotorium
gestio.
Here the plaintiff claims against the defendant an amount of
R74 189.10, made up as follows: R57 689.10 paid by the
plaintiff on behalf of the defendant in settlement of a loan debt
incurred by the defendant with a financial institution, plus R10 500
paid by the plaintiff in respect of certain improvements to the home
of the defendant and an amount of R6000 being for a bed bought
by the
plaintiff, which bed is now at defendant’s house and he has the
benefit of same.
[57].
It is alleged
by the plaintiff that the defendant was unjustly enriched at her
expense by the aforesaid sum of R74 189.10.
[58].
In view of my
findings relating to the plaintiff’s main claim, it is not
necessary for me to deal with the plaintiff’s
aforesaid claim.
Suffice to say, that, in my view, the plaintiff did not prove the
elements of such a cause of action, which, as
per
McCarthy
Retail Ltd v Shortdistance Carriers CC
,
2001 (3) SA 482
(SCA), are the following:
(i)
the defendant
must be enriched;
(ii)
the plaintiff
must be impoverished;
(iii)
the
defendant's enrichment must be at the expense of the plaintiff; and
(iv)
the enrichment
must be unjustified
(sine
causa)
.
[59].
I therefore
intend granting a monetary judgment in favour of the plaintiff for
the sum R98 149.63, in respect of actual damages,
and R25 000,
in respect of R25 000, totalling R123 149.63.
Costs
[60].
In her summons
the plaintiff has claimed an amount in excess of R2 000 000
from the defendant. The quantum of the judgment
which I intend
granting in favour of the applicant is for R123 149.63. The
latter amount falls well within the monetary jurisdiction
of the
Magistrates Court.
[61].
I can think of
no reason why these proceedings should not have been instituted in
the Magistrates Court. I can think of no justification
for the
institution of proceedings in this court.
[62].
I am therefore
of the view that the plaintiff should not be awarded cost on the High
Court scale.
ORDER
In
the circumstances I make the following order:
1.
The defendant
shall pay to the plaintiff the sum of R123 149.63.
2.
The defendant
shall pay to the plaintiff interest on the amount of R123 149.63
at the legal rate of 10.5 per centum per annum
from date of judgment
to date of final payment.
3.
The defendant
shall pay the plaintiff’s cost of this action on the
appropriate Magistrate’s Court scale
_________________________________
L ADAMS
Judge of the High Court
Gauteng Local Division,
Johannesburg
HEARD
ON:
1
st
& 2
nd
June 2017
JUDGMENT
DATE:
FOR
THE PLAINTIFF:
1
st
September 2017
Adv
B Bergenthuin
INSTRUCTED
BY:
Gerhard,
Bothe & Partners Inc
FOR
THE DEFENDANT:
Adv
R G Masipa
INSTRUCTED
BY:
Mpya
Attorneys