Source:

Botswana Law Reports (1964 to date)/CHRONOLOGICAL LISTING OF CASES 1964 ­ 2019 Volume 3/2010 (2)/Cases Reported/MUCHAILE v SIMWANZA 2010 (2)
BLR 404 (HC)

URL:
http://jutastat.juta.co.za/nxt/gateway.dll/frbo/2/2316/2322/2382?f=templates$fn=default.htm

MUCHAILE v SIMWANZA 2010 (2) BLR 404 (HC)

Citation 2010 (2) BLR 404 (HC)

Court High Court, Francistown

Case No Civ Case 105 of 2008 B

Judge Chinhengo J

Judgment April 30, 2010

Counsel P A Kgalemang for the

Annotations None

Flynote

Damages ­ For breach of promise to marry ­ Delictual claim ­ Plaintiff to prove agreement to marry, repudiation and contumelia. C

Headnote

The plaintiff sued the defendant for delictual damages for breach of promise to marry, in the amount of P60 000. The defendant denied that
they had ever agreed to marry.

Held: (1) In order to succeed in her action, the plaintiff had to prove an agreement to marry, repudiation of the agreement by the defendant
and her contumelia. Guggenheim v Rosenbaum (2) 1961 (4) SA 21 (W) applied. D

(2) The evidence established that the parties became romantically involved with one another in December 2005 and agreed to marry in March
2007, and postponed the marriage to December 2007. Without justification, the defendant repudiated the agreement in November or early
December 2007.

(3) The defendant had been in love with the plaintiff for over a year when he E terminated their relationship and refused to marry her. That
constituted injurious or contumelious conduct for which the plaintiff was entitled to damages. Her pride, reputation and dignity had been injured.

(4) An appropriate award of damages was the amount of P10 000.

Case Information

Cases referred to: F

Bull v Taylor 1965 (4) SA 29 (A)

Guggenheim v Rosenbaum (2) 1961 (4) SA 21 (W)

Krull v Sangerhaus 1980 (4) SA 299 (E)

Mafoko v Thaba [2002] 2 B.L.R. 48, CA

Sepheri v Scanlan 2008 (1) SA 322 (C) G

ACTION for damages for breach of promise to marry. The facts are sufficiently stated in the judgment.

P A Kgalemang for the plaintiff.

K K Sechele for the defendant. H

Judgment

CHINHENGO J:

The plaintiff herein, a nurse by profession, sued the defendant, a driver by occupation, for delictual damages for breach of promise to marry in
the sum of P60 000. One witness each gave evidence for the plaintiff and the defendant's cases. After the plaintiff closed her case, Mr Sechele
applied for an order of absolution from the instance. I dismissed that application

2010 (2) BLR p405

CHINHENGO J

with costs in a brief extempore ruling delivered on 21 April 2010. This judgment A will also show why I dismissed that application.

In an action such as this, the issues for determination are usually four in number. First, was there an agreement to marry each other? Second,
was there a breach or repudiation of that agreement? Third, was there a justification for the repudiation? Fourth, the quantum of damages?

The evidence in this case shows that the main issue for determination is B whether or not there was a contract to marry. The repudiation is not
contested because there is an admission by the defendant that he brought the relationship to an end for reasons which he gave and which I will
set out later.

To determine the main issue and the other issues arising in this case, I consider C it appropriate to examine the pleadings and the evidence of
each of the parties separately.

Before doing that I must observe that the plaintiff's claim is solely for the injuria that she alleged she suffered ­ the infringement of her
personality
© 2018 Juta and rights,
Company her good
(Pty) Ltd.name and her dignity. In Guggenheim v Rosenbaum (2) 1961: (4)
Downloaded Tue SA
Feb21
07 (W)
2023 it16:32:48
was held that a breach
GMT+0200 of promise
(South Africa toTime)
Standard
marry is not per se an injuria but D constitutes an injuria only if the plaintiff proves 'not merely that the breach was wrongful but also that it
 applied for an order of absolution from the instance. I dismissed that application

2010 (2) BLR p405

CHINHENGO J

with costs in a brief extempore ruling delivered on 21 April 2010. This judgment A will also show why I dismissed that application.

In an action such as this, the issues for determination are usually four in number. First, was there an agreement to marry each other? Second,
was there a breach or repudiation of that agreement? Third, was there a justification for the repudiation? Fourth, the quantum of damages?

The evidence in this case shows that the main issue for determination is B whether or not there was a contract to marry. The repudiation is not
contested because there is an admission by the defendant that he brought the relationship to an end for reasons which he gave and which I will
set out later.

To determine the main issue and the other issues arising in this case, I consider C it appropriate to examine the pleadings and the evidence of
each of the parties separately.

Before doing that I must observe that the plaintiff's claim is solely for the injuria that she alleged she suffered ­ the infringement of her
personality rights, her good name and her dignity. In Guggenheim v Rosenbaum (2) 1961 (4) SA 21 (W) it was held that a breach of promise to
marry is not per se an injuria but D constitutes an injuria only if the plaintiff proves 'not merely that the breach was wrongful but also that it
was injurious or contumelious'. This case also recognised and accepted that in an action for breach of promise two actions are involved. The
one is a contractual action for patrimonial loss and the other is the action injuriarum. This is to say that the one is an action for breach of
contract E and the other is an action for the infringement of personality rights. This position, it seems to me was recently endorsed in South
Africa in Sepheri v Scanlan 2008 (1) SA 322 (C). A similar endorsement is to be found in Mafoko v Thaba [2002] 2 B.L.R. 48, CA. In Mafoko's
case the court found that there was no evidence that the respondent's personal dignity and reputation as well as her social standing had been
adversely affected to any great extent. She had three children out of F wedlock. She was awarded a nominal P5 000 as delictual damages after
reducing it substantially from P25 000 awarded by the High Court.

To succeed in this action which, as I have said, is confined to a claim of delictual damages the plaintiff had to prove, on a balance of
probabilities the promise or contract to marry, its breach or repudiation and that the repudiation was injurious or contumelious. If these
requirements are proved, the onus shifts to the G defendant who must prove justification for the repudiation if he is not to found liable (Bull v
Taylor 1965 (4) SA 29 (A) at p 50).

The pleadings

(a) The plaintiff's declaration H

The plaintiff alleged that she fell in love with the defendant in December 2005 and that the 'relationhip was accepted by the plaintiff on the
clear understanding that it would result in marriage'. In January 2006 they agreed to marry each other in March 2007. This setting of the date
was at most some 4 months after their love relationship commenced. The marriage did not materialise because they did not have sufficient
money to pay for the

2010 (2) BLR p406

CHINHENGO J

marriage festivities. They then agreed that they would marry each other in A December 2007. In October 2007 the defendant repudiated the
agreement 'by shunning the plaintiff out of his life and showing no interest in her.' She alleged that 'the repudiation was wrongful and the
defendant acted animo injuriandi' and so she was claiming P60 000 'by reason of the defendant's contumelious breach of contract whereby
plaintiff's personal dignity and reputation were impaired'. B

(b) Defendant's plea

He proposed to her in December 2005 and his proposal was accepted only in January 2006. There was no agreement to marry each other at the
time they fell I love. Three or four months down the line, the plaintiff proposed that they should get married or at least have a baby. He did not
agree to either of these C suggestions because he had financial difficulties. The plaintiff insisted that they should marry and offered to assist
him financially. He then told her that he was not ready for marriage and that she could get married to anybody who was ready to marry her.
Thus, as a result of her persistent demand for marriage, 'the defendant decided to end the relationship since he felt he was not yet prepared D
for marriage and wanted to release the plaintiff so that she could find someone who will be ready to marry her.' He prayed for the dismissal of
the plaintiff's claim.

