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 wife's affections, it does not suffice to prove merely that his wife left him for the H 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 who has established that a respondent has been guilty of committing the delict of enticement or alienation of his wife's affections is entitled to the remedy of an interdict restraining the respondent from committing adultery with his wife, the Court in the exercise of its discretion would only grant such relief in very special or exceptional circumstances.

Semble: As adultery by a third party constitutes an injuria to the innocent spouse, there would appear to be no reason why the remedy of an interdict in appropriate cases should not in principle lie.

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TROLLIP J Judgment

B TROLLIP, J.: This matter comes before me as an urgent application. The precise reason why it has to be dealt with as a matter of urgency is not quite clear to me, but, as both sides desire that it be so dealt with, I shall do that. Unfortunately the result is that, with the limited time at my disposal, I have not been able, and will not be able C in this judgment, to deal fully with and do justice to the elaborate, interesting and helpful arguments that both counsel have addressed to me.

This was originally an application for an order interdicting the respondent from committing adultery with, meeting, corresponding, visiting, or in any way communicating with the applicant's wife, but, owing to the conflict of fact raised by the affidavits, Mr. Cilliers , D for the applicant, was unable to ask for the substantive or final relief claimed, but under the prayer for alternative relief he asked for the matter to be referred to evidence under the Rules of Court, 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.

E The respondent, however, contends that the matter can be dealt with on the papers as they stand, and so dealt with the application ought to be dismissed.

The applicant, aged 30 years, and his wife, aged 27 years, have been married for about six years, and have two minor children, aged four and F two years. The respondent is a married man, and there are five children born of his marriage.

The applicant's wife and respondent are prominent golfers, and in about February, 1965, they met and became partners at the South African Golf Championship of that year. Through this meeting they eventually formed a G more friendly, and more than friendly, association. They fell in love with one another. It was admitted that, during May and June, 1965, they committed adultery with one another on three occasions. This threatened to break up the applicant's marriage, but, on 15th July, 1965, a reconciliation was effected between the applicant and his wife. At the H time of this reconciliation the applicant's wife promised not to see or associate with the respondent again, and the respondent in his turn also protested his sincere desire to terminate the affair with the applicant's wife, to return to his wife and children, and he solemnly undertook, according to the applicant, never to communicate with the applicant's wife again.

The applicant and his wife then lived together from July, 1965, to about July, 1968. The

applicant says that the reconciliation was complete, and that they lived happily together. Their second child was conceived shortly after the reconciliation, and was born during this period.

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TROLLIP J

The applicant's wife says that, although she made every effort to make the reconciliation happy, and pretended to the applicant that she was happy, it was indeed the three most unhappy and miserable years of her life, for she was still in love with the respondent. However, she and A the respondent did not see one another again, in terms of their respective undertakings, during those three years.

It is common cause that she again met the respondent in June, 1968. How they came to meet is in dispute. She says that the meeting was fortuitous. He alleges that it was by design on the part of the respondent, for he sought her out, but, for that allegation, he relies upon what she allegedly told him, and so it is hearsay in so far as the B respondent is concerned. By implication she denies that she so informed him. But be that as it may, it is common cause that the meeting led to a renewal of their former liaison. They do not deny that towards the end of June, 1968, while the applicant was away in Windhoek, they C committed adultery in Johannesburg, and they admit having committed adultery in Durban in about the beginning of August, 1968.

It is common cause that the applicant's wife went to Durban with the respondent on 31st July, 1968. The applicant alleges that, although he forbade her to go to Durban, she was taken there by the respondent by motor car.

D The respondent's version is that, shortly prior to 31st July, 1968, the applicant's wife informed him that she intended to leave her husband, and she asked him to take her to Durban so that she would be able to consider her position, i.e. her position vis-à-vis the applicant. As already stated, it is admitted that they committed adultery while they were in Durban on this occasion.

E She returned from Durban on 6th August, 1968, but she did not return to the applicant. She is now staying with 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 wants to marry the respondent whenever that becomes possible.

F The applicant says that he wants to save and preserve his marriage, that the respondent is the cause of its threatened break-up, that his wife is merely infatuated with the respondent, that, if the respondent is interdicted from seeing, communicating, and consorting with her, that infatuation will pass over, and that they will then become reconciled and happy again, as happened in the past.

G Those objects of course are most laudable, but before I can grant an interim interdict I have to be satisfied that the relevant legal requisites for such an interdict have been fulfilled. Mr. Cilliers contended that they had been.

H The first enquiry is what delict has the applicant proved that the respondent has committed, and will 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 view, to embark upon this enquiry 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 wife have committed adultery. That is a delict by the respondent against the applicant, and prima facie it would appear from the papers that further acts of adultery will probably be committed in future. Mr. Cilliers

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maintained that applicant had also proved, at any rate prima facie at this stage, that the respondent had also enticed the applicant's wife away from him, or, as it is sometimes put, had alienated her affections A for the applicant, and would continue to do so in the future. That would of course be a delict vis-à-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 show not merely that his wife left him for the B respondent, but that the respondent actually induced her to leave him, i.e. actively caused her to leave him, or, as was stated in Van den Berg v Jooste , 1960 (3) SA 71 (W) , that he had co-axed her away from the applicant, that he had talked her over, or that he had persuaded her to leave the applicant, and as a result thereof she had lost her affection for him. That is usually a very formidable onus to discharge.

C There 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 what his wife is alleged to have told him. That constitutes hearsay evidence against D the respondent, who in any event denies them. That, therefore, does not constitute even prima facie proof against the respondent. If the matter were referred to evidence or trial, such evidence would not be admissible.

