WASSENAAR v JAMESON 1969 (2) SA 349 (W)

1969 (2) SA p349

Headnote : Kopnota
In order for an applicant to establish that a respondent has been guilty of the delict of enticement or alienation of his ife!s affections" it does not suffice to prove merely that his ife left him for the # respondent$ he must prove that the respondent actually induced her to leave him" i%e% actively caused her to leave him% Assuming that an applicant ho has established that a respondent has been guilty of committing the delict of enticement or alienation of his ife!s affections is entitled to the remedy of an interdict restraining the respondent from committing adultery ith his ife" the &ourt in the e'ercise of its discretion ould only grant such relief in very special or e'ceptional circumstances% Semble: As adultery by a third party constitutes an injuria to the innocent spouse" there ould appear to be no reason hy the remedy of an interdict in appropriate cases should not in principle lie%
1969 (2) SA p350

(RO))I* J

Judgment
(RO))I*" J%, (his matter comes before me as an urgent application% (he precise reason hy it has to be dealt ith as a matter of urgency is not -uite clear to me" but" as both sides desire that it be so dealt ith" I shall do that% .nfortunately the result is that" ith the limited time at my disposal" I have not been able" and ill not be able & in this /udgment" to deal fully ith and do /ustice to the elaborate" interesting and helpful arguments that both counsel have addressed to me%
+

(his as originally an application for an order interdicting the respondent from committing adultery ith" meeting" corresponding" visiting" or in any ay communicating ith the applicant!s ife" but" o ing to the conflict of fact raised by the affidavits" Mr% Cilliers " 0 for the applicant" as unable to as1 for the substantive or final relief claimed" but under the prayer for alternative relief he as1ed for the matter to be referred to evidence under the Rules of &ourt" or alternatively to trial" and" pending that" for an interim interdict in terms of that prayer in the notice of motion that I have read out% (he respondent" ho ever" contends that the matter can be dealt ith on the papers as they stand" and so dealt ith the application ought to be dismissed%
E

(he applicant" aged 23 years" and his ife" aged 45 years" have been married for about si' years" and have t o minor children" aged four and 6 t o years% (he respondent is a married man" and there are five children born of his marriage% (he applicant!s ife and respondent are prominent golfers" and in about 6ebruary" 789:" they met and became partners at the South African ;olf &hampionship of that year% (hrough this meeting they eventually formed a ; more friendly" and more than friendly" association% (hey fell in love ith one another% It as admitted that" during May and June" 789:" they committed adultery ith one another on three occasions% (his threatened to brea1 up the applicant!s marriage" but" on 7:th July" 789:" a reconciliation as effected bet een the applicant and his ife% At the # time of this reconciliation the applicant!s ife promised not to see or associate ith the respondent again" and the respondent in his turn also protested his sincere desire to terminate the affair ith the applicant!s ife" to return to his ife and children" and he solemnly undertoo1" according to the applicant" never to communicate ith the applicant!s ife again%

(he applicant and his ife then lived together from July" 789:" to about July" 789<% (he applicant says that the reconciliation as complete" and that they lived happily together% (heir second child as conceived shortly after the reconciliation" and as born during this period% (RO))I* J

1969 (2) SA p351

(he applicant!s ife says that" although she made every effort to ma1e the reconciliation happy" and pretended to the applicant that she as happy" it as indeed the three most unhappy and miserable years of her life" for she as still in love ith the respondent% #o ever" she and A the respondent did not see one another again" in terms of their respective underta1ings" during those three years% It is common cause that she again met the respondent in June" 789<% #o they came to meet is in dispute% She says that the meeting as fortuitous% #e alleges that it as by design on the part of the respondent" for he sought her out" but" for that allegation" he relies upon hat she allegedly told him" and so it is hearsay in so far as the + respondent is concerned% +y implication she denies that she so informed him% +ut be that as it may" it is common cause that the meeting led to a rene al of their former liaison% (hey do not deny that to ards the end of June" 789<" hile the applicant as a ay in Windhoe1" they & committed adultery in Johannesburg" and they admit having committed adultery in 0urban in about the beginning of August" 789<% It is common cause that the applicant!s ife ent to 0urban ith the respondent on 27st July" 789<% (he applicant alleges that" although he forbade her to go to 0urban" she as ta1en there by the respondent by motor car% (he respondent!s version is that" shortly prior to 27st July" 789<" the applicant!s ife informed him that she intended to leave her husband" and she as1ed him to ta1e her to 0urban so that she ould be able to consider her position" i%e% her position vis--vis the applicant% As already stated" it is admitted that they committed adultery hile they ere in 0urban on this occasion%
0

She returned from 0urban on 9th August" 789<" but she did not return to the applicant% She is no staying ith friends in Johannesburg" and she says she has no intention of returning to the applicant% It is clear" therefore" that she has maliciously deserted the applicant% She says she ants to marry the respondent henever that becomes possible%
E

(he applicant says that he ants to save and preserve his marriage" that the respondent is the cause of its threatened brea1=up" that his ife is merely infatuated ith the respondent" that" if the respondent is interdicted from seeing" communicating" and consorting ith her" that infatuation ill pass over" and that they ill then become reconciled and happy again" as happened in the past%
6

(hose ob/ects of course are most laudable" but before I can grant an interim interdict I have to be satisfied that the relevant legal re-uisites for such an interdict have been fulfilled% Mr% Cilliers contended that they had been%
;

(he first en-uiry is hat delict has the applicant proved that the respondent has committed" and ill continue to commit against him" for it is only on that basis that any interim or final interdict can be granted% It is essential" in my vie " to embar1 upon this en-uiry at the outset" in order to clarify the real and true issues in this case%
#

It is common cause that the respondent and the applicant!s ife have committed adultery% (hat is a delict by the respondent against the applicant" and prima facie it

ould appear from the papers that further acts of adultery future% Mr% Cilliers (RO))I* J

ill probably be committed in

1969 (2) SA p352

maintained that applicant had also proved" at any rate prima facie at this stage" that the respondent had also enticed the applicant!s ife a ay from him" or" as it is sometimes put" had alienated her affections A for the applicant" and ould continue to do so in the future% (hat ould of course be a delict vis--vis the applicant" but has the applicant proved" even prima facie " that the respondent has committed such a delict> According to the authorities" in order to prove such a delict" the applicant has to sho not merely that his ife left him for the + respondent" but that the respondent actually induced her to leave him" i%e% actively caused her to leave him" or" as as stated in Van den Berg v Jooste " 7893 ?2@ SA 57 ?W@ " that he had co=a'ed her a ay from the applicant" that he had tal1ed her over" or that he had persuaded her to leave the applicant" and as a result thereof she had lost her affection for him% (hat is usually a very formidable onus to discharge% (here is no need to canvass the facts in detail on this aspect% It suffices to say that the applicant alleges several acts of enticement on the part of the respondent" but they are all derived from hat his ife is alleged to have told him% (hat constitutes hearsay evidence against 0 the respondent" ho in any event denies them% (hat" therefore" does not constitute even prima facie proof against the respondent% If the matter ere referred to evidence or trial" such evidence ould not be admissible%
&

Mr% Cilliers " ho ever" stated that the applicant!s case on this aspect rests upon circumstantial evidence$ but" even assuming the truth of all E the applicant!s allegations to the effect that their marriage as happy until the respondent appeared on the scene" and that thereafter her affections for him aned and ceased" and she left him" it cannot be inferred therefrom" even prima facie in my vie " that the respondent as guilty of enticing her a ay% Such an attachment bet een a ife and third party usually arises and continues -uite spontaneously and voluntarily" 6 ithout any coa'ing" persuading" or ooing on the latter!s part% Indeed" in the present case it ould appear that" so far from re-uiring any coa'ing" persuading" or ooing from the respondent" the applicant!s ife as not only a illing" but an enthusiastic party to the rene ed liaison right from its very inception% (he applicant has therefore not proved prima facie " and in my vie ill ; not be able to prove at the ultimate hearing" that the respondent has been guilty of any enticement or alienation of affections% (hat aspect therefore falls a ay% I need not consider" therefore" hether such a delict can beget an interdict such as is claimed in the present case% I no turn to consider the only remaining aspect hich concerns the # adultery% Mr% Philips has cogently contended that our la does not recognise the remedy of interdict against committing adultery% (hat such an interdict cannot be obtained against the ife follo s from E parte !"B" " 7873 (%*%0% 7224" hich decided that
!adultery by one spouse does not constitute a tort in respect of from the guilty spouse!% hich the other spouse can claim compensation

As the defending spouse" therefore" does not thereby commit a tort" the innocent spouse could not get an interdict against him or her" but it does not necessarily follo that an interdict cannot be granted against the co=respondent% Mr% Philips " apart from advancing reasons that such
1969 (2) SA p353

