Jajbhay v Cassim

• Jurisdiction: South Africa
• Judge: Stratford CJ, De Wet JA, Watermeyer JA, Tindall JA, Centlivres JA
• Judgment Date: 13 June 1939
• Citation: 1939 AD 537
• Hearing Date: 31 March 1939
• Court: Appellate Division

Jajbhay Appellant v Cassim Respondent
1939 AD 537

1939 AD p537

Citation	1939 AD 537
Court	Appellate Division
Judge	Stratford CJ, De Wet JA, Watermeyer JA, Tindall JA, Centlivres JA
Heard	March 31, 1939
Judgment	June 13, 1939

Flynote : Sleutelwoorde

Contract — Legality — Recovery of property delivered under illegal contract — In pari delicto potior est conditio defendentis — Scope of rule — When departure from general rule justified — Illegal lease — Claim by lessor for ejectment — Construction of Regulation 15 of Johannesburg Malay Location Regulations.

Headnote : Kopnota

The Court will not enforce rigidly the general rule in pari delicto potior est conditio defendentis, but will come to the relief of one of the parties where such a course is necessary in order to prevent injustice or to satisfy the requirements of public policy.

Whether or not the plaintiff requires any aid from the illegal transaction to establish his case is not a test for determining whether a party to an illegal contract can recover what he has parted with under it.

The appellant, the registered holder of a stand licence entitling him to occupy a stand in the Johannesburg Malay Location, sub-let the stand to the respondent, such sub-lease being illegal in terms of Regulations 8 and 24 of the Location Regulations. The sub-lease provided for a monthly tenancy and the respondent had carried out the terms and conditions of the sublease. During the currency of the sub-lease, the appellant applied unsuccessfully to a Provincial Division for an order ejecting the respondent from the occupation of the stand on the grounds (a) that his occupation was unlawful by reason of the provisions of Regulation 15, under which persons other than the registered owner or occupier are not permitted to remain in the Location for more than six hours without a permit or pass, and (b) that the

1939 AD p538

sub-lease was illegal in terms of Regulations 8 and 22 and that consequently the appellant was entitled to reclaim possession of the property.

Held, on appeal, that inasmuch as the respondent was the occupier of the stand he was not required to have a permit or pass.

Held, further, that inasmuch as both parties had entered into a lease forbidden and penalised by the law and inasmuch as there were no considerations of public policy operative in favour of granting the appellant relief the general rule in delicto potior est conditio defendentis applied, and that the application had rightly been dismissed.

The case of Brandt v Bergstedt (1917 CPD 344) overruled; the cases of Silke v Goode (1911 T.P.D. 989) and Rex v Masego (1915 T.P.D. 1) discussed.

The decision of the Transvaal Provincial Division in Jajbhay v Cassim confirmed.

Case Information

Appeal from a decision of the Transvaal Provincial Division (MURRAY, J.).

The facts appear from the judgment of WATERMEYER, J.A.

N.E. Rosenberg, K.C. (with him V. Rosenstein), for the appellant: All registered holders of stands are entitled to prevent illegal occupation. See Hatch v Koopoomal (1936 AD 190); Glatthaar v Hussan (1912 T.P.D. 322 at p. 327); Makue v Makue's Trustee (1923 T.P.D. 163 at p. 165) and Roodepoort-Maraisburg Town Council v Eastern Properties (Pty.) Ltd. (1933 AD 87 at p. 94); Grotius (2.44.9) and Merula (4.24.10.18).

Appellant, as registered holder of the stand, is in a position of dominus and is entitled to claim ejectment unless respondent can show some title or causa entitling him to remain in occupation. See Graham v Ridley (1931 T.P.D. 476 at pp. 478-9): Pool v Alexander (20 C.T.R. 174); Mabuza v Langa (1929 T.P.D. 422 at p. 427).

The case of a lease being void ab initio through lack of formality when the lessee is in the position of a tenant at will is analogous.

See Kala Singh v Germiston Municipality (1912 T.P.D. 155 at p.160) and cf. Rubin v Botha (1911 W.L.D. 99).

There is a distinction between a prohibited lease and one which void because entered into for an immoral purpose. See Brandt v Bergstedt (1917 CPD 344: at p. 351). In the latter case the person disputing the validity of the lease would have to rely on the illegality of the transaction, the lease being good until the causa is proved, whereas in the former case there is no lease at all. Cf. the test suggested in Mabuza v Langa (supra, at p. 427); Taylor v Bowers (1876, 1 Q.B. 291); Taylor v Chester (38 L.J., Q.B. 225 at p. 228).

1939 AD p539

Respondent's only right to occupy for the period of the lease must be based on his possession qua tenant and not merely on the fact that he is in possession.

