Karstein v Moribe and Others

• Jurisdiction: South Africa
• Citation: 1982 (2) SA 282 (T)

Karstein v Moribe and Others
1982 (2) SA 282 (T)

1982 (2) SA p282

Citation	1982 (2) SA 282 (T)
Court	Transvaal Provincial Division
Judge	Ackermann J
Heard	November 10, 1981; January 10, 1982
Judgment	January 27, 1982

Flynote : Sleutelwoorde

Partnership — Contract — White and Black forming partnership to B conduct joint farming venture for a season — Black leasing land in his own name in Black area — White financing project — Object of partnership could have been lawfully executed with necessary governmental approval — Nothing to show that there was an intention to achieve the object unlawfully — Partnership agreement not ab initio illegal.

C Blacks — Land — Section 1 of Black Land Act 27 of 1913 and s 12 of Bophuthatswana Land Control Act 39 of 1979 — White and Black forming partnership to conduct joint farming venture for a season — Black leasing land in own name in Black area — White financing project — Black had to farm crops for benefit of partnership and hand over D harvested crops to partnership — Such not constituting a hire or other acquisition by partnership of land or any right thereto or interest therein as envisaged by the Acts — No contravention of the Acts in the circumstances.

Principal and agent — Undisclosed principal — White and Black forming E partnership to conduct joint farming venture for a season — Black leasing land in own name in Black area — White financing project — Partnership never party to leases and these were not unlawful.

Maxims — Ex turpi causa non oritur actio — White and Black forming partnership to conduct joint farming venture for a season — Black F leasing land in own name in Black area — White financing project — Such not unlawful and maxim not applicable — No bar to interim relief.

Maxims — Principle of in pari delicto potior est conditio defendentis — White and Black forming partnership to conduct joint farming venture for a season — Black leasing land in own name in Black area — Project G financed by White — Such not unlawful and maxim not applicable — No bar to interim relief.

Headnote : Kopnota

Applicant, a White person, and respondent, a Black person, had allegedly concluded a partnership in equal shares during July/August 1980 for the purpose of conducting a joint farming venture until the crop was reaped during 1980. The respondent had leased a certain farm in the H Delareyville district as well as 17 plots in the district of Madibogo in Bophuthatswana. Applicant was desirous of suing respondent on the partnership agreement, claiming a debatement of account and payment of moneys in terms of the partnership agreement. He had accordingly sought and obtained a rule nisi attaching certain assets on the farm. On the return day the Court found that the respondent had prima facie established a partnership. It was common cause that the farm was situated in a scheduled Black area and as such subject to the provisions of s 1 of the Black Land Act 27 of 1913 and the Madibogo plots were in turn subject to the provisions of s 12 of the Bophuthatswana Land Control Act 39 of 1979. The applicant had financed the project. Counsel for the respondent raised a point in limine

1982 (2) SA p283

that the alleged partnership agreement was, on applicant's own showing, unlawful and invalid and in that case applicant would not be entitled to any of the relief sought in the main action and not any interim relief. It was submitted for the respondent that it was illegal for a White A person to lease, even as a co-partner, land in a scheduled Black area in the Republic of South Africa or in Bophuthatswana and equally illegal for a Black person, even as a co-partner, to lease land outside the scheduled Black area in the Republic; that inasmuch as the main and underlying purpose of the partnership contemplated such leases as co-partners, the partnership was unlawful and void, and therefore that B the maxim ex turpi causa non oritur actio precluded applicant from suing respondent on the partnership agreement and from claiming a debatement of account and payment of any monies in terms of the partnership agreement. It was also contended that, because applicant was not invoking the rei vindicatio and in view of the principle that in pari delicto potior est conditio defendentis, the applicant was not C entitled to any of the relief sought by him in the main action and could not recover anything contributed by him to the partnership. On the return day of a rule nisi,

Held, that, the partnership could quite validly have concluded leases of the farm and the Bophuthatswana plots, provided the necessary government approval was obtained and the main object of the partnership could therefore have been lawfully executed.

Held, further, that, inasmuch therefore as the partnership's main object D could lawfully have been executed and, in the absence of anything on the papers to show that, at the time of concluding the partnership agreement, it was intended to achieve this object unlawfully, the partnership agreement was not ab initio illegal and unenforceable.