(RO))I* J

a remedy should not be recognised" has pointed out that no case has been found in the researches of either counsel in hich such an interdict has been granted here" in the .nited Aingdom" or the .nited States of A America% (hat is indeed a strong indication that such a remedy is not accorded by the la % #e $ou v Van %&' " 7 MenB% 4:2" -uoted by Mr% Cilliers " mentioned" almost incidentally as it ere" in the course of a damages case" that an interdict had been granted" but that as for harbouring a ife" hich is an entirely different matter% Nevertheless" I have some difficulty in seeing hy" as adultery by a third party constitutes an injuria to the innocent spouse" the remedy of interdict + in appropriate cases should not in principle lie" for as Mr% Cilliers contended" ubi ius ibi remedium % #o ever" I am diffident" ith the limited time I have had at my disposal" to rule affirmatively that such a remedy is available" and thereby to add a ne cause of proceeding to the already formidable mass of matrimonial litigation that our &ourts & have to handle% 6ortunately I find it unnecessary to decide that -uestion% I shall assume in the applicant!s favour that such a remedy is available to him% It is clear that the &ourt has a discretion to grant or refuse an interdict" for it is an e'traordinary remedy% (hat discretion is ider in the case of an interim than in a final interdict% It seems to me 0 that" if available" an interdict against a third party committing adultery ith the claimant!s spouse should only be granted in very special or e'ceptional circumstances" for these reasons, ?7@ it is obviously an unusual or novel remedy" for so far it is unheard of$ ?4@ it interferes ith" and restricts the rights and freedom that the third E party ordinarily has of using and disposing of his body as he chooses$ ?compare E parte !"B"( supra at pp% 23 and 28@$ ?2@ it also affects the relationship of the third party ith the claimant!s spouse" ho is and cannot be a party to the interdict" and therefore indirectly interferes ith" and restricts her rights and freedom of" using and disposing of her body as she chooses$ ?C@ it attempts to regulate conduct bet een the 6 third party and the claimant!s spouse" hich springs from human emotions and passion% (his differentiates it from other" ordinary relationships$ ?:@ its enforcement gives rise to practical difficulties% (hese ere mentioned in argument" and they need not be amplified here$ ?9@ if adultery is subse-uently committed" the claimant is not ithout ; remedy" for he has the remedies of divorce and damages% (he above ere all reasons advanced by Mr% Philips in his able argument about hy the la should not recognise" and does not recognise" a remedy by ay of interdict% On the assumption I have made the la does recognise such a remedy" but those reasons that I have set out above # ould undoubtedly induce the &ourt to be slo to grant that remedy% In the present case there are no special or e'ceptional circumstances that ould arrant this &ourt" or the &ourt ultimately hearing the matter" granting such an interdict% (here are only t o circumstances that are relevant" and ere relied upon% 6irstly" the applicant submits that an interdict ould probably save his marriage and restore his ife!s consortium to him% +ut the facts are (RO))I* J completely against that% (hey sho irretrievably% (he applicant!s that the marriage has probably bro1en up

1969 (2) SA p354

!In desperation" and because of my child" I agreed in 789: to a A reconciliation" and I genuinely and sincerely attempted from 789: to 789< to forget the respondent" ith hom I as then in love" and am still in love% In this endeavour I as completely unsuccessful" and the three years to hich I have referred have been the most miserable and unhappy of my life% I love my children dearly" and I ould not ish to do anything hich

ife says in her affidavit in para ?2@,

ould in any ay hurt them or cause them grief" but I 1no that if I continued to live ith the applicant" our relationship ill deteriorate even further" and e ill be even more unhappy than in the past%!
+

(hen para% ?C@,

!I am determined not to live ith the applicant again under any circumstances" and hile I earnestly hope and desire that the respondent ill not be interdicted and restrained from seeing me" I ill not under any circumstances return to the applicant" or live ith him as man and ife%!

*ara% ?:@,
&

!0uring the attempted reconciliation bet een 789: and 789< bet een myself and the applicant" I did everything in my po er to 1eep from the applicant the fact that I as bro1enhearted and desperately unhappy% I genuinely then hoped that our marriage could be patched up" but this as not the case" and had I not met the respondent fortuitously in June" 789<" and rene ed my former association ith him" I ould nevertheless soon have become no longer able to tolerate married life ith the applicant%!
0

*ara% ?9@,
e shall be happy in one another!s

!I believe that" if it ever becomes possible for me to marry the respondent" company" and I earnestly desire to marry him%!

No " that sho s in my vie that according to the applicant!s ife the E marriage is no firmly on the roc1s% Mr% Cilliers argued that the &ourt hearing evidence viva voce might not believe the applicant!s ife" and might conclude that there is hope of another reconciliation" and thus grant the interdict" but I must assume that the above evidence that I have read out is the evidence that the applicant!s ife ill give at the trial% On such evidence the &ourt could only conclude that the parties! 6 marriage has irretrievably bro1en up% Mr% Cilliers argued that in 789: the parties did become reconciled" and the same could happen again" but I thin1 that that incident is against the applicant% What the applicant!s ife says in effect is that she genuinely attempted a reconciliation during that period" but that it failed" and that strengthens her in her attitude never to attempt it again% (hat being so ; there is no purpose in granting the interdict in trying to save the marriage" because the marriage is irretrievably lost% (he second circumstance relied upon by Mr% Cilliers is that the applicant should not be sub/ected to the insult or humiliation of the respondent!s continuing to commit adultery ith his ife% (hat argument # is not ithout substance" but its force is considerably ea1ened by the fact that" firstly" as already mentioned" his marriage has already bro1en up irretrievably" and his ife has left him% So that if they no commit adultery the insult or humiliation must of necessity be considerably lessened" especially as it has not been sho n that the respondent enticed the applicant!s ife a ay from him% Secondly" that much of that insult and humiliation is caused by his ife herself" ho" as I have already said" is and ould probably continue to be" /udging by her affidavit" an enthusiastic party to the commission of any further adultery% (hirdly"
1969 (2) SA p355

(RO))I* J the applicant respondent% ould be able to recover damages for such further adultery from the

(here is no suggestion in the papers that the respondent could not afford to pay those damages% In that regard Mr% Cilliers submitted that A it ould be rong to relegate the applicant merely to his right to claim damages" thereby enabling the respondent virtually to purchase the right to commit adultery ith the applicant!s ife at the e'pense of insulting or humiliating the applicant% In vie of the fact that the applicant!s marriage has no irretrievably bro1en up" and that he has irretrievably lost his ife!s consortium " I do not thin1 it is rong to relegate him to his claim for damages%
+

It

as also mentioned in the papers that the applicant had suffered patrimonial loss

from the defection of his ife% In so far as that has resulted from his ife!s leaving him" as the respondent has not been sho n to be responsible for enticing her a ay" he ould not be liable therefor" but" if he is" the applicant has his remedy for damages & against the respondent" and that is not a ground" therefore" for granting him an interdict% I have therefore come to the conclusion that on the papers the applicant ould not be entitled to a final interdict" and is therefore not entitled to have the matter referred to evidence or trial" and is not 0 entitled to any interim interdict% (he application is therefore dismissed ith costs% Applicant!s Attorneys, )srael( *uring + ,ossuth % Respondent!s Attorneys, Bo-en( Sessel + .oudvis"

