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[2010] ZASCA 76
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Van Jaarsveld v Bridges (344/09) [2010] ZASCA 76; 2010 (4) SA 558 (SCA) ; [2010] 4 All SA 389 (SCA) (27 May 2010)
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THE
SUPREME COURT OF APPEAL
SOUTH AFRICA
JUDGMENT
Case No: 344/09
In
the matter between:
DEON
VAN JAARSVELD Appellant
and
SUNETTE
BRIDGES Respondent
Neutral
citation:
Van
Jaarsveld v Bridges
(344/09)
[2010] ZASCA 76
(27 May 2010)
Coram:
Harms
DP, Nugent and Van Heerden JJA and Majiedt and Seriti AJJA
Heard:
11
May 2010
Delivered:
27
May 2010
Summary:
Breach
of promise to marry – causes of action – compatibility
with present-day public policy discussed – wrongfulness
–
damages
___________________________________________________________________
ORDER
___________________________________________________________________
On appeal from:
North
Gauteng High Court (Pretoria) (Raulinga J sitting as court of first
instance):
1 The appeal is upheld with costs, including the costs
of two counsel.
2 The order of the court below is amended to read:
‘Absolution from the instance with costs’.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
HARMS DP (NUGENT and VAN HEERDEN JJA
and MAJIEDT and SERITI AJJA concurring)
INTRODUCTION
[1] This appeal relates to a claim for damages
instituted by the respondent, Ms Sunette Bridges, against the
appellant, Mr Deon
van Jaarsveld, 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.
[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
contumacious – a requirement for delictual damages. The other
arose from a dictum by Davis J in
Sepheri
v Scanlan
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 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 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
learned judge (at 329G-I and 300H-I)
4
to which can be added an incisive article by J M T Labuschagne,
5
I do believe that the time has arrived to recognise that engagements
are outdated and do 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, 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.
[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 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.
[5] 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 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.
7
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 an action for specific performance.
[6] 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,
irrespective
of the ‘guilt’ of the latter. Unwillingness
to marry is clear evidence of the irretrievable breakdown of the
engagement.
It appears illogical to attach more serious consequences
to an engagement than to a marriage.
[7] 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’.
8
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.
[8] I do not
accept the proposition 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 in my view more of an unenforcable
pactum
de contrahendo
providing a
spatium
deliberandi
– a time to get to know each other better and to decide whether
or not to marry finally.
[9] One has to distinguish in this regard between
claims for prospective losses and those for actual losses. It is not
easy to rationalize
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?
[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’.
9
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.
[11] Claims for
actual losses are easier to justify but difficult to rationalize 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 of
against what
the other has paid or provided.
10
Another example would be losses suffered by one, who in agreement
with the other, relinquishes a post in anticipation of the wedding
and is unable to find another post. Bridges, it might be mentioned,
based her claim for financial losses on exactly this footing.
THE DELICTUAL CLAIM
[12] The
parties were engaged on 29 July 2005. The wedding was set for 14
January 2006. Van Jaarsveld, by text message (sms), notified
the
appellant on 4 December 2005 that he was no longer prepared to go
ahead with the wedding. (Although the parties had telephonic
contact
their usual mode of communication was by sms.) He wrote that he was
sorry about his decision but he could not lie. He did
not feel the
same as before. He could not marry her in the light of his present
feelings and that he could not bluff himself. He
added that he knew
that her mother would read the sms and he also apologised to her. He
concluded by saying that Bridges was ‘’n
pragtige mens’
and once again expressed his regret. This sms was preceded by an
email sent to Bridges earlier that day during
which he expressed his
doubts about the wedding. She responded by email, requiring of him to
make up his mind. He responded by
sending the said sms. But he
vacillated the next day when indicated to her by sms that she should
post the invitations. However,
a day later on 6 December he informed
her in these terms that he was unable to proceed with the wedding:
‘
Ek is so jammer dat ek
alles so ver laat gaan het, ek is jammer as ek jou seer maak, maar ek
is nie opgewonde nie en dis nie reg
nie. Ek kan nie met jou trou
nie.’
[13] Bridges accepted the repudiation with alacrity and
on 9 December her attorneys sent him a letter of demand claiming
damages
in excess of R1m. Summons was issued during February 2006,
claiming damages of R678 203.08. She also issued summons against his
mother but that matter did no proceed.
[14] It is
necessary to revert to the beginning. Bridges calls herself a singer
in the particulars of claim but she is also a lyricist
and promoter
and sees herself as a potential radio and television personality. She
had a relatively successful career but her success
was in part due to
the fact that she was the daughter of her father, Mr Bles Bridges, a
well-known romantic singer who had died
a few years ago, and the
business of her last husband.
