Is breach of promise to marriage a valid cause of action in our law?

When a person proposes marriage and the other person accepts the proposal and they become engaged, they are said to have concluded a contract to marry in the future. When an engagement is called off it is theoretically possible that the aggrieved party may sue for breach of promise.

The law regarding the breach of promise to marry

The unfortunate reality of the matter is that it is not easy to succeed with a monetary claim against the person who did not fulfil his/her promise to marry.

Previous court judgments indicate that compensation will be awarded at the discretion of the court and that each case must be evaluated on the basis of its individual circumstances

Over the years, our common law has recognised the principle that the aggrieved party has a claim for breach of promise. The aggrieved party could claim on the following basis:

  • a delictual claim under the iniuriarum for contumelia (damages for humiliation as a result of the breach)
  • a contractual claim for financial loss suffered.

In Van Jaarsveld v Bridges (2010) SCA it was found that no claim in South African law exists other than actual expenses incurred in the planning and preparation of the marriage. Harms DP drew attention to a court’s rights and more importantly the duty to develop the common law, taking into account the interests of justice. He stated that he was unable to accept that parties, when promising to marry each other would contemplate that a breach of their engagement would have financial consequences as they had in fact married. He opined that 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.”

The court concluded that a party cannot successfully institute a claim for prospective losses on the basis of a breach of promise to marry, because an engagement is not an ordinary contract in the context of contractual damages and should therefore not be placed on a rigid contractual footing. This means that a party may not institute a claim for damages placing him or her in the position he would have been had they gone through with the marriage.

In Elsie Sophia Cloete v AWJ Maritz (2013) the question whether or not the claim for breach of promise is a valid cause of action in South African law was once again considered. The Cloete focused on the below stated three aspects:

  • she wanted repayment of R26 000.00 that she had given Maritz in 1994-1996
  • she wanted R6.5million to make up for the financial benefits she would have enjoyed had they concluded marriage, plus R8 500.00 of maintenance for 25 years.
  • she also wanted R250 000.00 in damages.

Maritz denied the allegations made and stated that Cloete was the one who called off the engagement. He also brought a special plea that “breach of promise” does not constitute a valid cause of action based on the above Supreme Court of Appeal decision in Van Jaarsveld v Bridges.

Henney J stated that “clearly, to hold a party accountable on a rigid contractual footing; where such a party fails to abide by a promise to marry does not reflect the changed mores, morals or public interest of today” and “it is my view that considerations of public policy and our own society’s changed mores cannot permit a party to be made to pay prospective damages on a purely contractual footing, where such a party wants to resign from a personal relationship and thus commits a breach of a promise to marry. Such a situation is in my view entirely untenable and cannot be allowed.” He also referred to Sinclair’s The Law of Marriage Vol 1 (1996) which submits that 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 a claim. This is an obvious untenable situation.


It is clear that the courts believe that a claim for breach of promise is not a valid cause of action in our law. As it appears from the above case law, no claim in law exist other that actual expenses incurred in the preparing for the marriage. This effectively excluded any damages for breach of the promise to marry.

Thus in layman terms: if one party breached the promise to marry, the aggrieved can institute a claim for damages, provided that the losses were within the contemplation of the parties. The aggrieved can claim expenses incurred in anticipation of the wedding, thus placing him/her in the financial position he/she would have been had the engagement never been entered into, for example, claiming back the engagement ring.

Avela Makunga

Reinstatement of Credit Agreement

Section 129(3) of the National Credit Act, 34 of 2005 allows a debtor who is in default to reinstate the credit agreement that he/she has with a credit provider. Reinstatement allows the debtor to resume possession of the property that has been repossessed by the credit provider under an attachment order. In other words, and to a certain extent, it places the debtor back in the position as if he / she had not defaulted.

How and when

Section 129(3) and (4) stipulates the requirements that need to be met by the debtor who is seeking reinstatement as well as the circumstances where reinstatement will not be allowed.

Section 129(3) states that:

“Subject to subsection (4), a consumer may –

  • at any time before the credit provider has cancelled the agreement re-instate a credit agreement that is in default by paying to the credit provider all amounts that are overdue, together with the credit provider’s permitted default charges and reasonable costs of enforcing the agreement up to the time of re-instatement; and-
  • after complying with paragraph (a), may resume possession of any property that had been repossessed by the credit provider pursuant to an attachment order.”

Section 129(4) states that:

A consumer may not re-instate a credit agreement after-

  • the sale of any property pursuant to-
  • an attachment order; or
  • surrender of property in terms of section 127;
  • the execution of any other court order enforcing that agreement; or

                  the termination thereof in accordance with section 123.”

