Paiges v Van Ryn Gold Mines Estates Ltd

• Jurisdiction: South Africa
• Judge: Innes CJ, De Villiers JA, Mason AJA, Lange AJA and JER De Villiers AJA
• Judgment Date: 27 August 1920
• Hearing Date: 30 June 1920
• Court: Appellate Division

De Villiers, J.A.:

This appeal raises the question of the validity of what has come to be known as the pactum de non cedendo. Appellant, a general dealer at Benoni, sued the respondent in the magistrate's court at Benoni for a statement of wages due to one Klein, a workman in the employ of the respondent, and payment of the amount so owing not exceeding the sum of £24 1s. 9d. The action was based on a cession to the plaintiff by Klein on 23rd June, 1919, of wages due or to become due to the latter up to the above amount. Klein entered the employ of the defendant on 27th August, thereafter under a written contract of employment, clause VIII of which reads as follows:-

"Save as is herein otherwise provided, from and after the date of this Agreement, the Employed, except with the consent in writing of the Management, may not, and hereby undertakes not to cede or assign his right and claim to any wages or moneys due or to become due hereunder, and it is agreed that any wages earned by the Employed or moneys due to him under this Agreement, shall only be paid to the Employed personally, except:-

"(a) Where such Employed is absent from the place where payment is usually made, on account of authorised leave of absence, or is absent from duty through sickness duly certified by the Medical Officer of the Company, or:

"(b) In the event of the death of the Employed, when it shall be paid to the duly appointed Executor, Administrator or Representative of his estate.

"Except with the said consent, a Power of Attorney or equivalent document to receive or cession or assignment of any

De Villiers, J.A.

wages or moneys due or to become due to the Employed hereunder, shall not be recognised by the Company."

On the 5th September the plaintiff gave defendant notice of the cession. The magistrate gave judgment for plaintiff. On appeal to the Transvaal Provincial Division, the judgment of the magistrate was reversed by a majority of the Court and judgment entered for the defendant with costs. It is from this judgment that the present appeal is brought.

A strong difference of opinion manifested itself in the Provincial Division as to the validity of the above stipulation in the contract. GREGOROWSKI, J., with whom CURLEWIS, J., concurred, held that the debtor could validly stipulate that the wages should not be ceded as he had an interest in the matter. WESSELS, J., on the other hand, was of opinion...