CASE NO: 9/97 IN THE HIGH COURT OF SOUTH AFRICA (BOPHUTHATSWANA PROVINCIAL DIVISION) In the matter between: MORRIS MAAKE APPELLANT AND MOSELE FLORENCE TABANE RESPONDENT CIVIL APPEAL ARISING FROM AN ACTION FOR DAMAGES MAFIKENG NKABINDE J DATE OF HEARING: 10 DECEMBER 1999 DATE OF JUDGMENT: 3 FEBRUARY 2000 FOR THE APPELLANT: G L M BOKABA FOR THE RESPONDENT: H R FOURIE NKABINDE J: A. Introduction The plaintiff/respondent had sued the defendant/appellant in the magistrates court for the payment by the defendant of various amounts of damages allegedly suffered by the plaintiff. For ease of reference and convenience I shall refer to the parties as plaintiff and defendant.
The plaintiff claimed damages for: (a) seduction (claim I) in the sum of R15 000 plus interest and costs; (b) lying in expenses (claim II) in the sum of R8 500 plus interest and costs; (c) maintenance for the minor child (claim III) in the sum of R1 500 plus interest and costs; and (d) breach of promise to marry (claim IV) in the sum of R15 000 plus interest and costs. The first and fourth claims which are the subjects matter of this appeal were upheld by the court a quo. The second and third claims were dismissed. The trial magistrate awarded damages in the sum of R30 000.00. B. The pleadings and the issues It is only necessary for the purpose of this judgment to cite the averments in the particulars of claim which are the subject matter of the two claims. It is alleged in the plaintiff s particulars of claim with regard to claim I that: 4 On or about and during January 1992 and March 1992, the plaintiff, a major spinster was wrongfully and unlawfully seduced and carnally known by the defendant. 5 By reason of the aforesaid sexual intercourse by the Defendant, Plaintiff lost her virginity and got impregnated and thereby sustained injury to her good name, self esteem and reputation and impairment of marriage prospects as a result suffered damages in the amount of R15 000.00 for which the Defendant is by law liable to compensate.. In and during February 1993 the plaintiff filed and delivered a notice of amendment in terms of Rule 59 of the Bophuthatswana Magistrates Court Rules with a view to add claim IV to the particulars of claim. On or about 11 March 1993 the defendant, without objecting to the notice to amend, sought further
particulars in respect of all the claims including claim IV. On 31 March 1993 the plaintiff filed and delivered further particulars to the defendant s request for same. Without objecting to the said amendment the defendant pleaded to claims I, II, and III only. It is alleged in the amended particulars of claim that: 11.1 During March 1992, Defendant promised to conduct a civil marriage with Plaintiff after Plaintiff s delivery of their child. 11.2 During December 1992, Plaintiff gave birth to a baby boy, and despite the delivery of the child, Defendant has refused to marry the Plaintiff and has taken another woman into his house. 11.3 Defendant s refusal to marry and his taking of another woman into his house constitutes a repudiation of the promise to marry, which repudiation the plaintiff accepts. 11.4 By reason of the aforesaid repudiation Plaintiff suffered damages in the amount of R15 000.00 for which the Defendant is by law liable to compensate. 11.5 Despite lawful demand Defendant refuses to pay an amount of R15 000.00.. The defendant in his plea (in respect of Claim I) admitted having known the plaintiff carnally but denied having seduced her. He further admitted that as a result of the sexual intercourse the plaintiff became pregnant but denied her loss of virginity, injury to her good name, self esteem and reputation, an impairment of marriage prospects and the quantum claimed. Manifest from the pleadings the defendant did not plead to claim IV. C. The facts The plaintiff testified that she is a lady teacher. During or about January 1992