(c) Plaintiff's replication

The plaintiff reaffirmed her position that they fell in love in December 2005 and that they started sexual intercourse early January 2006. She
explained that she E offered to jointly pay for the wedding expenses only after the defendant had promised to marry her and that the
suggestion that they have a baby was also made against this background. She said that they went out together to shop for wedding rings.

(d) The plaintiff's evidence F

The plaintiff told the court that at all material times she was working in Francistown and regularly visited Kasane, her home town. In December
2005 whilst she was at Builders' World with her sister to buy building materials, she met the defendant. They took a liking to each other and
exchanged cell phone numbers. Some three days later after she had left and returned to Kasane, they fell in love. In accepting his undertaking
to marry her. In answer to the question: G

'At the time you started of in December 2005 was there an agreement regarding marriage?'

She said: H

'Yes there was an agreement because I do not want a chance relationship without any future.'

Under cross­examination she was asked as to who came up with the idea that they should marry and, if it was her, when exactly the defendant
accepted the suggestion. Her response was that it was her who came up

2010 (2) BLR p407

CHINHENGO J

with the idea 'because I wanted a long term relationship'. As to the date of the A agreement she said ­ 'December 2005 when our relationship
started.' The plaintiff's evidence on this point is that the agreement to marry each other was reached on the same day that they fell in love and
as a part of the same transaction.

Thereafter they carried on with the love relationship. In January 2006 they agreed B to marry each other in March. They visited each other as
well as assisted each other financially. They visited the defendant's uncle, Crosswell Kaunda, who was to inform the defendant's parents about
their agreement. They both tested for HIV. Their results were negative. It was then that they thought of having a baby. In January 2007 they
went together to Game Stores to shop for wedding rings. They did not find their sizes. They then went to Rudi Photo Studios where they C
found the correct sizes. The cost of her ring was P1500 and his was close to P900. They did not buy the rings because they had no money at
that time. Going to her home at Somerset from Rudi Photo Studios on this day, they discussed their impending marriage. They agreed that he
would buy his wedding suit at CB Stores or at Jet Stores and that she would have her wedding dress, of the D African style, tailor made. He
© 2018 Juta and
returned to Company
Kasane. (Pty)
AfterLtd.
he was gone she, as agreed with him, bought AfricanDownloaded
material: for
Tueher
Febwedding
07 2023 16:32:48
outfit atGMT+0200
a cost of (South
P160 Africa Standard
and then had Time)
two outfits made at a cost of P450. She advised the defendant about what she had done and he promised her that he would buy his wedding
 money to pay for the

2010 (2) BLR p406

CHINHENGO J

marriage festivities. They then agreed that they would marry each other in A December 2007. In October 2007 the defendant repudiated the
agreement 'by shunning the plaintiff out of his life and showing no interest in her.' She alleged that 'the repudiation was wrongful and the
defendant acted animo injuriandi' and so she was claiming P60 000 'by reason of the defendant's contumelious breach of contract whereby
plaintiff's personal dignity and reputation were impaired'. B

(b) Defendant's plea

He proposed to her in December 2005 and his proposal was accepted only in January 2006. There was no agreement to marry each other at the
time they fell I love. Three or four months down the line, the plaintiff proposed that they should get married or at least have a baby. He did not
agree to either of these C suggestions because he had financial difficulties. The plaintiff insisted that they should marry and offered to assist
him financially. He then told her that he was not ready for marriage and that she could get married to anybody who was ready to marry her.
Thus, as a result of her persistent demand for marriage, 'the defendant decided to end the relationship since he felt he was not yet prepared D
for marriage and wanted to release the plaintiff so that she could find someone who will be ready to marry her.' He prayed for the dismissal of
the plaintiff's claim.

(c) Plaintiff's replication

The plaintiff reaffirmed her position that they fell in love in December 2005 and that they started sexual intercourse early January 2006. She
explained that she E offered to jointly pay for the wedding expenses only after the defendant had promised to marry her and that the
suggestion that they have a baby was also made against this background. She said that they went out together to shop for wedding rings.

(d) The plaintiff's evidence F

The plaintiff told the court that at all material times she was working in Francistown and regularly visited Kasane, her home town. In December
2005 whilst she was at Builders' World with her sister to buy building materials, she met the defendant. They took a liking to each other and
exchanged cell phone numbers. Some three days later after she had left and returned to Kasane, they fell in love. In accepting his undertaking
to marry her. In answer to the question: G

'At the time you started of in December 2005 was there an agreement regarding marriage?'

She said: H

'Yes there was an agreement because I do not want a chance relationship without any future.'

Under cross­examination she was asked as to who came up with the idea that they should marry and, if it was her, when exactly the defendant
accepted the suggestion. Her response was that it was her who came up

2010 (2) BLR p407

CHINHENGO J

with the idea 'because I wanted a long term relationship'. As to the date of the A agreement she said ­ 'December 2005 when our relationship
started.' The plaintiff's evidence on this point is that the agreement to marry each other was reached on the same day that they fell in love and
as a part of the same transaction.

Thereafter they carried on with the love relationship. In January 2006 they agreed B to marry each other in March. They visited each other as
well as assisted each other financially. They visited the defendant's uncle, Crosswell Kaunda, who was to inform the defendant's parents about
their agreement. They both tested for HIV. Their results were negative. It was then that they thought of having a baby. In January 2007 they
went together to Game Stores to shop for wedding rings. They did not find their sizes. They then went to Rudi Photo Studios where they C
found the correct sizes. The cost of her ring was P1500 and his was close to P900. They did not buy the rings because they had no money at
that time. Going to her home at Somerset from Rudi Photo Studios on this day, they discussed their impending marriage. They agreed that he
would buy his wedding suit at CB Stores or at Jet Stores and that she would have her wedding dress, of the D African style, tailor made. He
returned to Kasane. After he was gone she, as agreed with him, bought African material for her wedding outfit at a cost of P160 and then had
two outfits made at a cost of P450. She advised the defendant about what she had done and he promised her that he would buy his wedding
suit on his next trip to Francistown.

Before the start of March 2007, Crosswell Kaunda had an accident whilst driving E the defendant's car. The defendant diverted his funds to
repair the motor vehicle and postponed the wedding to December 2007. She agreed to the postponement. In October he stopped making 'phone
calls to her or visiting her. She called him and visited him to understand what his problem was. He told her that he had problems with his
finances. In November 2007 she again visited him at his place of residence. He was not there even though they had agreed to be F together.
She slept alone in his room. When he arrived the following morning he told her that he had been to his rural home where he was inaccessible by
phone. They parted on an unhappy note and she returned to Francistown. She applied for leave from work with effect from 1 December 2007 in
order to prepare for the wedding during that month. During the month of November 2007 she again phoned the defendant to advise him that she
would be visiting him. It was then G that he told her to stop calling or visiting him. She said that she was shocked by this turn of events. She
talked to his sister and to her own sister about what he had said. Later she phoned him and told him that she was accepting the termination of
their relationship as indicated by him and that she wanted to collect her belongings from him to collect his from her. She had some difficulty in H
getting back her belongings.

