Henry v Branfield

• Jurisdiction: South Africa
• Judge: Levinsohn J
• Judgment Date: 02 August 1993
• Citation: 1996 (1) SA 244 (D)
• Docket Number: 5729/91
• Hearing Date: 01 February 1993
• Counsel: V M Niles-Dunér SC (with her J A Julyan) for the plaintiff. D A Gordon SC (with him S R Mullins) for the defendant.
• Court: Durban and Coast Local Division

Levinsohn J:

In this action the plaintiff claims payment of R262 031,16 G from the defendant. The cause of action is based in the main on a breach of contract and is pleaded as follows:

'3.

During or about the last week of April 1990, and at Amanzimtoti, an oral contract was concluded between the plaintiff, the defendant and Paul Christopher Henry (hereinafter referred to as Paul).

4.

H In concluding the said contract, the plaintiff was represented by Paul, who was duly authorised thereto.

5.

Express and material terms of the said contract were that

(a)

the defendant would facilitate the importation of certain moneys I belonging to the plaintiff and Paul into the Republic of South Africa from Zimbabwe;

(b)

such importation would be effected by -

(i)

the payment, in Zimbabwe, to an agent of the defendant of Zimbabwean dollars belonging to the plaintiff and Paul;

(ii)

the payment, in the Republic of South Africa, by the defendant J to the plaintiff and Paul of the equivalent

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A amount of South African rands, less 10% of the face value of such Zimbabwean dollars;

(c)

such 10% would be retained by the defendant as consideration of the said importation;

(d)

payment in the Republic of South Africa would be effected by the B defendant within a period of six months from the date of payment to the defendant's agent in Zimbabwe.

6.

Pursuant to the terms of the said contract -

(a)

on 6 May 1990, Paul, acting personally and as representative of the plaintiff, paid to the defendant's agent, one Kevin Chambers, C in Zimbabwe, the sum of 386 000 Zimbabwean dollars;

(b)

on 7 May 1990, Paul, acting as aforesaid, orally informed the defendant of such payment.

7.

Of the said amount of 386 000 Zimbabwean dollars -

(a)

321 000 Zimbabwean dollars belonged to the plaintiff; and

(b)

D 65 000 Zimbabwean dollars belonged to Paul.

8.

In breach of the said contract, the defendant failed to pay any amount of South African rands to the plaintiff or Paul on 6 November 1990 or at any time subsequent thereto.'

There is an alternative cause of action which I shall presently refer to.

The defendant in his plea essentially places in issue that a contract was E concluded as alleged. He pleads in the alternative that if it is found that a contract was indeed concluded such contract falls to be struck down as unenforceable on the basis of illegality because a contravention of the applicable exchange control regulations in both Zimbabwe and South Africa was committed.

F The salient facts which emerge from the uncontradicted evidence adduced by the plaintiff and her witnesses are the following.

In 1990 the plaintiff and her son Paul were living in Harare, Zimbabwe. At that time they were both residents of that country. They decided to emigrate to South Africa to join the plaintiff's other son, Dean, who had G resided in South Africa for some time. All plaintiff's assets, including an immovable property, were in Zimbabwe. The plaintiff was faced with the difficulty that, if she did emigrate, her Zimbabwean assets would be blocked and she would not, subject to being entitled to a rather meagre allowance, be able to remove funds out of Zimbabwe.

H This action stems from efforts made by the plaintiff and her sons to overcome the problems created by the Zimbabwe Exchange Control Regulations.

In 1989, while the plaintiff was contemplating emigration from Zimbabwe, her son, Dean, was introduced to the defendant. Through an acquaintance Dean had learnt that the defendant, who was then employed by the Old I Mutual Assurance Co as a financial adviser, was able to 'externalise' funds from Zimbabwe into South Africa. During November 1989 Dean communicated with the defendant. A meeting was held at the offices of Old Mutual in Amanzimtoti. According to Dean he asked the defendant about 'externalising funds' and the defendant said he was in a position to do J so. Dean explained that his

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A brother and mother were still in Zimbabwe and they wished to leave. He enquired from the defendant as to how the defendant went about moving these funds and the defendant refused to elaborate, saying words to the effect 'that's why you pay me 10% for my service'. During the course of the meeting the defendant said that one of the options offered was that B the particular sum in Zimbabwean dollars was to be handed over in Zimbabwe and that within six months of such handing over he (the defendant) would pay in South African rands the sum equal to 90% of the face value of the dollars so handed over. The defendant gave to him a piece of paper containing the names of two persons in Zimbabwe. These two were C apparently the persons who would be contacted before the money was handed over.

During December 1989 Dean went to Zimbabwe and explained to the plaintiff and his brother what he had been told by the defendant. Both plaintiff and his brother thought it was a good idea as they were anxious to bring their funds out of Zimbabwe. The plaintiff and Paul Henry arrived in D South Africa during March. In April Dean and Paul contacted the defendant and told him they were ready to proceed with the scheme previously discussed. They met him on 27 April 1990. A discussion took place and the defendant repeated basically what he had said to Dean at their earlier meeting in November 1989. He also indicated that he would give them the E name of a new person to contact before they returned to Zimbabwe. He said that he would pay both the plaintiff and Paul by cheque within six months of the date of delivery of the money. An agreement to hand over a cash sum in Zimbabwean dollars to an agent of the defendant was reached.

F Pursuant to this agreement an amount of 386 000 Zimbabwean dollars in cash was handed over to Kevin Chambers by Paul Henry at the rear of the public swimming pool premises in Harare. This occurred...