the defendant proposed love to her which she did not readily accept because she was apprehensive that the relationship might not last. They befriended and visited each other and ultimately fell in love. The defendant made a marriage proposal to her when she refused to have sexual intercourse with him because she was not using contraceptives. The defendant then told her that she did not need to use contraceptives because he wanted to marry her and wanted to plan a child with her.. He subsequently repeated the promise to marry her when he introduced her to his spiritual healer. He introduced her to the spiritual healer as his prospective wife and thereafter they consulted the spiritual healer together on numerous occasions. The defendant further told her that his intention was not to hurt her feelings but to make here happy. As a result of the promise the plaintiff had sexual intercourse with the defendant and continued to indulge in sexual intercourse with him as they were planning to have a child. They spent several nights at the defendant s house where they indulged in sexual intercourse every night in January 1992, to make sure that she conceives. When the defendant was informed about the conception he, to her surprise, became unhappy. Two days after discussing the conception with him she visited the defendant at his house and caught him in the act with another woman. She testified that after this incident the defendant repeatedly told her that he no longer loved her and was not going to marry her because he is in love with another woman with whom he cohabits. The plaintiff s evidence with regard to the damages claimed, inter alia come to the following: Today I am an unmarried woman with an illegitimate child. This does not make me feel well. It affected my outlook in the community. I appear to be a woman who does not respect herself in the community. People around my area know my occupation. I am ashamed to tell my colleagues that the farther of the child is not
there.... As a result of impregnation and loss of virginity my good name, self esteem and reputation have been impaired. Usually... men do not like a woman with a child... I felt heart broken because he made an agreement that he is going to marry me and I had a child which I did not intend... People regard me and defendant in high esteem. Myself and defendant both have colleagues at work. We are both held in high esteem by our colleagues. Due to the defendant s action of not marrying me I felt hurt and that he had decreased my reputation.. Under cross examination the plaintiff testified that she was a virgin when the defendant seduced her. She explained that during the intercourse penetration was painful and was bleeding. The defendant admitted having had sexual intercourse with the plaintiff but denied having promised to marry her. He testified that the plaintiff was the seducer because she had invited him to her house and upon arrival he found her dressed in a manner a man could not resist. It is remarkable that the defendant however resisted the plaintiff. I may mention that this version was not even put to the plaintiff during cross examination. The defendant further testified that after this incident he visited the plaintiff regularly until the relationship started. He then had sexual intercourse with her. He could feel that it was not the first time she had sexual intercourse with a man because penetration was easy. He later testified that I did not figure whether she is a virgin... I usually saw her with men.. Under cross examination he testified that the plaintiff was not a virgin. He further explained that he terminated the relationship with the plaintiff because the plaintiff was older than him. D. The law and the facts As regards the claim for seduction, it is settled law that where the man has seduced the woman under a promise of marriage, she is entitled to claim damages for breach of promise and damages for seduction (See: Davel v Swanepoel 1954 (1) SA 383 A at 389; Bull v Taylor 1965 (4) SA 29 A). The woman must have lost her virginity as a result of the seduction by the man. In the words of Innes CJ, as he then was, in Bensimon v Barton 1919 AD the woman must have parted with her virtue at the seduction of a man. The presumption is that she fell as a result of the man s seductive efforts.