[zRPz] VOORTREKKERWINKELS (KO-OPERATIEF) BPK v PRETORIUS 1951 (1) SA 730 (T) 1951 (1) SA p730 [z Nz] !"#$%&! ' K%p$%&" ( App!))"$& *%+p"$, -"# .$/.**!//0.)), /.!# 1!/p%$#!$& 2$ &-! +"32/&1"&!4/ *%.1& 0%1 &-! p12*! %0 *!1&"2$ *)%&-2$3 "$# 31%*!12!/ /.pp)2!# %$ *1!#2& &% 1!/p%$#!$&4/ 520! 5-% %1#!1!# &-!+ %$ -2/ "**%.$& 6.& 52&-%.& -2/ 7$%5)!#3! #.12$3 8", 199:; R!/p%$#!$& -"# p.& "pp!))"$& &% &-! p1%%0 %0 /.*- /.pp), "$# -"# #!$2!# )2"62)2&, %$ &-! 31%.$#/ ( a) D that such goods were not necessaries save as to those for which he had paid and (b) &-"& &-! /.pp), %0 &-!+ 5"/ &% 1!/p%$#!$&4/ 520! "0&!1 /-! -"# .$)"50.)), #!/!1&!# -2+ 2$ Ap12)< 199:< "$# 5"/ *%$/!=.!$&), $%& " /.pp), &% 1!/p%$#!$&4/ -%./!-%)# 0%1 5-2*- -! *%.)# 6! -!)# )2"6)!; T-! +"32/&1"&! -"# .p-!)# &-! )"/&-+!$&2%$!# #!0!$*! 52&-%.& *%$/2#!12$3 "$, %&-!1 +"&&!1; I$ "$ "pp!") 2& 5"/ *%$&!$#!# (a) !v!$ "//.+2$3 &-"& E 1!/p%$#!$&4/ 520! -"# 51%$30.)), #!/!1&!# -2+ "$# &-!1!6, #!&!1+2$!# -!1 $%1+") 123-& &% 62$# 1!/p%$#!$&4/ *1!#2& 0%1 *1!#2& p.1*-"/!/ 0%1 -%./!-%)# $!*!//"12!/< &-"& " *!1&"2$ )!&&!1 512&&!$ 6, 1!/p%$#!$&4/ "&&%1$!, *%$/&2&.&!# !2&-!1 " 1"&202*"&2%$ %0 -!1 "*&2%$ 2$ 62$#2$3 -2+ %1 "$ "#+2//2%$ %0 )2"62)2&, 0%1 &-! p12*! %0 5-"& 2$ 0"*& 5!1! $!*!//"12!/ %1 "$ "6"$#%$+!$& %0 -2/ 123-& &% 1!0./! &% p", 0%1 *1!#2& p.1*-"/!/ !00!*&!# 6, -!1 "0&!1 #!/!1&2%$< (b) !v!$ 20 $%& )2"6)! &% p", F 0%1 &-! "1&2*)!/ p.1*-"/!# 6, &-! 520! 0%1 -!1 %5$ p!1/%$") ./!< 1!/p%$#!$& 5"/ 2$ )"5 %6)23!# &% p", 0%1 /.*- *)%&-2$3 "/ ex facie &-! "**%.$&/ 5"/ 2$&!$#!# 0%1 &-! ./! %0 &-! *-2)#1!$< (c) &-"& &-! +"32/&1"&! -"# !11!# 2$ 0"*& 2$ -%)#2$3 &-"& 2& 5"/ 52&-%.& #.! *"./!< %**"/2%$!# 6, 1!/p%$#!$&< &-"& -2/ 520! )!0& -2+< "$# (d) &-"& 2$ v2!5 %0 &-! 0"*& &-"& &-! 1!/p%$#!$& -"# p12%1 &% 8", 199: *%$#.*&!# " *1!#2& "**%.$& 52&- "pp!))"$&< 2& 5"/ 1!/p%$#!$&4/ #.&, &% -"v! $%&202!# > "pp!))"$& %0 -!1 #!/!1&2%$ "$# 1!/.)&"$& 2$"62)2&, (20 "$,) &% 62$# 1!/p%$#!$& 6, p.1*-"/2$3 %$ /.*- "**%.$&< "$# -2/ 0"2).1! &% #% /% 1"2/!# "$ !/&%pp!) "3"2$/& -2+; T-! !v2#!$*! #2/*)%/!# &-"& p12%1 &% 8", 1!/p%$#!$&4/ 520! -"# %$), +"#! /+")) p.1*-"/!/ 01%+ "pp!))"$& 0%1 *"/-< 6.& &-"& #.12$3 8", /-! +"#! !?&!$/2v! p.1*-"/!/ %$ *1!#2&; T-! 1!/p%$#!$& -"# /&"&!# &-"& -2/ 520! "$# *-2)#1!$ 5!1! 2$ p%//!//2%$ %0 /.002*2!$& *)%&-2$3 "$# &-"& &-!/! "1&2*)!/ 5!1! $%& $!*!//"1, "& &-! &2+!; T-!1! 5"/ ")/% 3!$!1") !v2#!$*! &-"& &-!, 5!1! p1%p!1), #1!//!# 2$ Ap12) "$# 8",< 199:; Held < "//.+2$3 &-"& "pp!))"$& -"# #2/*-"13!# &-! onus %$ 2& &% &-! !?&!$& %0 /-%52$3 &-"& &-! "1&2*)!/ /.pp)2!# 5!1! %0 &-! *-"1"*&!1 "$# prima facie %0 &-! =."$&2&, 1!"/%$"6), 1!=.21!# 0%1 &-! -%./!-%)#< &-"& 2& 5"/ /&2)) %p!$ &% &-! -./6"$# &% /-%5 &-"& 2$ v2!5 %0 &-! "+%.$& %0 &-! "1&2*)!/ ")1!"#, p%//!//!# 6, &-! -%./!-%)# %1 2&/ +!+6!1/< &-! "1&2*)!/ p.1*-"/!# 5!1! $%& 2$ 0"*& $!*!//"1,;

Held < 0.1&-!1< &-%.3- &-! +"32/&1"&! -"# +"#! $% /p!*202* 02$#2$3 %$ &-2/ p%2$&< &-"& &-!1! 5"/ $% 1!"/%$ 5-, &-! -./6"$#4/ /&"&!+!$& /-%.)# $%& 6! "**!p&!#< "$# &-"& &-!/! "1&2*)!/ -"# 6!!$ /-%5$ $%& &% 6! $!*!//"12!/; 1951 (1) SA p731 Held < 0.1&-!1< &-"& &-!1! 5"/ $% 1!"/%$ &% 2$&!10!1! 52&- &-! +"32/&1"&!4/ 02$#2$3 &-"& &-! 1!/p%$#!$&4/ 520! #!/!12!# -2+ 52&-%.& *"./!< "$# &-"& /.*- #!/!1&2%$ &!1+2$"&!# -!1 123-& &% 62$# 1!/p%$#!$& 0%1 -!1 *1!#2& p.1*-"/!/; Held < 0.1&-!1< &-"& &-!1! 5"/ $% 1!"/%$ &% #200!1!$&2"&! 6!&5!!$ p.1*-"/!/ +"#! 0%1 &-! 520!4/ ./! "$# &-%/! 0%1 &-! ./! %0 &-! *-2)#1!$< 5-%+ &-! 520! -"# &"7!$ 52&- -!1; A Fillis v Joubert Park Private Hospital (Pty ) !td < 1939 T;P;@; A39 #2/&2$3.2/-!#; Held < 0.1&-!1< "/ &-! !v2#!$*! /-%5!# &-"& &-! 520! -"# $!v!1 p1!v2%./), p.1*-"/!# 01%+ "pp!))"$& %$ *1!#2&< &-"& &-!1! 5"/ $% #.&, 1!/&2$3 %$ 1!/p%$#!$& (61!"*- 5-!1!%0 5%.)# 6! /.002*2!$& &% 1"2/! "$ !/&%pp!)) &% 5"1$ "pp!))"$& %0 &-! p%//262)2&, %0 -!1 6.,2$3 %$ *1!#2&; Held < 0.1&-!1< &-"& &-! )!&&!1 1!)2!# %$ *%.)# $%& 6! *%$/&1.!# "/ !2&-!1 " #!02$2&! .$#!1&"72$3 %$ 1!/p%$#!$&4/ p"1& &% p", 5-"& " *%.1& B %0 )"5 /-%.)# 02$# &% 6! $!*!//"12!/< %1 "/ "$ "6"$#%$+!$& %0 -2/ )!3") p%/2&2%$ *%$v!,!# &% "pp!))"$& v!16")), "$# 2$ 512&2$3 &-"& -2/ 520! -"# #!/!1&!# -2+ "$# /% -! *%.)# $%& 6! -!)# )2"6)!; App!") "**%1#2$3), #2/+2//!# 52&- *%/&/; [z(Iz] ("/! I$0%1+"&2%$ App!") 01%+ " #!*2/2%$ 2$ " +"32/&1"&!4/ *%.1&; T-! 0"*&/ "pp!"1 01%+ &-! 1!"/%$/ 0%1 B.#3+!$&; [zC@z] C.#3+!$& 8URRAD< C;' T-! p1!/!$& "pp!") 2/ "$ "pp!") "3"2$/& " B.#3+!$& 31"$&!# 6, &-! +"32/&1"&! %0 B!&-") 2$ 0"v%.1 %0 1!/p%$#!$& (#!0!$#"$& 2$ &-! F *%.1& 6!)%5) 2$ "$ "*&2%$ 2$ 5-2*"pp!))"$& "/ p)"2$&200 *)"2+!# p",+!$& %0 &-! /.+ %0 E:: 5/; 7#; 0%1 3%%#/ /%)# "$# #!)2v!1!#; T-! "*&2%$ 5"/ ")+%/& !$&21!), *%$*!1$!# 52&- &-! p12*! %0 *!1&"2$ *)%&-2$3 "$# 31%*!12!/ /.pp)2!# %$ *1!#2& 6, "pp!))"$& &% 1!/p%$#!$&4/ 520! 5-% %1#!1!# &-!+ %$ -2/ "**%.$& #.12$3 8",< 199:; T-! #!0!$*! p.& p)"2$&200 > &% &-! p1%%0 %0 /.*- /.pp), "$# #!$2!# )2"62)2&, %$ &5% 31%.$#/ v2z;< (a) &-"& /.*- 3%%#/ "/ 5!1! /.pp)2!# 5!1! $%& $!*!//"12!/ /"v! "/ &% E11 1:/; 9#;< 0%1 5-2*- #!0!$#"$& -"# p"2#< "$# (b) &-"& &-! /.pp), 20 "$, 5"/ &% 1!/p%$#!$&4/ 520! "0&!1 /-! -"# .$)"50.)), #!/!1&!# -2+ 2$ Ap12)< 199:< "$# 5"/ *%$/!=.!$&), $%& " /.pp), &% 1!/p%$#!$&4/ -%./!-%)# 0%1 5-2*- -! *%.)# 6! -!)# )2"6)!; T-! +"32/&1"&! .p-!)# &-! )"/&-+!$&2%$!# #!0!$*!< "$# 0%.$# 2& .$$!*!//"1, &% *%$/2#!1 "$, %&-!1 +"&&!1; T-! 1!/p%$#!$& /&"&!# ("$# &-2/ 5"/ /*"1*!), #2/p.&!#) &-"& 2$ 199: -2/ p12$*2p") %**.p"&2%$ 5"/ &-"& %0 " *"1&"3! *%$&1"*&%1 "$# -2/ 2$*%+! "pp1%?2+"&!), EA00 p!1 "$$.+; T-! p)"2$&2004/ +"$"3!1 v"$ S*-")75,7 "#+2&&!# &-"& 1!/p%$#!$&< " +!+6!1 %0 &-! "pp!))"$& (%%p!1"&2v! (%+p"$, -"# *%++!$*!# 6.,2$3 01%+ &-! 1951 (1) SA p733

