The Supreme Court of Appeal (SCA) has given a woman the thumbs up to sue her estranged husband for the “wasted costs of the wedding” based on what she says was fraudulent misrepresentation.
The court overturned a ruling in the Johannesburg high court which upheld the husband’s exception to the claim, ruling it was part of the risks associated with marriage and South Africa’s delict laws did not, and should not, allow such a claim.
The SCA has disagreed with that finding. All five judges found in favour of the woman’s appeal, albeit for different reasons.
Judge Wendy Hughes, writing the main judgment, said Ms W had sued Mr T in the Johannesburg high court on the grounds of fraudulent misrepresentation. She alleges this induced her to marry him and her spending R331,342 on the wedding.
She also instituted separate proceedings against him for R500,000 based on dignity and reputation arising from his conduct and that these circumstances became public knowledge in the parties’ social circles.
Mr T raised exceptions to both but only succeeded in his bid to stop the litigation in respect of fraudulent misrepresentation.
It was this matter which Ms W appealed in the SCA.
Hughes said the couple were in a romantic relationship from November 2016 to September 2018. During that time Mr T had professed in words and deeds that he loved her and wanted to marry her and remain married “until parted by death”.
He showered her with expensive gifts and five-star holidays. He proposed with a R63,000 engagement ring.
They married out of community of property, with accrual, in September 2018 and jetted off on a honeymoon to a private island off the coast of Mozambique.
“But this blissful relationship was short-lived,” Hughes said, and a week later it took a turn for the worse.
Ms W said he stopped showing her love and affection and regularly abused and belittled her, swore at her and told her she was “the biggest regret of his life”.
They split up the next month and he sued for divorce.
Ms W said she became aware he had known before the marriage he considered the relationship between them to “be over”.
“Distilled to the bare minimum, the allegation is that the respondent [Mr T] proclaimed he loved her and wanted to spend the rest of his life with her. At that time, he did not honestly believe it was true,” Hughes said.
The high court had found fraudulent misrepresentation leading to marriage which results in pure economic loss was not recognised under delict laws in South Africa and Ms W would have been in a position to manage the risks of an unsuccessful marriage.
It said the case was one where social, economic and other costs were too high to justify the use of the law of delict for the resolution of the issue.
Hughes said it was so that the high court was being asked to extend delictual liability to a novel situation for which there was no precedent, but there was a duty not to cause harm and questions of reasonableness and liability could be dealt with by the high court hearing the trial.
The court upheld Ms W’s appeal and dismissed Mr T’s exceptions.
In a separate judgment, Judge Tati Makgoka said while he agreed with the order, he had other reasons for it. One was that the high court, in considering Mr T’s exceptions, had not been called upon to decide on the merits of Ms W’s claim for fraudulent misrepresentation.
“The unqualified statement by the high court that any conduct, even fraudulent, which leads to a marriage cannot give rise to a claim for loss is of doubtful legal soundness.
“Apart from policy considerations, the high court went on to question what it perceived to be the applicant’s [Ms W] poor judgment in electing to pay for the wedding expenses and not opting for a less expensive wedding.
“This was clearly impermissible [at the stage of considering exceptions].”
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