Mr Bokaba submitted before this court that the plaintiff was a seducer and that she was not a virgin. Accepting that to constitute seduction something akin to a leading astray must be present, it seems to me that the element is not lacking in the instant case. The record before this court discloses no grounds for suggesting that the plaintiff was at the relevant date a sexually precocious woman who actively encouraged the defendant to have intercourse with her. In my opinion the converse reflects the true position. The plaintiff requested that they should not indulge in sexual intercourse because she was not using contraceptives but the defendant suggested that they should do without contraceptives because they should plan a child and that he was going to marry her. She then succumbed to the blandishments of the defendant. Save for mere speculation, the defendant could not say whether or not the plaintiff was a virgin. Under cross examination he denied that the plaintiff was a virgin. I have no doubt that the defendant s denial of the plaintiff s virginity is totally unfounded. In my opinion the plaintiff has proved that she was seduced and is entitled to damages on that account. Mr Bokaba also argued that the action based on seduction is outdated and contrary to the provisions of s. 9 of The Constitution Act 108 of 1996. He however conceded that this point was not raised before the magistrate and that the said provisions could not apply retrospectively. In my opinion, the concession was well made. Whilst I share the view that a legal remedy for seduction is an anachronism particularly in the era of a Constitution based on equality, it is regrettable that the law with regard to this delictual claim still forms part of the South African law. As regards the claim for breach of promise, the repudiation by the man of the agreement to marry must be established. The onus of proving justification for breach is on the defendant who must set out sufficient particularity of the circumstances of the alleged justa causa in the pleadings. On the record before this court, the defendant did not plead to the claim for breach of promise. He however testified that he never promised the plaintiff anything and did not make any plan with her. He further said that the plaintiff told him that she wanted to have a baby and was not interested in marriage. I need say nothing further about his denials because quite apart from the fact that he did not plead to claim IV,
his version in this regard was not put to the plaintiff under cross examination. In the premises I find it proved on a balance of probabilities that there was an express agreement to marry after the child was born. E. The quantum of damages I turn to the thorny question of the amount of damages payable to the plaintiff for seduction and breach of promise. Mr Bokaba submitted that the damages awarded were too excessive particularly because the plaintiff was an older woman. He suggested a global amount in the sum of R3 000.00 for both claims. On the other hand Ms Fourie submitted, correctly in my view, that although the claims are intertwined and overlapping, they are distinct claims and should therefore be treated separately. Ms Fourie submitted further that whilst she conceded that the magistrate did not properly exercise her discretion in the assessment of damages, this court should only interfere with the quantum only if the figure differs substantially from the figure awarded. She referred this court to the views, which I share, expressed by the court in Sandler v Wholesale Coal Suppliers Ltd 1941 AD 194, that :... a Court of Appeal should not interfere unless there is some striking disparity between its estimate of the damages and that of the trial court, and further unless there is some unusual degree of certainty in its mind that the estimate of the trial court is wrong...if the figure arrived at, considered from all aspects, differs substantially from the figure awarded, the Court of Appeal must give effect to it.. (At 200)
Ms Fourie submitted further that the argument that the plaintiff is entitled to lesser amount of damages because she was older is unfounded. She argued that the plaintiff was a reputable and dignified lady teacher who was respected not only in the community where she lived but also at the school where she was teaching. But a young girl, who had not yet gone any far with her career would not have much to loose. I share the same view. I fully agree with Ms Fourie that the trial magistrate has not exercised her discretion properly in assessing the quantum in the two claims. It follows from the findings above that the plaintiff is entitled to damages both from seduction and breach of promise. With the information at this court s disposal, I am of the view that this court is in as good a position as the trial court to assess these damages failing which this Court will, in the words of Watermeyer JA in Sandler s case, supra, be deferring to the judgment of the trial magistrate and not carrying out its function as a Court of Appeal by exercising its own judgment upon a matter which is before it on appeal. (At 200). In any event, no useful purpose will, in my view, be served by referring the matter back to the Court aquo to assess the damages afresh. I now turn to the general damages caused by the seduction. The onus to prove quantum rests on the plaintiff. This is a matter within the discretion of the court. I must mention however that it is difficult to determine quantum with any degree of precision. In considering what might be a suitable award for the plaintiff regard must be had to: (a) the social standing of the plaintiff; (b) the extent to which the feelings of the plaintiff have been wounded; (c) the awards in comparable cases, only as guidelines ; (d) the devaluation in the value of money, and (e) the general behaviour of the defendant. The plaintiff has testified that she was a spinster and lady teacher who was