Mr. Cilliers , however, 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 was happy until the respondent appeared on the scene, and that thereafter her affections for him waned and ceased, and she left him, it cannot be inferred therefrom, even prima facie in my view, that the respondent was guilty of enticing her away. Such an attachment between a wife and third party usually arises and continues quite spontaneously and voluntarily, F without any coaxing, persuading, or wooing on the latter's part. Indeed, in the present case it would appear that, so far from requiring any coaxing, persuading, or wooing from the respondent, the applicant's wife was not only a willing, but an enthusiastic party to the renewed liaison right from its very inception.

The applicant has therefore not proved prima facie , and in my view will G not be able to prove at the ultimate hearing, that the respondent has been guilty of any enticement or alienation of affections. That aspect therefore falls away. I need not consider, therefore, whether such a delict can beget an interdict such as is claimed in the present case.

I now turn to consider the only remaining aspect which concerns the H adultery. Mr. Philips has cogently contended that our law does not recognise the remedy of interdict against committing adultery. That such an interdict cannot be obtained against the wife follows from Ex parte A.B. , 1910 T.P.D. 1332, which decided that

    'adultery by one spouse does not constitute a tort in respect of which the other spouse can claim compensation from the guilty spouse'.

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 follow that an interdict cannot be granted against the co-respondent. Mr. Philips , apart from advancing reasons that such

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a remedy should not be recognised, has pointed out that no case has been found in the researches of either counsel in which such an interdict has been granted here, in the United Kingdom, or the United States of A America. That is indeed a strong indication that such a remedy is not accorded by the law. Le Roux v Van Wyk , 1 Menz. 253, quoted by Mr. Cilliers , mentioned, almost incidentally as it were, in the course of a damages case, that an interdict had been granted, but that was for harbouring a wife, which is an

entirely different matter. Nevertheless, I have some difficulty in seeing why, as adultery by a third party constitutes an injuria to the innocent spouse, the remedy of interdict B in appropriate cases should not in principle lie, for as Mr. Cilliers contended, ubi ius ibi remedium . However, I am diffident, with the limited time I have had at my disposal, to rule affirmatively that such a remedy is available, and thereby to add a new cause of proceeding to the already formidable mass of matrimonial litigation that our Courts C

have to handle. Fortunately I find it unnecessary to decide that question. I shall assume in the applicant's favour that such a remedy is available to him.

It is clear that the Court has a discretion to grant or refuse an interdict, for it is an extraordinary remedy. That discretion is wider in the case of an interim than in a final interdict. It seems to me D that, if available, an interdict against a third party committing adultery with the claimant's spouse should only be granted in very special or exceptional circumstances, for these reasons: (1) it is obviously an unusual or novel remedy, for so far it is unheard of; (2) it interferes with, and restricts the rights and freedom that the third E party ordinarily has of using and disposing of his body as he chooses; (compare Ex parte A.B., supra at pp. 30 and 39); (3) it also affects the relationship of the third party with the claimant's spouse, who is and cannot be a party to the interdict, and therefore indirectly interferes with, and restricts her rights and freedom of, using and disposing of her body as she chooses; (4) it attempts to regulate conduct between the F third party and the claimant's spouse, which springs from human emotions and passion. This differentiates it from other, ordinary relationships; (5) its enforcement gives rise to practical difficulties. These were mentioned in argument, and they need not be amplified here; (6) if adultery is subsequently committed, the claimant is not without G remedy, for he has the remedies of divorce and damages.

The above were all reasons advanced by Mr. Philips in his able argument about why the law should not recognise, and does not recognise, a remedy by way of interdict. On the assumption I have made the law does recognise such a remedy, but those reasons that I have set out above H would undoubtedly induce the Court to be slow to grant that remedy.

In the present case there are no special or exceptional circumstances that would warrant this Court, or the Court ultimately hearing the matter, granting such an interdict. There are only two circumstances that are relevant, and were relied upon.

Firstly, the applicant submits that an interdict would probably save his marriage and restore his wife's consortium to him. But the facts are

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completely against that. They show that the marriage has probably broken up irretrievably.

The applicant's wife says in her affidavit in para (3):     'In desperation, and because of my child, I agreed in 1965 to a A reconciliation, and I genuinely and sincerely

attempted from 1965 to 1968 to forget the respondent, with whom I was then in love, and am still in love. In this endeavour I was completely unsuccessful, and the three years to which I have referred have been the most miserable and unhappy of my life. I love my children dearly, and I would not wish to do anything which would in any way hurt them or cause them grief, but I know that if I continued to live with the applicant, our relationship will deteriorate even further, and we will be even more unhappy than in the past.'

B Then para. (4):     'I am determined not to live with the applicant again under any circumstances, and while I earnestly hope and

desire that the respondent will not be interdicted and restrained from seeing me, I will not under any circumstances return to the applicant, or live with him as man and wife.'

Para. (5):     C 'During the attempted reconciliation between 1965 and 1968 between myself and the applicant, I did

everything in my power to keep from the applicant the fact that I was brokenhearted and desperately unhappy. I genuinely then hoped that our marriage could be patched up, but this was not the case, and had I not met the

respondent fortuitously in June, 1968, and renewed my former association with him, I would nevertheless soon have become no longer able to tolerate married life with the applicant.'

D Para. (6):     'I believe that, if it ever becomes possible for me to marry the respondent, we shall be happy in one another's

company, and I earnestly desire to marry him.'

Now, that shows in my view that according to the applicant's wife the E marriage is now firmly on the rocks. Mr. Cilliers argued that the Court hearing evidence viva voce might not believe the applicant's wife, 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 wife will give at the trial. On such evidence the Court could only conclude that the parties' F marriage has irretrievably broken up. Mr. Cilliers argued that in 1965 the parties did become reconciled, and the same could happen again, but I think that that incident is against the applicant. What the applicant's wife 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. That being so G there is no purpose in granting the interdict in trying to save the marriage, because the marriage is irretrievably lost.