The plaintiff admitted that her parents were not informed about their marriage plans by the defendant's people as is the custom and as had
been agreed between her and the defendant. She had informed them about her plans to get married. They however had never become involved
in any preparations for the wedding for the reason that there was no formal advice to them from the defendant's side about the intended
wedding.

2010 (2) BLR p408

CHINHENGO J

The plaintiff was asked to tell the court what harm she suffered as a result of the A wedding not taking place. Her response was:

'I became so frustrated such that I even feared men. When a man wanted to talk to me I would run away. I had a pain in my heart. I feared people
especially men. When a man stops me or greets I run away. I lost my dignity because I had informed my colleagues at work, friends and my family
that I was to be married so they could help B me in preparations including the choosing of rings. Even to date I am afraid to tell them what
transpired in the relationship.'

The plaintiff said that she and the defendant had agreed that they would follow the customary procedures leading up to their civil marriage. The
defendant's C parents were to ask her hand in marriage from her parents in terms of the Sesubiya custom. The customary procedures were
never embarked upon because the defendant did not set them into motion.

The plaintiff reiterated her principled stand in relation to love matters and marriage when it was put to her that she was pressuring the
defendant into marriage or into having a baby when he was not ready. D

In this regard she said:

'I take
© 2018 Juta and it that it was
Company (Pty)proper
Ltd. to pressurise him because I cannot stay in a short­term relationship.
Downloaded : Tue Feb 07 2023 16:32:48 GMT+0200 (South Africa Standard Time)
and E
 accepted the suggestion. Her response was that it was her who came up

2010 (2) BLR p407

CHINHENGO J

with the idea 'because I wanted a long term relationship'. As to the date of the A agreement she said ­ 'December 2005 when our relationship
started.' The plaintiff's evidence on this point is that the agreement to marry each other was reached on the same day that they fell in love and
as a part of the same transaction.

Thereafter they carried on with the love relationship. In January 2006 they agreed B to marry each other in March. They visited each other as
well as assisted each other financially. They visited the defendant's uncle, Crosswell Kaunda, who was to inform the defendant's parents about
their agreement. They both tested for HIV. Their results were negative. It was then that they thought of having a baby. In January 2007 they
went together to Game Stores to shop for wedding rings. They did not find their sizes. They then went to Rudi Photo Studios where they C
found the correct sizes. The cost of her ring was P1500 and his was close to P900. They did not buy the rings because they had no money at
that time. Going to her home at Somerset from Rudi Photo Studios on this day, they discussed their impending marriage. They agreed that he
would buy his wedding suit at CB Stores or at Jet Stores and that she would have her wedding dress, of the D African style, tailor made. He
returned to Kasane. After he was gone she, as agreed with him, bought African material for her wedding outfit at a cost of P160 and then had
two outfits made at a cost of P450. She advised the defendant about what she had done and he promised her that he would buy his wedding
suit on his next trip to Francistown.

Before the start of March 2007, Crosswell Kaunda had an accident whilst driving E the defendant's car. The defendant diverted his funds to
repair the motor vehicle and postponed the wedding to December 2007. She agreed to the postponement. In October he stopped making 'phone
calls to her or visiting her. She called him and visited him to understand what his problem was. He told her that he had problems with his
finances. In November 2007 she again visited him at his place of residence. He was not there even though they had agreed to be F together.
She slept alone in his room. When he arrived the following morning he told her that he had been to his rural home where he was inaccessible by
phone. They parted on an unhappy note and she returned to Francistown. She applied for leave from work with effect from 1 December 2007 in
order to prepare for the wedding during that month. During the month of November 2007 she again phoned the defendant to advise him that she
would be visiting him. It was then G that he told her to stop calling or visiting him. She said that she was shocked by this turn of events. She
talked to his sister and to her own sister about what he had said. Later she phoned him and told him that she was accepting the termination of
their relationship as indicated by him and that she wanted to collect her belongings from him to collect his from her. She had some difficulty in H
getting back her belongings.

The plaintiff admitted that her parents were not informed about their marriage plans by the defendant's people as is the custom and as had
been agreed between her and the defendant. She had informed them about her plans to get married. They however had never become involved
in any preparations for the wedding for the reason that there was no formal advice to them from the defendant's side about the intended
wedding.

2010 (2) BLR p408

CHINHENGO J

The plaintiff was asked to tell the court what harm she suffered as a result of the A wedding not taking place. Her response was:

'I became so frustrated such that I even feared men. When a man wanted to talk to me I would run away. I had a pain in my heart. I feared people
especially men. When a man stops me or greets I run away. I lost my dignity because I had informed my colleagues at work, friends and my family
that I was to be married so they could help B me in preparations including the choosing of rings. Even to date I am afraid to tell them what
transpired in the relationship.'

The plaintiff said that she and the defendant had agreed that they would follow the customary procedures leading up to their civil marriage. The
defendant's C parents were to ask her hand in marriage from her parents in terms of the Sesubiya custom. The customary procedures were
never embarked upon because the defendant did not set them into motion.

The plaintiff reiterated her principled stand in relation to love matters and marriage when it was put to her that she was pressuring the
defendant into marriage or into having a baby when he was not ready. D

In this regard she said:

'I take it that it was proper to pressurise him because I cannot stay in a short­term relationship.

and E

'I agree to that [pressurising him to have a baby] because I don't have a child so I took it that that was going to be my first child in my life.'

When it was put to her that the termination of the relationship was a result of her acts of desperation, her demand for marriage and a baby, she
said: F

'I took it I had a right to do that because we had agreed we were going to marry and there were no impediments.'

To support her allegation that an agreement to marry existed she referred to certain text messages sent to her by the defendant. At a case
management G conference held on 9 February 2009, the defendant had not only admitted that they had fallen in love in December 2005 but had
also admitted that he had sent love messages to her. These were discovered. One of them sent on 19 February 2006 at 8:01 pm reads:

'May God bless our wedding day 4 today and 4 ever Amen.' H

Other such messages were sent on 3 January 2006 at 8.07 pm; on 4 January 2006 at 8.29 pm; 19 February 2006 at 5.09 pm and 19 February
2007 at 1.34 pm. The last message was to this effect:

'Babe gudnite, no airtime I love you, I need you 2 b my wife 4 my kids K + T.'

2010 (2) BLR p409

CHINHENGO J

These messages appear in the plaintiff's bundle of documents filed of record A on 30 April 2009.

