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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
CASE NO: A53/2024
In the matter between:
FADIEL BOWAS Appellant
And
SHANAWAZ MOHAMMED Respondent
Heard: 16 August 2024
Delivered: Electronically on 15 October 2024
JUDGMENT
___________________________________________________________________
LEKHULENI J
Introduction
[1] A contractual dispute between the appellant and the respondent is the subject
of this appeal. The appellant is appealing the entire judgment and order issued by
the Wynberg Regional Court on 29 November 2023. This is in relation to a
contractual claim in which the appellant sou ght payment of R400,000 plus interest
and costs from the respondent. The claim arises from an agreement for the sale of
movable assets that was concluded on 12 November 2020. The trial court dismissed
the appellant’s claim with costs. The appellant has thu s approached this court
seeking a reversal of that order.
Background Facts
[2] The dispute between the parties arose in the following circumstances: On 05
October 2020, Fadiel Bowas Family Trust, represented by the appellant, entered into
a written sale agreement with Grassy Park Pets (Pty) Ltd, represented by the
respondent, for the sale of an immovable property (the first agreement) commonly
known as 2 […] S[…] Road, for the sum of 4.1 million. The property in question was
not sold as is, with all fixtures and permanent fittings. As part of the sale agreement,
the parties agreed that a Gaggenau oven must be removed and replaced with a new
oven. Additionally, they agreed that all fixtures, except for the Gaggenau oven, must
remain in place.
[3] After signing the sale agreement for the immovable property, but before the
transfer was completed, the appellant and the respondent entered into a second
sale agreement in their personal capacities. This second agreement, which is the
subject of this appe al, was signed on 12 November 2020. The reasons which led to
the conclusion of the second agreement will be set out more fully below.
[4] In terms of this agreement, the respondent purchased the following moveable
assets for a purchase price of R500 000, viz:
A Pool Heater
5 Air Conditioners
Stove and Ovens
A Camera System
A Jojo Tank
2 Wellpoint motors
Various Curtains and
Various animal cages.
[5] These movable assets formed part of the immovable property sold in terms of
the first agreement when it was marketed for sale. Furthermore, these movable
assets were not explicitly excluded from the sale of the immovable property.
[6] The purchase price of these movable assets was the sum of R500 000. The
purchase price of the movable assets was to be paid in monthly instalments of
R25 000 per month commencing on 10 January 2021. I n the event the respondent
failed to pay, the parties agreed that the total outstanding sum would become due
and payable. The respondent made four monthly payments of R25,000 to the
appellant and then stopped making further payments. Subsequent thereto, on 16
November 2021, the appellant's attorneys formally demanded payment of th e
balance of the purchase price in the sum of R400 000.
[7] The respondent failed to pay or heed the demand, and the appellant
subsequently issued summons against the respondent for breach of contract and for
payment of the total balance of R400 000 plus costs and interest. The respondent
defended the appellant's claim and pleaded that the appellant was not the owner of
the goods (listed above) allegedly sold in terms of the second agreement. The
respondent specifically pleaded that after signing the seco nd agreement, he
ascertained in April 2021 that the appellant was not the owner of the goods in
question.
[8] The respondent further asserted that the goods in question were, in fact,
owned and were sold by Fadiel Bowas Family Trust, represented by the appellant, to
Grassy Park Pets (Pty) Ltd, which the respondent represented in terms of the first
sale agreement for the immovable property. Expressed differently, the respondent
asserted that the movable assets formed part of the immovable property, which w as
sold by the Fadiel Bowas Family Trust to Grassy Park Pets (Pty) Ltd. The
respondent further contended in his plea that the goods in question formed part of
the fixtures and fittings of the property sold and paid for by the Grassy Park Pets to
the Fadiel Bowas Family Trust.