8URRAD C "pp!))"$& %$ *1!#2& 2$ @!*!+6!1< 199F< "$# &-"& 1!/p%$#!$&4/ +%$&-), *1!#2& p.1*-"/!/ 5!1! ./.")), 6!)%5 E5 2$ "+%.$& "$# $!v!1 !?*!!#!# E10; I& 5"/ *%++%$ *"./! &-"& 1!/p%$#!$&4/ 520! -"# )!0& -2+ %$ AF&- Ap12)< 199:< &"72$3 52&- -!1 &-! &-1!! +2$%1 *-2)#1!$ %0 &-! +"112"3! "$# #2# A $%& &-!1!"0&!1 1!&.1$ &% -2+; T-! +"32/&1"&! 0%.$# &-"& /.*- #!p"1&.1! *%$/&2&.&!# "$ "*& %0 51%$30.) "$# +")2*2%./ #!/!1&2%$< #.! &% -!1 "&&2&.#! &%5"1#/ "$%&-!1 +"$ 5-%+ /-! !v!$&.")), +"112!# "0&!1 1!/p%$#!$& -"# %6&"2$!# " #2v%1*! 01%+ -!1 2$ 8"1*-< 1999; @.12$3 8"1*- B "$# Ap12)< 199:< &-! -%./!-%)# p.1*-"/!/ 01%+ p)"2$&200 "+%.$&!# &% EA F/; 0#; "$# E1 1/; 9#; 1!/p!*&2v!),; O$ :&- 8",< 199:< -%5!v!1< "$# %$ %&-!1 #",/ #.12$3 &-"& +%$&-< &-! 1!/p%$#!$&4/ 520! (5-% 2$ !v2#!$*! /&"&!# &-"& /-! -!1/!)0 -"# $!v!1 p1!v2%./), 6%.3-& 01%+ "pp!))"$& (%+p"$, /"v! 0%1 *"/-) %1#!1!# "$# 5"/ /.pp)2!# %$ *1!#2& 52&- *)%&-2$3 ( 0%1 -!1/!)0 "$# -!1 *-2)#1!$< "/ 5!)) "/ 31%*!12!/< &% " &%&") "+%.$& %0 "pp1%?2+"&!), E90< ")) 5-!1!%0 5"/ #!62&!# &% 1!/p%$#!$&4/ "**%.$&; R!/p%$#!$& 5"/ 2$ 23$%1"$*! %0 -!1 "*&2%$/ 2$ &-2/ 1!3"1# .$&2) -! 1!*!2v!# &-! *./&%+"1, /&"&!+!$& %0 "**%.$& 01%+ "pp!))"$& (%+p"$,; @ App!))"$&4/ +"$"3!1 /&"&!# &-"& 2& 5"/ %$), "0&!1 1!*!2p& %0 &-! "**%.$& 0%1 &-2/ /.+ &-"& 1!/p%$#!$& $%&202!# -2+ %0 &-! #!/!1&2%$< "$# ")/% "))!3!# &-"& 1!/p%$#!$& -"# $!v!1 p1!v2%./), 2$/&1.*&!# "pp!))"$& (%+p"$, $%& &% /.pp), -!1 %$ *1!#2&; R!/p%$#!$& 2$&2+"&!# &-"& -! !?p!*&!# /-! 5%.)# 1!&.1$ &% -2+; App!))"$& (%+p"$, p1!//!# 0%1 p",+!$& E "$# *%11!/p%$#!$*! !$/.!# &% 5-2*- 1!0!1!$*! 52)) )"&!1 6! +"#!; Ev!$&.")), 1!/p%$#!$&< %$ /*1.&2$2/2$3 &-! #!&"2)!# "**%.$&/ 0.1$2/-!# &% -2+< p"2# "pp!))"$& &-! "+%.$& %0 E11 1:/; 9#; "/ 6!2$3 0%1 5-"& (/% -! /",/) -! &-%.3-& +23-& 6! 1!3"1#!# "/ " $!*!//"1, !?p!$#2&.1!< 6.& 1!p.#2"&!# )2"62)2&, 0%1 &-! 6")"$*!; F I& "pp!"1/ 01%+ &-! !v2#!$*! &-"& &-! 1!/p%$#!$&< "0&!1 #!/!1&2%$ 6, -2/ 520!< 1!=.!/&!# -!1 &% 1!&.1$ &% -2+< 5-2*- /-! #!*)2$!# &% #%; O$ 1!*!2p& %0 "pp!))"$&4/ "**%.$& -! "& %$! /&"3! !?p1!//!# &-! v2!5 &% "pp!))"$&4/ +"$"3!1< v"$ S*-")75,7< &-"& "/ -! -"# !?p!*&!# -!1 &% > 1!&.1$ -! -"# $%& p1!v2%./), $%&202!# p)"2$&200 %0 &-! p%/2&2%$< 6.& 2& 2/ *%$*!#!# 6, "pp!))"$& &-"& .$&2) 1!*!2p& %0 &-! "**%.$& 1!/p%$#!$& 5"/ $%& "5"1! %0 -2/ 520!4/ p.1*-"/!/; Ev!$&.")),< %$ 1!*!2p& %0 " p!1!+p&%1, #!+"$# 0%1 p",+!$&< #"&!# A$# S!p&!+6!1< 199:< &-! 1!/p%$#!$&4/ "&&%1$!, 1!p)2!# "/ 0%))%5/ %$ 7&- S!p&!+6!1< 199:' 4P)!"/! )!& +! -"v! " 0.)), #!&"2)!# "**%.$& /-%52$3 -%5 &-! "+%.$& *)"2+!# 2/ "112v!# "&< 5-!$ &-! +"&&!1 52)) 1!*!2v! 0.1&-!1 "&&!$&2%$; A/ ,%. "1! "5"1! *)2!$&4/ 520! -"/ )!0& -2+ 6.& -! 2/ =.2&! p1!p"1!# &% p", 0%1 "$, $!*!//"12!/ p.1*-"/!# 6, -!1;4 I$ &-! *%.1/! %0 " v!1, *"1!0.) "13.+!$& 81; "loff < 0%1 &-! p)"2$&200 "/ "pp!))"$&< 1"2/!# 0%.1 *%$&!$&2%$/' (A) Ev!$ "//.+2$3 &-"& &-! 1!/p%$#!$&4/ 520! -"# 51%$30.)), #!/!1&!# -2+< "$# &-!1!6, #!&!1+2$!# -!1 $%1+") 123-& &% 62$# #!0!$#"$& 0%1 &-! p12*! %0 *1!#2& p.1*-"/!/ %0 -%./!-%)# 1951 (1) SA p739 8URRAD C $!*!//"12!/< -2/ "&&%1$!,4/ )!&&!1 %0 7&- S!p&!+6!1< 199:< "6%v! =.%&!# *%$/&2&.&!# !2&-!1 " 1"&202*"&2%$ %0 -!1 "*&2%$ 2$ 62$#2$3 -2+< %1 "$ "#+2//2%$ %0 )2"62)2&, 0%1 &-! p12*! %0 5-"& 2$ 0"*& 5!1! $!*!//"12!/ %1 "$ "6"$#%$+!$& %0 -2/ 123-& &% A 1!0./! &% p", 0%1 *1!#2& p.1*-"/!/ !00!*&!# 6, -!1 "0&!1 #!/!1&2%$; (B) Ev!$ 20 $%& )2"6)! &% p", 0%1 &-! "1&2*)!/ p.1*-"/!# 6, &-! 520! 0%1 -!1 %5$ p!1/%$") ./!< 1!/p%$#!$& 5"/ 2$ )"5 %6)23!# &% p", B 0%1 /.*- %0 &-! *)%&-2$3 "/ ex facie &-! "**%.$&/ 5"/ 2$&!$#!# 0%1 &-! ./! %0 &-! *-2)#1!$;

