FACULTY OF LAW
COURSE CODE:
LPFA 3532
COURSE TITLE
Family Law
COURSE LECTURER:
Mrs A. L. Zender
EMAIL
azender@unam.na
PROGRAMME:
LLB Degree
OFFICE NUMBER:
Y106
TEL
061 206 3830
Assignment Group Members
Student Numbers
1. Thembeka P Salanje
221165496
2. Sirkka Nanhapo
221147993
3. Ngundaa Murorua
221010319
4. Akawa Olivia N
202086461
5. Maria L Niilonga
220056587
1
1. Introduction
This is advice to Mary on her legal position as a result of an engagement to marriage
that was terminated by John. In this matter Mary is advised on how her engagement
to marriage with John was a valid one and thus bore legal consequences upon its
termination. She is also advised on the legal issues that will have to decide upon by
the courts in the light of the remedies that she wants from John on account of his
breach of promise. Finally Mary will be advised on how the courts might reason out
when deciding on these questions of law that premise around the remedies she is
seeking.
2. Restating the facts of the matter pertaining to Mary and John’s engagement
to marriage from its initiation to termination
Mary is to be advised that the engagement to marriage that she entered into with
John was a valid one because John made an offer which she accepted. There was a
meeting of the minds whereupon the two agreed that they would be married in
community of property at a later. 1This engagement to marriage was also valid
because none of them was a minor and therefore had locus standi2. Furthermore
Mary is to be advised that this agreement was also valid since the two were within
the permissible degrees of relationship. Furthermore she was a divorce while John
was widower. There was therefore nothing in the legal sense that was going to make
their engagement to marriage voidable3.
Mary is further advised that this agreement had legal consequences on the one who
would terminate it without justae causa. Thus Mary in fulfilling her obligations had
relocated to Windhoek, contributed towards the refurbishment of the home which she
believed would belong to both of them since they had agreed to a marriage in
community of property and finally had subjected herself to an in vitro fertility
treatment.
1
Heaton, J. & Kruger, H (2010)
Heaton, J. & Kruger, H (2010)
3
Visser P, J and Potgieter J, M (2012)
2
2
On the other hand Mary would be advised that in turn John did not act according to
the engagement agreement by having an affair with another woman while they were
still engaged before he finally threw her out the house.4 In this respect Mary would
be advised that while she had a valid legal case to bring before the court, on account
of John ‘s breaching of the contract, there are questions of law which the court will
have to answer in order to decide on based on the remedies she is claiming.
1. Questions of law pertaining to the termination of the engagement to
marriage between Mary and John that will have to be decided upon by the
court?
1.1
Whether or not she is entitled to a remedy from John on the basis of actual
losses that she incurred due to the termination of this engagement to marriage?
1.2
Whether or not she is entitled to a remedy in the form prospective losses
incurred as a result of the termination of the engagement to marriage?
1.3
Whether or not she is entitled to a remedy for general damages in the form of
contumelia for iniuria?
2. Advice to Mary on how the questions of law pertaining to the termination of
her engagement to marriage with John could be decided by the courts.
The following is advice to Mary on the reasons that would guide the court to decide
on the questions of law pertaining to the claims that she is making for damages that
resulted from the termination of this engagement to marriage.
1.4
Whether or not she is entitled to a remedy from John on the basis of
actual losses that she incurred due to the termination of this engagement to
marriage?
Claims for actual losses that Mary is entitled to are those that stem from the
agreement which the two had in respect to their plans of consummating a marriage
4
Heaton, J. & Kruger, H (2010)
3
in community of property.5 These actual losses to which Mary could therefore be
entitled to claim in this respect are as follows
1.
The costs that she incurred when she relocated from Swakopmund to
Windhoek
2.
The costs she incurred when she underwent the in vitro fertility treatment and
paid all the costs by herself.
3.
The costs she incurred when she contributed towards the refurbishment of the
house.
Hence the innocent party ought to be brought back to the position that she or he
would have been if this agreement had not been made. For example in the case
Van Jaarsveld v Bridges, Bridges claimed that she suffered loss when she quit her
job as she was looking foward to a marriage. She therefore claimed for damages for
financial loss and therefore sought a remedy in regard to that.6 What Bridges was
seeking for here was a remedy for an actual loss.
Furthermore, what one got during the time of the engagement is supposed to be
weighed against what the other provided in turn. In this case Mary would be able to
get remedies for the loss she incurred when she relocated to Windhoek. The cost for
in vitro fertility treatment would have to be set off against the benefits that she
enjoyed when she was under John’s medical aid.
The costs of refurbishing the house will also have to be set off with the benefits that
Mary also enjoyed when she was boarding there. For instance, during her stay in the
house John could have been paying for the grocery for both of them, as well as for
the rates for house.7
5
Van Jaarsveld v Bridges (344/09) [2010] ZASCA 76 (27 May 2010)
Ibid.
7 Skelton,A and Carnelley,M (2010)
6
4
1.5
Whether or not she is entitled to a remedy in the form prospective
losses incurred as a result of the termination of the engagement to marriage?
Prospective losses refer to those benefits, such as a loss of maintenance that one
would have enjoyed had the two gotten married.8 Essentially, what Mary is seeking
under this heading is that she be given half of John’s estate as well as the
maintenance that she would have been entitled to have this marriage materialised.
This sentiment is in line with the judgment that was made in the case of Guggenheim
v Rosenbaum9 who was the innocent party to a breach of promise to marriage was
entitled to claim up to half of the estate of which they had when they were cohabiting.