The defendant's evidence

The defendant is now employed as a driver by the Botswana National Library Services and is still stationed at Kasane. His evidence as to when
and where B they first met is the same as that of the plaintiff. He differs from her in that he said that they did not fall in love in December
2005. They did so in January 2006 when she returned to Kasane. In the meantime they had kept in touch by phone. After they were in love
they also kept in touch with each other telephonically. Three or four months down the line the plaintiff suggested that they should get married.
He told her that he could not marry as he had nothing to his name. She C persisted with the suggestion and offered to assist him financially if
that was his problem. He still did not agree. She then proposed that they have a baby together. He told her that he already had one child who
he was unable to support and so he could not have another child. The plaintiff persisted and told him that she was employed and could look
after the baby herself. He still refused. He said D it then dawned on him that 'this woman wants things which I cannot do for her. I then said to
her ­ if you think you are ready and you are in a rush for those things you can find somebody to do those things with you, I am not ready.'. It
was because of these demands that he decided that the love relationship should come to an end and 'That is how I parted ways with her.'. He
denied ever making a proposal to marry her. This was all his evidence in chief. E
© 2018 Jutaexamination
Under and Companyby
(Pty)
Mr Ltd. Downloadedwith
Kgalemang the defendant said that he had sexual intercourse : Tuethe
Febplaintiff
07 2023only
16:32:48
five GMT+0200 (South
times before Africa
their Standard Time)
relationship
terminated in December 2006 or early 2007. He said that although he had realised that the plaintiff wanted things that he did not want within
 wedding.

2010 (2) BLR p408

CHINHENGO J

The plaintiff was asked to tell the court what harm she suffered as a result of the A wedding not taking place. Her response was:

'I became so frustrated such that I even feared men. When a man wanted to talk to me I would run away. I had a pain in my heart. I feared people
especially men. When a man stops me or greets I run away. I lost my dignity because I had informed my colleagues at work, friends and my family
that I was to be married so they could help B me in preparations including the choosing of rings. Even to date I am afraid to tell them what
transpired in the relationship.'

The plaintiff said that she and the defendant had agreed that they would follow the customary procedures leading up to their civil marriage. The
defendant's C parents were to ask her hand in marriage from her parents in terms of the Sesubiya custom. The customary procedures were
never embarked upon because the defendant did not set them into motion.

The plaintiff reiterated her principled stand in relation to love matters and marriage when it was put to her that she was pressuring the
defendant into marriage or into having a baby when he was not ready. D

In this regard she said:

'I take it that it was proper to pressurise him because I cannot stay in a short­term relationship.

and E

'I agree to that [pressurising him to have a baby] because I don't have a child so I took it that that was going to be my first child in my life.'

When it was put to her that the termination of the relationship was a result of her acts of desperation, her demand for marriage and a baby, she
said: F

'I took it I had a right to do that because we had agreed we were going to marry and there were no impediments.'

To support her allegation that an agreement to marry existed she referred to certain text messages sent to her by the defendant. At a case
management G conference held on 9 February 2009, the defendant had not only admitted that they had fallen in love in December 2005 but had
also admitted that he had sent love messages to her. These were discovered. One of them sent on 19 February 2006 at 8:01 pm reads:

'May God bless our wedding day 4 today and 4 ever Amen.' H

Other such messages were sent on 3 January 2006 at 8.07 pm; on 4 January 2006 at 8.29 pm; 19 February 2006 at 5.09 pm and 19 February
2007 at 1.34 pm. The last message was to this effect:

'Babe gudnite, no airtime I love you, I need you 2 b my wife 4 my kids K + T.'

2010 (2) BLR p409

CHINHENGO J

These messages appear in the plaintiff's bundle of documents filed of record A on 30 April 2009.

The defendant's evidence

The defendant is now employed as a driver by the Botswana National Library Services and is still stationed at Kasane. His evidence as to when
and where B they first met is the same as that of the plaintiff. He differs from her in that he said that they did not fall in love in December
2005. They did so in January 2006 when she returned to Kasane. In the meantime they had kept in touch by phone. After they were in love
they also kept in touch with each other telephonically. Three or four months down the line the plaintiff suggested that they should get married.
He told her that he could not marry as he had nothing to his name. She C persisted with the suggestion and offered to assist him financially if
that was his problem. He still did not agree. She then proposed that they have a baby together. He told her that he already had one child who
he was unable to support and so he could not have another child. The plaintiff persisted and told him that she was employed and could look
after the baby herself. He still refused. He said D it then dawned on him that 'this woman wants things which I cannot do for her. I then said to
her ­ if you think you are ready and you are in a rush for those things you can find somebody to do those things with you, I am not ready.'. It
was because of these demands that he decided that the love relationship should come to an end and 'That is how I parted ways with her.'. He
denied ever making a proposal to marry her. This was all his evidence in chief. E

Under examination by Mr Kgalemang the defendant said that he had sexual intercourse with the plaintiff only five times before their relationship
terminated in December 2006 or early 2007. He said that although he had realised that the plaintiff wanted things that he did not want within
four months of the relationship, he kept the relationship alive until December 2006 because he believed that the F plaintiff would change and
accept that they could not marry or have a baby together. It was only because she persisted that he terminated the relationship.

The defendant admitted that they were still on talking terms by December 2007 but this was long after the relationship had terminated. He said
this is to explain how it was that the plaintiff came and slept at his house in about November 2007 G when he was not at home. He went on to
say that she had insisted on visiting him and even though he had told her on the phone that he would not be at home, she nonetheless went to
his house.

The plaintiff went on to admit that there was communication between him and the defendant during the period January to December 2007. This
communication was only by phone and it centred around her inquiries about whether he did not H intend to revive the relationship. He however
denied sending text messages to the defendant or intimating to her that he would marry her. He explained the receipt of messages by the
plaintiff and stated that the plaintiff had access to his cellphone during the currency of their relationship and that she may very well have sent
them from his phone to hers. He denied that he had admitted sending the text messages at the case management conference. In brief the
defendant's evidence was that he never

2010 (2) BLR p410

CHINHENGO J

agreed to marry the plaintiff and in fact terminated the relationship in A December 2006 or early 2007 because of the plaintiff's persistent
demands to get married and to have a child with him, which two things he was neither prepared nor ready to do.

Analysis of the evidence and findings of fact

At the case management conference held on 9 February 2009, the defendant B admitted that he and the plaintiff fell in love with each other in
December 2005 and further that he sent love text messages to the plaintiff. The plaintiff mentioned, throughout her evidence that they fell in
love with each other in December 2005. I cannot now accept as true the defendant's evidence that they fell in love in early 2006. It is to be
noted that he did not put a date in early 2006 C when they may have fallen in love with the plaintiff. I therefore find as a fact that the plaintiff
and the defendant were in love with each other from December 2005.

The question as to when, if they agreed to marry, they did so, cannot be answered that easily. The plaintiff said that the agreement was
reached on the day in December when she professed her love for him because she did not want to enter into a love relationship without an
assurance that it would result in a D marriage. It is unusual for people to agree to marry each other on the day they fall in love unless perhaps
they had known each other for a long time. In their case the plaintiff and the defendant had hardly known each other for a week when they fell
in love.
© 2018 It would
Juta and appear
Company (Pty)unlikely
Ltd. that the defendant agreed to marry the plaintiff on the :day
Downloaded Tuethey started
Feb 07 the loveGMT+0200
2023 16:32:48 relationship. One
(South cannot
Africa Standard Time)
however say E that this cannot happen. A man may make an undertaking and promise to marry a woman if that is a condition for his love
 'Babe gudnite, no airtime I love you, I need you 2 b my wife 4 my kids K + T.'