The second circumstance relied upon by Mr. Cilliers is that the applicant should not be subjected to the insult or humiliation of the respondent's continuing to commit adultery with his wife. That argument H is not without substance, but its force is considerably weakened by the fact that, firstly, as already mentioned, his marriage has already broken up irretrievably, and his wife has left him. So that if they now commit adultery the insult or humiliation must of necessity be considerably lessened, especially as it has not been shown that the respondent enticed the applicant's wife away from him. Secondly, that much of that insult and humiliation is caused by his wife herself, who, as I have already said, is and would probably continue to be, judging by her affidavit, an enthusiastic party to the commission of any further adultery. Thirdly,

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the applicant would be able to recover damages for such further adultery from the respondent.

There 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 would be wrong to relegate the applicant merely to his right to claim damages, thereby enabling the respondent virtually to purchase the right to commit adultery with the applicant's wife at the expense of insulting or humiliating the applicant.

In view of the fact that the applicant's marriage has now irretrievably broken up, and that he has irretrievably lost his wife's consortium , I do not think it is wrong to relegate him to his claim for damages.

B It was also mentioned in the papers that the applicant had suffered patrimonial loss from the defection of his wife. In so far as that has resulted from his wife's leaving him, as the respondent has not been shown to be responsible for enticing her away, he would not be liable therefor, but, if he is, the applicant has his remedy for damages C 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 would not be entitled to a final interdict, and is therefore not entitled to have the matter referred to evidence or trial, and is not D entitled to any interim interdict. The application is therefore dismissed with costs.

Applicant's Attorneys: Israel, During & Kossuth . Respondent's Attorneys: Bowen, Sessel & Goudvis.

[zRPz] VOORTREKKERWINKELS (KO-OPERATIEF) BPK v PRETORIUS 1951 (1) SA 730 (T) 1951 (1) SA p730   [zHNz] Headnote : Kopnota

C Appellant company had unsuccessfully sued respondent in the magistrate's court for the price of certain clothing and groceries supplied on credit to respondent's wife who ordered them on his account but without his knowledge during May 1948. Respondent had put appellant to the proof of such supply and had denied liability on the grounds ( a) D that such goods were not necessaries save as to those for which he had paid and (b) that the supply of them was to respondent's wife after she had unlawfully deserted him in April, 1948, and was consequently not a supply to respondent's household for which he could be held liable. The magistrate had upheld the last-mentioned defence without considering any other matter. In an appeal it was contended (a) even assuming that E respondent's wife had wrongfully deserted him and thereby determined her normal right to bind respondent's credit for credit purchases for household necessaries, that a certain letter written by respondent's attorney constituted either a ratification of her action in binding him or an admission of liability for the price of what in fact were necessaries or an abandonment of his right to refuse to pay for credit purchases effected by her after desertion, (b) even if not liable to pay F for the articles purchased by the wife for her own personal use, respondent was in law obliged to pay for such clothing as ex facie the accounts was intended for the use of the children, (c) that the magistrate had erred in fact in holding that it was without due cause, occasioned by respondent, that his wife left him, and (d) that in view of the fact that the respondent had prior to May 1948 conducted a credit account with appellant, it was respondent's duty to have notified G appellant of her desertion and resultant inability (if any) to bind respondent by purchasing on such account, and his failure to do so raised an estoppel against him. The evidence disclosed that prior to May respondent's wife had only made small purchases from appellant for cash, but that during May she made extensive purchases on credit. The respondent had stated that his wife and children were in possession of sufficient clothing and that these articles were not necessary at the time. There was also general evidence that they were properly dressed in April and May, 1948.

H Held , assuming that appellant had discharged the onus on it to the extent of showing that the articles supplied were of the character and prima facie of the quantity reasonably required for the household, that it was still open to the husband to show that in view of the amount of the articles already possessed by the household or its members, the articles purchased were not in fact necessary.

Held , further, though the magistrate had made no specific finding on this point, that there was no reason why the husband's statement should not be accepted, and that these articles had been shown not to be necessaries. 1951 (1) SA p731

Held , further, that there was no reason to interfere with the magistrate's finding that the respondent's wife deseried him without cause, and that such desertion terminated her right to bind respondent for her credit purchases.

Held , further, that there was no reason to differentiate between purchases made for the wife's use and those for the use of the children, whom the wife had taken with her.

A Fillis v Joubert Park Private Hospital (Pty.) Ltd. , 1939 T.P.D. 234 distinguished.

Held , further, as the evidence showed that the wife had never previously purchased from appellant on credit, that there was no duty resting on respondent (breach whereof would be sufficient to raise an estoppel) to warn appellant of the possibility of her buying on credit.

Held , further, that the letter relied on could not be construed as either a definite undertaking on respondent's part to pay what a court B of law should find to be necessaries, or as an abandonment of his legal position conveyed to appellant verbally and in writing that his wife had deserted him and so he could not be held liable. Appeal accordingly dismissed with costs. [zCIz] Case Information

Appeal from a decision in a magistrate's court. The facts appear from the reasons for judgment. [zJDz] Judgment

MURRAY, J.: The present appeal is an appeal against a judgment granted by the magistrate of Bethal in favour of respondent (defendant in the F court below) in an action in which appellant as plaintiff claimed payment of the sum of £88 5s. 7d. for goods sold and delivered. The action was almost entirely concerned with the price of certain clothing and groceries supplied on credit by appellant to respondent's wife who ordered them on his account during May, 1948. The defence put plaintiff G to the proof of such supply and denied liability on two grounds viz.,     (a)     that such goods as were supplied were not necessaries save as to £11 18s. 9d., for which defendant had paid, and     (b)     that the supply if any was to respondent's wife after she had unlawfully deserted him in April, 1948, and was consequently not H a supply to respondent's household for which he could be held liable.

The magistrate upheld the last-mentioned defence, and found it unnecessary to consider any other matter.