respected not only at school but also in the community where she lived. She was persuaded to surrender her virginity by a promise that was not kept but now finds herself not only deflowered but also saddled with a child as a result. The injurious element of this conduct is, in my view, substantially aggravated by the defendant s persistent denial that she was virgin at the time he seduced her and his scurrilous and unfounded accusation that she was the seducer. The defendant has admitted that her prospects of getting married has diminished. In a comparable case of M NO v M 1991 (A) SA 587 at 602 J the plaintiff, a girl aged 16 years was awarded a global amount of R6 000.00 for seduction and breach of promise. The award in money in that year is not an award in money today. Therefore, in making comparison I have taken into account the decline in the value of money (Southern Insurance Association Ltd v Bailey 1984 (1) SA 98 (AD), and of course, the particular circumstances of each case. It is clear from the defendant s evidence that when he proposed love from the plaintiff he did so with a wicked heart solely to appease his selfish ends because he testified that he did not love her but was only attracted to her. This heartless and callous attitude should attract censure in the form of damages. In considering the contractual aspect of the breach of promise, regard must be had, inter alia, to : (a) the monetary loss which the plaintiff has sustained; (b) the financial position of the defendant, and (c) her social standing and the extend to which her feelings have been wounded. Whilst it is impossible to quantify the loss accurately, there can be no doubt that the plaintiff has, as a result of the breach, lost the right of support which would have followed from a legally binding marriage. It does not appear however that she would have suffered substantial monetary loss by losing an opportunity of
marrying a man in the position of the defendant. The manner in which the defendant repudiated the contract must also be taken into account. The injuria was exacerbated by the fact that after the child was conceived, the defendant was caught in the act with another woman. It is little wonder that the plaintiff was left with a lasting feeling of hurt. Save that the defendant was a teacher, there is no evidence before this court regarding his financial circumstances. I approach this matter from the point that the defendant is not a man of any substantial financial means. The defendant and the plaintiff are both respectable members of the community in which they live. Taking all the circumstance into consideration, the amounts awarded for both seduction and breach of promise were in my judgment excessive and should be reduced to R6 000.00 in respect of the seduction claim and to R4 000.00 in respect of the claim for breach of promise claim. F. The Costs Turning to the question of costs, Mr Bokaba submitted that in the event of the defendant being partially successful, irrespective of the extent of success, the defendant must be awarded the costs because the plaintiff has already been awarded costs on two previous occasions when the case was postponed. Ms Fourie argued that the plaintiff should be awarded costs occasioned by the postponement on 23 October 1999 when the costs were reserved. It appears from the endorsement on the court file that the matter was further postponed because the magistrate had not furnished proper reasons for her judgment. The postponement was therefore not at the instance of the plaintiff. As far as the costs of the hearing of appeal are concerned, it is trite law that all costs, unless expressly enacted, are in the discretion of the judge. The general rule with regard to costs is that in the absence of some statutory provisions or other just and sufficient reason to the contrary, a successful party is in law entitled as of right to taxed costs. Sometimes a plaintiff, though successful, is not entitled in its entirety to the order claimed. The fact that the defendant has succeeded in reducing the amount claimed by the plaintiff does not alter the fact that the plaintiff is the successful party in considering the question of costs, as
she had come to court in order to succeed to the extent she did ( Giuliani v Diesel Pump Injector Services (Pty) Ltd 1966 (3) SA 451; Erasmus v Davis 1969 (2) SA 1 (A)). In the instant case the plaintiff has been substantially successful because had she not come to Court, she could not have recovered the amounts awarded. Even though she is awarded less that what she had claimed, she has achieved substantial success because she has proved substantial rights. In my opinion, there should be no deviation from the rule that normally costs follow the event. I find therefore that the plaintiff is entitled to the costs of the appeal. G. The order of court In the light of the aforegoing, the judgment of the court aquo is altered to read as follows: (1) the appeal on the merits is dismissed. (2) the plaintiff is awarded damages in the sum of R6 000.00 in respect of the seduction claim and R4 000.00 in respect of the claim for breach of promise. (3) Each party is to pay his/her costs occasioned by the postponement on 23 October 1999. (4) The defendant is ordered to pay the costs of appeal. NKABINDE J JUDGE OF THE HIGH COURT I agree KHUMALO J JUDGE OF THE HIGH COURT
ATTORNEYS FOR THE PLAINTIFF: ATTORNEYS FOR THE RESPONDENT: