Ms Cloete and Mr Maritz made an oral agreement in March of 1998 to marry within reasonable time period. As a result of that promise they got engaged in 1999. Defendant breached that promise and had also started seeing someone else. Plaintiff therefore decided to sue for breach of promise – Cloete v Maritz (2013(5) SA 448 (WCC).
Cloete v Maritz, involved a case where Ms Cloete and Mr Maritz got engaged in 1999. The agreement, as it happens in many cases of engagement, was that instead of setting a fixed date, they would get married within a reasonable time.
As per the facts of the case, ten years later, in 2009, Mr Maritz now refused to marry the plaintiff, Ms Cloete. Cloete now sued Maritz for breach of promise, after Maritz had told her he had met somebody else.
Breach of promise in South African law has always been difficult to prove. Normally you would only be successful in suing for actual damage suffered, for example, if a lady has suffered financial loss as a result of her purchasing a wedding dress or paying for a wedding venue, which money is then lost as a result of the man cancelling the engagement and his promise of marriage.
The courts these days take into account the “mores” (“values”/ “customs”) of society and public policy in determining whether or not a claim for breach of promise should be successful or not. Constitutional principles also get taken into account by our courts these days.
In the Maritz case, Cloete sued Maritz for a donation which she had allegedly made to him, for loss of enjoyment of a fixed property and for maintenance which she would have received if the parties had married, as well as for breach of her dignity and reputation. The plaintiff also claimed that the defendant had used foul language and told his new lady many things about the plaintiff.
Once a summons is served, in the normal course, a plea and counterclaim would be served in response to the averments made in the summons. In this case, a so-called “special plea” was raised. In this plea the defendant averred that the claim for breach of promise is no longer valid in South African law. The court upheld the special plea. The court was of the view that the “mores” of society, as well as the Constitution, must be looked at for a court to determine if a claim for breach of promise will succeed or not.
“Mores” is a Latin word, meaning “customs” or “morals” or “standards”. Henney J found, in this case, that to hold somebody liable for breach of promise does not reflect the changed “mores” or public interest of society. The court found that considerations of public policy and changed “mores” did not permit a party to be made to pay prospective damages on a purely contractual footing, where such a party wanted to resile from a personal relationship and thus committed a breach of promise to marry. To base a claim for breach of promise to marry on a rigid contractual footing, in the sense that a claim for prospective losses would be permissible, was not a valid course of action, according to the court.
Breach of promise is always an interesting topic. It is seldom in my career that I have had a client adamant on persisting with pursuing a claim for breach of promise, unless actual expenses have been incurred, e.g. loss of money due to a wedding venue having been paid for. Usually at the end of a relationship a party just moves on, irrespective of whether they were engaged or not.
Defamation, extortion & divorce
Majola's special plea dismissed