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[2011] ZASCA 29
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Oilwell (Pty) Ltd v Protec International Ltd and Others (295/10) [2011] ZASCA 29; 2011 (4) SA 394 (SCA); 2011 BIP 400 (SCA) (18 March 2011)
THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
JUDGMENT
Case No: 295/10
In
the matter between:
OILWELL
(PTY) LIMITED
...............................................................................
Appellant
and
PROTEC INTERNATIONAL LIMITED
................................................
First
Respondent
PROTEC AUTO CARE LIMITED
..................................................
Second
Respondent
THE REGISTRAR OF TRADE MARKS
............................................
Third
Respondent
Neutral citation:
Oilwell v Protec
(295/10)
[2011] ZASCA 29
(18 March 2011)
Coram:
Harms DP, Lewis, Ponnan, Malan and Theron JJA
Heard:
08 March 2011
Delivered:
18 March 2011
Summary:
Exchange Control Regulations – export of capital –
trade marks not ‘capital’ – effect of
non-compliance
with regulations
___________________________________________________________________
ORDER
___________________________________________________________________
On appeal from:
North Gauteng High Court
(Pretoria) (Prinsloo J sitting as court of first instance):
The appeal is dismissed with costs, including the costs
of two counsel.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
HARMS DP (LEWIS, PONNAN, MALAN AND THERON JJA
concurring)
[1] The trade mark ‘Protec’ (sometimes with
a device) is registered in many countries but this judgment is
concerned
only with the South African registration (1987/10291). This
word mark is presently registered in the name of the second
respondent,
Protec Auto Care Ltd (Auto Care), a company incorporated
in the United Kingdom. The appellant, Oilwell (Pty) Ltd (Oilwell), is
a local company and seeks an order for the rectification of the trade
mark register to reflect Oilwell instead of Auto Care as proprietor.
Oilwell relies on
s 24(1)
of the
Trade Marks Act 194 of 1993
, which,
in brief, provides that in the event of an entry wrongly made in the
register, or of any error in any entry in the register,
any
interested person may apply to court for the desired relief, which
would include rectification.
[2] Oilwell wishes in effect to reverse an assignment of
the trade mark, which took place during 1998, when, in terms of a
comprehensive
agreement between many parties this trade mark as well
as the foreign Protec marks and pending trade mark applications were
assigned
to the first respondent, Protec International Ltd
(International).
[3] During the intervening years relations between the
parties (or some of them) soured. Oilwell and some associates refused
to
respect the rights of International and a number of orders were
made against them in the USA relating to trade mark infringement
and
contempt of court. Locally there is a final order granted during 2002
against Oilwell interdicting it from infringing the trade
mark. On
the other hand, International ran into financial difficulties and as
part of what appears to be a settlement the South
African trade mark
was assigned to Auto Care during 2007.
[4] Oilwell discovered a judgment of
Jajbhay AJ in
Couve
v Reddot International (Pty) Ltd
2004
(6) SA 425
(W). The judgment concerned inter alia the validity of an
agreement to assign rights to patent applications by a South African
entity to a foreign company which was entered into without the prior
consent of the SA Reserve Bank, the agent of The Treasury.
Couve
held that within the meaning of reg
10(1)(c) of the Exchange Control Regulations a patent application
and, a fortiori, a patent
are ‘capital’ and that such an
assignment amounts to the ‘export’ of capital. The
regulation provides that
‘no person shall, except with
permission granted by the Treasury and in accordance with such
conditions as the Treasury may
impose . . . enter into any
transaction whereby capital or any right to capital is directly or
indirectly exported from the Republic.’
1
[5] Relying on this judgment and the
fact that International was registered in Guernsey, Oilwell applied
during September 2008 to
the Gauteng North High Court for the relief
mentioned. Prinsloo J, who heard the case, came to the conclusion
that
Couve
was wrongly decided, principally
because intellectual property rights are not ‘capital’
within the meaning of the term
as used in the regulation, and he
dismissed the application with costs. He subsequently granted the
necessary leave to appeal to
this court.
[6] Two main issues crystallized as
the case unfolded. The first is whether the transaction was covered
by reg 10(1)(c) and the
second concerns the effect of non-compliance
with the provision. The third, prescription, does not arise in the
light of what follows.
