Nhlapo v Zimu (2016/8478) [2017] ZAGPJHC 236 (1 September 2017)

CASE TITLE AND CITATION:

Nhlapo v Zimu (2016/8478) [2017] ZAGPJHC 236 (1 September 2017)

COURT AND BENCH

HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA

JUDGE:

Acting judge: Adams J

DATE OF JUDGEMENT

1 SEPTEMBER 2017

PARTIES INVOLVED

Plaintiff: Nhlapo Faliclity Noncebo, a female who was in a romantic relationship with the defendant and wishing to claim for the breach of marriage promise from the defendant. and Defendant: Zimu Mtshengu Wilbeforce, a male who is alleged of breaching an engagement agreement with the plaintiff

Facts of the case 

The case is a matter concerning breach of engagement agreement. The plaintiff and the defendant were in the romantic relationship as from 3rd of August 2012. Plaintiff alleges that on September 2012 in Pretoria, the defendant orally proposed to her but there was no ceremony or formality that was conducted in order to mark that day. They further stipulated that when they get married, they will marry in community of property, and that they will marry within a reasonable time after the defendant’s financial stability improves. During this time, they further agreed that they will undergo in vitro fertility treatment, and the cost will be divided equally between them. Also, in preparation for the proposed marriage the plaintiff made improvements to the defendant’s house as she believed that it was going to be their future home jointly. Then the plaintiff moved into the house of the defendant which was in Witbank on September 2013. In August 2015 the defendant breached the engagement agreement by being in a romantic relationship with another woman also removed the plaintiff from medical aid and replaced her with his new girlfriend. Around 25 September 2015 the defendant official announced the break up with the plaintiff and took her back to her mother’s place in Pretoria, and started living with the new woman. And for this reason, 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.

Issue raised

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

Arguments of the Parties 

Contentions by the Applicant

The plaintiff submitted to the court all the evidence supporting her arguments that the was indeed an engagement between the parties. The plaintiff marked that the defendant mentioned it to her mother that he intends to marry the plaintiff. She further stated that the defendant was introducing her to people as his wife, of which this builds the intentions to marry her, even though it might be indirect but then it is convincing enough that they will certainly get married. The plaintiff also marked another day in 2013 when they were in Pine Ridge, Witbank, the defendant asked to marry her, and for this reason the plaintiff submitted to the vitro fertilisation treatment in order to have children when they get married.

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.  Further alternatively, the plaintiff claims an amount of R74 189.10 based on unjust enrichment. The plaintiff’s claims are categorised into 3 groups such as: 

1. Claims for contractual prospective losses arising from defendant’s breach of promise, in this regard the plaintiff claims R500 000 for loss of the benefits of being a registered member in the defendant’s medical aid. Also, she claims 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. Lastly the plaintiff claims R500 000 for the loss of the benefit of defendant’s pension fund.
2.  Claims for contractual actual past losses arising from defendant’s breach of promise; the plaintiff wishes to claim the following for actual loss, (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.

      3. The plaintiff’s claim for damages based on the actio iniuriarum. 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.

The full amount that the plaintiff is intending to claim from the defendant is R2 620 61,80

Contentions by the defendant

• The defendant didn’t contest most of the evidence and statements brought forward by the plaintiff, but he argued that the promise to marry was not existing, claiming that he didn’t have intentions to marry the plaintiff and also there was no engagement party or ceremony indicating any intention or seriousness to marry the plaintiff. The judge dismissed this argument stating that in his opinion there is no requirement of engagement to be in a formal way such as ceremony or exchange of rings in order for the engagement to be enforceable or come to exist. He said what is important is that the plaintiff should prove that the defendant had promised, either expressly or tacitly, to marry the plaintiff of which the plaintiff did prove that.
• The defendant further challenged the statement of his willingness to be involved in the vitro fertilisation treatment procedure. He stated that he agreed to take part to the payments of this procedure at first but after the initial of this procedure came up proving that the vitro fertilisation will be unsuccessful, he withdraws, but it was the plaintiff who kept on going to the clinic for this procedure regardless of the said results. The plaintiff then submitted 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. So these signed documents overruled the claim by the defendant that he had not agreed to the procedures at MedFem Clinic.

Judgment / Final Decision 

The court granted a monetary judgment in favour of the plaintiff for the sum R98 149.63, in respect of actual damages, and R25 000 delictual damages, in respect of, totaling R123 149.63. the judge further made the following orders:

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

Legal Reasoning / Ratio Decidendi

The court relied in the judgement of Harms DP in Van Jaarsveld v Bridges, 2010(4) SA 558 (SCA), which says 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. 

So as Adam J said it is not easy to justify 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? 

Also, the court looked Sinclair Law of Marriage at 314 (fn 8) 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. And for this verdict claims for prospective losses failed.

For actual losses the court relied to Harms DP in Van Jaarsveld v Bridges, 2010 which says 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. And court offered the verdict that it is 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. regarding to house improvements and the bed that was bought, the plaintiff failed to prove her entitlement to be compensated for those sums.

In claiming for action iniuriarum the court judged that 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. 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. The court 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 court findings relating to the plaintiff’s main claim, it is not necessary for it to deal with the plaintiff’s aforesaid claim. Suffice to say, that the plaintiff did not prove the elements of such a cause of action, which, is listed in McCarthy Retail Ltd v Shortdistance Carriers CC, 2001 (3) SA 482 (SCA),

CONCLUSION 

Based to my own observation the judgement that was issued by the court is reasonable and the court managed to set the matter in to balance probation. It would be fair for the plaintiff to claim for prospective losses as that would lead the defendant to agree to be in a marriage, he don’t willingly want to be part of and the court have no valid evidence that the can rely upon to prove that the parties would change their agreement to marry in community of property. And the court served justice also by ensuring that the plaintiff don’t claim for what is more than reasonable.

Reference(S): 

Nhlapo v Zimu (2016/8478) [2017] ZAGPJHC 236 (1 September 2017)

Sinclair Law of Marriage at 314 (fn 8)

Harms DP in Van Jaarsveld v Bridges, 2010(4) SA 558 (SCA),

McCarthy Retail Ltd v Shortdistance Carriers CC, 2001 (3) SA 482 (SCA),