(() T-"& &-! +"32/&1"&! -"# !11!# 2$ 0"*& 2$ -%)#2$3 &-"& 2& 5"/ 52&-%.& #.! *"./!< %**"/2%$!# 6, 1!/p%$#!$&< &-"& -2/ 520! )!0& -2+; (@) T-"& 2$ v2!5 %0 &-! 0"*& &-"& &-! 1!/p%$#!$& -"# p12%1 &% 8",< ( 199:< *%$#.*&!# " *1!#2& "**%.$& 52&- "pp!))"$&< 2& 5"/ 1!/p%$#!$&4/ #.&, &% -"v! $%&202!# "pp!))"$& %0 -!1 #!/!1&2%$ "$# 1!/.)&"$& 2$"62)2&, (20 "$,) &% 62$# 1!/p%$#!$& 6, p.1*-"/2$3 %$ /.*- "**%.$&< "$# -2/ 0"2).1! &% #% /% 1"2/!# "$ !/&%pp!) "3"2$/& -2+; @ T-!/! *%$&!$&2%$/ -"v! 6!!$ #.), *%$/2#!1!#< 6.& I -"v! *%+! &% &-! *%$*)./2%$ &-"& &-!1! 2/ $% 1!"/%$ &% 2$&!10!1! 52&- &-! +"32/&1"&!4/ B.#3+!$&; F%1 2$ +, v2!5 &-! +"&&!1 *"$ 6! #!*2#!# %$ " 1!)"&2v!), /2+p)! =.!/&2%$ %0 0"*&; A 520!4/ 123-& &% 62$# -!1 -./6"$# 2$ &-! E p.1*-"/! %0 "1&2*)!/ %$ *1!#2& 2/ )2+2&!# &% &-%/! "1&2*)!/ 5-2*- "1! $!*!//"1, 0%1 &-! ./! %0 &-! B%2$& -%./!-%)# %1 %0 2$#2v2#.") +!+6!1/ &-!1!%0; T-!1! "pp!"1/ &% 6! /%+! #200!1!$*! %0 B.#2*2") %p2$2%$ "/ &% &-! #!31!! %0 onus 1!/&2$3 %$ &-! &1"#!/+"$ &% /-%5 &-"& 5-"& -! /.pp)2!# *%$/&2&.&!# $!*!//"12!/; B.& I /-")) &"7! &-! p%/2&2%$ +%/& 0"v%.1"6)! &% "pp!))"$&< 5-2*- "pp!"1/ &% 6! &-"& /!& %.& 2$ &-! F +"B%12&, B.#3+!$&/ 2$ #eloomel v #amsay$ 19A0 T;P;@; 371< "$# "//.+! &-"& -"v2$3 1!3"1# &% &-! /&"&2%$ 2$ )20! %0 &-! p"1&2!/ "$# &-! %&-!1 *21*.+/&"$*!/ +!$&2%$!# 6, WESSELS< C;P; ( loc$ cit ; "& p; 377)< &-! "1&2*)!/ /.pp)2!# 5!1! %0 &-! *-"1"*&!1 "$# prima facie %0 &-! =."$&2&, 1!"/%$"6), 1!=.21!# 0%1 &-! -%./!-%)#< "$# &-"& &% /.*- !?&!$& &-! onus % was satisfied by appellant &ut ' do not think that this concludes the matter (s indicated by )"**"!*$ J P (loc cit ; "& p; 37:)< "$# BRISTOWE< C; ( loc cit < p; 3:1) 2& 2/ /&2)) %p!$ &% &-! -./6"$# &% /-%5 &-"& 2$ v2!5 %0 &-! "+%.$& %0 "1&2*)!/ ")1!"#, p%//!//!# 6, &-! -%./!-%)# %1 2&/ +!+6!1/< &-! "1&2*)!/ p.1*-"/!# 5!1! 2$ 0"*& $%& $!*!//"1,; T-2/ +", 6! "$ .$0%1&.$"&! 1!/.)& 0%1 " &1"#!/+"$ 6.& -! +./& &"7! &-2/ 12/7 5-!$ -! 1!)2!/ %$ +!1!), "$ 2+p)2!# ".&-%12&, &% 62$# &-! -./6"$#< "$# 2$ &-2/ p"1&2*.)"1 *"/! &-! "pp!))"$& -"/ %$), 2&/!)0 &% &-"$7 20 ("/ &-! 520! /",/) /-! -"# $!v!1 p1!v2%./), p.1*-"/!# 3%%#/ 01%+ 2& %$ *1!#2&; I$ &-! p1!/!$& *"/! &-! 520! 3"v! !v2#!$*! &-"& &-! "1&2*)!/ 2$ =.!/&2%$ 5!1! 1!=.21!# 0%1 -!1/!)0 "$# &-! *-2)#1!$; S-! 3"v! " *!1&"2$ "+%.$& %0 #!&"2) &% /.pp%1& &-2/< +%1! p"1&2*.)"1), 2$ 1951 (1) SA p735 8URRAD C 1!3"1# &% &-! *-2)#1!$; S-! "#+2&&!# /-! -"# $!v!1 &%)# 1!/p%$#!$& /-! 52/-!# &% 6., &-!/! "1&2*)!/; A/ "3"2$/& &-2/ &-! 1!/p%$#!$& p1%#.*!# &-! /%+!5-"& 3!$!1") !v2#!$*! %0 %$! >1!,)2$3 &-"& &-! 520! "$# *-2)#1!$ 5!1! p1%p!1), #1!//!# 2$ Ap12) "$# 8",< 199:; I$ "##2&2%$ -! /&"&!# &-"& A &-! 520! -"# " )"13! 5"1#1%6! 0.)) %0 *)%&-2$3 2$*).#2$3 &-1!! $!5 #1!//!/ "$# /.002*2!$& .$#!1*)%&-2$3; T-! *-2)#1!$ ")/% 5!1! 2$ p%//!//2%$ %0 /.002*2!$& *)%&-2$3 "$# /-%!/; ! ./!# &% +"7! p.1*-"/!/ "& %&-!1 /&%1!/ "/ 5!)); T-!/! "1&2*)!/ - %&-!1 &-"$ &-%/! 0%1 5-2*- -! -"# p"2# E11 %## - -! *%$*!#!/< +23-& -"v! 6!!$ $!*!//"1, )"&!1 %$< 6.& 5!1! $%& /.*- "& &-! &2+!; B I& 2/ &1.! &-"& &-!1! 2/ $% /p!*202* 02$#2$3 %0 0"*& 6, &-! +"32/&1"&! %$ &-2/ p%2$&< 6.& &-!1! 2/ $% #%.6& &-"& %$ &-! =.!/&2%$ %0 #!/!1&2%$ -! #2/6!)2!v!# -!1 52&- 3%%# 1!"/%$ "$# 6!)2!v!# 1!/p%$#!$&; ( I$ &-! *21*.+/&"$*!/ I *"$ /!! $% 1!"/%$ 5-, &-! 1!/p%$#!$&4/ /&"&!+!$& /-%.)# $%& 6! "**!p&!# 2$ 1!3"1# &% &-! "#!=."*, %0 &-! *)%&-2$3 p%//!//!# 6, &-! 520! "$# *-2)#1!$ 2$ Ap12)< 199:< "$# I -"v! *%+! &% &-! *%$*)./2%$ &-"& &-!/! "1&2*)!/ (%&-!1 &-"$ &% &-! !?&!$& %0 E11 p"2#) 5!1! /-%5$ $%& &% 6! $!*!//"12!/;

Ev!$ "p"1& 01%+ &-2/ "/p!*& %0 &-! *"/!< &-! "pp!))"$&4/ *%$&!$&2%$/< 2$ @ +, v2!5< *"$$%& 6! .p-!)#; 8, *%$/2#!1"&2%$ %0 &-!+ 52)) 6! 612!0 2$ v2!5 %0 &-! *%$*)./2%$ I -"v! ")1!"#, /&"&!#; I$ &-! 021/& p)"*! I /!! $% 1!"/%$ &% 2$&!10!1! 52&- &-! +"32/&1"&!4/ 02$#2$3 &-"& &-! 1!/p%$#!$&4/ 520! #!/!1&!# -2+ 52&-%.& B./& *"./!; I0 /% ( vide Janion v; E W"&/%$ G (%;< F N;L;R; A39< "$# &ing and !auer v van der Heever < 19AA T;P;@; A79) /.*- #!/!1&2%$ &!1+2$"&!/ -!1 123-& &% 62$# 1!/p%$#!$& 0%1 -!1 *1!#2& p.1*-"/!/; S!*%$#), I /!! $% 1!"/%$ &% #200!1!$&2"&! 6!&5!!$ p.1*-"/!/ +"#! 0%1 &-! 520!4/ ./! "$# &-%/! 0%1 &-! ./! %0 &-! *-2)#1!$; App!))"$& 1!)2!# %$ F &-! *"/! %0 Fillis v Joubert Park Private Hospital (Pty ) !td < 1939 T;P;@; A39; B.& &-!1! 2/ "$ 2+p%1&"$& #2/&2$*&2%$ 2$ &-"& 2$ &-! )"/&+!$&2%$!# *"/! &-! 520! %$ #2v%1*! 5"/ 32v!$ &-! *./&%#, %0 &-! *-2)#1!$ "$# 5"/ 2$ *%$/!=.!$*! !$&2&)!# &% %6&"2$ $!*!//"12!/ 0%1 &-! *-2)#1!$ $%& *%v!1!# 6, &-! +"2$&!$"$*! p"2# &% -!1 6, -!1 0%1+!1 > -./6"$#; I #% $%& *%$/2#!1 &-"& &-2/ #!*2/2%$ "pp)2!/ &% &-! *"/! 5-!1! " -./6"$# 2/ 51%$30.)), #!/!1&!# "$# &-! *-2)#1!$ &"7!$ 01%+ -2/ -%./!-%)#< "$# +!"$/ &-"& &-! 520! *"$ !$B%, "$ 2+p)2!# ".&-%12&, &% *%$#.*& &-! #.&, %0 +"2$&"2$2$3 &-! *-2)#1!$ "& -2/ !?p!$/!< " #.&, 5-2*- -! 2/ /.pp%/!#), /&2)) p1!p"1!# &% #2/*-"13! -2+/!)0; T-21#),< 20 2& 6! &1.!< "/ 6%&- 1!/p%$#!$& "$# -2/ 520! "))!3!< (&-! "pp!))"$&4/ !v2#!$*! #%!/ $%& #!02$2&!), *%$&1"#2*& &-2/) &-"& /-! -"# $!v!1 p1!v2%./), p.1*-"/!# %$ *1!#2&< 6.& %$), %$ *"/-< 01%+ p)"2$&200< I *"$ /!! $% #.&, 1!/&2$3 %$ 1!/p%$#!$& (61!"*- 5-!1!%0 2/ /.002*2!$& &% 1"2/! "$ !/&%pp!)) &% 5"1$ "pp!))"$& %0 &-! p%//262)2&, %0 -!1 6.,2$3 %$ *1!#2&; F2$")), &-!1! 2/ &-! 1!)2"$*! p)"*!# 6, &-! "pp!))"$& %$ &-! )!&&!1 %0 :&- S!p&!+6!1; Ev!$ "//.+2$3 &-"& "pp!))"$& (52&- %1 52&-%.& 1951 (1) SA p73F 8URRAD C "+!$#+!$& %0 -2/ /.++%$/ 5-2*- #%!/ $%& 0%.$# "$, *)"2+ %$ &-"& )!&&!1) +", "#v"$*! -2/ p1!/!$& *%$&!$&2%$/< I "+ .$"6)! &% *%$/&1.! &-"& )!&&!1 "/ !2&-!1 " #!02$2&! .$#!1&"72$3 %$ 1!/p%$#!$&4/ p"1& &% p", 0%1 5-"& " (%.1& %0 L"5 /-%.)# 02$# &% 6! $!*!//"12!/< %1 "/ "$ "6"$#%$+!$& %0 -2/ A )!3") p%/2&2%$ "/ +"#! *)!"1 &% &-! "pp!))!$&4/ +"$"3!1 v!16")),< "$# "/ 1!2&!1"&!# 2$ &-! )!&&!1 - v2z; &-"& -2/ 520! -"# #!/!1&!# -2+ "$# /% -! *%.)# $%& 6! -!)# )2"6)!; R!/p%$#!$& 5"/ $%& ("/ 0"1 "/ I *"$ B.#3!) 0.)), "$# /p!*202*")), *1%//-!?"+2$!# "/ &% &-! +!"$2$3< 2$ &-! *21*.+/&"$*!/< %0 &-! )!&&!1; B.& -! /&"&!# 2$ !v2#!$*!' 4E7 /%. #2! B 2&!+/ 6!&"") -!& 5"& !7 "/ $%#23 6!/7%.;4 T-"& 2/ &% +, +2$# 5-"& &-! )!&&!1 *%$v!,!#< 2$ &-! )23-& %0 -2/ p1!v2%./ "&&2&.#!; I *"$$%& /!! &-"& -! *%.)# -"v! +!"$&< %1 6! &"7!$ &% -"v! +!"$&< &-"& -! /.11!$#!1!# &-! p%5!1 -! -"# p1!v2%./), !?!1*2/!# %0 %6/!1v2$3 !*%$%+, "$# -2+/!)0 ( #!*2#2$3 5-"& p.1*-"/!/ 5!1! $!*!//"1,; 2/ +!"$2$3 5"/ &% 32v! &-! +"&&!1 0.1&-!1 "&&!$&2%$ 5-!$ -! -"# /!!$ &-! #!&"2)/ "$# &-!$ &% #% 5-"& -! *%$/2#!1!# 0"21 6%&- &% -2+/!)0 "$# &% "pp!))"$&; T-! "pp!") +./& 6! #2/+2//!# 52&- *%/&/; @ @E WET< C;< *%$*.11!#; App!))"$&4/ A&&%1$!,/' +ac#obert$ de ,illiers - Hitge ; R!/p%$#!$&4/ A&&%1$!,/' Feldman .ohen ;

