Family Law

South African family law is concerned with those legal rules in South Africa which
pertain to familial relationships.[1] It may be defined as “that subdivision of
material private law which researches, describes and regulates the origin, contents
and dissolution of all legal relationships between: (i) husband and wife (including the
parties to a civil union); (ii) parents, guardians (and other holders of parental rights
and responsibilities) and children; and (iii) relatives related through blood and
affinity.”[2]
One spouse may break consortium by committing adultery, deserting the common
household, abuse and so forth.
“As far as family law is concerned, we in South Africa have it all. We have every kind
of family; extended families, nuclear families, one-parent families,same-sex families,
and in relation to each one of these there are controversy, difficulties and cases
coming before the courts or due to come before the courts. This is the result of
ancient history and recent history […]. Our families are suffused with history, as
family law is suffused with history, culture, belief and personality. For researchers it’s
a paradise, for judges a purgatory.”
— Albie Sachs[3]
Subdivisions
There are various branches of family law, among them
• the law of engagement;
• matrimonial law and the law of civil unions;
• matrimonial property law;
• the law of divorce; and
• the law of parenting.
Marriage
Marriage is the act by which a marriage relationship is formed, and which defines the
relationship created by that act. The act and the relationship are interrelated: The
former requires an intention to create the latter, and the consequences of the latter
flow from the nature of the former.[4]
Development
Ancient Rome distinguished between two forms of marriage: the matrimonium non
iustum and the iustae nuptiae (or iustum matrimonium). The former concerned a
relationship between one man and one woman who intended to marry but could not
do so in terms of Roman law; the latter dealt with formally recognised marriages.
Marriage between the Continental peoples under early Germanic law bore a close
resemblance to that of the lobolo marriage in terms of the customary law of South
Africanindigenous peoples.
In the late Middle Ages, marriage fell under the jurisdiction of the Roman Catholic
Church. This still has some practical consequences in modern South African law. [5] In
terms of canon law, marriage was a sacrament and a grace of God to the spouses,
and could not be dissolved by any human agency. Divorce, in other words, was
almost entirely unlawful.
After the Reformation, the rigidities of Catholic marriage began to fall away, and the
institution became more secularised, as other systems of marriage were introduced.
The province of Holland seems to have been the first European jurisdiction to permit
civil marriages. This impact of this on South African law may be gauged from the fact
that the country’s common law is based primarily on Roman-Dutch law. The basic
premises of the Political Ordinance of 1580 still form the basis for the contemporary
South African law of marriage,[6] which, while generally located in the private sphere,
often crosses over into other areas for the law: for example, the criminal and
the constitutional.
Definition
The traditional definition of marriage is a “legally recognised life-long voluntary union
between one man and one woman to the exclusion of all other persons,”[7][8] or “a
union of one man and one woman who mutually agree to live together as spouses
until the marriage is dissolved by the death of one of them or as otherwise provided
by law.”[9] In light of recent constitutional developments in South Africa, this
definition has been found to be inadequate, particularly as regards its assumptions
against polygamy[10]and sex-same life partnerships: In Minister of Home Affairs v
Fourie,[11] it was declared unconstitutional.[12]
“One man and one woman”
The Supreme Court of Appeal, in Fourie v Minister of Home Affairs,[13] held that the
common-law definition of marriage deprived committed same-sex couples of the
option of marriage and thus denied them its many rights and protections.[14] This
discrimination, on grounds of gender and religion and sexual orientation, was found
to be unfair,[15]in that it violated the constitutional right to equality[16] and other
guarantees in the Bill of Rights. The court held further that the Marriage Act[17] had
been passed on the assumption that the common-law definition applied only to
opposite-sex marriage.[18] The common law had to be developed to embrace same-
sex partners by redefining marriage as the “union of two persons to the exclusion of
all others for life.” This type of marriage is now capable of full recognition as a legally
valid marriage, provided that the formalities in the Marriage Act are complied
with.[19]
In Lesbian and Gay Equality Project v Minister of Home Affairs,[20] the Marriage Act
as well as the common-law definition were challenged. The Constitutional Court held
that it was clearly in the interests of justice that it be heard together with
the Fourie case.[21] Setting aside the order of the SCA in Fourie’s case, the court
declared that the common-law definition of marriage was unconstitutional and invalid
to the extent that it does not permit same-sex couples to enjoy the same status,
benefits and responsibilities as those accorded to heterosexual couples.[22]
The court was unanimous on the point that the omission from the Marriage Act, after
the words “or husband,”[23] of the words “or spouse” was inconsistent with the
Constitution; section 30(1) of the Marriage Act was therefore invalidated to the extent
of the inconsistency. This declaration was suspended for twelve months from the
date of the judgment, until 1 December 2006, to allow Parliament to enact remedial
legislation. If Parliament failed to do so, section 30(1) would automatically be read
thenceforth as including the words “or spouse” after the words “or husband.”[24]
“To the exclusion of all other persons”
Exclusivity is not a universal characteristic of marriage; it is a special characteristic of
Western civil law and the Anglo-American common law marriage.[25]
“To live together as spouses”
This part of the definition concerns “the very heart of the matter,”[26] which is to say