The respondent stated (and this was scarcely disputed) that in 1948 his principal occupation was that of a cartage contractor and his income approximately £200 per annum. The plaintiff's manager van Schalkwyk admitted that respondent, a member of the appellant Co-operative Company had commenced buying from the 1951 (1) SA p733

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appellant on credit in December, 1946, and that respondent's monthly credit purchases were usually below £5 in amount and never exceeded £10. It was common cause that respondent's wife had left him on 26th April, 1948, taking with her the three minor children of the marriage and did A not thereafter return to him. The magistrate found that such departure constituted an act of wrongful and malicious desertion, due to her attitude towards another man whom she eventually married after respondent had obtained a divorce from her in

March, 1949. During March B and April, 1948, the household purchases from plaintiff amounted to £2 6s. 0d. and £1 1s. 9d. respectively. On 8th May, 1948, however, and on other days during that month, the respondent's wife (who in evidence stated that she herself had never previously bought from appellant Company save for cash) ordered and was supplied on credit with clothing C for herself and her children, as well as groceries, to a total amount of approximately £90, all whereof was debited to respondent's account. Respondent was in ignorance of her actions in this regard until he received the customary statement of account from appellant Company. D Appellant's manager stated that it was only after receipt of the account for this sum that respondent notified him of the desertion, and also alleged that respondent had never previously instructed appellant Company not to supply her on credit. Respondent intimated that he expected she would return to him. Appellant Company pressed for payment E and correspondence ensued to which reference will later be made. Eventually respondent, on scrutinising the detailed accounts furnished to him, paid appellant the amount of £11 18s. 9d. as being for what (so he says) he thought might be regarded as a necessary expenditure, but repudiated liability for the balance.

F It appears from the evidence that the respondent, after desertion by his wife, requested her to return to him, which she declined to do. On receipt of appellant's account he at one stage expressed the view to appellant's manager, van Schalkwyk, that as he had expected her to G return he had not previously notified plaintiff of the position, but it is conceded by appellant that until receipt of the account respondent was not aware of his wife's purchases. Eventually, on receipt of a peremptory demand for payment, dated 2nd September, 1948, the respondent's attorney replied as follows on 7th September, 1948:     H 'Please let me have a fully detailed account showing how the amount claimed is arrived at, when the matter will receive further attention. As you are aware client's wife has left him but he is quite prepared to pay for any necessaries purchased by her.'

In the course of a very careful argument Mr. Eloff , for the plaintiff as appellant, raised four contentions:     (A)     Even assuming that the respondent's wife had wrongfully deserted him, and thereby determined her normal right to bind defendant for the price of credit purchases of household 1951 (1) SA p734

MURRAY J        necessaries, his attorney's letter of 7th September, 1948, above quoted constituted either a ratification of her action in binding him, or an admission of liability for the price of what in fact were necessaries or an abandonment of his right to A refuse to pay for credit purchases effected by her after desertion.     (B)     Even if not liable to pay for the articles purchased by the wife for her own personal use, respondent was in law obliged to pay B for such of the clothing as ex facie the accounts was intended for the use of the children.     (C)     That the magistrate had erred in fact in holding that it was without due cause, occasioned by respondent, that his wife left him.     (D)     That in view of the fact that the respondent had prior to May, C 1948, conducted a credit account with appellant, it was respondent's duty to have notified appellant of her desertion and resultant inability (if any) to bind respondent by purchasing on such account, and his failure to do so raised an estoppel against him.

D These contentions have been duly considered, but I have come to the conclusion that there is no reason to interfere with the magistrate's judgment. For in my view the matter can be

decided on a relatively simple question of fact. A wife's right to bind her husband in the E purchase of articles on credit is limited to those articles which are necessary for the use of the joint household or of individual members thereof. There appears to be some difference of judicial opinion as to the degree of onus resting on the tradesman to show that what he supplied constituted necessaries. But I shall take the position most favourable to appellant, which appears to be that set out in the F majority judgments in Reloomel v Ramsay, 1920 T.P.D. 371, and assume that having regard to the station in life of the parties and the other circumstances mentioned by WESSELS, J.P. ( loc, cit . at p. 377), the articles supplied were of the character and prima facie of the quantity reasonably required for the household, and that to such extent the onus G was satisfied by appellant. But I do not think that this concludes the matter. As indicated by WESSELS, J.P. (loc. cit . at p. 378), and BRISTOWE, J. ( loc. cit. , p. 381) it is still open to the husband to show that in view of the amount of articles already possessed by the H household or its members, the articles purchased were in fact not necessary. This may be an unfortunate result for a tradesman but he must take this risk when he relies on merely an implied authority to bind the husband, and in this particular case the appellant has only itself to thank if (as the wife says) she had never previously purchased goods from it on credit.

In the present case the wife gave evidence that the articles in question were required for herself and the children. She gave a certain amount of detail to support this, more particularly in 1951 (1) SA p735

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regard to the children. She admitted she had never told respondent she wished to buy these articles. As against this the respondent produced the somewhat general evidence of one Greyling that the wife and children were properly dressed in April and May, 1948. In addition he stated that A the wife had a large wardrobe full of clothing including three new dresses and sufficient underclothing. The children also were in possession of sufficient clothing and shoes. He used to make purchases at other stores as well. These articles - other than those for which he had paid £11 odd - he concedes, might have been necessary later on, but were not such at the time.

B It is true that there is no specific finding of fact by the magistrate on this point, but there is no doubt that on the question of desertion he disbelieved her with good reason and believed respondent. C In the circumstances I can see no reason why the respondent's statement should not be accepted in regard to the adequacy of the clothing possessed by the wife and children in April, 1948, and I have come to the conclusion that these articles (other than to the extent of £11 paid) were shown not to be necessaries.

