Noncebo Nhlapo claimed more than R2 million in damages from Zimu after he had asked for her hand in marriage, but later found greener pastures.
While allowing certain expenses Nhlapo proved she incurred in preparation for their “long and happy life together” and some damages for her injured feelings relating to the manner in which he had dumped her, the court refused the bulk of her claim.
Judge Leicester Adams, sitting in the Gauteng High Court, Pretoria, found some of the principles on which these claims were determined in the past, were now outdated.
He said the laws relating to a breach of promise to marry were based on a pre-constitutional heterosexual definition of marriage which traditionally placed women on an unequal footing to men.
He turned down her R2m claim for the “prospective losses” she might have suffered as a result of Zimu’s breach of promise.
In this regard, the judge said to hold a party liable for contractual damages for breach of promise to marry could lead to parties entering into marriages they did not, in good conscience, want to enter into, purely due to the fear of being faced with a claim. “This is an untenable situation breach of promise to marry no longer forms part of our law,” the judge said.
He also found that the fact that the feelings of the “innocent” party were hurt or that she or he felt jilted, was also not enough to warrant compensation. “Guilt is no longer the issue,” the judge said
He, however, did award her R25 000 in damages for her “hurt feelings” relating to the manner in which she was dumped. She also received R98 149 - half of the expenses the former couple incurred for receiving in vitro treatment.
Nhlapo told the court that Zimu, in September 2012, proposed to her and they got engaged, although there was no ceremony. She was in her thirties at the time and he was 48. As they wanted children, they went to a fertility clinic for treatment.
She moved from Pretoria to eMalahleni to live with him and said they planned their life together.
Three years later he became involved with another woman and dumped her. He at first removed her from his medical aid and replaced her with his new girlfriend. He later took her back to her mother’s home.
Zimu, who chose not to testify, said in his written plea he never promised to marry her: “any engagement agreement existed only in her mind”.
But Nhlapo’s mother testified he asked her for her daughter’s hand in marriage.
The judge found there was a promise to marry. “It is not a legal requirement that that there should have been a formal ceremony or a ritual to bring into existence an engagement.” The exchange or not of rings also did not matter: if there was a promise to marry, there was an engagement agreement.
Nhlapo also claimed damages for money she had spend improving her “new home” in preparation of their life together. This included R6 000 for the new marital bed she had bought. But the judge turned down this claim as he found that Zimu had equally spent money on other things during their time together.
He, however, was sympathetic towards her injured feelings for the way in which she was dumped . The judge said after she was “kicked out” of the house and while hurting, she had to face her family and friends.
“To add insult to injury, he also fathered a child with his new girlfriend,” the judge said in awarding her R25 000 for this.