the object or purpose of marriage. In Christianity, it is intended for the glory of God
and other religions, for the avoidance of fornication, for procreation,[27][28][29] and
to provide for the other partner by help and assistance. These aims are also
reflected in Roman-Dutch law. The consortium omnis vitae refers to all the duties
which fall under the relationship of married spouses.[30]
Dissolution as provided by law
Death dissolves a marriage, but the law provides also for dissolution by the high
court on some ground which renders the marriage voidable, or following upon an
order presuming the death of the one spouse,[31] or on some ground arising after
marriage which is recognised as a ground for divorce.[32]
Nature
Marriage has its foundations in a variety of bailiwicks beyond the legal realm,
including philosophy, religion, culture and social practice. In Rattigan v Chief
Immigration Officer, Zimbabwe,[33] Gubbay CJ described marriage as
a juristic act sui generis. It gives rise to a physical, moral and spiritual community of
life – a consortium omnis vitae. It obliges the husband and wife to live together for
life (more realistically, for as long as the marriage endures) and to confer sexual
privileges exclusively upon each other […]. The duties of cohabitation, loyalty, fidelity
and mutual assistance and support flow from the marital relationship. To live together
as spouses in community of life, to afford each other marital privileges and to be ever
faithful, are the inherent commands which lie at the very heart of marriage.[34]
Although a Zimbabwean case, Rattigan is widely cited in South African
jurisprudence; it continues:
Marriages are almost invariably entered into by parties who have deep affection for
one another and who intend to devote the remainder of their lives together. Although
the condition of matrimony does not, as a concept of law, make the spouses one
flesh—una caro—it nonetheless embodies the obligations to found a home, to
cohabit, to have children and to live together as a family unit. It is the most
fundamental institution known to mankind—”the first step from barbarism” and “the
true basis of human progress”.[35]
Gubbay also cited in Rattigan the words of Justice Field in Maynard v Hill,[36] which
characterised marriage as
an institution, in the maintenance of which in its purity the public is deeply interested,
for it is the foundation of the family and of society, without which there would be
neither civilisation nor progress […]. It is […] a social relation, like that of parent and
child, the obligations of which arise not from the consent of concurring minds, but are
the creation of the law itself, a relation the most important, as affecting the happiness
of individuals, the first step from barbarism to incipient civilisation, the purest tie of
social life, and the true basis of human progress.[37]
That marriage is still held in high regard by modern society is reflected in such cases
as Kuhn v Karp,[38][39] Ex parte Inkley and Inkley[40] and Van der Westhuizen v
Van der Westhuizen[41][42] In Ryland v Edros,[43] Farlam J indicated the need for
South African family law to recognise diversity in marriage forms and the possibility
of a pluralistic recognition of different forms of marriage, including the potentially
polygamous Muslim marriage.
The centrality of marriage to many lives, and the centrality to marriage of
cohabitation, was further emphasised in the Constitutional Court by O’Regan J
in Dawood, Shalabi and Thomas v Minister of Home Affairs.[44] Although the
Constitution itself does not expressly protect the right to family life or the right of
spouses to cohabit,[45]Volks v Robinson[46] the constitutional right to human
dignity[47] has been found to encompass and protect the right of individuals to enter
into permanent relationships, including the right to marry.[48] To prohibit such a
relationship, and thus to impair the spouses in their duty of cohabitation, would be to
frustrate them in their personal fulfilment, and hence would amount to a limitation on
the right to dignity.[49] Whether or not such a limitation is constitutional will depend,
in terms of the Constitution,[50] on whether or not it is reasonable and justifiable in
an open and democratic society.[51]
Although the Constitution gives no explicit recognition to the right to marry, South
Africa is a signatory to various international instruments which do. In terms of
theInternational Covenant on Civil and Political Rights,
1. The family is the natural and fundamental group unit of society and is entitled
to protection by society and the State.
2. The right of men and women of marriageable age to marry and to found a
family shall be recognized.
3. No marriage shall be entered into without the free and full consent of the
intending spouses.[52]
Similarly, the African Commission on Human and Peoples’ Rights provides that
1. The family shall be the natural unit and basis of society. It shall be protected
by the State which shall take care of its physical health and moral.
 2. The State shall have the duty to assist the family which is the custodian of
morals and traditional values recognized by the community.[53]
Finally, according to the Universal Declaration of Human Rights, “The family is the
natural and fundamental group unit of society and is entitled to protection by society
and the State.”[54]
In Volks v Robinson, endorsing Dawood and enumerating these instruments, the
court found that “there can be no doubt that our Constitution recognises the
institution of marriage.”[55] It cited a provision in the Bill of Rights which, “in
substance,”[56] provides for “marriages concluded under any tradition, or a system
of religious, personal or family law.”[57] The court concluded that “both the
Constitution and international instruments impose an obligation on our country to
protect the institution of marriage.”[58]This is in line with the establishment of “a new
legal landscape consistent with the values of diversity, tolerance of difference and
the concern for human dignity expressed in the Constitution.”[59]
Types
Civil marriage
Civil marriages are concluded in terms of the Marriage Act or the Civil Union
Act,[60] and are not associated by the law with any particular religion. They are
monogamous by definition.