(he plaintiff claims general damages and particular items of actual and prospective loss and e'penditure hich she alleges ere and ill be # caused by the defendant!s breach of promise% Included under the latter items ere the losses she said she had sustained in giving up her apartment and disposing of many of her assets% In regard to these items" it as contended by Mr% Sch-ar/ that if it as held that she had failed to prove the actual loss that she had suffered" the &ourt could nevertheless ta1e into account" in fi'ing the amount of general damages" that she had sustained some unascertained but appreciable loss in those respects% 6urthermore" Mr% Sch-ar/ contended that because
1961 (4) SA p34

(RO))I* J of certain imputations against the plaintiff!s character made by the defendant or on behalf of the defendant during the course of the trial" the injuria involved in the breach of promise as aggravated and A therefore the general damages should accordingly be substantially increased% In vie of the amount and the nature of the claims for damages and the above= mentioned contentions" it is necessary to give close attention to the rules of our la governing the a ard of damages for breach of promise% In English la " the breach of promise is regarded as being !attended + ith some of the special conse-uences of a personal rong! ? 0inle& v Chirne& ?7<<<@ 43 D%+%0% C8C at p% :3C@" in conse-uence of hich the plaintiff is presumed to have suffered damage as a result of the breach of promise itself% In nature and effect the damages are li1e those in & libel actions% Mayne on *amages " 77th ed% p% :43" says that actions for breach of promise
ith actions for libel as to the range of topics in hich counsel are allo ed to indulge!

!stand on a par

in regard to damages% (he ordinary damages ?i%e% other than any specific monetary loss hich must be specially claimed@ are not measured by any 0 fi'ed standard but are almost entirely in the discretion of the /ury ? 1alsbur& " 2rd ed% vol% 78 p% 552 para% 742:@% )i1e libel too ?see Spencer +o er on !ctionable *efamation " 4nd ed% p% 7:9@ the damages hich can be a arded are not necessarily compensatory but may also be of !a vindictive and uncertain 1ind % % % to punish the defendant in an e'emplary manner! ? 0inla&2s case supra3 4uir' v 5homas " 7879 ?7@ A%+% E :79 at p% 22<@% &onse-uently" it follo s logically that !the conduct of the parties may properly be considered in aggravation % % % of damages! ? 1alsbur&( ibid para% 7429@ and I thin1 that that conduct ould most probably include the conduct of the defendant at the trial itself as in libel actions% In that regard Spencer Bo-er at pp% 799 = 5 says that 6 any abortive attempt by the defendant at the trial of a defamation action to prove in mitigation of damages that the plaintiff has a bad character or reputation" may be ta1en by the /ury into consideration as a ground for aggravating the damages% In pure Roman=0utch )a the action for damages for breach of promise !remained rather undeveloped! ?van den #eever on Breach of Promise p% 25@ because the usual remedy as an order for specific performance of the marriage" but here it did lie it as to recover the plaintiff!s id 6uod interest ?i%e% the actual and prospective loss@ as in ordinary actions for damages for breach of contract ? van den 1eever( ibid3 # 7cCalman v 5horne " 782C N*0 <9 at pp% 83" 87" and counsel!s argument at pp% <5 = <" here the authorities are canvassed$ *avel v S-anepoel " 78:C ?7@ SA 2<2 ?A0@ at p% 2<5; = #@% Mere breach of promise itself did not give rise to an injuria hich ould have entitled the plaintiff to include a claim for damages for personal rong in her action$ if the breach" ho ever" as committed in circumstances that also constituted injuria " then doubtless she could have included such a claim as a separate cause of action ?cf% Joc'ie v 7e&er " 78C: A0 2:C at pp% 295 = <@%
;

1961 (4) SA p35

(RO))I* J Melius de Eilliers on )njuries at p% 49 says,

!A breach of contract is not" in its nature" an in/ury% (he duty of fulfilling one!s contracts is one that does not arise from the respect due to the other parties thereto % % So also" a breach of promise of marriage is not necessarily an in/ury% (he favourable inclination of a man to ards a oman may turn to aversion from numerous other causes than A those hich reflect upon her character" and there may be cases here a breach of promise of marriage may be occasioned by reasons hich are strictly honourable% It might" ho ever" be an in/ury hen a person ilfully enters into an engagement to marry another hich he does not intend 1eeping ith the ob/ect of e'posing that other to ridicule" or hen he /ustifies his action by giving reasons for his conduct hich are slanderous and untruthful%!

It ill therefore be seen that fundamentally Roman=0utch )a differed + from English la $ but the early decisions of our &ourts seem to have follo ed English la implicitly ithout any reference to or en-uiry into Roman=0utch )a ?see" for e'ample" 5riegaardt v van der V&ver " 7873 E%0%)% CC$ $adloff v $alph " 7875 E%0%)% <9@% In 782C" for the first time a full argument as addressed to a &ourt" the N*0 ?#A(#ORN" J% and &AR)IS)E" A%J%@ in 7cCalman2s case" supra " on the Roman=0utch )a " & and the difference bet een it and English la $ and the &ourt as urged to follo the former and accordingly to a ard damages only for pecuniary loss and none for injuria " as the injuria had not been specifically pleaded and the damages therefor claimed as a separate cause of action% It is a pity that the &ourt did not ta1e the opportunity of establishing 0 the action firmly on a Roman=0utch )a basis% It held in effect that under the influence of English la the action had developed in our la into a unified or composite one comprising both contractual and delictual elements% At p% 87 it as said,
!(he result as logical and practical% 6or the heads of damage stated in $adloff2s case can be traced to t o sources, first" the ordinary measure E for breach of contract" hich comprises 8a9 any monetary loss sustained by the plaintiff" 8b9 hat may be called the prospective loss" here for instance the defendant is in a good financial position and through his or her breach of contract has deprived the plaintiff of the opportunity of any participation therein$ and second" the ordinary measure for injuria arising out of the contumelia suffered by the plaintiff" for in civilised society in South Africa the rongful putting an end to of a 6 betrothal contract by one party is" in ordinary cases" regarded as an impairment of the personal dignity or reputation of the other party and is thus an injuria % #ere regard ill be had to the ounded feelings of the plaintiff and the social position of the parties%!