But before these issues are addressed in any
detail it is necessary to refer to the empowering
Currency and
Exchanges Act 9 of 1933
, which was adopted during the Great
Depression. Its title, referring to currency and exchanges, gives a
general idea of the scope
of the Act, as does the long title: ‘To
amend the law relating to legal tender, currency, exchanges and
banking.’ The
term ‘exchanges’ refers to what is
better known as ‘exchange rates’. This appears from the
Afrikaans text
which speaks of ‘wisselkoerse’. Much of
the Act has been repealed but the important
s 9
remains. It empowers
the head of state to make regulations ‘in regard to any matter
directly or indirectly relating to or
affecting or having any bearing
upon currency, banking or exchanges’
(s 9(1)).
This is the
empowering provision under which the Regulations were promulgated.
2
[7] Turning then to the meaning of
reg 10(1)(c), Jajbhay AJ pointed out
3
that the term ‘capital’
is not defined and he adopted the views of Prof A N Oelofse
4
that, considering the wide wording of
the provision and the general objects of the Regulations, ‘capital’
is anything
(or everything) with monetary value. The court below,
while disagreeing with this view because the interpretation did not
take
account of the general scheme of the Regulations in the light of
the terms of the Act, did not reach any firm conclusion as to its
meaning. I, too, do not intend to define ‘capital’ in
this context comprehensively but will confine myself to the question
whether trade marks are within this framework ‘capital’.
My conclusion will by parity of reasoning obviously apply
to patents,
designs and copyright.
[8] As a glance at any number of
dictionaries will show, and as Latham CJ once said, ‘it is
impossible to say that “capital”
has a single technical
meaning which prima facie should be attributed to the word in any
statutory provision’ and that ‘the
significance of the
word [“capital”] in a particular case depends on the
context in which it is used.’
5
[9] Oilwell’s counsel submitted
that the term ‘capital’ includes ‘anything with a
monetary value’.
But when asked whether the term in the present
context has been used as an economic, financial or accounting concept
counsel readily
accepted that it was used in a financial sense. This
must be so because the Regulations are supposed to deal with matters
relating
to currency (banking and exchange rates, the other two
matters referred to in
s 9
, do not feature). The
Encarta
World English Dictionary
(s
v ‘capital’) distinguishes between these meanings and
states that the meaning of ‘capital’ in a financial
context is ‘cash for investment [,] money that can be used to
produce further wealth’. As Chitty J explained in another
context, capital is not the thing that for the time being represents
capital ‘in the sense of being things in which the capital
has
been laid out.’
6
[10] But how does that particular
dictionary definition fit in with the Regulations? Perfectly, I would
suggest. It appears for
instance from the definition of ‘affected
person’ in reg 1 that the Regulations do not regard ‘capital’
and ‘assets’ as synonymous concepts, which is what
Oilwell’s argument boils down to.
7
‘
Capital’ in this
definition in any event refers to share capital. It also defines the
term ‘goods’, which includes
‘any immovable goods
or security’ and consequently movables also. There are also
other textual indications in reg 10(1)
where paras (a) and (b) deal
with the export of ‘goods’ while para (c) speaks of the
export of ‘capital’.
This means, according to ordinary
rules of interpretation, that there must be a difference between
‘capital’ and ‘goods’
and that the terms do
not overlap. Further support for this interpretation is to be found
in reg 11, which deals with ‘capital
issues’ – all
about raising money.
[11] Serious anomalies would arise if ‘capital’
in context were to mean everything with monetary value. Immovable
property
would then be capital and although it cannot be ‘exported’
the purchase of such property by a foreign company would
amount to
the export of the right to capital, something covered by para (c).
This would be all the more so when the property is
an income
producing property. But it is common cause that the sale of immovable
property to a foreign company is not covered by
the provision. The
example can be extended to movables with monetary value. A
‘foreigner’ who purchases a movable in
South Africa, on
Oilwell’s argument, buys a capital item and exports the right
to that capital item from the Republic on
leaving. This would
surprise many, not only those who hawked vuvuzelas during the Soccer
World Cup event but also The Treasury.
These examples show that a
restrictive interpretation is called for, particularly in view of the
fact that any legislation that
creates criminal and administrative
penalties, as the Regulations do, requires restrictive
interpretation.
[12] It is also useful to refer to
the Afrikaans text. Since the Regulations were promulgated in English
and Afrikaans at a time
when these languages were on a par, the two
texts have equal authority.
8
Regulation 10(1)(c) uses the term
‘kapitaal’ and ‘uitvoer’ for ‘capital’
and ‘export’.
