Imagine the ultimate humiliation: a decorated lobola venue, family gathered, and the groom is a no-show. Or, as Enzo Ishall's hit “Bhebhi Rako Rarorwa” painfully laments, waking up to discover your partner is wearing traditional wedding attire (majava)—for their marriage to someone else. 

These aren't just viral stories; they are real-life heartbreaks that have jolted the public into asking a critical question: what legal recourse do you have when a promise to marry is shattered? This is the territory of the "breach of promise to marry," an age-old legal concept that is suddenly feeling very relevant. 

The law can't drag anyone to the altar, but it can make them pay for the wreckage left behind. We're talking about a potential lawsuit that goes beyond just reclaiming wedding deposits, extending to damages for public shame, emotional trauma, and shattered reputation. 

Yet, this legal tool is a double-edged sword—a relic from a bygone era when a woman's status and security were intrinsically tied to marriage. In today's world of independent partners, the burning question is whether this legal blast from the past is a fitting remedy for modern-day betrayal.

Understanding the concept through case law

In the case of Mupazviriwo v Kubeta HH 227/13, the high court seating as an appellate court was tasked to interpret whether there was a breach of promise to marry and the requirements thereof. The appellant, a teacher, claimed the respondent promised to marry her but unjustifiably broke off the relationship, seeking damages for breach of promise and insult. 

The magistrate initially dismissed her claim, requiring proof that such a promise had to be publicly witnessed.  On appeal, the High Court ruled a promise need not be publicly witnessed and that the claim blends contract and delict law. 

However, the appellant failed to prove the promise existed, leading to dismissal of the appeal and an order for costs. The court decided that the lawsuit for breach of the promise to marry is combines both contractual and tort law aspects.

The essential elements for a breach of promise to marry as established Mazarire v Magoronga 1992 (1) ZLR 282 at 255E-H, can be summarised as follows;-

that the defendant made a promise to marry the plaintiff

that the plaintiff accepted the promise and communicated his or her acceptance of promise to the defendant and

that the defendant had broken his or her promise without just cause

A claim for breach of promise by a woman will not be disallowed simply because the woman has not informed her aunt of the promise which has been made to marry her.

The essence of the breach to marry

A fundamental legal principle, established in Bull v Taylor, is that a breach of promise to marry does not automatically entitle a plaintiff to damages for injured feelings alone. The court held that sentimental suffering is irrelevant unless it stems from a separate, actionable wrong. This frames the action primarily in contractual terms, focusing on the financial implications of the broken promise rather than the emotional fallout. 

This contractual foundation was later reinforced in Sepheri v Scanlan 2008 (1) SA 322 (C). Here, the court explicitly affirmed that the primary justification for the action is based in contract law. Davis J emphasised that assessing a claim purely within the context of contractual damages was crucial, concluding that any fundamental change to this approach was a matter for the legislature, not "judicial engineering" by the courts. 

This solidified the view that the core of the claim is for patrimonial loss, not emotional distress.

However, for a contract to exist, there must be a serious intention to be legally bound, known as animus contrahendi. This was a pivotal consideration in Ponelat v Schrepfer 2012 (1) SA 206 (SCA). The court confirmed that while a universal partnership could exist between engaged couples, it strictly depends on proving this genuine intention to contract [ the contract herein is for marriage]. 

This highlights the critical legal hurdle: an engagement is often viewed as a "meeting of the hearts," a preliminary pledge. Without clear evidence that it was a "meeting of the minds" intended to create immediate legal consequences, the courts will not enforce it as a binding contract.

Law Out of Time? Why South Africa Abolished the Claim

While Zimbabwean courts still recognize breach of promise, our neighbours in South Africa have declared this law an outdated relic. In a landmark case, Bridges v Van Jaarsveld (3662/2006) [2008] ZAGPHC 342, Van Jaarsveld unilaterally called off his engagement to Bridges by SMS, just four months and a week after the parties had agreed to get married. 