Customary marriage
Customary marriages are those concluded in accordance with customary law, which
is defined in the Recognition of Customary Marriages Act[61] as “the customs and
usages traditionally observed among the indigenous African peoples of South Africa
and which form part of the culture of those peoples.”[62]
Prior to the year 2000, customary marriages enjoyed only limited recognition,
polygamy being contra bonos mores. Since 2000, however,[63] they have enjoyed
full recognition under the Act. This is in line with the provision in the Constitution for
“marriages concluded under any tradition, or a system of religious, personal or family
law.”[64] Customary marriages are now valid and in all respects equal in status to
civil marriage,[65] so that the Act is similar in its consequences and regulations to the
Marriage Act and Civil Union Act, although the requirements for a valid marriage are
different.
South African law, generally speaking, does not permit polygamous marriages. The
Act provides the only exception to this rule, in that it allows for polygyny, but only if it
has been concluded under customary law and complies with the provisions of the
Act. The constitutionality of polygamy and lobolo is a contentious issue, requiring
their balance against the rights of equality[66] and of dignity.[67]
Muslim marriage
A Muslim marriage is one concluded in terms of Islamic religious law or rites.
Statutory recognition
Muslim marriages enjoy some statutory recognition under the Criminal Procedure Act
(CPA)[68] and the Children’s Act.[69][70] In terms of the former, “for the purposes of
the law of evidence in criminal proceedings, ‘marriage’ shall include […] any
marriage concluded under any system of religious law.”[71] In terms of the latter,
“marriage” means a marriage—
(a) recognised in terms of South African law or customary law; or
(b) concluded in accordance with a system of religious law subject to specified
procedures,
and any reference to a husband, wife, widower, widow, divorced person, married
person or spouse must be construed accordingly.[72]
There is, however, no express recognition, so that statutes are generally interpreted
by the judiciary to include Muslim marriages.
In Daniels v Campbell,[73] an application was made for confirmation of an order of
the Cape High Court which had declared invalid and unconstitutional certain
provisions of the Maintenance Act[74] and the Intestate Succession Act[75] for their
failure to recognise as “spouses” persons married according to Muslim rites. Sachs
held that the word “spouse” in its ordinary meaning includes parties to a Muslim
marriage, because such a reading corresponds to the way the word is generally
understood and used, and because it would be far more awkward from a linguistic
point of view to exclude parties to a Muslim marriage from the word “spouse” than to
include them. The historic exclusion did not flow from the courts giving the word its
ordinary meaning but from a linguistically strained use of the word flowing from a
particular cultural and racial approach, owing more to prejudice than to the English
language, so that both the impact and the intent of the restricted interpretation was
discriminatory.[76]
In Women’s Legal Centre Trust v President of the Republic of South Africa[77] it fell
to the Constitutional Court to decide whether the President and Parliament had failed
in their exclusive constitutional obligation to enact legislation governing Muslim
marriages. The court found that the obligation in fact did not fall exclusively on
Parliament and the President, and that, in terms of the Constitution,[78] the court did
not have exclusive jurisdiction to entertain the application. The question, therefore, of
whether or not Parliament and the President are under an obligation (even if not
exclusive) to recognise Muslim marriage, and whether or not such legislation would
be consistent with the Constitution,[79] went unanswered.
Judicial recognition
Before the new constitutional dispensation, the recognition of Muslim marriages was
regarded as a “retrograde step and entirely immoral.”[80] The Appellate Division,
inIsmail v Ismail,[81] noted, “in passing, that it seems unlikely that the non-
recognition of polygamous unions will cause any real hardship to the members of the
Muslim community, except, perhaps, in isolated instances.”[82] This was rejected
in Hassam v Jacobs.[83]
The Cape Provincial Division, in Ryland v Edros, held that a court may recognise
and enforce contractual obligations arising out of Muslim marriages, provided that
those marriages are monogamous. In Amod v MMVF, the action was for payment of
damages and loss of support after the death of a spouse, married in terms of Islamic
law and not registered under Marriage Act. The duty of support was found to be
legally enforceable for monogamous Muslim marriages, but the issue of polygyny
was left open. It was inKahn v Kahn[84] that spouses in polygynous Muslim
marriages were finally held, in terms of the Maintenance Act,[85] to have a legally
enforceable duty of support to one another.
In Hassam v Jacobs, the issue was whether or not the benefits provided by the
Intestate Succession Act and the Maintenance Act accrue to surviving spouses of
polygynous Muslim marriages. The objective of the acts is to ensure that widows
receive at least a child’s share instead of being precariously dependent on family
benevolence. The Cape High Court found that the Intestate Succession Act,[86] in
discriminating on grounds of gender and religion and marital status, was inconsistent
with the Constitution. The word “spouse” in the Act would be interpreted henceforth
to include spouses in polygynous Muslim marriages, while “survivor” in the
Maintenance Act would be read to include surviving partners of polygynous Muslim
marriages. In the Constitutional Court, however, it was found that “spouse” was not
reasonably capable of being understood to include more than one spouse in the
context of polygynous Muslim marriages. The words “or spouses,” therefore, are to
be read in after each use of the word “spouse” in the Act.