Even apart from this aspect of the case, the appellant's contentions, in D my view, cannot be upheld. My consideration of them will be brief in view of the conclusion I have already stated. In the first place I see no reason to interfere with the magistrate's finding that the respondent's wife deserted him without just cause. If so ( vide Janion v. E Watson & Co., 6 N.L.R. 234, and Bing and Lauer v van der Heever , 1922 T.P.D. 279) such desertion terminates her right to bind respondent for her credit purchases.

Secondly I see no reason to differentiate between purchases made for the wife's use and those for the use of the children. Appellant relied on F the case of Fillis v Joubert Park Private

Hospital (Pty.) Ltd. , 1939 T.P.D. 234. But there is an important distinction in that in the last-mentioned case the wife on divorce was given the custody of the children and was in consequence entitled to obtain necessaries for the children not covered by the maintenance paid to her by her former G husband. I do not consider that this decision applies to the case where a husband is wrongfully deserted and the children taken from his household, and means that the wife can enjoy an implied authority to conduct the duty of maintaining the children at his expense, a duty which he is supposedly still prepared to discharge himself.

H Thirdly, if it be true, as both respondent and his wife allege, (the appellant's evidence does not definitely contradict this) that she had never previously purchased on credit, but only on cash, from plaintiff, I can see no duty resting on respondent (breach whereof is sufficient to raise an estoppel) to warn appellant of the possibility of her buying on credit.

Finally there is the reliance placed by the appellant on the letter of 8th September. Even assuming that appellant (with or without 1951 (1) SA p736

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amendment of his summons which does not found any claim on that letter) may advance his present contentions, I am unable to construe that letter as either a definite undertaking on respondent's part to pay for what a Court of Law should find to be necessaries, or as an abandonment of his A legal position as made clear to the appellent's manager verbally, and as reiterated in the letter - viz. that his wife had deserted him and so he could not be held liable. Respondent was not (as far as I can judge) fully and specifically cross-examined as to the meaning, in the circumstances, of the letter. But he stated in evidence: 'Ek sou die B items betaal het wat ek as nodig beskou.' That is to my mind what the letter conveyed, in the light of his previous attitude. I cannot see that he could have meant, or be taken to have meant, that he surrendered the power he had previously exercised of observing economy and himself C deciding what purchases were necessary. His meaning was to give the matter further attention when he had seen the details and then to do what he considered fair both to himself and to appellant.

The appeal must be dismissed with costs.

D DE WET, J., concurred.

Appellant's Attorneys: MacRobert, de Villiers & Hitge . Respondent's Attorneys: Feldman & Cohen . The plaintiff claims general damages and particular items of actual and prospective loss and expenditure which she alleges were and will be H caused by the defendant's breach of promise. Included under the latter items were 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 was contended by Mr. Schwarz that if it was held that she had failed to prove the actual loss that she had suffered, the Court could nevertheless take into account, in fixing the amount of general damages, that she had sustained some unascertained but appreciable loss in those respects. Furthermore, Mr. Schwarz contended that because

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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 was aggravated and A therefore the general damages should accordingly be substantially increased.

In view 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 law governing the award of damages for breach of promise.

In English law, the breach of promise is regarded as being 'attended B with some of the special consequences of a personal wrong' ( Finley v Chirney (1888) 20 Q.B.D. 494 at p. 504), in consequence of which the plaintiff is presumed to have suffered damage as a result of the breach of promise itself. In nature and effect the damages are like those in C

libel actions. Mayne on Damages , 11th ed. p. 520, says that actions for breach of promise

    'stand on a par with actions for libel as to the range of topics in which counsel are allowed to indulge'

in regard to damages. The ordinary damages (i.e. other than any specific monetary loss which must be specially claimed) are not measured by any D fixed standard but are almost entirely in the discretion of the jury ( Halsbury , 3rd ed. vol. 19 p. 773 para. 1235). Like libel too (see Spencer Bower on Actionable Defamation , 2nd ed. p. 156) the damages which can be awarded are not necessarily compensatory but may also be of 'a vindictive and uncertain kind . . . to punish the defendant in an exemplary manner' ( Finlay's case supra; Quirk v Thomas , 1916 (1) K.B. E 516 at p. 338). Consequently, it follows logically that 'the conduct of the parties may properly be considered in aggravation . . . of damages' ( Halsbury, ibid para. 1236) and I think that that conduct would most probably include the conduct of the defendant at the trial itself as in libel actions. In that regard Spencer Bower at pp. 166 - 7 says that F 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 taken by the jury into consideration as a ground for aggravating the damages.

G In pure Roman-Dutch Law the action for damages for breach of promise 'remained rather undeveloped' (van den Heever on Breach of Promise p. 37) because the usual remedy was an order for specific performance of the marriage, but where it did lie it was to recover the plaintiff's id quod interest (i.e. the actual and prospective loss) as in ordinary actions for damages for breach of contract ( van den Heever, ibid; H McCalman v Thorne , 1934 NPD 86 at pp. 90, 91, and counsel's argument at pp. 87 - 8, where the authorities are canvassed; Davel v Swanepoel , 1954 (1) SA 383 (AD) at p. 387G - H). Mere breach of promise itself did not give rise to an injuria which would have entitled the plaintiff to include a claim for damages for personal wrong in her action; if the breach, however, was committed in circumstances that also constituted injuria , then doubtless she could have included such a claim as a separate cause of action (cf. Jockie v Meyer , 1945 AD 354 at pp. 367 - 8).

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Melius de Villiers on Injuries at p. 26 says:     'A breach of contract is not, in its nature, an injury. The 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 injury. The favourable inclination of a man towards a woman may turn to aversion from numerous other causes than A those which reflect upon her character, and there may be cases where a breach of promise of marriage may be occasioned by reasons which are strictly honourable. It might, however, be an injury when a person wilfully enters into an engagement to marry another which he does not intend keeping with the object of exposing that other to ridicule, or when he justifies his action by giving reasons for his conduct which are slanderous and untruthful.'