According to the authoritative Afrikaans
dictionary,
Woordeboek
van die Afrikaanse Taal
,
the term ‘kapitaaluitvoer’ means ‘verplasing van
geldkapitaal na die buiteland’ and ‘beskikbaarstelling
op
die lang termyn van geldmiddele aan die buiteland’ which
accords with the financial meaning of ‘capital’ referred
to above.
[13] Reverting to trade mark rights:
like all other intellectual property rights they are territorial and
akin to immovables.
9
They can therefore not be ‘exported’.
But
Couve
held that the rights in patent
applications include the concomitant right to receive royalties as
capital.
10
This statement contains many
misconceptions. A patent application creates no monopoly. It creates
only a priority right and an expectation
that a patent may issue.
Once the patent issues – and only from the date of grant –
patent rights arise.
11
The Patents Act does not mention any
right to receive royalties and the ‘right’ to them would
be incidental, flowing
from a subsequent contract. In other words, a
patent does not create a right to royalties; it is the royalty
agreement that does.
The flow overseas of royalties and licence fees
are in any event controlled by reg 3(1)(c) – it may not take
place without
The Treasury approval. And last, royalties represent
earnings or income and not ‘capital’ in any sense of the
word.
This is confirmed by another aspect of the definition of
‘affected person’: it also distinguishes between capital
and
earnings.
[14] Jajbhay AJ also relied for his
conclusion that royalties are ‘capital’ on a provision of
the Income Tax Act 58
of 1962 in terms of which the acquisition of a
patent or patent application is regarded as a capital expenditure and
allowed as
a reduction in the determination of taxable income (s
11(
g
A)).
This, too, gives rise to conceptual problems. How something that is
capital for purposes of income tax can determine the meaning
of the
word in unrelated legislation dealing with currency is not
understood. In any event, the fact that the Income Tax Act regards
a
patent as a capital asset does not mean that royalties are capital.
As a matter of fact that Act regards royalties and licence
fees as
‘gross income’ (s 1 s v ‘gross income’
(g)(iii)).
[15] I therefore conclude that the
court below was correct in its interpretation of reg 10(1)(c) and
that the appeal must be dismissed
on this ground. There is, however,
another and independent reason why the appeal cannot succeed and this
relates to another mainstay
of the
Couve
judgment, namely the finding that the
failure to obtain prior The Treasury consent for an agreement falling
under reg 10(1)(c) is
fatal to the agreement because it is void.
Prinsloo J, in the court below, disagreed. It will be recalled in
this regard that the
paragraph states that no person ‘shall’,
except with the requisite permission, ‘enter into’ any
transaction
covered by the provision. As mentioned, failure to comply
may amount to a criminal offence punishable by a heavy fine of not
exceeding
R250 000 and/or five years’ imprisonment (reg 22).
[16] It is necessary to place reg 22
in perspective. The parties to the assignment did not intend to
contravene or circumvent the
Regulations.
12
On the contrary, they were concerned
that the envisaged transfer of the trade mark registration might be
conditional on requisite
approvals being obtained from relevant
national revenue and other authorities, and they all agreed to apply
promptly for such approvals
and use their best efforts thereto. It is
clear that they all were under the impression that no Treasury
consents were required.
As a matter of fact, the Exchange Control
Manual issued by The Treasury and which details all the requirements
and rulings relevant
to the Regulations at the time made no reference
to the assignment of intellectual property rights. It was only two
years after
the judgment in
Couve
that the manual (which has no legal
standing) was amended to reflect that reg 10(1)(c) applied to such
agreements. It is therefore
unlikely that any of the relevant parties
had
mens rea
and, consequently, committed any
crime because the criminalization of contraventions of, or failures
to comply with any provision
of the Regulations in reg 22, requires
mens rea
as was held by Rumpff CJ in
S
v de Blom
1977 (3)
SA 513
(A). This is especially so where the public was not informed
of the requirement.
13
However, this does not mean that a
contravention of the Regulations requires
mens
rea
: it means only
that in its absence the relevant parties may not be punished
criminally.
[17] Reliance on the Regulations in
order to escape contractual obligations is not something new.
However, as Steyn CJ said nearly
50 years ago, the Regulations are
there in the public interest and not to provide ‘an unwilling
debtor with a ready instrument
for evading liability’ or ‘to
grant a selective moratorium to a particular class of defaulting
debtors’.
14
Their purpose, said Trollip JA, is to
enable The Treasury to exercise proper control over transactions
affecting foreign currency
in order to protect the Republic’s
foreign reserves.
15
[18] Debtors remained undaunted and
relied especially on reg 3(1)(c) to evade judgment.
