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Mafoko v Thaba (Civil Appeal No. 22 of 202) [2002] BWCA 32; [2002] 2 B.L.R. 48 (CA) (19 July 2002)

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IN THE COURT OF APPEAL OF BOTSWANA HELD AT LOBATSE
Civil Appeal No. 22/2002
High Court Civil Trial No. 342 (F) of 2000
In the matter between:
DIPETSO MAFOKO   Appellant
and
SEMAKALENG THABA         Respondent
P.A. Kgalemang for the Appellant T. Joina for the Respondent
JUDGMENT
Coram: P.H. Tebbutt Ag. 3.P. Lord Sutherland J.A A.M. Akiwumi J.A.
Akiwumi 3.A.
The appellant was successfully sued in the High Court by the respondent in an action for breach of promise of marriage. He now appeals to this Court against that decision. The facts upon which the learned judge (Mwaikasu J.) based his finding that the appellant had breached his promise made in 1993, to marry the respondent, are not in doubt. And his conclusion in his judgment that there was a breach of this promise of marriage by the appellant, cannot be faulted.

The learned judge then, as he could, in his judgment delivered on 10th January, 2002, awarded the appellant delictual damages and contractual damages which had been separately sought by the respondent. The learned judge awarded in respect of delictual damages, and as a matter within his discretion, P25, 000.00 and not P40, 000.00 as claimed by the respondent. The learned judge also awarded contractual damages of P2, 000.00 being the respondent's contribution towards the purchase of a Toyota Cressida saloon car which the respondent and appellant originally ran as a taxi; PI, 800.00 which the respondent had invested in the appellant's construction company; and a four ninth (4/9) share of the market value of the appellant's house on Plot No. 10914, Block 7 in Francistown, assessed at P90,000.00, and to the development of which the respondent had contributed financially.
The learned judge's award of delictual damages has been criticized on the ground, inter
alia, that it was too high and undeserving and that the learned judge in arriving at the
P25, 000.00 that he awarded, did not exercise his discretion properly as he did not take
into account all the applicable relevant issues and circumstances. The respondent had
sought delictual damages on the ground that the appellant's breach of promise of
marriage had resulted in the impairment of her personal dignity and reputation. And in
this regard, the learned judge had observed that:-
"...it is to be noted that when such promise was made the plaintiff was already with two minor children born with another man. That, no doubt, had the effect of impairing her personal dignity and reputation relating to her moral integrity. It would have certainly been different if such children had been born together with the defendant during such betrothal period before the breach of the promise to marry. That, therefore, must
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go to reduce the amount claimed. I have, however, borne in mind that at the time the defendant decided to abandon the plaintiff almost everything had been done towards getting the parties married and for a considerable period they had lived as husband and wife and the plaintiff was fully involved in defendant's economic activities which must have led the plaintiff to entertain the confidence or expectation that she had been fully accepted by the defendant as his wife. Coupled with that was the plaintiff's hope with the defendant's undertaking to adopt the plaintiff's two minor children born with another man, that such children would have a better upbringing and her burden of looking after them would have been lessened. Certainly, the plaintiff must have found herself in great anguish upon finding her expectations for a married life shattered the last minute."(underlining supplied)
But did the respondent find herself "in great anguish upon finding her expectations for
a married life shattered at the last minute"? I would say, no. There is no evidence
whatsoever either from the respondent herself or from any other source to support the
learned judge's finding in this regard. As for the impairment of her personal dignity
and reputation as pleaded, the learned judge in his observation above, was of the view
that she did not have much left when she met the appellant. The only evidence of the
respondent that might have any relation to these important issues is contained more
accidentally than anything else, in the following evidence which was really about the
financial loss that her rejection by the appellant entailed:
"Joina:  What did he do, did he tell you point blank?
Thaba:   I told his parents. They said he had never told them and
they wanted to hear from him and they were waiting for him, so that he should tell them himself that he was not going to marry me and they told (sic) that I should wait for them.
Court:   Did they tell you?
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Thaba:   They never told me until I was stopped from collecting rent.
I told them I was suffering. That was when I decided to seek legal advise from Mr Joina."
If at all, the respondent must have found herself in some economic distress more than anything else. And this is not inconsistent with the rather unsentimental manner in which the appellant, an illiterate small time business man, had proposed marriage to the respondent who was at the time, a Senior Bank Clerk, in a park behind the Post Office in Francistown, and which proposal the respondent had accepted without any expression of love on her part, but rather because of the economic advantage in having a husband who would also look after the two children that she already then had by another man, and in her managing the promising commercial affairs of the appellant. The transaction between the respondent and the appellant seemed more like a commercial venture than a love match.
As is now well settled - see Davel v Swanepoel 1954 (1) SA 383(A) at 387 and M
NO v M 1991(4) SA 587(D) at 602 - that the factors to be taken into consideration by a judge in the exercise of his wide discretion in awarding delictual damages are, inter alia, the social position of the parties, the extent to which the feelings of the plaintiff have been wounded, and the general behaviour of the defendant. In this respect, and as already indicated, there is no evidence to show that the personal dignity and reputation as well as the social standing of the respondent, who had three children out of wedlock, was adversely affected or that her feelings have been wounded.
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Indeed, even though in March, 2002, the appellant repudiated his promise to marry the
respondent, the respondent continued to see the appellant and said in her evidence
that in June, 2000, she and the appellant agreed to form the appellant's construction
company namely, Molelo Building Construction Company and to which, she contributed
PI, 800.00 being half of the capital of the company. Her association with the appellant
was dominated by commercial interests. This culturally acceptable unmarried
relationship with the appellant and which the respondent had quite happily enjoyed for
nearly seven years, is also not inconsistent with the following modern related
sentiments as expressed in The Law of Marriage, Vol. 1 June D. Sinclair, Assisted
by Jacqueline Heaton, JUTA & Co LTD 1996, at p314, foot note 8:
"....Repudiation of promise to marry is however no longer seen in the serious light that it was when marriage was regarded as the only proper course for all women, and when breach of promise was likely to prejudice their reputation."
If the learned judge had taken the foregoing important evidence and factors into
consideration when determining the delictual damages, he would have awarded
much less damages than he did. Having considered all the pertaining
circumstances, the delictual damages that I consider appropriate would merely
be a nominal one of P5, 000.00 plus 10% interest as from the date of the
learned judge's judgment until payment is made in full; and it is so ordered.
I will now deal with the contractual damages that were awarded against the appellant. In this respect, the learned judge quite properly alluded to the