It will therefore be seen that fundamentally Roman-Dutch Law differed B from English law; but the early decisions of our Courts seem to have followed English law implicitly without any reference to or enquiry into Roman-Dutch Law (see, for example, Triegaardt v van der Vyver , 1910 E.D.L. 44; Radloff v Ralph , 1917 E.D.L. 86). In 1934, for the first time a

full argument was addressed to a Court, the NPD (HATHORN, J. and CARLISLE, A.J.) in McCalman's case, supra , on the Roman-Dutch Law, C and the difference between it and English law; and the Court was urged to follow the former and accordingly to award 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 Court did not take the opportunity of establishing D the action firmly on a Roman-Dutch Law basis. It held in effect that under the influence of English law the action had developed in our law into a unified or composite one comprising both contractual and delictual elements. At p. 91 it was said:

    'The result was logical and practical. For the heads of damage stated in Radloff's case can be traced to two sources: first, the ordinary measure E for breach of contract, which comprises (a) any monetary loss sustained by the plaintiff, (b) what may be called the prospective loss, where 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 wrongful putting an end to of a F 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 . Here regard will be had to the wounded feelings of the plaintiff and the social position of the parties.'

It was further held (p. 92) that there was no need, as a matter of practice and pleading, to separate the delictual from the contractual G damages claimed in the action. Damages for both could be claimed in one lump sum.

McCalman's case has been followed in Natal ( Mymenah v Cassim Rahim , 1943 NPD 229; Combrink v Koch , 1946 NPD 512) and it probably set the pattern for breach of promise cases in South Africa. In consequence, the delictual damages and the prospective loss in the contractual H damages are now usually claimed in a lump sum as general damages, and any monetary loss is claimed and pleaded as special contractual damage. That was done in this case and no attempt was made in the pleadings or at the hearing to separate the delictual from the contractual general damages. That was probably due to McCalman's case.

Now McCalman's case appears to hold that the breach of contract itself gives rise not only to the contractual damages but also to the

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delictual damages; in other words, that the mere breach of contract ipso jure constitutes an injuria . If it does mean that then, with great respect, I disagree with that part of it. I think that the plaintiff, in A order to recover delictual damages, must prove not merely that the breach was wrongful but also that it was injurious or contumelious. Otherwise there would be an unnecessary subversion of the wholesome principle of Roman-Dutch Law set out in de Villiers on Injuries , quoted above. I think that that is also the effect of the view expressed so B well and forcibly by the late Mr. JUSTICE VAN DEN HEEVER at pp. 30 - 31 in his Breach of Promise. Inter alia he said:

    'It is submitted that those decisions of our Courts which 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-Dutch Law. Unless a person who breaks off an engagement commits an actionable wrong 'the feelings of the plaintiff and the moral suffering she has undergone' are irrelevant to the question of damages . . . The notion that a woman necessarily loses social position or 'face' when an C engagement is broken off in non-injurious circumstances seems to me to reflect the morals of a by-gone age when espousals constituted an inchoate marriage and repudiation was equivalent to malicious desertion.'

Consequently, contrary to what was held in McCalman's case, I think that it is generally advisable to separate in the composite action the D contractual and the delictual elements and the damages claimed for each. That would conduce to clarity of thinking in assessing the general damages because each of the elements is governed by its own special principles that might be confused if not separately considered. For example, damages might be awardable for the contractual but not for the delictual remedy or vice versa , as appears from what I have just said E above; the former has to be proved with that degree of precision required in breach of contract whilst the latter is in the Court's discretion; the latter is, whereas the former is not, subject to aggravation or mitigation

according to the contumely of the defendant's conduct; and so on. Consequently, unless the two elements are kept well separated there is a risk of confusion with consequent injustice, as, F for example, 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 subsequent conduct when there is no delictual liability at all. I am therefore constrained to disagree with McCalman's case in that respect too, and to say that in my view, G 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.

These further points relating to damages are also relevant in the H present case. In regard to contractual damages, both the prospective loss of the benefits of the marriage and the actual monetary loss or expenditure incurred or to be incurred can be awarded. The latter must either flow directly from the breach of promise or must be reasonably supposed to have been within the contemplation of the parties at the time the contract was entered into as a probable consequence of the breach. Therefore, expenditure reasonably incurred prior to the breach in contemplation of the promised marriage taking place and which is rendered useless by the breach can obviously be

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recovered. Expenditure or loss incurred or to be incurred after the breach can also be awarded if the above requisites are present, but only if such damage is not covered by an award of prospective loss. A duplication of damages in this respect must be safe-guarded against ( van den Heever at p. 38).

A In regard to delictual damages, these can, I think, be aggravated by any further contumelious or injurious 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 with the contumelious or injurious conduct involved in the actual breach of promise, and is not an entirely separate and distinct injuria (cf. Salzmann v Holmes , 1914 AD 471 B at pp. 481 - 2; Black v Joseph , 1931 AD 132 at pp. 145, 146, 148 - 9).

Applying those principles I deal with the damages that are claimed by the plaintiff under the following headings:

    (1)     Loss on sale of motor car . The plaintiff purchased the motor car C in 1954 for $2,381 and sold it in December, 1959, because of her departure to South Africa for $550 to the person who used to clean it for her. She claimed that when it was sold its value was $1,200 - $1,300. Apart from her evidence there was none to prove what its true value was in December, 1959. She admitted that she knew little or nothing about re-sale values of secondhand motor cars, and that D it was a motor car dealer who had told her it was worth about $1,200. In exh. 'N' she said that she had 'looked around' and the best offer she could get was $400 - $600; and in exh. 'U' she admitted that in selling it to the private buyer for $550 she was selling it to the best advantage. There is, therefore, no evidence E to prove that $550 was not a fair price for the motor car at the time it was sold. I therefore do not think that she has proved any loss under this heading.