16
After a number of conflicting
judgments this court held, in spite of the peremptory language of the
provision (‘no person
shall’), that the prior consent of
The Treasury was not required in order to obtain a court order for
payment. Hoexter JA
concluded with these words:
17
‘
Embodied
in the regulations is a criminal sanction which is designed to
enforce compliance therewith. The penalty prescribed for
non-compliance is a stiff one. In my view the Legislature was here
content with the said criminal sanction as being sufficient
to ensure
compliance with reg 3(1)(c).’
[19] The background to this statement
is to be found in J Voet
Commentarius
ad Pandectas
1.3.16
(Gane’s translation) who said this:
‘
Things
done contrary to the laws are not
ipso
jure
null if the law is content with enacting a penalty against
transgressors.’
. . .
‘
Nay
indeed there is no lack of laws which forbid, and yet do not
invalidate things to the contrary, nor impose any penalty upon
them.
Hence came into vogue the famous maxim “Many things are
forbidden in law to be done which yet when done hold good”.’
This approach has been adopted in many judgments, more
particularly in the leading case of
Standard Bank v Estate van
Rhyn
1925 AD 266
at 274, where Solomon JA also referred to a
further statement by Voet (not as translated by Gane) that an
important consideration
is whether ‘greater inconveniences and
impropriety would result from the rescission of what was done, than
would follow the
act itself done contrary to the law.’ Voet
concluded this section with a reference to H De Groot (Grotius to
some)
Inleidinge
1.2.2 where the author, dealing with the same
subject, said that things done contrary to law are only void if the
law so expresses
itself (‘de wet sulcks uytdruckt’), or
if someone’s ability to perform the act has been curtailed, or
if the
deed ‘heeft een gestadigde onbehoorlickheid’
(translated by Gane via Voet as ‘if the act performed suffers
from
some obvious and ingrained disgrace’ but more correctly
from some ‘unremitting impropriety’).
[20] Next to consider is the judgment
of Kriek J in
Brownlee
(supra). The case
concerned reg 3(1)(e), which deals with the grant of financial
assistance to any person in the Republic where
security for the
financial assistance is furnished by any person resident outside the
Republic. Once again such assistance may
not take place without the
permission of The Treasury or a person authorised by the Treasury and
in accordance with such conditions
as the Treasury may impose. Kriek
J held that the fact that such financial assistance was given without
the consent of The Treasury
did not nullify the agreement. He
recognised, in quoting extensively from
Swart
v Smuts
1971 (1) SA
819
(A) and
Pottie v
Kotze
1954 (3) SA
719
(A),
that it is
really a matter of interpretation and he came to this conclusion in
spite of the fact that reg 3 is couched in imperative
terms and in
spite of the severity of the penalties in reg 22.
18
Important considerations, to his
mind, were that The Treasury consent was in a sense a formality
(although not ‘merely’
one) and the fact that the
prohibition was not absolute because The Treasury could always have
consented to the conclusion of the
transaction.
19
In addition, he said, avoiding the
agreement was not necessary to attain the objects of the
regulations,
20
and nullity would have resulted in
greater inconvenience and impropriety than keeping the agreement
alive.
21
[21] Then came
Henry
v Branfield
1996
(1) SA 244
(D). The case concerned the purchase of foreign currency
without the permission of The Treasury in conflict with reg 2.
Levinsohn
J, relying on the reasoning of Kriek J in
Brownlee
,
struck the agreement down
.
He did not explain why he in effect
overruled a judgment which was binding on him nor did he justify the
use of Kriek J’s
reasoning to reach the opposite result. He
simply said that, having regard to the peremptory nature of the
prohibition, the Legislature
not only intended to visit a
contravention with criminal sanctions but also with nullity,
22
something that does not quite accord
with the quoted dictum by Hoexter JA in
Barclays
National Bank Ltd v Thompson
(supra).
[22] It would be fair to say that
Couve
refused
to follow
Brownlee
for these reasons: the Regulations
aimed to protect our reserves and are couched in imperative terms.
23
Bertelsmann J, in the context of
another type of transaction, came more or less to the same conclusion
but he left open the important
question whether The Treasury could
give its consent after the event.
24
[23] Although these considerations
are important and although it is arguable that, in spite of Voet’s
generalized view, the
heftier the penalty the more likely it is that
invalidity is intended, I am unable to agree with the conclusion
reached in
Couve
.