As against the registered holder the respondent h as no title, possessory or otherwise, to the stand. See Rex v Mosego (1915 T.P.D. 1) referred to in Morobane v Bateman (1918 AD 460).

A lessor under an illegal lease cannot enforce it, but he is not precluded from resuming possession. See Gas, Light & Coke, Co v Turner (132 E.R. 12,57) and Alexander v Ragson (1936, 1 K.B. 169 at pp. 183, 186), even although in English law an agreement of lease confers an estate in the land on the tenant. See Halsbury's Laws of England (Hailsham ed., vol. 20, p. 5). In American law an illegal lease may be cancelled as to future operations. See Williston on Contracts (vol. 6, sec. 1787). Bowes v Foster (27 L.J., Q.B. 262 at pp. 265, 268) is distinguishable.

On the assumption that the parties were in pari delicto the Court is entitled, on grounds of public policy, to prevent the continuance of wrongful occupation and to grant relief to the appellant. See Williston on Contracts (sec. 5081).

S. Kuper, for the respondent: Appellant has no locus standi, for in order to have such locus, it is necessary for appellant to show (1) that the Legislature enacted Regulation 15 in the interest of appellant as a member of the class of registered stand-holders in the location or alternatively (2) that appellant suffered special damage as the result of respondent's breach of the regulations. See Roodepoort-Maraisburg Town Council v Eastern Properties (Pty.) Ltd. (supra, at p. 96).

The object of Law 3 of 1885 is not to confer but to deprive of rights and to control; and the regulations were required to enable the Sanitary Board to exercise better control over the residents and were not enacted in the interest of the appellant as a member of a class of persons. See Hatch v Koopoomal (supra, at p. 209); Rex v Essop and Others (1909 T.S. 480).

Even if appellant has a locus standi, his remedy is not to claim possession of the premises he has voluntarily given up in terms of the sub-lease, which is valid notwithstanding the contravention of Regulation 15; the respondent may at any time obtain the permit provided for in that regulation.

The appellant is not in the position of dominus. The main right flowing from ownership is the right to recover lost possession and the right to dispose of the property as the owner pleases. See

1939 AD p540

Graham v Ridley (supra, at pp. 478-9). The rights of the lessee under the regulations are merely to continue the lease as long as he complies with the conditions. He can only recover possession when deprived of it without his consent.

In order to recover possession appellant must rely on this illegality of the sub-lease. The analogy based on Kala Singh v Germiston Municipality (supra, at pp. 160-1) and Rubin v Botha (supra) is bad as here the sub-lease is not only illegal but also contra bonos mores. The distinction between a prohibited lease and lease which is void because entered into for an immoral causa is not justified by the authorities. See Mabuza v Langa (supra, at p. 427); Silke v Goode (1911 T.P.D. 989, at pp. 992-4) and Feret v Hill (23 L.J., N.C.C.P. 188).

The principle set out in Williston on Contracts (sec. 5081) is not recognised in our law or in English law where the contract, as here, has been partly executed. See Kearley v Thompson (24 Q.B.D. 742) and Levy v Katz (1914 W.L.D. 88).

Rosenberg, K.C., in reply, cited Daya v Gardee and Gardee (1934 W.L.D. 31, at p. 42.) and Thorne v Motor Trade Association (1937, A.C. 797).

Cur adv vult.

Postea (June 13th).

Judgment

Stratford, C.J.:

This case presents a problem which has never been satisfactorily dealt with either in the Courts of this country or in the English Courts, nor, indeed, so far as I know, in the Courts'of any other country. My brother WATERMEYER has made a careful examination of all available sources of information on the subject and I propose to make use of his researches and thus avoid n needless repetition of his citations. We are concerned with the application of two legal maxims taken from Roman law by all modern civilised legal systems. The first is the maxim ex turpi causa non oritur actio and the second in pari delicto potior conditio defendentis. They have been called "cognate" doctrines, an expression, which I think, perhaps has served to confuse their essential distinctive character. In my view the first maxim prohibits the enforcement of immoral or illegal contracts and the second curtails the right of the delinquents to avoid the consequences

1939 AD p541

Stratford, C.J.

of their performance or part performance of such contracts. This obvious and simple distinction must be emphasised because some of the English decisions seem to me to make one rule of the two and to use the second maxim as one designed to fortify the application of the first, and this has led to reliance upon the technicalities of pleading and to the use of such vague phrases as those to which my Brother WATERMEYER has referred. To illustrate my objection to the English illustration of the law I refer to a statement of it in Salmond & Wingfield (1st ed., pp. 149, 150). If the English law is in these pages correctly stated I think we should hesitate to follow it in this country.

The first criticism that statement of the law provokes is that the two rules embodied in the...