    (2)     Loss on disposal of her furniture . She claims that it was worth approximately $4,000 and that it was disposed of for $742. The F details are given in exh. 'SS' which she herself compiled. The values of the items are her own estimates but she admitted that she had no knowledge of the values of the items but that she had relied upon what others had told her at the time she was disposing of them. There was no other evidence adduced to prove G this loss. I think that it is probable that she did sustain some loss but her own evidence in the circumstances is not sufficient to prove what the amount is and I can therefore not award her anything under this heading. This is not the kind of case in which the Court must estimate the quantum of damages as best it can on the evidence H that has been adduced because here the plaintiff could and should have adduced better evidence to prove the quantum (see Klopper v Mazoko , 1930 T.P.D. 860; Lazarus v Rand Steam Laundries , 1952 (3) SA 49 (T) at p. 51; Rangeland Ltd v Henderson , 1955 (3) SA

134 (SR) at pp. 136 - 7; Odendaalsrust Gold General Investments and Extensions Ltd v Naude, N.O. , 1958 (1) SA 381 (T) at p. 344). According to the plaintiff's evidence, some dealers did see the furniture and make offers for some of it, and her friends, the

1961 (4) SA p38

TROLLIP J        Kingsleys, must have seen it often and actually received some of it by way 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. The plaintiff did say that the taking of evidence on commission in New York was considered but decided against because of the cost. But having regard to the substantial amount of damages claimed under this heading, I do not think that the cost of the commission would have been disproportionate or B unreasonable in relation to the issues involved, and that she was therefore absolved from the necessity of having to procure it. Moreover, as a last resort, she might have been able to procure some expert witness locally, and, by studying her evidence and the photographs, he might have been able to give the Court some more reliable evidence in estimating the value of the furniture or C the loss incurred in selling it in New York. I consequently cannot award anything to the plaintiff under this heading.

       Nor is there any legal basis on which I can accede to Mr. Schwarz's 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.

    D (3)     The cost of packing and storing the plaintiff's belongings . According to the plaintiff's evidence, she paid the State Cooperage Company of New York $222.67 for packing certain of her belongings and delivering them to the warehouse of Morgan E & Brother of New York for storing (exhs. 'AAA' and 'BBB'); and the latter $6 for labour in handling the articles on arrival. Thereafter, the latter has charged her $10.50 per month for storage, including insurance, with effect from the 15th January, 1960 (exhs. 'CCC', 'DDD', 'EEE', 'FFF'). The reasonableness of these amounts was not contested. Subject to fixing the period for F which she is entitled to claim storage, I think that she is entitled to recover these amounts. I think that it is a fair assumption to make that if the defendant had duly implemented his promise to marry, the parties would have been married by the 1st April, 1960. On that assumption it is probable that instructions would have been given to ship these belongings to the plaintiff in G South Africa and that that would have been done by the 15th April, 1960. In my view, therefore, the plaintiff is entitled to claim storage for the period 15th January, 1960, to the 15th April, 1960, at $10.50 per month, amounting to $31.50. I do not think that she H is entitled to claim storage for any period thereafter until she returns to New York and re-establishes her home there. The reason is that she is being awarded a substantial sum for the prospective loss of benefits of the marriage; that loss is awarded on the basis of the fulfillment of the promise to marry; and on that assumption the cost of storage would not have been incurred after the 15th April, 1960. To award damages for the cost of such subsequent storage would amount to a duplication of damages referred to above. The loss awarded under this heading amounts therefore

1961 (4) SA p39

TROLLIP J        to $260.17. According to exh. 'XXX' which was handed into Court by agreement, the agreed

exchange rate for the purpose of this case is $1.39 5/16ths to the rand. According to that rate of exchange the loss is about R187.

    A (4)     Loss of earnings . Plaintiff was earning $85 per week in New York. She managed to come out on that but she did not save anything. From the time she embarked in New York, which was approximately when she gave up her employment, until she left the defendant's flat in Johannesburg towards the end of March, 1960, she was provided for B

by the defendant, firstly by means of the paid fare which covered everything, and secondly by maintenance. Thereafter, she had no means of subsistence until the 1st July, 1960, when she secured work in Johannesburg at £40 per month. She was then able to maintain herself pending the hearing of the action and until she could return to New York. C Mr. Schwarz conceded in his argument that she had not proved that she was entitled to recover anything for the period up to the 1st April, 1960, but he claimed that an appreciable amount should be awarded on the basis of her New York salary for the

period thereafter until the time when she can be reasonably D expected to resume work in New York, less what she had earned in Johannesburg.

       I do not think that anything can be awarded under this heading. I agree that she has not proved any loss up to the 1st April, 1960. In regard to the period whilst she worked in Johannesburg and earned £40 per month, there is no evidence to prove that having E

regard to the respective costs of living in Johannesburg and New York, her salary in Johannesburg was less than the $85 per week in New York; and if so, by how much. And, in any event, on the assumption that I made previously that the parties would have been married by the 1st April, 1960, if the defendant had F fulfilled his promise, the plaintiff would not have worked and earned any salary thereafter and the defendant would have continued to maintain the plaintiff. For the same reasons as is mentioned in para. 3 above, to award her any loss of earnings after the 1st April, 1960, would be to duplicate the damages with those awarded for prospective loss.