In summary, the constitutional validity of polygamy has not been subject to judicial
scrutiny—indeed, it has been avoided—and the current position is that Muslim
marriages receive only limited recognition in South African law. In the Draft Muslim
Marriages Bill, there are both provisions in support of recognition[87] and provisions
against it.[88]
Hindu marriage
Singh v Ramparsad[89] dealt with a marriage in terms of the Vedic sect of religious
Hindu marriage, and an application for an order declaring
1. that the Marriage Act recognises the solemnisation or validity of Hindu
marriage; and, in the alternative,
2. that section 11(3) of the Act is unconstitutional.
The application was dismissed on grounds of legal impossibility. A marriage
concluded in terms of religious law, and compliant with the civil requirements, enjoys
dual validity. The secular dissolution of such a marriage in terms of the Divorce
Act[90] does not have the effect of dissolving the religious marriage if, as is usually
the case, that religion has its own specific requirements for dissolution. The only
means for dissolving such a marriage would be to attack successfully the non-
recognition of divorce in Hindu religious law. The courts could not and would not
interfere in this regard.
In Govender v Ragavayah,[91] the court dealt with an application for an order
declaring a Hindu widow to be recognised as a spouse in terms of Intestate
Succession Act. This it granted, reading the word “spouse” in the Act to include
partners in monogamous Hindu marriages.
Domestic partnerships
Opposite-sex domestic partnerships
A domestic partnership is defined by “living together outside marriage in a
relationship which is analogous to, or has most of the characteristics of a
marriage.”[92]
The status quo is that none of the consequences of legal marriage is automatically
conferred on an opposite-sex domestic partnership. There is, however, some
statutory recognition in the Compensation for Occupational Injuries and Diseases
Act,[93] and judicial recognition in the form of Volks v Robinson, which concerned a
man and a woman who had lived together in a permanent life partnership. When he
died, she lodged a claim for maintenance against his estate in terms of the
Maintenance Act but was rejected by the executor. Having never married him, she
did not fit the Act’s definition of “survivor.” It was requested of the court that it read-in
partners in domestic partnerships or alternatively declare unconstitutional the
relevant provision for its unjustifiable discrimination and its violation of the right to
dignity.[94] Handed down before the passage of the Civil Union Act, the majority
judgment found that there had been no duty of support while the man had been
alive, so there should be no duty for maintenance by his estate following his death.
Domestic partnerships are currently self-recognised and regulated. The partners
may jointly enter into contracts of sale and lease, as well as into a universal
partnership, whereby they agree to put in common all their property, universorum
bonorum: not only what they have but also what they later acquire. Universal
partnerships may be entered on either express or tacit terms, but both partners will
be required to contribute, and the official objective is to make a profit. Alternatives to
the universal partnership exist in the form of life partnership contracts and contracts
of agency. It is also worth noting that a person may leave his estate to anyone in his
will.
There is considerable debate over the future status of domestic partnerships in
South Africa, particularly among feminists. The South African Law Reform
Commission published a Discussion Paper on the subject in March 2006. The Civil
Union Act requires registration and has a same-sex focus. The Domestic
Partnerships Bill, providing for the legal recognition of domestic partnerships and the
enforcement of their legal consequences, was tabled on 14 January 2008. Its
preamble observes that, under the Constitution, everyone is equal before the law
and has the right to its equal protection and benefit.[95] The Bill still distinguishes
between registered and unregistered partnerships.[96]
Same-sex partnerships
The foremost protection of gay, lesbian and bisexual people in South Africa is section
9 of the Constitution, which forbids discrimination on the basis of sexual orientation.
Statutory recognition
Same-sex partnerships also enjoy statutory recognition in South Africa, as of 30
November 2006, under the Civil Union Act, which provides for
• the right to enter into a civil union, open to both opposite-sex and same-sex
couples, which may be called either a “marriage” or a “civil partnership”;[97]
• the right of a marriage officer, employed by the state, to refuse to marry same-
sex couples on grounds of “conscience, religion or belief;”[98]
• all rights and obligations and benefits of a marriage to be afforded to civil
unions.[99]
In the landmark case of Fourie, discussed above, four main arguments were made in
opposition to the recognition of same-sex partnerships:
1. the inability of same-sex partners to procreate;
2. the need to respect religion;
3. the constitutional necessity to have recourse to diverse family law
systems;[100] and
4. the recognition given by international law to heterosexual marriage.[101]
These were all ultimately rejected, and the separate-but-equal approach strongly
dismissed as historically “a threadbare cloak for covering distaste for or repudiation
by those in power of the group subjected to segregation.”[102]
Judicial recognition
There is now considerable jurisprudence in recognition of the right to equality of
same-sex partners. The following judgments, excluding the already-
discussed Fourie, illustrate its development:
• National Coalition for Gay and Lesbian Equality v Minister of
Justice[103] dealt with a challenge to the constitutionality of the offence of
sodomy, and required consideration of the common law. The court found that
it amounted to a violation of the right to equality (which cannot be limited) by
unfairly discriminating against gay men on basis of sexual orientation.