It as further held ?p% 84@ that there as no need" as a matter of practice and pleading" to separate the delictual from the contractual ; damages claimed in the action% 0amages for both could be claimed in one lump sum% 7cCalman2s case has been follo ed in Natal ? 7&menah v Cassim $ahim " 78C2 N*0 448$ Combrin' v ,och " 78C9 N*0 :74@ and it probably set the pattern for breach of promise cases in South Africa% In conse-uence" the delictual damages and the prospective loss in the contractual # damages are no usually claimed in a lump sum as general damages" and any monetary loss is claimed and pleaded as special contractual damage% (hat as done in this case and no attempt as made in the pleadings or at the hearing to separate the delictual from the contractual general damages% (hat as probably due to 7cCalman2s case% No 7cCalman2s case appears to hold that the breach of contract itself gives rise not only to the contractual damages but also to the (RO))I* J delictual damages$ in other ords" that the mere breach of contract ipso jure constitutes an injuria % If it does mean that then" ith great respect" I disagree ith that part of it% I thin1 that the plaintiff" in A order to recover delictual damages" must prove not merely that the breach as rongful but also that it as in/urious or contumelious% Other ise there ould be an unnecessary subversion of the holesome principle of Roman=0utch

1961 (4) SA p36

!It is submitted that those decisions of our &ourts hich seem to imply that breach of promise must necessarily contain a delictual element are unconsciously based on English principles and have no support in Roman=0utch )a % .nless a person ho brea1s off an engagement commits an actionable rong !the feelings of the plaintiff and the moral suffering she has undergone! are irrelevant to the -uestion of damages % % % (he notion that a oman necessarily loses social position or !face! hen an & engagement is bro1en off in non=in/urious circumstances seems to me to reflect the morals of a by=gone age hen espousals constituted an inchoate marriage and repudiation as e-uivalent to malicious desertion%!

)a set out in de Eilliers on )njuries " -uoted above% I thin1 that that is also the effect of the vie e'pressed so + ell and forcibly by the late Mr% J.S(I&E EAN 0EN #EEEER at pp% 23 = 27 in his Breach of Promise" )nter alia he said,

&onse-uently" contrary to hat as held in 7cCalman2s case" I thin1 that it is generally advisable to separate in the composite action the 0 contractual and the delictual elements and the damages claimed for each% (hat ould conduce to clarity of thin1ing in assessing the general damages because each of the elements is governed by its o n special principles that might be confused if not separately considered% 6or e'ample" damages might be a ardable for the contractual but not for the delictual remedy or vice versa " as appears from hat I have /ust said E above$ the former has to be proved ith that degree of precision re-uired in breach of contract hilst the latter is in the &ourt!s discretion$ the latter is" hereas the former is not" sub/ect to aggravation or mitigation according to the contumely of the defendant!s conduct$ and so on% &onse-uently" unless the t o elements are 1ept ell separated there is a ris1 of confusion ith conse-uent in/ustice" as" 6 for e'ample" of mitigating the plaintiff!s prospective loss because the defendant!s conduct has not been contumelious" or of claiming aggravation of damages for the defendant!s subse-uent conduct hen there is no delictual liability at all% I am therefore constrained to disagree ith 7cCalman2s case in that respect too" and to say that in my vie " ; although the modern action for breach of promise is a composite one" combining both contractual and delictual elements" as a general rule these elements should be clearly separated in the pleadings and in the assessment of damages so as to avoid confusion% (hese further points relating to damages are also relevant in the # present case% In regard to contractual damages" both the prospective loss of the benefits of the marriage and the actual monetary loss or e'penditure incurred or to be incurred can be a arded% (he latter must either flo directly from the breach of promise or must be reasonably supposed to have been ithin the contemplation of the parties at the time the contract as entered into as a probable conse-uence of the breach% (herefore" e'penditure reasonably incurred prior to the breach in contemplation of the promised marriage ta1ing place and hich is rendered useless by the breach can obviously be
1961 (4) SA p37

(RO))I* J recovered% E'penditure or loss incurred or to be incurred after the breach can also be a arded if the above re-uisites are present" but only if such damage is not covered by an a ard of prospective loss% A duplication of damages in this respect must be safe= guarded against ? van den 1eever at p% 2<@% In regard to delictual damages" these can" I thin1" be aggravated by any further contumelious or in/urious conduct by or on behalf of the defendant at the trial itself but only if such conduct is a continuation of or is directly connected ith the contumelious or in/urious conduct involved in the actual breach of promise" and is not an entirely separate and distinct injuria ?cf% Sal/mann v 1olmes " 787C A0 C57 + at pp% C<7 = 4$ Blac' v Joseph " 7827 A0 724 at pp% 7C:" 7C9" 7C< = 8@%
A

?7@

Applying those principles I deal ith the damages that are claimed by the plaintiff under the follo ing headings, #oss on sale of motor car % (he plaintiff purchased the motor car & in 78:C for F4"2<7 and sold it in 0ecember" 78:8" because of her departure to South Africa for F::3 to the

?4@

person ho used to clean it for her% She claimed that hen it as sold its value as F7"433 = F7"233% Apart from her evidence there as none to prove hat its true value as in 0ecember" 78:8% She admitted that she 1ne little or nothing about re=sale values of secondhand motor cars" and that 0 it as a motor car dealer ho had told her it as orth about F7"433% In e'h% !N! she said that she had !loo1ed around! and the best offer she could get as FC33 = F933$ and in e'h% !.! she admitted that in selling it to the private buyer for F::3 she as selling it to the best advantage% (here is" therefore" no evidence E to prove that F::3 as not a fair price for the motor car at the time it as sold% I therefore do not thin1 that she has proved any loss under this heading% #oss on disposal of her furniture % She claims that it as orth appro'imately FC"333 and that it as disposed of for F5C4% (he 6 details are given in e'h% !SS! hich she herself compiled% (he values of the items are her o n estimates but she admitted that she had no 1no ledge of the values of the items but that she had relied upon hat others had told her at the time she as disposing of them% (here as no other evidence adduced to prove ; this loss% I thin1 that it is probable that she did sustain some loss but her o n evidence in the circumstances is not sufficient to prove hat the amount is and I can therefore not a ard her anything under this heading% (his is not the 1ind of case in hich the &ourt must estimate the 6uantum of damages as best it can on the evidence # that has been adduced because here the plaintiff could and should have adduced better evidence to prove the 6uantum ?see ,lopper v 7a/o'o " 7823 (%*%0% <93$ #a/arus v $and Steam #aundries " 78:4 ?2@ SA C8 ?(@ at p% :7$ $angeland #td v 1enderson " 78:: ?2@ SA 72C ?SR@ at pp% 729 = 5$ :dendaalsrust .old .eneral )nvestments and E tensions #td v ;aude( ;":" " 78:< ?7@ SA 2<7 ?(@ at p% 2CC@% According to the plaintiff!s evidence" some dealers did see the furniture and ma1e offers for some of it" and her friends" the
1961 (4) SA p38

(RO))I* J Aingsleys" must have seen it often and actually received some of it by ay of purchase and gift% It should have been possible to adduce some evidence from one or more of these persons as to the value of A the items disposed of% (he plaintiff did say that the ta1ing of evidence on commission in Ne Gor1 as considered but decided against because of the cost% +ut having regard to the substantial amount of damages claimed under this heading" I do not thin1 that the cost of the commission ould have been disproportionate or + unreasonable in relation to the issues involved" and that she as therefore absolved from the necessity of having to procure it% Moreover" as a last resort" she might have been able to procure some e'pert itness locally" and" by studying her evidence and the photographs" he might have been able to give the &ourt some more reliable evidence in estimating the value of the furniture or & the loss incurred in selling it in Ne Gor1% I conse-uently cannot a ard anything to the plaintiff under this heading% Nor is there any legal basis on hich I can accede to Mr% Sch-ar/2s submission that I should use the probable loss of some unascertained amount under this heading to inflate the !general damages!" i%e% the prospective loss or delictual damages% 0 ?2@ 5he cost of pac'ing and storing the plaintiff2s belongings % According to the plaintiff!s evidence" she paid the State &ooperage &ompany of Ne Gor1 F444%95 for pac1ing certain of her belongings and delivering them to the arehouse of Morgan E H +rother of Ne Gor1 for storing ?e'hs% !AAA! and !+++!@$ and the latter F9 for labour in handling the articles on arrival% (hereafter" the latter has charged her F73%:3 per month for storage" including insurance" ith effect from the 7:th January" 7893 ?e'hs% !&&&!" !000!" !EEE!" !666!@% (he reasonableness of these amounts as not contested% Sub/ect to fi'ing the period for 6 hich she is entitled to claim storage" I thin1 that she is entitled to recover these amounts% I thin1 that it is a fair assumption to ma1e that if the defendant had duly implemented his promise to marry" the parties ould have been married by the 7st April" 7893% On that assumption it is probable that instructions ould have been given to ship these belongings to the plaintiff in ; South Africa and that that ould have been done by the 7:th April" 7893% In my vie " therefore" the plaintiff is entitled to claim storage for the period 7:th January" 7893" to the 7:th April" 7893" at F73%:3 per month" amounting

to F27%:3% I do not thin1 that she # is entitled to claim storage for any period thereafter until she returns to Ne Gor1 and re=establishes her home there% (he reason is that she is being a arded a substantial sum for the prospective loss of benefits of the marriage$ that loss is a arded on the basis of the fulfillment of the promise to marry$ and on that assumption the cost of storage ould not have been incurred after the 7:th April" 7893% (o a ard damages for the cost of such subse-uent storage ould amount to a duplication of damages referred to above% (he loss a arded under this heading amounts therefore
1961 (4) SA p39