following principles as set out by Trollip J, as he then was, in Guggenheim v
Rosenbaum 1961(4) SA 21(W) at 36-7 namely:

"In regard to contractual damages, both the prospective loss of the benefits of the marriage and the actual monetary loss or expenditure incurred and 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 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 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."
Trollip J. in respect of contractual damages, had also observed that they must be proved "with that degree of precision required in breach of contracts."
On the evidence of the respondent, the contributions that she made towards the development of the appellant's house on Plot No. 10914, Bloc 7 in Francistown and towards the purchase of the Toyota Cressida saloon car, even though somewhat inaccurately described as being "a result of the contract aforesaid", are really, according to the evidence adduced at the trial, "expenditure reasonably incurred prior to the breach in contemplation of the promised marriage taking place and which were rendered useless by the breach". As such, they can be recovered. But the amounts involved must be established with precision. In this regard, the sum of P2, 000.00 which the respondent contributed towards the purchase of the Toyota Cressida is unchallenged. The

same, however, cannot be said about the award to the respondent of 4/9 of the market value of the appellant's house which, as already indicated, was estimated to be P90, 000.00. The amount that the respondent from the available evidence, was able to establish "with that degree of precision required in breach of contracts," and as admitted by Mr Joina for the respondent, that she had spent in the development of the appellant's house, was P7,000.00 and that is what should be refunded. The order of the learned judge that the respondent be entitled to 4/9 share of the market value of the appellant's house on Plot No. 10914, Block 7 in Francistown, is hereby set aside and substituted for by an order that the appellant shall refund to the respondent P7,000.00. with 10% interest as from the date of the learned judge's judgment until payment is made in full; and it is so ordered.
As already indicated, the respondent, though she may have obtained and put aside the money involved in her investment in the appellant's construction company before the appellant breached his promise of marriage, the crucial issue is that she actually invested her money in the company some months after the appellant had rejected her. First, it cannot be said that this investment was incurred prior to the appellant's breach of promise of marriage, and secondly, that it was incurred in contemplation of the promised marriage taking place. For these reasons the learned judge was wrong in ordering the refund to the

respondent of PI, 800.00 with 10% interest, in the particular proceedings that were before him. This order must be set aside and it is so ordered.
As regards costs, this appeal was set down for hearing on 11th July, 2002, before this Court. On that day only Mr Kgalemang for the appellant, appeared and argued his client's appeal. Because of a misunderstanding for which Mr Joina cannot entirely be blamed, he did not appear before this Court that day for the respondent. Due to what occurred on that day both parties and their counsel were to a greater or lesser extent, inconvenienced. It seem to this Court that in the circumstances, the fairest order would be that the wasted costs of 11th July, 2002, should be costs in the appeal. The appeal was set down for hearing again on 12th July, 2002. This time, both counsel appeared and presented their arguments in the appeal. The appellant has substantially succeeded in this appeal and accordingly he would be entitled to the costs of this appeal including the wasted costs incurred on 11th July, 2002.
Delivered in Open Court this 19th day of July 2002

I agree
A.M. Akiwumi Judge of Appeal
P.H. Tebbutt
Ag. Judge President


I agree
Lord Sutherland Judge of Appeal

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