• In National Coalition for Gay and Lesbian Equality v Minister of Home
Affairs,[104] the Alien Controls Act[105] was found to be unconstitutional in
denying same-sex partners the same rights as heterosexual
partners.[106] Immigration rights were thus extended to the foreign partners of
South African citizens in same-sex relationships.
• Satchwell v President of the Republic of South Africa[107] involved a
challenge to certain provisions in the Judge’s Remuneration and Conditions of
 Employment Act,[108] which were found to be unconstitutional in their denial
to same-sex life partners of the benefits usually afforded to a judge’s spouse.
• In Du Plessis v Road Accident Fund,[109] a same-sex couple had lived
together in a long-term relationship, having gone through a ceremony similar
to marriage, and would have married had it been possible. They had the
intention of reciprocal duty of support. The court held, however, that to extend
to such partners the common-law action for loss of support would be an
incremental step to ensure that the common law accorded with the dynamic
and evolving fabric of South African society as reflected in the Constitution,
recent legislation and judicial pronouncements,[110] and therefore that the
plaintiff was entitled to claim damages from the defendant for loss of that
support.[111]
• In Gory v Kolver,[112] when Henry Brooks died intestate, his parents
nominated Daniel Kolver to be the executor of his estate, this decision being
made on the basis that Brooks had no spouse. Mark Gory, however, wished to
inherit in terms of Intestate Succession Act. The court held that the
relationship between Brooks and Gory amounted to a same-sex permanent
life partnership, and that they had pursued reciprocal duties of support. The
exclusion of same-sex partners from the Act was unconstitutional, and the
court ordered a reading-in of words “or partner in a permanent same-sex life
partnership in which the partners have undertaken reciprocal duties of
support.”
It is unlikely, given the provisions of Civil Union Act and its recognition of same-sex
marriages, that the court will hear very many such cases in the future.
Engagement
An engagement, which is an agreement sui generis, is generally defined in the
common law as “a legal agreement between a man and a woman to marry each
other on a specific or determinable date.”[113] Despite the constitutional
developments discussed previously, this definition remains in place today.
Requirements
Capacity
• To enter into an engagement, one must generally be eighteen years of age
(the age of majority) or older.
• Minors require the consent of both their parents or guardians (unless certain
circumstances are in place or a court order is granted). Removal of consent
results in the immediate termination of the engagement.
• Persons with mental illness cannot become engaged.
Consensus
Consensus is precluded, inter alia, by mistake, misrepresentation, metus and undue
influence.
Mistake
Mistake may take two following forms:
1. Error in persona (mistake as to the person with whom consensus has been
reached); and
2. Error in negotio (mistake as to nature of the juristic act).
Mistake results in the engagement’s being void. There can be no claim for damages
by either party.
Misrepresentation
Misrepresentation occurs where, had the innocent party known the truth, he or she
would not have become engaged to the other party. The rescission of an
engagement is justified where the misrepresentation is material. If it seriously
jeopardises the possibility of achieving a happy and harmonious marriage, the
engagement will be void. Misrepresentation will render the engagement voidable at
the instance of the innocent party. Among the legitimate grounds for terminating the
engagement are such personal qualities as impotence, sterility and serious mental
illness.
The issue of misrepresentation by omission was raised in Schnaar v
Jansen,[114] where one of the parties to the engagement omitted to mention
• that one of her uncles had been found guilty of (and hanged for) murdering his
wife;
• that another uncle was in an interracial marriage; and
• that her brother had been convicted of housebreaking and theft.
The court held, however, that as none concerned a personal quality of hers, she was
under no obligation to disclose these facts to her then-fiancé. She was therefore able
to claim damages for breach of promise of marriage.
An engagement may also be rescinded on the ground of innocent misrepresentation.
In Thelemann v Von Geyso,[115] Von Geyso was coaxed into a marriage on the
belief, which Thelemann held also, that she was pregnant. He was successful in his
defence.
Metus
Metus or duress is another grounds for terminating the engagement.[116]It is were
one make threats to other party to agree on engagement
Undue influence
Undue influence is another grounds for terminating the engagement.[117]
Lawfulness
One must have competence to marry if one is to enter into an engagement. One
cannot become engaged, for instance, while one is married to someone else.
In Friedman v Harris,[118] it was held that payment for the promise to become
engaged renders the engagement void, as it is contra bonos mores, and the payer
will not be entitled to return of the amount paid.
If one party was unaware, entering into the engagement, that the other was married,
he or she may bring action against the other party.
Possibility]
Performance of the engagement contract will be impossible if the parties are not
permitted to marry. This is always the case for minors below the age of puberty and
for parties who fall within prohibited degrees of relationship.