    G (5)     Loss of plaintiff's apartment . The contention here is that the plaintiff lost her rent-controlled apartment for which she was paying $80.15 per month; in consequence, she will on her return to New York either have to pay a substantial premium to get a similar apartment (the amount of which she did not herself know) or she will have to hire an uncontrolled apartment which she said she H could probably get at $150 per month. Here again I do not think that she really knew the true position regarding apartment rentals and premiums, so that her evidence cannot be used to estimate any loss; and there was no other evidence to assist the Court. But, in any event, if the defendant had implemented his promise to marry, the loss (if any) under this heading would not have occurred, and for the same reasons

1961 (4) SA p40

TROLLIP J        given in paras. 3 and 4 above, no award should be made under this heading.     (6)     The cost of returning to New York . According to exh. 'XXX' the reasonable cost of

travelling 1st class from Johannesburg to A Cape Town by train is R25.17 and by boat from Cape Town to New York, R358, the total of which is R383.17. I think that this item of damages can reasonably be supposed to have been within the contemplation of the parties at the time the contract was entered into as a probable consequence of the defendant's B breach, and is therefore recoverable. Here again, however, to award it would amount to duplication of damages with the amount awarded for prospective loss; consequently, for the same reasons as given in the preceding paragraphs I make no award under this heading.

    (7)     Prospective loss . The probability is that the parties would have C married with an ante-nuptial contract, excluding 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 would have been made on her in the antenuptial contract. It appears from the evidence, however, that the defendant is a man of some affluence and occupies a position in life that is superior D to her own. She would therefore as his spouse, though married out of community of property and profit and loss, have derived material benefits from the marriage by way of status, maintenance, gifts, and otherwise, which she has now lost as a result of his breach of E promise. The defendant's own letters adduced in evidence for example mentions possible trips to America, Europe and Kenya that they might have taken together after they were married. For the loss of all these benefits she is entitled to be compensated ( van den Heever , p. 40; Davel v Swanepoel , 1954 (1) SA 383 (AD) F at p. 386 A - B and at p. 387 F - H). I think that her loss under this heading is substantial. It is correct, as Mr. Morris contended, that the evidence shows that the marriage would probably not have lasted very long, and that is a factor that must abate the loss to some extent; but I think that its G force is somewhat lessened by this fact. The evidence shows that it would probably have been the defendant who would have deserted the plaintiff, and on the divorce the plaintiff would therefore probably have obtained either alimony or a lump sum payment in lieu thereof by virtue of the provisions of sec. 10 of the Matrimonial Affairs Act, 1953. The possibility of her getting married again H must also be taken into account. She is, however, now nearly 44 years old which reduces her chances of marriage, but as I mentioned at the commencement of this judgment, she carries her age well and the possibility of her remarrying cannot consequently be ruled out altogether.

       Taking all the circumstances into consideration, I assess her loss under this heading at R2,000.

    (8)     Delictual damages . The enquiry is first whether the defendant's breach of promise was committed in a manner or in circumstances

1961 (4) SA p41

TROLLIP J        stances that constituted it injurious or contumelious. Unfortunately, probably owing to

McCalman's case, specific attention was not given to this aspect of the case either in evidence or in argument. The reasons the defendant gave for refusing to implement his promise were not fully A investigated in evidence or cross-examination but I think that on the balance of probabilities shown 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 5th April, 1960, exh. 'GG' in answer to the plaintiff's claim for damages, it B was stated that the defendant denied that he had ever agreed to marry the plaintiff. That was also the attitude that was taken up by the defendant in his pleadings and evidence in the case. I think, therefore, that it can be inferred that that was his attitude at all times relevant to this action. This is therefore C not the kind of case where the defendant acknowledges the promise to marry but breaks the engagement in a sensible and non-contumelious manner in the interests of both parties (cf. van den Heever p. 30; Mocke v Fourie , 3 C.T.R. 313). Here the defendant promised to marry the plaintiff; caused her to uproot herself from New York and come to South Africa in contemplation of D 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 think that that constitutes injurious or contumelious conduct for which the plaintiff is entitled to damages. No specific evidence was, however, adduced to prove the extent of the injury E to her feelings, her pride, or her reputation. She seemed to be more concerned during the trial with her contractual damages. But I think that it can be inferred that her feelings and pride were hurt at the time. However, although it is true that she is relatively unknown in Johannesburg and she intended returning to New York F after the conclusion of the trial, she will suffer some humiliation on returning to her circle of friends in New York after all the elaborate steps she had taken to wind up her affairs there in order to leave for South Africa to get married. On the other G hand, she is a mature level-headed woman who has suffered somewhat similarly before when her marriage broke up, so the effect on her feelings and pride of the defendant's breach is not likely to have been as severe as it would have been on a younger unsophisticated person. I think in all the circumstances that the damages for the injuria should be R500 which I award.

    H     It remains to consider whether 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. These statements were to the effect that the plaintiff was a blackmailer, a fabricator of evidence, a person who cunningly schemed to ensnare him into matrimony, that she drank to excess and surrendered her virtue easily. None of those statements were proved to be true and on the evidence

1961 (4) SA p42

TROLLIP J        I heard they are without any foundation at all. Should they therefore inflate the damages

awarded under this head? None of them had anything to do with the actual breach of promise itself. The defendant did not at the time of the breach, or in his pleadings, A or in his evidence in the case, seek to justify his breach of promise because of the plaintiff's character. I do not think that I need canvass the actual or possible reasons for the making of the statements, save to say that they had no direct connection with the actual breach of promise. Consequently I do not think that those B statements can be used to inflate the delictual damages. See Salzman's and Black's cases, supra . The above statements are prima face defamatory of the plaintiff but they would constitute a separate and distinct injuria for which the plaintiff could sue separately if she is so minded (cf. Jockie v Meyer , 1945 AD 354 C at p. 368); in that event the defendant could then raise those special defences that are available to a defendant in cases of that kind and the question 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 D from my mind than that. I merely mention such litigation to illustrate the principle I have applied and for no other reason.

The conclusion I have therefore come to is that there should be judgment for the plaintiff in the sum of R2,687 (two thousand six hundred and E eighty-seven rand) with costs. The plaintiff is declared a necessary witness.

Plaintiff's Attorneys: J. Kantor & Partners . Defendant's Attorney: D. A. Kark.