Consider the following scenario: You register a mortgage bond with your local bank in order to obtain financing to purchase land, where you intend on building your dream house. The loan or mortgage agreement falls within the ambit of the National Credit Act. Circumstances arise that result in you being unable to meet your obligations under the said credit agreement and you fall into arears. The bank then takes the necessary steps to inforce the agreement in order to recover the moneys owed to them and obtains judgement by default against you.

Just as they notify you that they are going to sell your house, you manage to raise enough money to pay your arrears. The bank agrees to give you another chance on condition that you keep up with your payments and should you fail, they will continue with the judgement obtained and will proceed to sell your house. However, soon thereafter you default again but manage to bring your arrears up to date.

As time goes on, you hit another financial storm and default on your payments once more. Despite notices from the bank to pay, you fail to comply and the bank executes on the judgement it obtained against you when you first defaulted and your house is then sold at public auction.

The following questions arise:

  1. Did you successfully reinstate your credit agreement in terms of section 129(3) of the National Credit Act by paying your arrears the first time even though you did not express your intention to do so?
  2. What about the banks’ unpaid legal costs and other costs incurred in enforcing the agreement?
  3. If you did successfully reinstate the credit agreement, what then happens to the judgement obtained against you?

This is the situation that Ms Nkata found herself in, in Nkata v First Rand Bank Limited 2016 (4) SA 257 (CC), which started in the Western Cape High Court and went all the way to the Constitutional Court.

In relation to the above noted questions, the majority judgement of the Constitutional Court held that as long as a credit agreement was not cancelled it was eligible for reinstatement. Reinstatement in terms of section 129(3) took place by operation law and thus the debtor seeking reinstatement did not need give notice of their intention to do so but simply needed to meet the requirements set out in the said section. Furthermore although upon default the full accelerated debt may be demanded, payment of the overdue amount (the arrears), sufficed for purposes of reinstatement.

Regarding payment of the credit providers default charges and reasonable costs of enforcing the agreement, the Court held that section 129 (3) does not preclude reinstatement where a debtor has paid the overdue amount but was not given notice of the credit providers costs. This is because those costs only become due and payable once they are agreed or taxed and if the credit provider does not notify the debtor of the costs and demand same, the payment of the arrears will suffice for reinstatement. In addition the Court stated that this view or interpretation of section 129(3) prevents credit providers from arbitrarily debiting costs and suddenly thwarting reinstatement by saying their costs were not paid when debtor had no knowledge of these costs.

Thus when one examines the above scenario, the judgement given by the majority in the Constitutional Court suggests that having paid your arrears when you first defaulted and judgement was granted against you, and in the absence of the bank demanding costs from you, you would have successfully reinstated the credit agreement.

However what is to become of the judgement against you and the subsequent execution against your property?

Regarding section 129(4) (b) the Court held that the barrier to reinstatement of a credit agreement applies only when proceeds from a sale in execution have been realised. Thus, any time before the above happens, and if the agreement has not been cancelled, a debtor may reinstate the credit agreement. Furthermore once a credit agreement has been reinstated, the default judgement and attachment order for sale in execution are rendered ineffectual, i.e. without force or effect.

To a large extend, the interpretation of Section 129(3) and (4) by the majority judgement of the Constitutional Court may influence the way credit providers’ deal with habitual defaulters. Why run the risk of a debtor reinstating at the last moment during a sale in execution, after incurring substantive costs to enforce the agreement. Cancellation may be the better option.

Kgolofelo Makhuthudisa

Spoliation Remedy

Mandament van spolie (spoliation) is an old common law remedy that is available in South African law to protect possession of property. The remedy results in the restoration of possession to persons who have been unlawfully dispossessed of the property. The remedy fulfills the function of peace-keeping as far as unlawful dispossession of property is concerned and prevent individuals from taking the law into their own hands. Bare possession is enough to satisfy the locus standi in the case of mandament van spolie.

Legal requirement

It is usually brought by way of application and by its nature it is often brought on an urgent basis.

Anybody who asserts this remedy must prove the following:

  • that he/she was in peaceful and undisturbed possession of the property;
  • that he/she was unlawfully dispossessed by the spoliator.

Since the object is to restore possession to the applicant, the court will not consider any defenses based on the respondent’s rights of ownership. Therefore neither the Applicant nor the respondent need to prove ownership.

One of the recognized defenses is that of impossibility in that it may be impossible to return the property because it does not exist anymore or the property may have suffered irreparable damage or harm that makes restoration impossible.