Consequences
Engagement confers the duty to marry and to be faithful. There is nno duty, however,
to be intimate. The date of marriage must be set within a reasonable time, and there
will be a breach of promise if a party refuses to marry on the agreed-upon date. An
engagement may be concluded subject to conditions, but these may not be immoral,
illegal,impossible or in conflict with the nature of marriage.
Termination
Engagement is terminated most obviously on marriage, but it may also be terminated
• by the death of one of the parties;
• by mutual agreement;
• in the case of minors, by the withdrawal of parental consent; and
• by unilateral termination.
Unilateral termination
A unilateral termination must be justified; it must constitute a iusta causa, such as
sterility, impotence, hereditary disease or a serious crime. Ceasing to love the other
party does not constitute a iusta causa; nor, as in Schaar, does the non-disclosure of
facts which do not bear on the personal qualities of the party who omitted them. A
mistaken impression as to “the nature, mental worth, appearance, status or financial
position of the other does not constitute a ground for terminating the engagement
and is, therefore, irrelevant.”[119]
In Krull v Sangerhaus,[120] the court held that, to constitute a iusta causa for
unilateral termination, the cause must be of a sufficiently serious nature. The
allegation of a dispute between the parties’ parents regarding the wedding reception,
even if it also involved the parties, was “too frivolous a circumstance to warrant a
repudiation.”[121]
If the unilateral termination is unjustified, it will amount to a breach of promise.
Breach of promise
The unreported case of Bridges v Van Jaarsveld[122] deals with the constitutional
approach. The claimant should keep contractual damages separate from delictual
damages. One may not claim performance for breach of promise.
Contractual damages
Contractual damages (patrimonial loss from the breach of promise) are calculated on
the basis of positive interest. The courts are not consistent in this regard; each case
is determined on its specific merits. The courts will, however, consider the following
elements:
• the manner of the breach;
• the motives behind the breach;
• social status;
• the plaintiff’s age; and
• potential for future marriage.
It is probably best to say that damages are sui generis in this area of the law.
In Guggenheim v Rosenbaum[123] a divorced woman in New York met a man
domiciled in South Africa. After accepting his proposal, it was arranged that she
would come to South Africa to marry him. She gave up her flat, her car and certain of
her furniture (the rest being stored), as well as her employment. On their arrival in
Johannesburg, however, he refused to marry her. The court found that theirs was a
valid engagement and therefore that she was entitled to both actual and prospective
loss.
Sepheri v Scanlan[124] sets out some of the factors to be considered in assessing
contractual damages, among them engagement for a long period of years, constant
travel and possibly community of property.
Delictual damages
Delictual damages, for the infringement of personality rights, require the plaintiff to
prove
1. injury to a personality interest; and
2. intention to injure.
The amount of damages is left to the discretion of the court based on several factors:
• the way in which breach occurred;
• the motives behind that course of conduct;
• the social status of the parties; and
• previous life experiences.
Sepheri v Scanlan involved an engagement of more than five years and the
relinquishment of career prospects, but no delictual damages
(for iniuria or contumelia) were awarded. In light of the contractual damages
awarded, the court determined that it would be inappropriate to make an additional
award in respect of conduct “which for all its emotional pyrotechnics was an
inevitable consequence of ferocious litigation.”[125]
Seduction
Damages may be claimed for seduction, or extramarital sex with a virgin with her
consent. The plaintiff will need to prove
1. that she was a virgin;
2. that she was seduced; and
3. that sexual intercourse resulted from that seduction.
In M v M[126] a Hindu marriage was entered into between a minor and the
defendant, a major. An agreement was reached between the defendant and the
plaintiff, acting in his capacity as father and natural guardian of his minor daughter,
that the marriage would subsequently be registered according to the laws of South
Africa. After their Hindu marriage, the minor (a virgin), in anticipation of their civil
marriage, allowed the defendant to have sex with her. The defendant subsequently
repudiated his obligation to register the marriage, and the plaintiff claimed damages
for seduction and breach of promise to marry.
The court found that the fact that the defendant’s father and the plaintiff had
negotiated the terms of the marriage in accordance with Hindu custom did not have
the result that no privity of contract existed between the minor and the defendant.
The Marriage Act did not prohibit the contracting of a valid espousal through the
agency of another. The defendant, therefore, was bound to his undertaking to
register the marriage. His failure to honour that obligation without lawful excuse
constituted a breach of promise.
Return of engagement gifts
The return of engagement gifts depends on two things: the type of gift and the
manner in which the engagement was terminated.
Types of gifts
Three types of gift can be distinguished:
Sponsalitia largitas
Sponsalitia largitas or donationes propter nuptias are gifts made in anticipation of
marriage. The intention is to confer a lasting benefit during the marriage on the
receiver. These include, for example, a house, a car and jewellery. There is
a presumption, indeed, that valuable gifts of a lasting nature, given during the
engagement, were given in anticipation of the marriage.[127]
Arrhae sponsalitiae
Arrhae sponsalitiae are gifts which reflect the seriousness of the intention of
the donor to marry the other party. These are given with the intention that they will be
forfeited to the receiver should the donor commit a breach of promise. The
engagement ring, therefore, may be retained by the receiver and need only be
returned if the engagement is terminated without any fault on the part of the
donor.[128]
Small tokens
Small tokens are unconditional gifts, given as tokens of affection. These include, for
example, flowers.