Bridges issued a summons for Van Jaarsveld's unjust, hurtful, and defamatory breach of the agreement. Bridges sought contractual breach damages in the form of actual and anticipated damages, as well as delictual damages due to the severe embarrassment and humiliation she experienced. The high court initially ordered Van Jaarsveld to pay damages for the harmful breach, a decision which was later overturned by the Supreme Court. 

The Supreme Court of Appeal affirmed that courts have both the right and the obligation to advance the common law while also upholding the letter, spirit, and purposes of the Bill of Rights. Harms DP stated that "[t]he time has come to recognize that engagements are outdated and do not recognize the mores of our time, and that public policy considerations require that our courts must reassess the law relating to breach of promise" in reference to the question of whether an action for contractual damages for breach of promise is still permissible under South African law. 

He established that a modern relationship should allow either party to change their mind without being held "guilty." Crucially, he ruled that an engagement is not a binding contract, but rather an "unenforceable agreement to negotiate," essentially a period of reflection. Therefore, the simple act of breaking a promise to marry does not, by itself, create liability. 

Any real financial losses, like non-refundable wedding deposits, are treated as separate issues. The core promise itself is no longer a legal foundation for a claim. This reasoning led the court to unanimously absolve Mr. Van Jaarsveld, overturning the earlier decision and ordering Bridges to pay the legal costs.

This position was cemented in Cloete v Maritz 2013 (5) SA 448 (WCC), where a ten-year engagement was called off. The court firmly held that suing for breach of promise is now contrary to public policy and the spirit of the South African Constitution. The trial judge overruled earlier precedent (including Bull v Taylor) and held that repudiating an engagement is no longer a contractual breach deserving patrimonial damages. 

Courts should evolve the common law to reflect today’s principles of justice, rejecting strict liability for broken engagements.

The core of the South African reasoning is that an engagement is a "meeting of the hearts," not a "meeting of the minds" needed for a legal contract. If couples have shared finances or made specific agreements, they can sue on those grounds directly. 

But the simple promise to marry itself is no longer a ticket to a courtroom payout. This raises a pressing question for Zimbabwe: as our own society evolves, is it time we too consign this law to the past?

The Way Forward: Should Zimbabwe Follow South Africa's Lead?

The compelling question now is whether Zimbabwe should adopt the South African approach. The reasoning from their courts is powerful: the law of breach of promise is built on social assumptions that may no longer hold. As legal scholars have noted, the action is an "archaic vestige" from a time when women's security depended on marriage, a reality completely at odds with the status of modern, independent women. 

The core legal argument for abolition is that an engagement is not a true contract. It is a "meeting of the hearts," a vague promise to negotiate a future together, not a "meeting of the minds" with specific, intended legal consequences. As established in Ponelat v Schrepfer supra, without a clear intention to contract, there is no legally binding agreement. 

Any real financial losses from wedding plans or shared assets can be dealt with under separate legal principles for unjust enrichment or specific contracts, not the broken promise itself.

Furthermore, retaining this law creates a contradiction in our legal system. The Matrimonial Causes Act has moved away from finding "fault" in divorce, focusing instead on fair distribution of assets. It is inconsistent to then enforce a "guilt-based" system for broken engagements. 

As highlighted in Cloete v Maritz supra, this can be seen as discriminatory, clashing with the spirit of equality enshrined in Section 56 of Zimbabwe’s Constitution. For our law to remain relevant and just, it is high time we consign this anachronism to the past.

I concur with Henney J's dictum and maintain that the remaining actions are out of step with the boni mores and public policy considerations of our society as informed by the Bill of Rights, and should no longer be countenanced in our law.

The words of Gubbay ACJ (as he then was) in Zimnat Insurance Co Ltd v E Chawanda 1990 (2) ZLR 143 (S) at 153D-F bear useful repetition for clarity albeit the distinction of context:

“Law in a developing country cannot afford to remain static. It must undoubtedly be stable, for otherwise reliance upon it would be rendered impossible. But at the same time if the law is to be a living force it must be dynamic and accommodating to change. It must adapt itself to fluid economic and social norms and values and to altering views of justice. 

