Bobrow v Meyerowitz

• Judge: Neser J and Dowling AJ
• Judgment Date: 14 May 1947
• Citation: 1947 (2) SA 885 (T)
• Hearing Date: 14 May 1947
• Court: Transvaal Provincial Division

Neser, J.:

The plaintiff in his declaration alleged that on or about the 20th April, 1946, plaintiff sold defendant, who bought, 1,000 bags of Pietersburg Red and Red Mixed Kaffir-corn at a price of 70s. per 200 lbs. nett weight per bag free on rail, and that it was a condition of the aforesaid sale that the kaffir-corn sold by plaintiff to defendant would be railed by plaintiff to defendant during the period May to August, 1946, to Siding 1315, Klerksdorp.

Neser J

The declaration alleges that defendant accepted and paid for 500 bags of kaffir-corn; after accepting these 500 bags the defendant wrongfully and unlawfully and in breach of the said sale refused to accept delivery of the remaining 500 bags of kaffir-corn and repudiated the contract between the parties. The plaintiff accepted defendant's repudiation and elected to treat the sale as at an end, and alleges that by reason of defendant's repudiation of the contract he suffered damages in the sum of £519 19s. 4d., of which damages particulars are given.

To this declaration there was a special plea in bar which reads:

'Plaintiff is not entitled to enforce the said sale or to make any claim in regard thereto by reason that the said transaction was illegal and a criminal offence in breach of Reg. 11 (i) of the regulations contained in the Annexure to War Measure 24 of 1945 (Proc. 79 of 1945) read with Government Notice 723 (dated 30th April, 1945) under which the maximum price at which the said kaffircorn could be sold was 24s. 3d. per 200 lbs. nett weight per bag free on rail.'

There is a further allegation that the contract was illegal on another ground to which it is not necessary to refer.

To this special plea in bar plaintiff replicated. Para. 2 of the replication reads:

'Plaintiff denies the allegations in para. 4 contained and says that as at the 20th day of April, 1946, the said transaction was not illegal and/or a criminal offence nor did plaintiff commit any illegal act nor was he guilty of any criminal offence inasmuch as all the regulations referred to and relied upon by defendant had been duly repealed to the knowledge of both parties by that date.'

It may be convenient to set out the alternative replication. In para. 3 it is alleged that

'if the said transaction was illegal and constituted a criminal offence as alleged for the reasons as alleged, then plaintiff says that defendant is not entitled to rely on such illegality and criminality by virtue of the facts that there are considerations. of public policy operating in favour of granting plaintiff the relief sought or that in order to prevent injustice as between the parties that plaintiff should be granted the relief sought by him as against defendant by virtue of the following factors: - (a) His Excellency the Governor-General of the Union of South Africa had by virtue of the powers vested in him under the relevant War Measures signed and sealed the repeal of the Regulations referred to by defendant on the 17th day of April, 1946, although such repeal was promulgated on the 26th day of April, 1946, and notification of the said repeal had been publicised to the knowledge of the parties concerned through the medium of the Union Broadcasting Corporation and the Press prior to the 20th day of April, 1946.'

(b) alleges that the said contract of sale between the parties was...