2010 (2) BLR p409

CHINHENGO J

These messages appear in the plaintiff's bundle of documents filed of record A on 30 April 2009.

The defendant's evidence

The defendant is now employed as a driver by the Botswana National Library Services and is still stationed at Kasane. His evidence as to when
and where B they first met is the same as that of the plaintiff. He differs from her in that he said that they did not fall in love in December
2005. They did so in January 2006 when she returned to Kasane. In the meantime they had kept in touch by phone. After they were in love
they also kept in touch with each other telephonically. Three or four months down the line the plaintiff suggested that they should get married.
He told her that he could not marry as he had nothing to his name. She C persisted with the suggestion and offered to assist him financially if
that was his problem. He still did not agree. She then proposed that they have a baby together. He told her that he already had one child who
he was unable to support and so he could not have another child. The plaintiff persisted and told him that she was employed and could look
after the baby herself. He still refused. He said D it then dawned on him that 'this woman wants things which I cannot do for her. I then said to
her ­ if you think you are ready and you are in a rush for those things you can find somebody to do those things with you, I am not ready.'. It
was because of these demands that he decided that the love relationship should come to an end and 'That is how I parted ways with her.'. He
denied ever making a proposal to marry her. This was all his evidence in chief. E

Under examination by Mr Kgalemang the defendant said that he had sexual intercourse with the plaintiff only five times before their relationship
terminated in December 2006 or early 2007. He said that although he had realised that the plaintiff wanted things that he did not want within
four months of the relationship, he kept the relationship alive until December 2006 because he believed that the F plaintiff would change and
accept that they could not marry or have a baby together. It was only because she persisted that he terminated the relationship.

The defendant admitted that they were still on talking terms by December 2007 but this was long after the relationship had terminated. He said
this is to explain how it was that the plaintiff came and slept at his house in about November 2007 G when he was not at home. He went on to
say that she had insisted on visiting him and even though he had told her on the phone that he would not be at home, she nonetheless went to
his house.

The plaintiff went on to admit that there was communication between him and the defendant during the period January to December 2007. This
communication was only by phone and it centred around her inquiries about whether he did not H intend to revive the relationship. He however
denied sending text messages to the defendant or intimating to her that he would marry her. He explained the receipt of messages by the
plaintiff and stated that the plaintiff had access to his cellphone during the currency of their relationship and that she may very well have sent
them from his phone to hers. He denied that he had admitted sending the text messages at the case management conference. In brief the
defendant's evidence was that he never

2010 (2) BLR p410

CHINHENGO J

agreed to marry the plaintiff and in fact terminated the relationship in A December 2006 or early 2007 because of the plaintiff's persistent
demands to get married and to have a child with him, which two things he was neither prepared nor ready to do.

Analysis of the evidence and findings of fact

At the case management conference held on 9 February 2009, the defendant B admitted that he and the plaintiff fell in love with each other in
December 2005 and further that he sent love text messages to the plaintiff. The plaintiff mentioned, throughout her evidence that they fell in
love with each other in December 2005. I cannot now accept as true the defendant's evidence that they fell in love in early 2006. It is to be
noted that he did not put a date in early 2006 C when they may have fallen in love with the plaintiff. I therefore find as a fact that the plaintiff
and the defendant were in love with each other from December 2005.

The question as to when, if they agreed to marry, they did so, cannot be answered that easily. The plaintiff said that the agreement was
reached on the day in December when she professed her love for him because she did not want to enter into a love relationship without an
assurance that it would result in a D marriage. It is unusual for people to agree to marry each other on the day they fall in love unless perhaps
they had known each other for a long time. In their case the plaintiff and the defendant had hardly known each other for a week when they fell
in love. It would appear unlikely that the defendant agreed to marry the plaintiff on the day they started the love relationship. One cannot
however say E that this cannot happen. A man may make an undertaking and promise to marry a woman if that is a condition for his love
proposal being accepted. And where he agrees to marry a woman for this reason, it is doubtful that his expression of intent to marry is serious
or well considered. But people enter into contracts, including contracts to marry, for different reasons and in different ways. In this case
however, it is necessary to look at the subsequent conduct of F the parties to see if any agreement had indeed been entered into as alleged by
the plaintiff.

By January and February 2007, love messages indicative of an agreement to marry were passing between the two of them. As if that were not
enough, the plaintiff's unchallenged evidence is that early in January or February 2007 they were shopping around for wedding rings and that
they established their cost at G Rudi Photo Studio. They talked about where and when the defendant would buy his wedding suit. The plaintiff
went ahead and bought material for her wedding outfits at a cost of P160 and had the outfits tailor made for her at a cost of P450. These were
preparations for a wedding in March 2007. Though she did not specify a date when they were to have the wedding, it seems to me that her
evidence of their mutual preparation for a wedding must be accepted as H evidence that an agreement to marry each other had been reached.
I do not think that the plaintiff would have involved herself in these preparations without any undertaking that a marriage would take place. She
struck me as a forceful and determined character, perhaps principled also, and one who would force the pace to achieve her goals. The
defendant struck me as a laid back individual quite

2010 (2) BLR p411

CHINHENGO J

capable of tagging along even when he is unprepared and even unwilling to do A that which the other person desires. The text messages in the
plaintiff's bundle of documents support the plaintiff's evidence that there was an agreement to marry sometime in March 2007. Her explanation
for their failure to go ahead with the marriage in March is reasonable. It was not denied by the defendant that his uncle, Croswell Kaunda, had
an accident in early March which resulted in B damage to his car and which required him to divert his finances to its repair. He indeed confirmed
the accident. He did not deny that he had told the plaintiff that the same Croswell Kaunda was to set in motion the customary procedures for
marriage by ensuring that the plaintiff's parents were formally advised. I therefore find as a fact that as soon as she secured the defendant's
agreement to marry C her, which thing she most desired, she was forcing and accelerating the pace towards marriage during January and
February of 2007. When the marriage could not take place in March, she continued to prepare herself for it in December 2007 as she said, and
took leave from work with effect from 1 December.

The defendant's evidence that he terminated the relationship in December 2006 or early in 2007 cannot be true. There is at least one text
message dated 19 D February 2007 in which he said that he had been to an HIV/AIDS testing centre, Tebelopele, and the results of the test
were good. This strongly suggests that the parties were still in love in February 2007. And it was about this time that the plaintiff said they
went out together to shop for their wedding rings. And by this time they had been in love for just over one year. E

The defendant's case was seriously weakened not only by the admissions he made at the case management conference but also, and quite
significantly, by the failure of the defence to challenge, at the appropriate time, the plaintiff's evidence on the preparations made for the
wedding in March and December 2007, as well as her evidence as to when the relationship collapsed and the circumstances thereof. I thereof
© 2018 Juta and Company (Pty) Ltd. Downloaded : Tue Feb 07 2023 16:32:48 GMT+0200 (South Africa Standard Time)
find as a fact that the plaintiff and the defendant F not only agreed to marry each other but also that they agreed to do so in March 2007 and
postponed the marriage to December 2007.
 defendant's evidence was that he never

2010 (2) BLR p410

CHINHENGO J

agreed to marry the plaintiff and in fact terminated the relationship in A December 2006 or early 2007 because of the plaintiff's persistent
demands to get married and to have a child with him, which two things he was neither prepared nor ready to do.