[24] In search of the elusive
intention or meaning expressed in the Regulations, it is necessary to
reiterate that the object of
the Regulations in general is to
regulate and control foreign currency and the object of reg 10(1)(c)
in particular is ‘to
control foreign exchange in the public
interest and to prevent the loss of foreign currency resources
through the transfer abroad
of capital assets held in South Africa.’
25
The Regulations are, accordingly, for
the public interest and not to protect any private interests. They
were adopted for the sake
of The Treasury and not for the sake of
disgruntled or disaffected parties to a contract. This is apparent
from the penalty provision.
But more importantly, it appears from
regs 22A, 22B and 22C.
26
They provide that any money or goods
in respect of which a contravention has been committed may be
attached by The Treasury; these
may be forfeited to the State; and
any shortfall may be recovered by The Treasury from not only persons
involved in the commission
of the offence but also from anyone
enriched or who has benefited as a result thereof. To add
irremediable invalidity to the transaction
would amount to overkill
and as Kriek J said, it would lead to ‘greater inconveniences
and impropriety’ which is illustrated
not only by the facts in
Brownlee
27
but also the facts of this case and
even those of
Henry
v Branfield
.
28
In addition, transactions falling
foul of the Regulations do not pass De Groot’s test for
invalidity.
[25] This does not mean that in the
absence of Treasury consent the transaction is enforceable without
more. Parties who enter into
a contract that may conceivably be hit
by the Regulations are, unless the contract provides otherwise (in
this case it did not
provide otherwise), both obliged to take the
necessary steps to obtain The Treasury’s consent (something
expressly agreed
to by the parties). This must be so because of the
supposition that the parties negotiated in good faith and intended to
enter
into an effective contract.
29
There is nothing preventing The
Treasury from consenting to a transaction
ex
post facto
, a
necessary corollary of the judgment in
Barclays
National Bank Ltd v Thompson
(supra).
This means that the transaction absent consent is not void at the
behest or election of one of the parties to it. A party
faced with a
claim based on a transaction which that party believes is covered by
the Regulations can therefore not rely only on
the lack of consent to
avoid the claim. The defendant may in appropriate circumstances file
a dilatory plea pending the determination
by The Treasury of its
application for the necessary consent.
30
Once The Treasury refuses to grant
consent, the defendant would be entitled to resist the claim on that
ground. If performance took
place without consent, neither party may
claim restitution.
31
It would then be for The Treasury to
invoke regs 22A, 22B and 22C to undo the effect or proposed effect of
the transaction.
[26] In the result the appeal is dismissed with costs,
including the costs of two counsel.
______________________
L T C Harms
Deputy President
APPEARANCES
APPELLANT/S E W Dunn SC (with him I Joubert)
Instructed by Adams & Adams, Pretoria
Honey Attorneys, Bloemfontein
RESPONDENT/S: P Ellis SC (with him A P Ellis)
Instructed by Mark W Nixon Attorney, Pretoria
Hill McHardy & Herbst, Bloemfontein
1
The
whole of reg 10(1) reads as follows:
‘
Restriction
on export of capital.
(1) No
person shall, except with permission granted by the Treasury and in
accordance with such conditions as the Treasury
may impose:
(a)
export from the Republic during any period of twelve months a total
quantity of goods which exceeds in value twenty rand or
such greater
amount as the Treasury may determine, if:
(i) no payment for such goods has been or is to be
received in the Republic from a person outside the Republic; or
(ii)
such goods are exported at a price which is less than the value
thereof; or
(iii)
the period within which payment for such goods is to be made exceeds
six months from the date of shipment from the Republic
or such
shorter period as an authorised dealer may determine in respect of
such goods;
(b)
take out of the Republic goods, including personal apparel,
household effects and jewellery which have a value in excess of
six
hundred rand or of such greater amount as the Treasury may
determine;
(c)
enter into any transaction whereby capital or any right to capital
is directly or indirectly exported from the Republic.’
2
It
is debatable whether all of s 9 would survive constitutional
scrutiny – and I refer specifically to s 9(3) which empowers
the head of state to suspend any Act of Parliament by means of
regulation – but that is by way of an aside.
3
At
430E-H.
4
Suid-Afrikaanse
Valutabeheerwetgewing
(1991) p 68-69.
5
Incorporated
Interests Pty Ltd v The Federal Commissioner of Taxation
[1943] HCA 1
;
(1943) 67 CLR 508
at 515.
6
Lubbock
v British Bank of South America
[1892]
2 Ch 198
at 202 quoted by John B Saunders
Words
and Phrases Legally Defined
(3 ed,
1988) s v ‘capital’.