(RO))I* J to F493%75% According to e'h% !III! hich as handed into &ourt by agreement" the agreed e'change rate for the purpose of this case is F7%28 :J79ths to the rand% According to that rate of e'change the loss is about R7<5% A ?C@ #oss of earnings % *laintiff as earning F<: per ee1 in Ne Gor1% She managed to come out on that but she did not save anything% 6rom the time she embar1ed in Ne Gor1" hich as appro'imately hen she gave up her employment" until she left the defendant!s flat in Johannesburg to ards the end of March" 7893" she as provided for + by the defendant" firstly by means of the paid fare hich covered everything" and secondly by maintenance% (hereafter" she had no means of subsistence until the 7st July" 7893" hen she secured or1 in Johannesburg at KC3 per month% She as then able to maintain herself pending the hearing of the action and until she could return to Ne Gor1% & Mr% Sch-ar/ conceded in his argument that she had not proved that she as entitled to recover anything for the period up to the 7st April" 7893" but he claimed that an appreciable amount should be a arded on the basis of her Ne Gor1 salary for the period thereafter until the time hen she can be reasonably 0 e'pected to resume or1 in Ne Gor1" less hat she had earned in Johannesburg% I do not thin1 that anything can be a arded under this heading% I agree that she has not proved any loss up to the 7st April" 7893% In regard to the period hilst she or1ed in Johannesburg and earned KC3 per month" there is no evidence to prove that having E regard to the respective costs of living in Johannesburg and Ne Gor1" her salary in Johannesburg as less than the F<: per ee1 in Ne Gor1$ and if so" by ho much% And" in any event" on the assumption that I made previously that the parties ould have been married by the 7st April" 7893" if the defendant had 6 fulfilled his promise" the plaintiff ould not have or1ed and earned any salary thereafter and the defendant ould have continued to maintain the plaintiff% 6or the same reasons as is mentioned in para% 2 above" to a ard her any loss of earnings after the 7st April" 7893" ould be to duplicate the damages ith those a arded for prospective loss% ; ?:@ #oss of plaintiff2s apartment % (he contention here is that the plaintiff lost her rent= controlled apartment for hich she as paying F<3%7: per month$ in conse-uence" she ill on her return to Ne Gor1 either have to pay a substantial premium to get a similar apartment ?the amount of hich she did not herself 1no @ or she ill have to hire an uncontrolled apartment hich she said she # could probably get at F7:3 per month% #ere again I do not thin1 that she really 1ne the true position regarding apartment rentals and premiums" so that her evidence cannot be used to estimate any loss$ and there as no other evidence to assist the &ourt% +ut" in any event" if the defendant had implemented his promise to marry" the loss ?if any@ under this heading ould not have occurred" and for the same reasons
1961 (4) SA p40

(RO))I* J given in paras% 2 and C above" no a ard should be made under this heading% ?9@ 5he cost of returning to ;e- <or' % According to e'h% !III! the reasonable cost of travelling 7st class from Johannesburg to A &ape (o n by train is R4:%75 and by boat from &ape (o n to Ne Gor1" R2:<" the total of hich is R2<2%75% I thin1 that this item of damages can reasonably be supposed to have been ithin the contemplation of the parties at the time the contract as entered into as a probable conse-uence of the

defendant!s + breach" and is therefore recoverable% #ere again" ho ever" to a ard it ould amount to duplication of damages ith the amount a arded for prospective loss$ conse-uently" for the same reasons as given in the preceding paragraphs I ma1e no a ard under this heading% ?5@ Prospective loss % (he probability is that the parties ould have & married ith an ante= nuptial contract" e'cluding community of property and profit and loss% In the absence of proof to the contrary it must be assumed against the plaintiff that no marriage settlement ould have been made on her in the antenuptial contract% It appears from the evidence" ho ever" that the defendant is a man of some affluence and occupies a position in life that is superior 0 to her o n% She ould therefore as his spouse" though married out of community of property and profit and loss" have derived material benefits from the marriage by ay of status" maintenance" gifts" and other ise" hich she has no lost as a result of his breach of E promise% (he defendant!s o n letters adduced in evidence for e'ample mentions possible trips to America" Europe and Aenya that they might have ta1en together after they ere married% 6or the loss of all these benefits she is entitled to be compensated ? van den 1eever " p% C3$ *avel v S-anepoel " 78:C ?7@ SA 2<2 ?A0@ 6 at p% 2<9 A = + and at p% 2<5 6 = #@% I thin1 that her loss under this heading is substantial% It is correct" as Mr% 7orris contended" that the evidence sho s that the marriage ould probably not have lasted very long" and that is a factor that must abate the loss to some e'tent$ but I thin1 that its ; force is some hat lessened by this fact% (he evidence sho s that it ould probably have been the defendant ho ould have deserted the plaintiff" and on the divorce the plaintiff ould therefore probably have obtained either alimony or a lump sum payment in lieu thereof by virtue of the provisions of sec% 73 of the Matrimonial Affairs Act" 78:2% (he possibility of her getting married again # must also be ta1en into account% She is" ho ever" no nearly CC years old hich reduces her chances of marriage" but as I mentioned at the commencement of this /udgment" she carries her age ell and the possibility of her remarrying cannot conse-uently be ruled out altogether% (a1ing all the circumstances into consideration" I assess her loss under this heading at R4"333% ?<@ *elictual damages % (he en-uiry is first hether the defendant!s breach of promise as committed in a manner or in circumstances
1961 (4) SA p41

(RO))I* J stances that constituted it in/urious or contumelious% .nfortunately" probably o ing to 7cCalman2s case" specific attention as not given to this aspect of the case either in evidence or in argument% (he reasons the defendant gave for refusing to implement his promise ere not fully A investigated in evidence or cross=e'amination but I thin1 that on the balance of probabilities sho n by all the evidence adduced" the defendant must have stated that he refused to marry the plaintiff at the final stage of their relationship because he had never promised to do so% In his attorney!s letter dated the :th April" 7893" e'h% !;;! in ans er to the plaintiff!s claim for damages" it + as stated that the defendant denied that he had ever agreed to marry the plaintiff% (hat as also the attitude that as ta1en up by the defendant in his pleadings and evidence in the case% I thin1" therefore" that it can be inferred that that as his attitude at all times relevant to this action% (his is therefore & not the 1ind of case here the defendant ac1no ledges the promise to marry but brea1s the engagement in a sensible and non=contumelious manner in the interests of both parties ?cf% van den 1eever p% 23$ 7oc'e v 0ourie " 2 &%(%R% 272@% #ere the defendant promised to marry the plaintiff$ caused her to uproot herself from Ne Gor1 and come to South Africa in contemplation of 0 the promised marriage$ 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 thin1 that that constitutes in/urious or contumelious conduct for hich the plaintiff is entitled to damages% No specific evidence as" ho ever" adduced to prove the e'tent of the in/ury E to her feelings" her pride" or her reputation% She seemed to be more concerned during the trial ith her contractual damages% +ut I thin1 that it can be inferred that her feelings and pride ere hurt at the

time% #o ever" although it is true that she is relatively un1no n in Johannesburg and she intended returning to Ne Gor1 6 after the conclusion of the trial" she ill suffer some humiliation on returning to her circle of friends in Ne Gor1 after all the elaborate steps she had ta1en to ind up her affairs there in order to leave for South Africa to get married% On the other ; hand" she is a mature level=headed oman ho has suffered some hat similarly before hen her marriage bro1e up" so the effect on her feelings and pride of the defendant!s breach is not li1ely to have been as severe as it ould have been on a younger unsophisticated person% I thin1 in all the circumstances that the damages for the injuria should be R:33 hich I a ard% It remains to consider hether those damages should be increased by reason of the statements concerning the plaintiff made by or on behalf of the defendant at various times during the course of the trial% (hese statements ere to the effect that the plaintiff as a blac1mailer" a fabricator of evidence" a person ho cunningly schemed to ensnare him into matrimony" that she dran1 to e'cess and surrendered her virtue easily% None of those statements ere proved to be true and on the evidence
1961 (4) SA p42

(RO))I* J I heard they are ithout any foundation at all% Should they therefore inflate the damages a arded under this head> None of them had anything to do ith the actual breach of promise itself% (he defendant did not at the time of the breach" or in his pleadings" A or in his evidence in the case" see1 to /ustify his breach of promise because of the plaintiff!s character% I do not thin1 that I need canvass the actual or possible reasons for the ma1ing of the statements" save to say that they had no direct connection ith the actual breach of promise% &onse-uently I do not thin1 that those + statements can be used to inflate the delictual damages% See Sal/man2s and Blac'2s cases" supra % (he above statements are prima face defamatory of the plaintiff but they ould constitute a separate and distinct injuria for hich the plaintiff could sue separately if she is so minded ?cf% Joc'ie v 7e&er " 78C: A0 2:C & at p% 29<@$ in that event the defendant could then raise those special defences that are available to a defendant in cases of that 1ind and the -uestion of his liability for those statements could then be properly determined% And lest it be thought that I am hereby encouraging the plaintiff to indulge in further litigation against the defendant" let me hasten to add that nothing is further 0 from my mind than that% I merely mention such litigation to illustrate the principle I have applied and for no other reason% (he conclusion I have therefore come to is that there should be /udgment for the plaintiff in the sum of R4"9<5 ?t o thousand si' hundred and E eighty=seven rand@ ith costs% (he plaintiff is declared a necessary itness% *laintiff!s Attorneys, J" ,antor + Partners % 0efendant!s Attorney, *" !" ,ar'"