Application of the remedy

Our Superior Courts endowed with the competence to set precedents have handed down varied decisions resulting in uncertainties as to the outcome of any matter coming before these Courts. This is due in part to the interpretation and application of the remedy.

The question giving rise to divergent decisions is ‘whether the mandament van spolie is still a feasible remedy in instances where the spoliated property suffered irreparable damage.’

On one hand, we have those who argue that the remedy is premised on repossession of the spoliated property and if it is no longer possible to restore possession, then the mandament can in principle not be applied.

In Rikhotso v Northcliff Ceramics (Pty) (Ltd), Nugent J, then presiding, held that a spoliation order cannot be granted if the property at issue has ceased to exist. He further stated that the Mandament is a preliminary and provisional order based on the assumption that the property in fact exists and may be awarded in due course to the properly entitled party and if the property is destroyed, the spoliatus has recourse against the spoliator in both civil and criminal action. He held that property can accordingly not be restored by substitution. The decision in Rikhotso was therefore not to grant the remedy on account of impossibility.

A similar rationale was held by the Supreme Court of Appeal in Tswelopele Non – Profit Organization v City of Tshwane Metropolitan Municipality. In this matter, occupiers of a vacant piece of land in Garsfontein were evicted from their homes and their homes were demolished by the nature conservation division of the City, the immigration control office of the Department of Home Affairs and the South African Police Services. The homes of occupiers were built using pieces of plastics and scrap sheet metals picked up from manufacturers around the City. Tswelopele Non – Profit Organization applied for restoration of possession of the homes to the occupiers in terms of the mandament van spolie and for provision of temporary shelter to the desolate occupiers in terms of their rights under section 25 and 26(3) of the Constitution while their homes are being restored.

The Supreme Court of Appeal confirmed in line with the Rikhotso judgment that the main objective of the mandament is to temporarily restore physical control and enjoyment of property and not its reconstructed equivalent. The Court evaluated existing remedies and found that none provided the occupiers with suitable protection. The Court instead decided to create a constitutional remedy to provide the type of relief, which according to the court, the mandament was unable to do in that particular instance. The Court held a view that the object of remedying the kind of harm it had to deal with was to vindicate the Constitution and thereby ordered that the occupiers should get their shelters back. Since the materials belonging to the occupiers have been destroyed, the Court ordered that they should be replaced with materials that afford habitable shelters. Because the occupiers were alleged to have amongst them unlawful occupiers and vulnerable to lawful evictions, the reconstructed structures were to be erected in a manner capable of being dismantled with ease.

On the other hand, there are those authors who believe that it should be possible in some instances to require the spoliator to restore or reconstruct what he has demolished: and this restoration or reconstruction can be done in terms of the mandament van spolie.

In Fredericks and another V Stellenbosch Divisional Council, where the council demolished squatters corrugated – iron homes in flagrant contempt of the law, the then Judge Diemont, issued an order requiring the Council to re-erect the applicants homes. The order entailed recreating shelters of approximately similar size and efficacy and if the original sheets of corrugated iron could not be found or if they were so damaged by the bulldozer that they could not be used again, the other sheets of iron of similar size and quality should be used

In another Supreme Court of Appeal matter, City of Tshwane Metropolitan Municipality v The Mamelodi Hostel Residents Association, City officials aided by private contractors under the watchful eye of a large police contingent, removed the roof structures and roof coverings of Block J, Mamelodi Hostel while occupants were still inside it. This gave rise to the urgent spoliation proceedings which ended up in the Supreme Court of Appeal.

Despite the doctrinal difficulty with the application of the mandament, the Court in Mamelodi Hostel Residents Association went ahead to apply the Mandament. The debate concerning whether spoliatiation remedy is available in instances where restoration of destroyed or demolished goods is required, was not re – evaluated. The result of the judgment was that the roof would have to be re – erected or rebuilt so that the City could comply with the order.

Accordingly, from Mamelodi Hostel Residents Association case, the conclusion may be drawn that the mandament van spolie is available where parts of property have been destroyed and the spoliator is required to place residents in the same position they were in prior to the dispossession.

In conclusion, it is my submission that the Mandament van spolie is still relevant and needs to be developed not only to fulfil constitutional obligation in terms of section 25 and section 26 of the Constitution, but to cater for situations of impossibility of restoration if justice is to be adequately served and order to prevail in our constantly changing society. If the remedy does not undergo further development, its original object and purpose will not be realized. It is an important safeguard of citizen’s real and personal rights.

Abi Matjila