7
‘“
Affected
person” means a body corporate, foundation, trust or
partnership operating in the Republic, or an estate, in respect
of
which:
(i)
75 per cent or more of the capital, assets or earnings thereof may
be utilised for payment to, or to the benefit in any manner
of, any
person who is not resident in the Republic; or
(ii)
75 per cent or more of the voting securities, voting power, power of
control, capital, assets or earnings thereof, are directly
or
indirectly vested in, or controlled by or on behalf of, any person
who is not resident in the Republic.’
8
L
C Steyn
Die Uitleg van Wette
(5 ed) p 143 with reference to
R
v Shoolman
1937 CPD 183
at 186-187.
9
Gallo
Africa Ltd v Sting Music (Pty) Ltd
2010
(6) SA 329
(SCA).
10
At
433B-C.
11
Patents
Act 57 of 1978
ss 44
and
45
.
12
">
12
A-Team
Drankwinkel BK v Botha en ‘n ander NNO
1994
(1) SA 1
(A) at 11B-E.
13
At
528D-E.
14
Nestel
v National and Grindlays Bank Ltd
1962
(2) SA 390
(A) at 395H-396A.
15
S
v Katsikaris
1980 (3) SA 580
(A) at
590A also quoted by Kriek J in
Barclays
National Bank Ltd v Brownlee
1981 (3)
SA 579
(D) at 584A.
16
It
reads:
‘
Subject
to any exemption which may be granted by the Treasury or a person
authorised by the Treasury, no person shall, without
permission
granted by the Treasury or a person authorised by the Treasury and
in accordance with such conditions as the Treasury
or such
authorised person may impose:
(a)
. . .
(b)
. . .
(b)bis
…; or
(c)
make any payment to, or in favour, or on behalf of a person resident
outside the Republic, or place any sum to the credit
of such
person.’
17
Barclays
National Bank Ltd v Thompson
1985 (3)
SA 778
(A) at 795I-J.
18
At
583B-F.
19
At
583F-H.
20
At
584E-F.
21
At
584H.
22
At
250B-D.
23
At
438C-D.
24
Pratt
v Firstrand Bank Ltd
[2004] 4 All SA
306
(T). The judgment dealt with an exception. During the subsequent
trial it was found that the lack of consent had not been
established.
This finding was upheld on appeal:
Pratt
v First Rand Bank
[2008] ZASCA 92
;
[2009] 1 All SA 158
(SCA).
25
Berzack
v Nedcor Bank Ltd
[2001] 1 All SA 410
(SCA) para 3.
26
South
African Reserve Bank v Torwood Properties (Pty) Ltd
1997(2)
SA 169 (A);
South African Reserve Bank v Khumalo
2010
(5) SA 449
(SCA);
[2011] 1 All SA 26
(SCA).
27
Brownlee
at 584H.
But see for a different view:
Pratt
v Firstrand Bank Ltd
[2004] 4 All SA
306
(T) para 48.
28
For
a critical analysis of the facts: 1996
Annual
Survey of SA Law
205-206.
29
South
African Forestry Co Ltd v York Timbers Ltd
2005
(3) SA 323
(SCA) para 32.
30
A
dilatory plea will not be possible, for instance, under reg 3(1)(c)
as was held in
Barclays National Bank
Ltd v Thompson
supra
.
31
Compare
Afrisure CC v
Watson NO
[2008] ZASCA 89
;
2009 (2)
SA 127
(SCA) paras 45-47. Oilwell’s argument that its claim
was not one for restitution – relying on
Botha
v Fick
[1994] ZASCA 184
;
1995
(2) SA 750
(A) – is not acceptable. Its underlying cause of
action, based on the alleged invalidity of the assignment, remained
an
enrichment action as was recognized in
Henry
v Branfield.
This
is so because ownership passed in the light of the abstract theory
of transfer of ownership, which does not require a valid
underlying
transaction for passing of ownership:
Legator
McKenna Inc v Shea
2010 (1) SA 35
(SCA) para 20-22 and compare
Oriental
Products (Pty) Ltd v Pegma 178 Investments Trading CC and Others
(126/2010)
[2010] ZASCA 166.
Rectification
of the register was but a formal way of accomplishing restitution.
Once that is so, the
par
delictum
rule may
take effect, something not appreciated in
Goss
v EC Goss & Co (Pty) Ltd
1970 (1) SA 602
(D).