These two had made a promise to marry in community of property.10 In this case the
court judged that a universal partnership had existed between MN and FN and that
the net wealth which they had jointly created from the time they got engaged in 1976
– 2013 just before they broke off was to equally shared between them. In this case
there was no universal partnership because there was no joint business which Mary
and John preoccupied themselves with. Hence, it is unlikely that Marry would be
successful with such a claim.
However Mary would have to be advised that, in latter cases the courts reasoned
that the action of claiming damages for prospective losses due to a termination of
engagement to marriage was no longer compatible with public policy.11 This
development was further cemented by Harns DP when he highlighted that that any
action for prospective losses based on a breach of promise to marry was no longer
part of the South African law. 12 What this essentially means is that it any claims for
prospective losses would not be enforceable in the courts. Mary will further be
advised that the courts subsequently reasoned that claims for prospective losses
were incompatible with natural justice, and did not reflect the changing mores of
modern society while they were difficult to calculate because they were based on
pure speculation of how the parties would have lived in their lives. 13Thus Mary
8
Heaton, J. & Kruger, H (2010)
Guggenheim v Rosenbaum
10 M N v F N (SA 28-2017) [2019] NASC (15 November 2019)
11
Cloete v Maritz, 2013
12
Van Jaarsveld v Bridges, 2010(4)
13
Ibid.
9
5
would have to be made aware as Heaton pointed out that it is now impossible for
injured parties in a breach of promise to marriage to make claims for prospective
losses.14
However a later judgment in the case noted that the issue of engagements had to be
treated in accordance with the changes mores of modern society, in that claims for
prospective losses did not reflect natural justice and more so that it was difficult to
calculate such claims because they were based on pure speculation of how the
parties marriage life would have been. This position is also taken by Visser and
Potgieter when they assert that in today‘s legal systems it is no longer possible for
an innocent party to claim for prospective loss.15
4.3 Whether or not she is entitled to a remedy for damages in the form of
contumelia for iniuria?
Mary is also seeking a remedy in the form of contumelia for injuria. Contumelia for
iniuria arises when an innocent feels that his or her personality has been infringed
upon as a result of the termination of an engagement to marriage. 16 In this case
Mary is of the persuasion that John’s conduct of having an affair with someone while
they were still engaged, the unkind treatment that he made towards her and his
throwing him out of the home which she had contributed towards its refurbishment
was a cause of injury to her. With the above facts the legal question that will have to
be settled is, whether or not she is entitled to these claims?
Mary would be advised that in order for her to successfully make a claim on this
ground of contumelia for iniuria she does not have to prove whether the termination
had justae causa but will have to prove that the breach of promise to marry by John
not only brought about iniuria (that is injury) to her but also that there was animus
iniuriandi (that John purposely injured her).17 In making a ruling in the Jaarsveld v
Bridges case Mr. Harms ruled that Bridges would not be given any remedy for
delictual damages because she failed to prove that John’s actions in terminating the
14
Visser P, J and Potgieter J, M (2012)
Heaton, J. & Kruger, H (2010)
16
Skelton,A and Carnelley,M (2010)
17
Cloete v Maritz, (2013)
15
6
engagement amounted to any delict.18Mary would be advised that this can be
proved, by taking the manner in which John ended the engagement, when he first
started treating her with disdain, and went into relationship with a third party, while
he removed her from is medical aid scheme replacing her with the other woman
before he finally threw him out of what Mary was now taking as their common home.
Mary would also be advised that she would not be simply awarded this claim, without
proving before the courts that John‘s actions constituted animus iniurandi in that he
knew that by throwing her out of the house, she would have no option but to go back
to Swakopmund were she would have to embarrassingly face her relatives and old
friends. This scenario as reasoned by Mr. Harms would entitle Mary to contumelia for
iniuria since it would be reasonably proved that the repudiation that she experienced
was contumelious.19
Finally Mary would be advised that if there had been any gifts such as a ring that
John had bought for her during or after their engagement then she would not be
under compulsion to return them because she was an innocent party in this
engagement to marriage that was terminated.20
2.
Summary
In summary, Mary is hereby advised that it is legally impossible for her to receive the
remedies to the amount of N$ 2 000 000 that she is claiming. This is so because
according to the reasoning of the courts claims for prospective losses are no longer
actionable under the current law while the remedies for the actual losses that she is
claiming will have to be set off with the benefits that she enjoyed when she was
cohabiting with John. However, on the favourable side she could be successful in
her claim for damages for contumelia injuria, because of the manner in which John
terminated the relationship.
18
Van Jaarsveld v Bridges, 2010(4)
19
Van Jaarsveld v Bridges, 2010(4)
20
Visser and Potgieter (2012)
7
References
Books
Heaton, J. & Kruger, H (2010) South African Family Law 4th edition. LexisNexis:
Durban
Skelton, A and Carnelley, M (2010) Family Law in South Africa, Oxford University
Press Southern Africa
Visser P, J and Potgieter J, M (2012) Introduction to Family Law 3rd edn, Kenwyn:
Juta
Cases
Cloete v Maritz (6222/2010) [2013] ZAWCHC 69; 2013 (5) SA 448 (WCC) (24 April
2013)
M N v F N (SA 28-2017) [2019] NASC (15 November 2019)
Van Jaarsveld v Bridges (344/09) [2010] ZASCA 76; 2010 (4) SA 558 (SCA); [2010]
4 All SA 389 (SCA) (27 May 2010)
8