Manner of termination
Mutual consent
The general rule is that all gifts, other than small tokens of affection and those which
have been alienated or lost or consumed, must be returned if the engagement is
terminated by mutual consent.
justa causa
The general rule also applies if the engagement is broken off for a reason not
imputable to the fault of one of the parties; for instance, if one of them has become
insane or impotent, or because both parties’ conduct has become such to make
marriage unlikely.
Breach of promise
If the engagement has been wrongfully terminated by one of the parties, the innocent
party may recover all gifts except those of negligent value.
References
Books
• B Clark Family Law Service (2011).
• DSP Cronje, AH Barnard and PJJ Olivier The South African Law of Persons
and Family Law (1990).
• DSP Cronjé & J HeatonSouth African family law (2004).
• J Eekelaar and T Nhlapo (eds) The Changing Family: Family Forms and
Family Law (1998).
• JA Robinson, et al Introduction to South African Family Law 4 ed (2009).
Cases
• Amod v Multilateral Motor Vehicle Accidents Fund (Commission For Gender
Equality Intervening) 1999 (4) SA 1319 (SCA).
• Daniels v Campbell NO and Others 2004 (5) SA 331 (CC).
• Dawood and Another v Minister of Home Affairs and Others; Shalabi and
Another v Minister of Home Affairs and Others; Thomas and Another v
Minister of Home Affairs and Others 2000 (3) SA 936.
• Ex Parte Chairperson of the Constitutional Assembly: In re Certification of the
Constitution of the Republic of South Africa 1996 (4) SA 744 (CC).
• Ex parte Inkley and Inkley 1995 (3) SA 528 (C).
• Fourie v Minister of Home Affairs 2005 3 SA 429 (SCA).
• Friedman v Harris 1928 CPD 43.
• Gory v Kolver NO and Others (Stark and Others Intervening) 2007 (4) SA 97
(CC).
• Govender v Ragavayah NO and Others 2009 (3) SA 178 (D).
• Guggenheim v Rosenbaum 1961 (4) SA 21 (W).
• Hassam v Jacobs NO and Others 2009 (5) SA 572 (CC).
• Kahn v Kahn 2005 (2) SA 272 (T).
• Kuhn v Karp 1948 (4) SA 825 (T).
• Krull v Sangerhaus 1980 (4) SA 299 (E).
• M NO v M 1991 (4) SA 587 (D).
• Maynard v Hill 1887 (125) US 190.
• Minister of Home Affairs and Another v Fourie and Another; Lesbian and Gay
Equality Project and Others v Minister of Home Affairs and Others 2006 (1)
524 (CC); 2006 3 BCLR 355 (CC).
• National Coalition for Gay and Lesbian Equality and Another v Minister of
Justice and Others 1999 (1) SA 6 (CC).
• National Coalition for Gay and Lesbian Equality and Others v Minister of
Home Affairs and Others 2000 (2) SA 1 (CC).
• Rattigan and Others v Chief Immigration Officer, Zimbabwe, and Others 1995
(2) SA 182 (ZS).
• Ryland v Edros 1997 (2) SA 690 (C).
• Satchwell v President of the Republic of South Africa 2002 (6) SA 1.
• Singh v Ramparsad and Others 2007 (3) SA 445 (D).
• Schnaar v Jansen 1924 (45) NPD 218.
• Sepheri v Scanlan 2008 (1) SA 322 (C).
• Thelemann v Von Geyso 1957 (3) SA 39 (W).
• Van der Westhuizen v Van der Westhuizen and Another 1996 2 SA 850 (C).
 • Volks NO v Robinson and Others 2005 (5) BCLR 446 (CC).
• Women’s Legal Centre Trust v President of the Republic of South Africa and
Others 2009 (6) SA 94 (CC).
Statutes
• Alien Controls Act 96 of 1991.
• Children’s Act 38 of 2005.
• Civil Union Act 17 of 2006.
• Compensation for Occupational Injuries and Diseases Act 130 of 1993.
• Intestate Succession Act 81 of 1987.
• Judge’s Remuneration and Conditions of Employment Act 47 of 2001.
• Maintenance of Surviving Spouses Act 27 of 1990.
• Marriage Act 25 of 1961.
• Recognition of Customary Marriages Act 120 of 1998.
Notes
1. ^ Robinson et al 7.
2. ^ Robinson et al 8.
3. ^ In Eekelaar & Nhlapo xi.
4. ^ Clark A2.
5. ^ Robinson et al 23.
6. ^ Robinson et al 26.
7. ^ Cronje et al 149.
8. ^ A number of the common-law definitions of marriage are cited by Van Zyl J
in Ex parte Inkley and Inkley 1995 3 SA 528 (C) 535–536.