Held, further, that it appeared as if the leases between the lessors and the respondent, as contracting parties, were performed according to E their terms until they terminated by effluxion of time; for this period they were completely valid; if the partnership, as undisclosed principal, was at this stage substituted as contracting party, it would have had the effect, ex post facto, of rendering a contract void which was perfectly valid throughout its implementation; the law ought not to countenance this and the conclusion that should be reached on this part F of the case was that the leases were at all times between the respective lessors and the respondent, that the partnership never became a party to these leases and that the leases were not unlawful.

Held, further, that at most respondent had to farm the crops on the farm for the benefit of the partnership and to hand over the harvested crops to the partnership; this, however, did not constitute a hire or other acquisition by the partnership of the land concerned or of any right G thereto or interest therein and there was no contravention by respondent or the partnership of the provisions of s 1 (2) of Act 27 of 1913 or, for that matter and for the same reasons, of s 12 of the Bophuthatswana Land Control Act 39 of 1979.

Held, further, that the maxim ex turpi causa non oritur actio prohibited the enforcement of immoral or illegal contracts whereas the maxim in H pari delicto potior est conditio defendentis curtailed the right of the delinquents to avoid the consequences of their performance or part performance of such contracts; the latter maxim had no application to this case because neither party was seeking restoration of anything paid or performed in terms of an illegal contract and neither did the first maxim have any application.

Held, therefore, that, inasmuch as respondent's or the partnership's occupation and use of the farm and plots was not unlawful, it could not be said that the crops and the income were unlawfully derived and it followed that neither the partnership itself nor the income derived by it from the farming operations was unlawful.

1982 (2) SA p284

Held, further, that the applicant was entitled to interim relief. A

Case Information

Return day of a rule nisi. The facts appear from the reasons for judgment.

W J Hartzenburg SC (with him C E Barnard) for the applicant.

G Bizos SC (with him V Rea) for the first respondent.

No appearance for the other respondents.

Cur adv vult. B

Postea (January 27).

Judgment

Ackermann J:

C This is the return day of a rule nisi, certain provisions whereof operating as an interim interdict, issued out of this Court on 24 September 1981 in the following terms:

'1.

Dat 'n bevel nisi hierby uitgereik word wat die eerste respondent oproep om redes aan te toon voor hierdie Hof om 10 vm op 20 Oktober 1981 waarom:

(a)

D Hy nie gelas sal word om alle gelde deur hom ontvang uit die opbrengs van alle oeste wat hy in die periode Mei 1981 tot Oktober 1981 ontvang het of sal ontvang nie, in te betaal op die trustrekening van die prokureursfirma, Herman du Plessis en Seun, Delareyville, nie.

(b)

Die Adjunk-Balju nie gemagtig sal word nie om:

(i)

E beslag te lê op alle gelde waaroor eerste respondent beskik en alle eise wat eerste respondent teen enige iemand anders mag hê;

(ii)

beslag te lê op alle gelde by enige bank, finansiële instelling, privaat persoon of enige F ander plek wat deur eerste respondent daar belê is, inbetaal is of in bewaring gegee is, uitgesonderd enige gelde wat aangewend is ter betaling van 'n werklike bestaande skuld;

(iii)

beslag te lê op een 1969 model Ford 7 ton diesel vragmotor met registrasienommer;

(iv)

G beslag te lê op een Mercedes Benz 280 SE model motorvoertuig onder die beheer en (sic) van eerste respondent, alternatiewelik die reg, titel en belang in gemelde voertuig;

(v)

beslag te lê op een DAF International vragmotor groot 10 ton in die besit van die eerste respondent, alternatiewelik die reg, titel en belang daarin;

(vi)

H beslag te lê op een 1200 Datsun bakkie in die besit van eerste respondent, alternatiewelik die reg, titel en belang daarin;

(vii)

beslag te lê op twee trekkers modelle Ford 6600 onder die beheer van die eerste respondent, alternatiewelik die reg, titel en belang in gemelde voertuie;

(viii)

beslag te lê op alle nuutgekoopte meubels in die huis geleë op die plaas Hendriksdal, alternatiewelik die reg, titel en belang in hierdie meubels;

1982 (2) SA p285

Ackermann J

(ix)

beslag te lê op alle mielies, sonneblomsaad en/of enige ander landbouprodukte wat deur eerste A respondent afgeoes is of afgeoes sal word en nog nie gelewer is aan 'n instansie wat sodanige produkte ontvang nie...