Analysis of the evidence and findings of fact

At the case management conference held on 9 February 2009, the defendant B admitted that he and the plaintiff fell in love with each other in
December 2005 and further that he sent love text messages to the plaintiff. The plaintiff mentioned, throughout her evidence that they fell in
love with each other in December 2005. I cannot now accept as true the defendant's evidence that they fell in love in early 2006. It is to be
noted that he did not put a date in early 2006 C when they may have fallen in love with the plaintiff. I therefore find as a fact that the plaintiff
and the defendant were in love with each other from December 2005.

The question as to when, if they agreed to marry, they did so, cannot be answered that easily. The plaintiff said that the agreement was
reached on the day in December when she professed her love for him because she did not want to enter into a love relationship without an
assurance that it would result in a D marriage. It is unusual for people to agree to marry each other on the day they fall in love unless perhaps
they had known each other for a long time. In their case the plaintiff and the defendant had hardly known each other for a week when they fell
in love. It would appear unlikely that the defendant agreed to marry the plaintiff on the day they started the love relationship. One cannot
however say E that this cannot happen. A man may make an undertaking and promise to marry a woman if that is a condition for his love
proposal being accepted. And where he agrees to marry a woman for this reason, it is doubtful that his expression of intent to marry is serious
or well considered. But people enter into contracts, including contracts to marry, for different reasons and in different ways. In this case
however, it is necessary to look at the subsequent conduct of F the parties to see if any agreement had indeed been entered into as alleged by
the plaintiff.

By January and February 2007, love messages indicative of an agreement to marry were passing between the two of them. As if that were not
enough, the plaintiff's unchallenged evidence is that early in January or February 2007 they were shopping around for wedding rings and that
they established their cost at G Rudi Photo Studio. They talked about where and when the defendant would buy his wedding suit. The plaintiff
went ahead and bought material for her wedding outfits at a cost of P160 and had the outfits tailor made for her at a cost of P450. These were
preparations for a wedding in March 2007. Though she did not specify a date when they were to have the wedding, it seems to me that her
evidence of their mutual preparation for a wedding must be accepted as H evidence that an agreement to marry each other had been reached.
I do not think that the plaintiff would have involved herself in these preparations without any undertaking that a marriage would take place. She
struck me as a forceful and determined character, perhaps principled also, and one who would force the pace to achieve her goals. The
defendant struck me as a laid back individual quite

2010 (2) BLR p411

CHINHENGO J

capable of tagging along even when he is unprepared and even unwilling to do A that which the other person desires. The text messages in the
plaintiff's bundle of documents support the plaintiff's evidence that there was an agreement to marry sometime in March 2007. Her explanation
for their failure to go ahead with the marriage in March is reasonable. It was not denied by the defendant that his uncle, Croswell Kaunda, had
an accident in early March which resulted in B damage to his car and which required him to divert his finances to its repair. He indeed confirmed
the accident. He did not deny that he had told the plaintiff that the same Croswell Kaunda was to set in motion the customary procedures for
marriage by ensuring that the plaintiff's parents were formally advised. I therefore find as a fact that as soon as she secured the defendant's
agreement to marry C her, which thing she most desired, she was forcing and accelerating the pace towards marriage during January and
February of 2007. When the marriage could not take place in March, she continued to prepare herself for it in December 2007 as she said, and
took leave from work with effect from 1 December.

The defendant's evidence that he terminated the relationship in December 2006 or early in 2007 cannot be true. There is at least one text
message dated 19 D February 2007 in which he said that he had been to an HIV/AIDS testing centre, Tebelopele, and the results of the test
were good. This strongly suggests that the parties were still in love in February 2007. And it was about this time that the plaintiff said they
went out together to shop for their wedding rings. And by this time they had been in love for just over one year. E

The defendant's case was seriously weakened not only by the admissions he made at the case management conference but also, and quite
significantly, by the failure of the defence to challenge, at the appropriate time, the plaintiff's evidence on the preparations made for the
wedding in March and December 2007, as well as her evidence as to when the relationship collapsed and the circumstances thereof. I thereof
find as a fact that the plaintiff and the defendant F not only agreed to marry each other but also that they agreed to do so in March 2007 and
postponed the marriage to December 2007.

Coming now to the repudiation of the contract, the plaintiff's evidence is that the defendant repudiated the agreement in November or early
December 2007. The repudiation took the form of a refusal by the defendant to continue mutual visits G and communication. She said that she
accepted the repudiation and asked for the return of her belongings then in the defendant's possession. The defendant's position is that he
terminated not the agreement to marry, which as he said never existed, but the love relationship. In my view what he terminated was the
agreement to marry and not merely the love relationship. H

It is clear that the defendant's position was that he did not enter into a contract to marry at any stage of his relationship with the plaintiff. I
have rejected that. Having done so, I think I have, in fairness to him, to examine his plea and his evidence to see if he raised any justification
for the repudiation albeit that he said he was terminating the love relationship only. In his plea he said that he terminated the love relationship
because of the plaintiff's unacceptable and persistent demand to get married. He said

2010 (2) BLR p412

CHINHENGO J

the same thing in his evidence. If this was some attempt to justify repudiation of A the contract to marry, it cannot succeed. There was
nothing wrong on the part of the plaintiff to insist that they should get married a year after they had agreed to do so. Viewed in this light the
defendant simply had no justification for repudiating the contract. The repudiation was therefore wrongful because the reasons he gave are not
of such a serious nature as to wholly or partially B interfere with the aims of marriage or with its anticipated harmony and happiness (Krull v
Sangerhaus 1980 (4) SA 299 (E)).

Having proved the promise to marry and its repudiation the plaintiff still had to prove that the breach was injurious or contumelious (Sephiri and
Guggenheim's cases (supra)). Although the plaintiff's case was not argued in this fashion her evidence and pleadings, as was the case in
Guggenheim, revealed that the C defendant's position is that he refused to marry the plaintiff because he had never promised to do so. He had
been in love with her for more than a year. By his own admission he had had sexual intercourse with her five times and 'thereafter cast her out
and refused to marry her by maintaining that he had not made any promise to marry her at all. I think that that constitutes injurious and D
contumelious conduct for which the plaintiff is entitled to damages' per Trollip J (supra). The plaintiff's pride and reputation was, in this case,
injured and so was her dignity. She had told her family members, workmates and friends that she would be married. It seems that she was a
first­timer in matters of marriage for there is no evidence that she had been jilted before. She was still young and unsophisticated in these
matters. I hold that she has proved that the repudiation E was injurious and contumelious.

