Tag Archives: Common Law

Spanking your child is illegal in South Africa

B2The South Gauteng High Court ruled that the common law defence of reasonable chastisement is not in line with the Constitution and no longer applies in our law. This means disciplining your child in the form of a spanking is no longer considered legal within South Africa.

How did it come to this?

It has always been considered a crime of assault to hit a child, however, if a parent was charged, they would be able to raise a special defence which said that if the chastisement, or discipline, was reasonable they would not be found guilty.

The special defence of chastisement has been removed by the Court, which was to bring the common law in line with the Constitution. This followed an appeal by a father who had been found guilty of assault because he beat his 13-year-old son. The way in which he beat his son was deemed to exceed the bounds of reasonable chastisement.

The Court said that it wanted to guide and support parents in finding more positive and effective ways of disciplining children. The Minister of Social Development, Bathabilie Dlamini, also agreed that the defence of reasonable chastisement is unconstitutional. The Court said that protecting children was particularly important in the context of the high levels of child abuse and violence that pervade our society.

Reference:

  • YG v S (A263/2016) [2017] ZAGPJHC 290 (19 October 2017)
  • “It’s now illegal to spank your child in SA”. https://www.enca.com/south-africa/it-is-now-illegal-to-spank-your-child-in-sa

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).

To marry or not to marry…

article1nl-JulyWhen a man proposes marriage to the love of his life and she accepts the proposal and they become engaged they are said to have concluded a contract to marry in the future.

When an engagement is called off one often get the situation where the aggrieved party wants to sue their ex for breach of promise.

Recent case law regarding the breach of promise to marry

Although there is frustration and heartbreak that may be experienced at the end of an engagement, the unfortunate reality of the matter is that it is not that easy to succeed in a monetary claim against somebody who is not intent on fulfilling their promises.

Common Law:

Our common law has, over the years, recognised the principle that the aggrieved party has a claim for breach of promise. Traditionally this claim comprises of two parts as follows:

  1. The delictual claim which the aggrieved party would have under the action injuriarum for contumelia, in other words,  damages for the humiliation caused as a result of the break-up of the relationship; and
  2. The contractual claim for the actual financial loss suffered by the aggrieved party as a result of the break-up of the relationship of the parties.

Van Jaarsveld v Bridges (2010) SCA:

In the Supreme Court of Appeal case of Van Jaarsveld vs Bridges (2010) it was found that no claim in South African law exists other than actual expenses incurred in the planning and preparation of the marriage.

In the Judgment Harms DP in respect of breach of promise, draws attention to a court’s right, and more importantly, duty to develop the common law, taking into account the interests of justice and at the same time to promote the spirit, purport and objects of the Bill of Rights.

Harms DP said that he is unable to accept that parties when promising to marry each other at that stage of their relationship would contemplate that a breach of their engagement would have financial consequences as if they had in fact married. The assumption of the two parties is that their marital regime will be determined by their subsequent marriage. Harms DP then concluded that in his view an engagement is more of an unenforceable pactum de contrahendo providing a spatium deliberandi:  – “a time to get to know each other better and in which they would decide whether or not to finally get married.”

ES Cloete v A Maritz (2013) WCH:

The question whether or not the claim for breach of promise is a valid cause of action in South African law was once again considered in the Western Cape High Court.

In the Western Cape High Court, Judge Robert Henney was the presiding Judge in the matter of ES Cloete versus A Maritz.

Miss Cloete claimed that Mr Maritz proposed formally to her in Namibia on the 9th February 1999 with an engagement ring and she accepted. The relationship was turbulent and a decade later Maritz called off the engagement and the subsequent wedding telling her that he no longer wanted to marry her or even see her; and that he had someone new in his life.  Cloete instituted action against Maritz and alleged that Maritz’s refusal to marry her amounted to a repudiation of the agreement that they had reached 10 years earlier.

Her Claim:

There were three aspects to Cloete’s claim:

  1. She wanted repayment of R 26 000.00 that she had given him in 1994 and 1996 for a business he was involved in.
  2. She wanted R 6.5 million to make up for the financial benefits she would have enjoyed had they concluded the marriage,  including amounts for the use and enjoyment of the house commensurate with the lifestyle enjoyed and maintained by the parties at the time of their cohabitation. She also wanted maintenance of R 8 500.00 a month for 25 years.
  3. Finally, she wanted R 250 000.00 in damages for breach of promise, impairment to her personal dignity and her reputation.

His Claim:

Maritz denied the allegations that Cloete has made and stated in replying papers that Cloete was in fact the one who had called off their wedding and he had merely accepted it.

Maritz raised a special plea that “breach of promise” did not constitute a valid cause of action based on the Supreme Court of Appeal’s Judgment in Van Jaarsveld v Bridges 2010 (4) SA 558 (SCA), a judgment which this court is obliged to follow.

Judgement:

In his judgment Judge R Henney said: “Clearly, to hold a party accountable on a rigid contractual footing; where such a party fails to abide by a promise to marry does not reflect the changed mores, morals or public interest of today.”

Judge R Henney went on to say in his judgement: “It is my view that considerations of public policy and our own society’s changed mores cannot permit a party to be made to pay prospective damages on a purely contractual footing; where such a party wants to resign from a personal relationship and thus commits a breach of a promise to marry. Such a situation is in my view entirely untenable and cannot be allowed.”

Judge further went on to say:As pointed out by Sinclair, The Law of Marriage Vol 1 (1996), to hold a party liable for contractual damages for breach of promise may in fact lead parties to enter into marriages they do not in good conscience want to enter into, purely due to the fear of being faced with such a claim.  This is an untenable situation.”

Conclusion:

The world has moved on and morals have changed. Divorce, which in earlier days was only available in the event of adultery or desertion, is now available in the event of an irretrievable breakdown of the marriage. There is no reason why a just cause for ending an engagement should not likewise include the lack of desire to marry the particular person, irrespective of the ‘guilt’ of the latter. Unwillingness to marry is clear evidence of the irretrievable breakdown of the engagement. It appears illogical to attach more serious consequences to an engagement than to a marriage

Maritz`s special plea was upheld and it was found that the claim for breach of promise is not a valid cause of action in South African law. As appears from the above decision, no claim in law exist other than actual expenses incurred in the preparing of the marriage. This effectively excluded any damages for breach of the promise to marry.

Source Reference:
Ronnilie Theron
Honey Attorneys

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

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