[15] She also had some marriages behind her. While
married to her fourth husband her ‘involvement’ with Van
Jaarsveld
commenced. She also had two children. Not without relevance
is the fact that within less than a month and before summons had been
issued she already had a new paramour.
[16] Van Jaarsveld was younger and a bachelor. He farmed
on a family farm. He had no claim to the farm but only the
expectation
of inheriting the farm or part thereof. His family,
particularly his mother, was not thrilled with the relationship,
especially
Bridges’ track record with husbands. She disliked
Bridges’ values and regarded her dress code as immodest. There
was
a deep clash of principles. She also thought that Bridges wished
to marry her son for money, which apparently belonged to the family
business and not to him.
[17] By the very nature of her career and her many
husbands, Bridges’ involvement with Van Jaarsveld attracted
media attention
and she willingly gave a number of interviews, even
before their engagement, about their relationship and her expectation
that
things would be different this time round. She was not going to
be another Elizabeth Taylor, she said. Her engagement also led to
further newspaper interviews and reports. They all speculated about
the chances of success of the fifth marriage.
[18] Bridges was aware of the fact that she was not
acceptable to his family, and she put him to a choice: either his
mother or
her. His mother, especially, put him before a starker
option: either Bridges and no farm or an end to the relationship.
This gave
rise, it would appear, to heated arguments between him and
Bridges and him and his family, as well as to mood swings and
indecisiveness
about marrying or not. As appears from his emails, he
realised that a marriage could not be a success in the circumstances,
and
he consequently terminated the engagement.
[19] 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, ie, that it was
injurious.
11
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.
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
injuria.
Importantly, t
he
character of the act cannot alter because it is subjectively
perceived to be injurious by the person affected thereby.
[20] Applying that test it appears to me to be clear
that neither sms was objectively insulting or contumacious. That
ought to be
the end of the inquiry. However, Bridges’ main
complaint was the fact that since the engagement was news the calling
off
of the wedding made newspaper headlines. I fail to see how this
could be injurious. It would have meant that Van Jaarsveld would
never have been able to cancel the engagement without committing an
iniuria. Her reputation was such that anything about her amatory
life
would have been newsworthy. Her divorces, too, were news but that
could not have given rise to claims for damages. Importantly,
according to the first newspaper report the news about the
cancellation came from one of her friends. There is no suggestion
that
Van Jaarsveld had advertised the fact.
[21] Her second
complaint wa
s
that he did not end the relationship during a face-to-face meeting
but chose to hide behind an sms. Once again, I fail to discern
any
contumacy in his use of an sms. They were part of a series between
the parties building up to the inevitable. It was their
normal manner
of communication. A face-to-face meeting would have ended in
recriminations and a confrontation about his family.
The tone was
also one of self-recrimination and was apologetic – the typical
‘it is about me and not about you’.
He even apologised to
her mother.
[22] The third
complaint concerned the interview Van Jaarsveld had with a newspaper
after the action had been instituted. She had,
apparently, already
spoken to the media about their break-up towards the end of January.
He sought to defend himself and his family
against a number of
rumours. He added that their problems began about the cost of the
wedding and his inability to finance it,
something she denied. That
she had an expensive wedding in mind is clear from a newspaper report
shortly after the engagement.
Read in context of litigating parties
the newspaper report does not appear to me to be derogatory and it
did not establish any
injurious intention on his part.
12
It is also not appreciated how a non-contumacious breach could become
injurious because of later events that, in themselves, are
not
injurious.
[23] It is unnecessary to deal with
the other makeweight arguments. The court below found that she was
‘very extravagant in
character and language’ and ‘to
say the least, she was hyperbolic in her testimony’. In the
light of her history,
her quick recovery in the arms of another, her
eagerness to claim damages, Van Jaarsveld’s uncertainty about
their future,
the lack of prospects of a happy marriage on the farm,
and the bad relationship with her future in-laws, convince me that
any injury
or contumacy was
de
minimis
and can be
discounted, and that the claim based on iniuria should have been
dismissed.
FINANCIAL LOSSES
[24] The court below awarded R137 316 for her loss of
income for the year subsequent to the intended marriage. Her case was
that
in view of the fact that she would have become a housewife after
the wedding she scaled her commitments for performances for the
year
2006 down. Her estimated loss of income, she said, amounted to the
said amount
[25] There are many problems with her evidence in this
regard but it is not necessary to mention them because it is clear
that she
earned an amount of R200 000 that the court below did not
take into account in determining her loss.