Quantum of damages

In assessing the quantum of damages several factors have to be taken into account. Not only should I take into account the extent of the
© 2018 Juta and Company (Pty) Ltd. Downloaded : Tue Feb 07 2023 16:32:48 GMT+0200 (South Africa Standard Time)
injury but I should F also have regard to the plaintiff's social status, the period of engagement, the time when the breach took place, the
defendant's attitude during the trial and the financial standing of the man she hoped to marry.
 defendant struck me as a laid back individual quite

2010 (2) BLR p411

CHINHENGO J

capable of tagging along even when he is unprepared and even unwilling to do A that which the other person desires. The text messages in the
plaintiff's bundle of documents support the plaintiff's evidence that there was an agreement to marry sometime in March 2007. Her explanation
for their failure to go ahead with the marriage in March is reasonable. It was not denied by the defendant that his uncle, Croswell Kaunda, had
an accident in early March which resulted in B damage to his car and which required him to divert his finances to its repair. He indeed confirmed
the accident. He did not deny that he had told the plaintiff that the same Croswell Kaunda was to set in motion the customary procedures for
marriage by ensuring that the plaintiff's parents were formally advised. I therefore find as a fact that as soon as she secured the defendant's
agreement to marry C her, which thing she most desired, she was forcing and accelerating the pace towards marriage during January and
February of 2007. When the marriage could not take place in March, she continued to prepare herself for it in December 2007 as she said, and
took leave from work with effect from 1 December.

The defendant's evidence that he terminated the relationship in December 2006 or early in 2007 cannot be true. There is at least one text
message dated 19 D February 2007 in which he said that he had been to an HIV/AIDS testing centre, Tebelopele, and the results of the test
were good. This strongly suggests that the parties were still in love in February 2007. And it was about this time that the plaintiff said they
went out together to shop for their wedding rings. And by this time they had been in love for just over one year. E

The defendant's case was seriously weakened not only by the admissions he made at the case management conference but also, and quite
significantly, by the failure of the defence to challenge, at the appropriate time, the plaintiff's evidence on the preparations made for the
wedding in March and December 2007, as well as her evidence as to when the relationship collapsed and the circumstances thereof. I thereof
find as a fact that the plaintiff and the defendant F not only agreed to marry each other but also that they agreed to do so in March 2007 and
postponed the marriage to December 2007.

Coming now to the repudiation of the contract, the plaintiff's evidence is that the defendant repudiated the agreement in November or early
December 2007. The repudiation took the form of a refusal by the defendant to continue mutual visits G and communication. She said that she
accepted the repudiation and asked for the return of her belongings then in the defendant's possession. The defendant's position is that he
terminated not the agreement to marry, which as he said never existed, but the love relationship. In my view what he terminated was the
agreement to marry and not merely the love relationship. H

It is clear that the defendant's position was that he did not enter into a contract to marry at any stage of his relationship with the plaintiff. I
have rejected that. Having done so, I think I have, in fairness to him, to examine his plea and his evidence to see if he raised any justification
for the repudiation albeit that he said he was terminating the love relationship only. In his plea he said that he terminated the love relationship
because of the plaintiff's unacceptable and persistent demand to get married. He said

2010 (2) BLR p412

CHINHENGO J

the same thing in his evidence. If this was some attempt to justify repudiation of A the contract to marry, it cannot succeed. There was
nothing wrong on the part of the plaintiff to insist that they should get married a year after they had agreed to do so. Viewed in this light the
defendant simply had no justification for repudiating the contract. The repudiation was therefore wrongful because the reasons he gave are not
of such a serious nature as to wholly or partially B interfere with the aims of marriage or with its anticipated harmony and happiness (Krull v
Sangerhaus 1980 (4) SA 299 (E)).

Having proved the promise to marry and its repudiation the plaintiff still had to prove that the breach was injurious or contumelious (Sephiri and
Guggenheim's cases (supra)). Although the plaintiff's case was not argued in this fashion her evidence and pleadings, as was the case in
Guggenheim, revealed that the C defendant's position is that he refused to marry the plaintiff because he had never promised to do so. He had
been in love with her for more than a year. By his own admission he had had sexual intercourse with her five times and 'thereafter cast her out
and refused to marry her by maintaining that he had not made any promise to marry her at all. I think that that constitutes injurious and D
contumelious conduct for which the plaintiff is entitled to damages' per Trollip J (supra). The plaintiff's pride and reputation was, in this case,
injured and so was her dignity. She had told her family members, workmates and friends that she would be married. It seems that she was a
first­timer in matters of marriage for there is no evidence that she had been jilted before. She was still young and unsophisticated in these
matters. I hold that she has proved that the repudiation E was injurious and contumelious.

Quantum of damages

In assessing the quantum of damages several factors have to be taken into account. Not only should I take into account the extent of the
injury but I should F also have regard to the plaintiff's social status, the period of engagement, the time when the breach took place, the
defendant's attitude during the trial and the financial standing of the man she hoped to marry.

The plaintiff is a nurse, no doubt of middle class social stratum. She engaged to marry a driver who I think may rightly be classified as being of a
lower social status to hers. A repudiation by him is likely to have exposed her to much more G ridicule among her workmates and friends. The
parties had been engaged for about two years and had been sexually intimate several times. The breach took place just before the marriage
was to take place when the plaintiff had taken leave of absence from work to prepare for it. During the trial the defendant sought to cast her in
the mould of a woman who unreasonably demanded of him to marry her against all odds. But in the same breath it can also be said that the H
defendant's reason for the breach, that is, that she was pressurising him into marriage when he was not ready yet is not so dishonourable as to
increase the quantum of damages. In addition the defendant is, and was, only a driver and therefore not a man of means. In Mafoko's case
(supra) the Court of Appeal awarded P5 000 as delictual damages where the respondent had claimed P40 000 and had been awarded R25 000 by
the

2010 (2) BLR p413

CHINHENGO J

High Court. The respondent had alleged an impairment of the personal dignity A and reputation. She already had two minor children born from
another man. She had lived with the appellant for a considerable period as husband and wife. She had looked forward to her two children being
adopted by the appellant. The Court of Appeal held, contrary to what the High Court had found, that she did not find herself in great anguish
upon finding her expectation for a married life shattered B at the last minute. There was no evidence, so the higher court found, to support the
judge's finding in this regard. She did not have much left of personal dignity and reputation. Her relationship with the appellant seemed to the
court more like a commercial venture than a love match. In this regard the court referred with approval to June D Sinclair (assisted by
Jacqueline Heaton) The Law of Marriage Vol 1 (Juta & Co Ltd Cape Town 1996) p 314 footnote 8 that: C

'Repudiation of promise to marry is, however, no longer seen in the serious light that it was when marriage was regarded as the only proper course
for all women, and when breach of promise was likely to prejudice their reputation.' D

I consider that the delictual damages to be awarded in the present case cannot be much more than the nominal damages awarded in Mafoko's
case (supra). The present case is distinguishable from Mafoko's only in that the plaintiff did not relate to the defendant in any commercial
sense. She did not have any child out of wedlock and therefore she was a first­timer. She was a woman determined to E get married by the
person she fell in love with and not be used and discarded. In Mafoko's case the man was a business man of some means whilst the defendant
herein is not a man of means. At the same time I recognise that this delict is no longer seen in the serious light it was in the past. A slightly
higher award than in Mafoko's case is justified taking into account the depreciation of money due to inflation since 2002 when Mafoko's case
was decided. F
© 2018 Juta and award
I therefore Company
the(Pty) Ltd. as delictual damages for breach of promise toDownloaded
plaintiff : TueofFeb
marry the sum P1007000
2023together
16:32:48 GMT+0200 (South
with interest Africa at
thereon Standard
the Time)
prescribed rate from the date of this order until full payment and costs of suit.
 because of the plaintiff's unacceptable and persistent demand to get married. He said

2010 (2) BLR p412

CHINHENGO J

the same thing in his evidence. If this was some attempt to justify repudiation of A the contract to marry, it cannot succeed. There was
nothing wrong on the part of the plaintiff to insist that they should get married a year after they had agreed to do so. Viewed in this light the
defendant simply had no justification for repudiating the contract. The repudiation was therefore wrongful because the reasons he gave are not
of such a serious nature as to wholly or partially B interfere with the aims of marriage or with its anticipated harmony and happiness (Krull v
Sangerhaus 1980 (4) SA 299 (E)).