9. ^ Clark A3.
10. ^ “The Roman law marriage was notoriously monogamous” (Clark A3).
11. ^ 2006 (1) 524 (CC).
12. ^ Para 72.
13. ^ 2005 3 SA 429 (SCA).
14. ^ 440G–441C.
15. ^ 441D.
16. ^ s 9.
17. ^ Act 25 of 1961.
18. ^ Paras 26, 27.
19. ^ Para 49.
20. ^ 2006 3 BCLR 355 (CC).
21. ^ Minister of Home Affairs v Fourie 2006 (1) 524 (CC), para 72.
22. ^ Para 139.
23. ^ s 30(1).
24. ^ O’Regan, while agreeing with the findings of the main judgment, dissented
as to the remedy, favouring development by the court of the common-law rule,
which would allow same-sex couples to be married with immediate effect, by
civil-marriage officers and such religious-marriage officers who consider that
these marriages fall within the tenets of their religion.
25. ^ Clark A3.
26. ^ Clark A3.
27. ^ Genesis 2:18.
28. ^ Mark 10:8.
29. ^ Matthew 19:5.
30. ^ Clark A3.
31. ^ Clark A50–A52.
32. ^ Clark A3.
33. ^ 1995 (2) SA 182 (ZS).
34. ^ 188B-C.
35. ^ 189E-F.
36. ^ 1887 (125) US 190.
37. ^ 211–212.
38. ^ 1948 (4) SA 825 (T).
39. ^ 840–841
40. ^ 535–536.
41. ^ 1996 2 SA 850 (C).
42. ^ 852I.
43. ^ 1997 (2) SA 690 (C).
44. ^ 2000 (3) SA 936 (CC).
45. ^ Para 28.
46. ^ 2005 (5) BCLR 446 (CC), para 80.
47. ^ s 10.
48. ^ Ex Parte Chairperson of the Constitutional Assembly 1996 (4) SA 744 (CC),
para 100.
49. ^ Dawood, para 37.
50. ^ s 36(1).
51. ^ 963D.
52. ^ Article 23.
53. ^ Article 18(1).
54. ^ Article 16.
55. ^ Para 81.
56. ^ Para 81.
57. ^ s 15(3)(a)(i).
58. ^ Para 85.
59. ^ Para 181.
60. ^ Act 17 of 2006.
61. ^ Act 120 of 1998.
62. ^ s 1.
63. ^ 15 November, to be precise.
64. ^ s 15(3).
65. ^ Robinson et al 44.
66. ^ s 9.
67. ^ s 10.
68. ^ Act 51 of 1977.
69. ^ Act 38 of 2005.
70. ^ s 1.
71. ^ s 195(2).
72. ^ s 1(1).
73. ^ 2004 (5) SA 331 (CC).
74. ^ Act 27 of 1990.
75. ^ Act 81 of 1987.
76. ^ Para 19.
77. ^ 2009 (6) SA 94 (CC).
78. ^ s 167(4)(e).
79. ^ ss 9, 10, 15, 31.
80. ^ Hassam v Jacobs 2009 (5) SA 572 (CC) at para 25.
81. ^ 1983 (1) SA 1006 (A).
82. ^ 1024H-1025A.
83. ^ Para 25.
84. ^ 2005 (2) SA 272 (T).
85. ^ s2(1).
86. ^ s 1(4)(f).
87. ^ ss 9(3)-(4), 15(1), 15(3), 30, 31.
88. ^ ss 9(3)-(4), 10.
89. ^ 2007 (3) SA 445 (D).
90. ^ Act 70 of 1979.
91. ^ 2009 (3) SA 178 (D).
92. ^ Cronje & Heaton 227.
93. ^ Act 130 of 1993.
94. ^ s 10.
95. ^ 9(1).
96. ^ s 1.
97. ^ s 11(1).
98. ^ s 6.
99. ^ s 13.
100. ^ s 15.
101. ^ Para 84.
102. ^ Para 150.
103. ^ 1999 (1) SA 6 (CC).
104. ^ 2000 (2) SA 1 (CC).
105. ^ Act 96 of 1991.
106. ^ s 25(5).
107. ^ 2002 (6) SA 1.
108. ^ Act 47 of 2001.
109. ^ 2004 (1) SA 359 (SCA).
110. ^ Para 37.
111. ^ Para 42.
112. ^ 2007 (4) SA 97 (CC).
113. ^ Law24.com 2011.
114. ^ 1924 (45) NPD 218.
115. ^ 1957 (3) SA 39 (W).
116. ^ Robinson et al 66.
117. ^ Robinson et al 66.
118. ^ 1928 CPD 43.
119. ^ Clark A9.
120. ^ 1980 (4) SA 299 (E).
121. ^ 302C.
122. ^ 2008 ZAGPHC 342.
123. ^ 1961 (4) SA 21 (W).
124. ^ 2008 (1) SA 322 (C).
125. ^ 337H-I.
126. ^ 1991 (4) SA 587 (D).
127. ^ Robinson et al 74.
128. ^ Robinson et al 74.