C W v G T

The applicant (Ms W) and respondent (Mr T) were in a romantic relationship from 8 November 2016 to 22 September 2018. On 31 March 2018, the respondent proposed marriage and presented the applicant with an engagement ring worth R63,000. The parties married out of community of property with the accrual system on 15 September 2018. One week after the wedding, the respondent's conduct changed dramatically - he became abusive, belittling, and told the applicant she was "the biggest regret of his life". On 18 November 2018, he ordered her to leave the marital home. On 11 December 2018, he instituted divorce proceedings. The applicant discovered on 24 December 2018 that the respondent had allegedly known before the marriage that he considered their relationship to be "over" but fraudulently misrepresented his intentions to marry and remain married to her. She incurred wedding expenses totalling R331,342.36. The applicant sued for patrimonial damages under the lex Aquilia and for impairment of dignity under the actio iniuriarum. The respondent excepted to both claims. The high court upheld the exception to the lex Aquilia claim but dismissed the exception to the actio iniuriarum claim.

• Whether a claim for pure economic loss arising from fraudulent misrepresentation inducing marriage discloses a cause of action under the lex Aquilia
• Whether the high court correctly applied the test for upholding an exception
• Whether wrongfulness is established in the case of fraudulent misrepresentation leading to marriage and consequent financial loss
• Whether delictual actions are permitted stante matrimonio between spouses married out of community of property
• Whether there are policy considerations that require the extension of the Aquilian remedy to circumstances of fraudulent misrepresentation inducing marriage

1. The application for leave to appeal was granted. 2. The appeal was upheld with costs. 3. The order of the high court was altered to read: 'The defendant's exceptions to the plaintiff's claims premised on the Lex Aquilia and Actio Iniuriarum, respectively, are dismissed with costs.' 4. The costs order of the high court in respect of the dismissal of the application for leave to appeal was set aside. 5. The costs in respect of the application for leave to appeal in the high court and in this Court were made costs in the action.

At the exception stage, where a claim for patrimonial damages is based on allegations of fraudulent misrepresentation inducing marriage, the test is whether on every possible construction of the particulars of claim, no cause of action is disclosed. The onus is on the excipient to satisfy the court of this. Where the applicant has made all necessary averments for fraudulent misrepresentation (representation, knowledge of falsity, inducement, and damages), and there are insufficient facts to determine whether policy considerations require extension of the lex Aquilia, the exception must be dismissed as the excipient has failed to discharge the onus of showing that the particulars are excipiable on every interpretation. The issue of whether policy considerations require extension of the Aquilian remedy is a matter for determination at trial with the benefit of full pleadings and evidence. Fraudulent misrepresentation causing pure economic loss is prima facie wrongful under the actio doli.

Makgoka JA made extensive obiter observations: (1) Fraudulent misrepresentation is almost invariably regarded as wrongful in South African law, and it is "hard to think of any reason why the fact that the loss was caused by dishonest (as opposed to bona fide negligent) conduct, should be ignored" in determining wrongfulness. (2) The fact that parties are married should make no difference in determining wrongfulness where fraudulent misrepresentation is alleged - "fraud unravels all". (3) Public policy considerations support finding fraudulent misrepresentation inducing marriage to be wrongful, given that marriage is a social institution of vital importance and the public has an interest that marriage not be brought about through fraudulent misrepresentation. (4) The respondent had a legal duty to disclose that he considered the relationship over when proposing marriage. (5) There is no risk of indeterminate liability as the basis for liability is clearly circumscribed by the fraudulent misrepresentation, and similar situations will be few and far between. Hughes JA noted that when existing law provides adequate means for a plaintiff to protect against loss, there may be no need to extend the lex Aquilia (citing Lillicrap). Molemela JA observed that there are instances where intention plays a pivotal role in delictual claims such that intent becomes an integral part of wrongfulness.

This case is significant in South African delictual law as it addresses the novel issue of whether fraudulent misrepresentation inducing marriage can give rise to a claim for pure economic loss. The judgment confirms that delictual actions are permitted stante matrimonio between spouses married out of community of property (following Rohloff v Ocean Accident & Guarantee Corp Ltd). It reinforces the principle that fraudulent misrepresentation causing pure economic loss is prima facie wrongful under the actio doli. The case demonstrates the proper approach to exceptions - that insufficient pleadings at exception stage may preclude a determination of whether policy considerations require extension of the lex Aquilia, and that such matters should be determined at trial with full pleadings and evidence. The judgment reaffirms the test for exceptions: whether on every possible construction of the particulars of claim, no cause of action is disclosed, with the onus on the excipient. The case also touches on important policy considerations regarding marriage as a social institution of public significance (per Dawood) and the principle that fraud unravels all.