Having proved the promise to marry and its repudiation the plaintiff still had to prove that the breach was injurious or contumelious (Sephiri and
Guggenheim's cases (supra)). Although the plaintiff's case was not argued in this fashion her evidence and pleadings, as was the case in
Guggenheim, revealed that the C defendant's position is that he refused to marry the plaintiff because he had never promised to do so. He had
been in love with her for more than a year. By his own admission he had had sexual intercourse with her five times and 'thereafter cast her out
and refused to marry her by maintaining that he had not made any promise to marry her at all. I think that that constitutes injurious and D
contumelious conduct for which the plaintiff is entitled to damages' per Trollip J (supra). The plaintiff's pride and reputation was, in this case,
injured and so was her dignity. She had told her family members, workmates and friends that she would be married. It seems that she was a
first­timer in matters of marriage for there is no evidence that she had been jilted before. She was still young and unsophisticated in these
matters. I hold that she has proved that the repudiation E was injurious and contumelious.

Quantum of damages

In assessing the quantum of damages several factors have to be taken into account. Not only should I take into account the extent of the
injury but I should F also have regard to the plaintiff's social status, the period of engagement, the time when the breach took place, the
defendant's attitude during the trial and the financial standing of the man she hoped to marry.

The plaintiff is a nurse, no doubt of middle class social stratum. She engaged to marry a driver who I think may rightly be classified as being of a
lower social status to hers. A repudiation by him is likely to have exposed her to much more G ridicule among her workmates and friends. The
parties had been engaged for about two years and had been sexually intimate several times. The breach took place just before the marriage
was to take place when the plaintiff had taken leave of absence from work to prepare for it. During the trial the defendant sought to cast her in
the mould of a woman who unreasonably demanded of him to marry her against all odds. But in the same breath it can also be said that the H
defendant's reason for the breach, that is, that she was pressurising him into marriage when he was not ready yet is not so dishonourable as to
increase the quantum of damages. In addition the defendant is, and was, only a driver and therefore not a man of means. In Mafoko's case
(supra) the Court of Appeal awarded P5 000 as delictual damages where the respondent had claimed P40 000 and had been awarded R25 000 by
the

2010 (2) BLR p413

CHINHENGO J

High Court. The respondent had alleged an impairment of the personal dignity A and reputation. She already had two minor children born from
another man. She had lived with the appellant for a considerable period as husband and wife. She had looked forward to her two children being
adopted by the appellant. The Court of Appeal held, contrary to what the High Court had found, that she did not find herself in great anguish
upon finding her expectation for a married life shattered B at the last minute. There was no evidence, so the higher court found, to support the
judge's finding in this regard. She did not have much left of personal dignity and reputation. Her relationship with the appellant seemed to the
court more like a commercial venture than a love match. In this regard the court referred with approval to June D Sinclair (assisted by
Jacqueline Heaton) The Law of Marriage Vol 1 (Juta & Co Ltd Cape Town 1996) p 314 footnote 8 that: C

'Repudiation of promise to marry is, however, no longer seen in the serious light that it was when marriage was regarded as the only proper course
for all women, and when breach of promise was likely to prejudice their reputation.' D

I consider that the delictual damages to be awarded in the present case cannot be much more than the nominal damages awarded in Mafoko's
case (supra). The present case is distinguishable from Mafoko's only in that the plaintiff did not relate to the defendant in any commercial
sense. She did not have any child out of wedlock and therefore she was a first­timer. She was a woman determined to E get married by the
person she fell in love with and not be used and discarded. In Mafoko's case the man was a business man of some means whilst the defendant
herein is not a man of means. At the same time I recognise that this delict is no longer seen in the serious light it was in the past. A slightly
higher award than in Mafoko's case is justified taking into account the depreciation of money due to inflation since 2002 when Mafoko's case
was decided. F

I therefore award the plaintiff as delictual damages for breach of promise to marry the sum of P10 000 together with interest thereon at the
prescribed rate from the date of this order until full payment and costs of suit.

Court awarding damages in the amount of P10 000.

2010 (2) BLR p414

© 2018 Juta and Company (Pty) Ltd. Downloaded : Tue Feb 07 2023 16:32:48 GMT+0200 (South Africa Standard Time)
 the

2010 (2) BLR p413

CHINHENGO J

High Court. The respondent had alleged an impairment of the personal dignity A and reputation. She already had two minor children born from
another man. She had lived with the appellant for a considerable period as husband and wife. She had looked forward to her two children being
adopted by the appellant. The Court of Appeal held, contrary to what the High Court had found, that she did not find herself in great anguish
upon finding her expectation for a married life shattered B at the last minute. There was no evidence, so the higher court found, to support the
judge's finding in this regard. She did not have much left of personal dignity and reputation. Her relationship with the appellant seemed to the
court more like a commercial venture than a love match. In this regard the court referred with approval to June D Sinclair (assisted by
Jacqueline Heaton) The Law of Marriage Vol 1 (Juta & Co Ltd Cape Town 1996) p 314 footnote 8 that: C

'Repudiation of promise to marry is, however, no longer seen in the serious light that it was when marriage was regarded as the only proper course
for all women, and when breach of promise was likely to prejudice their reputation.' D

I consider that the delictual damages to be awarded in the present case cannot be much more than the nominal damages awarded in Mafoko's
case (supra). The present case is distinguishable from Mafoko's only in that the plaintiff did not relate to the defendant in any commercial
sense. She did not have any child out of wedlock and therefore she was a first­timer. She was a woman determined to E get married by the
person she fell in love with and not be used and discarded. In Mafoko's case the man was a business man of some means whilst the defendant
herein is not a man of means. At the same time I recognise that this delict is no longer seen in the serious light it was in the past. A slightly
higher award than in Mafoko's case is justified taking into account the depreciation of money due to inflation since 2002 when Mafoko's case
was decided. F

I therefore award the plaintiff as delictual damages for breach of promise to marry the sum of P10 000 together with interest thereon at the
prescribed rate from the date of this order until full payment and costs of suit.

Court awarding damages in the amount of P10 000.

2010 (2) BLR p414

© 2018 Juta and Company (Pty) Ltd. Downloaded : Tue Feb 07 2023 16:32:48 GMT+0200 (South Africa Standard Time)
 Court awarding damages in the amount of P10 000.

2010 (2) BLR p414

© 2018 Juta and Company (Pty) Ltd. Downloaded : Tue Feb 07 2023 16:32:48 GMT+0200 (South Africa Standard Time)