If it fails to respond to these needs, and is not based on human necessities and experience of the actual affairs of men rather than on philosophical notions, it will one day be cast off by the people because it will cease to serve any useful purpose. Therefore, the law must be constantly on the move, vigilant and flexible to current economic and social conditions.”

The learned Acting Chief Justice then quoted the celebrated American jurist, Oliver Wendell Holmes’ opening page of his famous work, The Common Law, which reads:

“The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a Book of Mathematics”.

The learned Acting B Chief Justice at 154A-E of the Zimnat case supra, then went on to say:

“Today the expectations amongst people all over the world, and particularly in developing countries, are rising, and the judicial process has a vital role to play in moulding and developing the process of social change. The judiciary can and must operate the law so as to fulfil the necessary role of effecting such development. It sometimes happens that the goal of social and economic change is reached more quickly through legal development by the judiciary than by the legislature. 

"This is because judges have a certain amount of freedom or latitude in the process of interpretation and application of the law. It is now acknowledged that judges do not merely discover the law, but they also make law. They take part in the process of creation. Law-making is an inherent and inevitable part of the judicial process. 

"The opportunity to play a meaningful and constructive role in developing and moulding the law to make it accord with the interests of the country may present itself where a judge is concerned with the application of the common law, even though there is a spate of judicial precedents which obstructs the taking of such a course. If judges hold to their precedents too closely, they may well sacrifice the fundamental principles of justice and fairness for which E they stand”

The learned Acting Chief Justice then quoted a famous passage by Lord Atkin, referring to judicial precedents: “When these ghosts of the past stand in the path of justice clanking their medieval chains the proper course is for the judge to pass through them undeterred”. Applying this to breach of promise claims, the judiciary should actively engage in reassessing outdated causes of action that no longer fit the social and constitutional fabric of Zimbabwe.

 As the South African courts have demonstrated, continuing to enforce breach of promise actions rooted in bygone assumptions about gender roles and social dependency risks perpetuating injustices and contradicting principles of equality and non-discrimination enshrined in Zimbabwe’s constitution. 

But, till then the breach of promise to marry remains part of the Zimbabwean law, which then leads to the next question, “What defences can one have for breach of promise to marry.”

Defences available for breach of promise to marry.

Insanity constitutes a defences to a breach of promise action. Insanity of either party occurring after the promise is a defence; the insanity of the plaintiff before the promise is not. Drunkenness is also be a defence for a breach of promise to marry if either of the parties says that they were drunk the time they made the promise. 

When an intoxicated person enters into a contract, the contract can either be enforceable, meaning held to the fullest extent of the law, or voidable by the intoxicated person.  Another defence for breach of promise to marry is that of disgraceful and immoral and intolerable behaviour by one party. Bhazuwere v Munene 1994 (2) ZLR 351 (S) it was held that the failure of a woman to tell the man that she had previously had a child by another man could amount to a Justa causa for repudiating the promise to marry.

Conclusion: The Final Verdict on a Law Past Its Prime

Empowered by Section 164 of the Constitution to develop the common law, Zimbabwe's higher courts must now consign the breach of promise to marry to history. This archaic delict, rooted in outdated gender dependencies, fundamentally mistakes a "meeting of the hearts" for a binding legal contract. 

Following the persuasive lead of South African jurisprudence, which abolished the claim for clashing with modern constitutional values, it is time for our courts to affirm that a broken engagement, while deeply personal, should not be an actionable wrong in a society that prizes equality and personal autonomy. 

Till the time which the court revisits this old adage, it remains part of our law, surely you will not ghost your partner and go away with it!

Disclaimer- This publication has been prepared by Melusi Simbarashe Majojo, an Associate at Absolom and Shepherd Attorneys and is intended for information purposes only. It is not a legal opinion and no responsibility will be accepted for relying on it without seeking specific legal advice.  For specific legal questions or assistance, please consult Absolom and Shepherd Attorneys.