[26] On 23 January 2006, Bridges entered into an
agreement with a trust represented by one Van der Westhuizen. It was
called an
investment and profit sharing agreement. The trust had to
pay her R200 000, which it did immediately. She undertook to produce
a CD and a DVD, to give a number of performances, to write a book,
and to produce a TV programme during that year. She was not obliged
to repay the money; instead she and the trust would share the income
in agreed percentages and it was anticipated that the trust’s
basic share would exceed the amount of the outlay.
[27] Bridges did not perform as required. No credible
reason for her failure was given. At the time of the trial in May
2008 the
contract was still extant. She testified that the contract
was a loan, which she had to repay some time or other. That is
incorrect.
The only claim the trust had was for a share of profit.
Her failure to perform cannot be laid at the door of Van Jaarsveld. I
therefore
conclude that the court below had erred in not taking this
amount in consideration. Had it done so her claim for loss of income
would have been dismissed.
[28] The other amounts allowed by the court were the
following:
(a) R12 825 for wedding preparations. The amount was
overstated not only because of a mathematical error but also because
the court
had failed to take into account repayments of deposits. The
adjusted amount is R9 000;
(b) R28 872 for wasted removal costs. She had sold her
house and was about to move to the farm;
(c) R6 000 for money spent by her renovating the farm
house; and
(d) R 2 400 being wasted costs in relation to the
possible move of her child to a school proposed by Van Jaarsveld.
[29] The court below deducted from this the sum of R15
000 being an amount paid by Van Jaarsveld as contribution to her
removal
costs. The court, however, failed to have regard to a further
sum of R35 500 paid by him in respect of the costs of renovation (she
could only prove R4 100 on this point) and the wedding preparations.
Had the court taken this amount in account in calculating
her loss it
could not have awarded her any damages. She could not account
properly for the latter amount and this amount must in
my view be set
off against any damages she may have suffered. I disagree with the
court below that her evidence had to be accepted
uncritically on this
score simply because Van Jaarsveld did not testify. He could not give
evidence on how she spent the money.
[30] It follows that her claim should have been
dismissed. The consequent order is:
1 The appeal is upheld with costs, including the costs
of two counsel.
2 The order of the court below is amended to read:
‘Absolution from the instance with costs’.
____________________
L T C HARMS
Deputy President
APPEARANCES
APPELLANT/S P E Jooste (with him T Zietsman)
Instructed by Friedman Scheckter, Port Elizabeth
Honey Attorneys, Bloemfontein
RESPONDENT/S: M C Erasmus SC
Instructed by Stuart van der Merwe Inc, Pretoria
Goodrick & Franklin, Bloemfontein
1
Douglas v Douglas
[1996] 2 All SA 1
(A) at 8-9;
Paddock
Motors (Pty) Ltd v Igesund
1976 (3) SA
16
(A) at 23C-G.
2
Linvestment CC v Hammersley
[2008] ZASCA 1
;
[2008] 2 All SA 493
(SCA) para 25; Constitution s 39(2).
3
For example
Hurwitz v Taylor
1926 TPD 81.
4
Van der Heever
Breach of Promise and Seduction in South African
Law
(1954) p 120; June D Sinclair
The Law of Marriage
vol
1 (1996) p 313; D J Joubert ‘Die gevolge van troubreuk –
‘n kontemporêre beskouing’ 1990 (23)
De Jure
201, especially p 213-215.
5
‘Deïnjuriëring van
verlowingsbreuk: Opmerkinge oor die morele dimensie van deliktuele
aanspreeklikheid’
1993 (26)
De
Jure
126.
6
Guggenheim
v Rosenbaum (2)
1961 (4) SA 21
(W) at 36.
7
Schafer
Family Law Service: Law of Marriage
p 13
8
Compare
Bull v
Taylor
1965 (4) SA 29
(A).
9
Holt v United Security Life Insurance & Trust Co
(1909)
72 Atlantic Reporter 301 quoted in
Mainline Carriers (Pty) Ltd v
Jaad Investments CC
1998 (2) SA 498
(C) para 44.
10
Compare
Probert v Baker
1983
(3) SA 229
(D) at 234C-235E.
11
Ndamase v University College of Fort Hare
1966 (4) SA 137
(E) at 139G-140C. In what follows I am paraphrasing
the words of Smalberger JA in
Delange v
Costa
1989 (2) SA 857
(A) at 861-862.
12
Compare the approach in
Sepheri v
Scanlan
supra at 377H-I
.