Abreu v Campos

• Jurisdiction: South Africa
• Judge: Lewis AJP and Jarvis AJA
• Judgment Date: 21 March 1975
• Citation: 1975 (3) SA 73 (RA)
• Hearing Date: 10 March 1975
• Court: Appellate Division

Lewis, A.J.P.:

This is an appeal against a judgment given in the magistrate's court.

The appellant was sued by the respondent for $2 100, being the A total value of four cheques drawn by the appellant in favour of the respondent which had been dishonoured on presentation, the appellant having instructed his bank to stop payment of the cheques.

The appellant pleaded to the respondent's summons and particulars as follows:

"1.

Save for saying that, by reason of the facts pleaded B hereinafter, plaintiff's claims are unenforceable, the consideration for the said cheques being illegal, defendant admits the allegations in plaintiff's amended particulars of claim.

2.

In November 1972 defendant was indebted to one Salvador in the sum of $2 200.

3.

At or about the end of November 1972 and at Houghton Park Café, Salisbury, it was agreed between plaintiff, defendant and the said Salvador -

(a)

that defendant would pay to plaintiff, in C satisfaction of his (defendant's) indebtedness to the said Salvador, the sum of $2 100 in instalments;

(b)

that the plaintiff would pay to the said Salvador, in Mocambique, and in Portuguese currency, the equivalent of $2 200.

4.

Pursuant to the said agreement defendant then and there drew the cheques now sued on and issued them to plaintiff.

5.

At all material times plaintiff, defendant and the said Salvador were residents of Rhodesia.

6.

D Ministerial permission in terms of the Exchange Control Regulations, 1965, had not and has not been obtained in respect of the said transaction.

7.

The said transaction contravened the said regulations."

Issue was joined on the plea and the matter went to trial. At the commencement of the trial, the respondent's attorney took E the point in limine that the plea was bad in law and disclosed no defence to the claim, even assuming the correctness of the allegations of fact in the plea.

After hearing argument, the magistrate upheld this contention and gave judgment for the respondent with costs, and the appellant now appeals to this Court against that judgment.

The matter has, of course, to be decided on the assumption at F this stage that the appellant's version of the facts is correct. We are informed by counsel that in fact the respondent disputes that there was any arrangement to pay money to Salvador in Mocambique in Portuguese currency. The only relevance of this is that there can be no question of any equities arising in favour of the respondent from the fact that G he had performed his side of the contract alleged by the appellant, since he denies that this was the contract.

There can be no doubt that the arrangement alleged by the appellant in his plea constitutes a contravention of reg. 3 (1) of the Exchange Control Regulations contained in Rhodesia Government Notice 353 of 1965. This regulation reads as follows:

"3 (1) Except with the permission of the Minister, no person H other than an authorised dealer shall -

(a)

buy...