[9] According to the respondent, clause 18 of the sale agreement for the
immovable property clearly mentioned that the property was sold with all its f ixtures
except for the Gaggenau oven, which was replaced with a new oven. In the
premises, the respondent ass erted that the appellant was not entitled to payment in
terms of the agreement signed by the parties. The respondent further asserted that
the sale agreement of the movable assets was void ab initio and that the respondent
was entitled to be reimbursed the sum of R100 000 in respect of payments made in
terms of the fraudulent misrepresentation by the appellant.
Findings of the Trial Court
[10] After hearing evidence from the appellant and his witness, the court below
dismissed the appellant's claim and found that the immovable property was
marketed with all fixtures except the Gaggenau oven, which was specifically
excluded from the sale. The tri al court also found that if indeed the appellant
intended for those items listed in the second agreement to be excluded from the sale
of the immovable property, the same would have been reflected, as was the case
with the Gagganaeu oven. The trial court co ncluded that the second agreement
could only have been concluded with the amendment of the sale agreement in
respect of the immovable property to reflect the parties' true intentions. The trial court
dismissed the appellant's claim with costs and found tha t the sale agreement of the
immovable property included all the items listed in the second agreement. It is this
decision that the appellant seeks to impugn in this appeal.
Summary of evidence
[11] For the purposes of this judgement, I will briefly summa rise the evidence that
was tendered before the trial court , and I will not regurgitate the evidence verbatim.
At the hearing of the matter before the trial court, the appellant testified and called
the estate agent who brokered the sale of the immovable property as his witness.
The respondent did not testify but closed his case without presenting any evidence.
[12] The appellant confirmed the second sale agreement and the terms thereof.
The appellant stated that the respondent and the estate agent approached him
personally to purchase the movable assets listed in the second agreement. It was his
evidence that all the items that were sold to the respondent in respect of the second
agreement belonged to him and not the Trust. He denied that the said items
belonged to the Fadiel Bowas Family Trust. According to the ap pellant, he bought all
these items for his own use, and he owned the said movable assets. It was also his
evidence that, as the owner of these assets, he did not intend to have them
permanently affixed to the immovable property that was sold to Grassy Park Pets
(Pty) Ltd.
[13] The appellant asserted that the movable assets listed above, were sold for
R500,000 and that the respondent had to pay R25,000 monthly. He was referred to
several invoices issued in his name regarding the se items. The appellant averred
that the respondent did not fulfil his payment obligations under the second sale
agreement. The respondent paid him R100,000 but failed to pay the remaining
balance.
[14] During cross -examination, the appellant admitted that the movable assets
mentioned above were all in the house, which had been sold by the Trust to the
Grassy Park Pests (Pty) Ltd . The appellant acknowledged that the second sale
agreement was concluded on 12 November 2020, after the conclusion of the first
sale agreement for the immovable property on 5 October 2020. He rebutted the
assertions made in clause 3.3 of the second sale agreement that the parties agreed
that possession of the movable assets had be en given to the purchaser. In other
words, he conceded that when the sale agreement of the movable assets was
concluded, possession of the goods in question was never given to the respondent.
The appellant further admitted during cross -examination that the movable assets
referred to in items 4, 5 and 6 sold to the respondent belonged to the Fadiel Bowas
Family Trust and not him. He was steadfast that the other items, though installed in
the property of Trust, were his.
[15] When it was put to him that all the items listed in the second agreement,
which was subsequently signed by the appellant and the respondent in their
personal capacities, were included in the sale agreement of the immovable property,
the appellant could not give a plausible answer. In stead, the appellant refused to
answer that question. The appellant also conceded that the Fadiel Bowas Family
Trust paid for three items that the appellant allegedly sold to the respondent.
[16] The estate agent, Mr Oliphant, who marketed the immovable property, was
called to corroborate the appellant's case. His evidence, in short, was that he was a
property practitioner with 5 years of experience. Mr Oliphant confirmed the second
agreement signed by the appellant and the respondent. According to Mr Oli phant,
the parties agreed that the respondent would buy certain items that the respondent
would pay for them over an extended period. This witness stated that when the sale
agreement of the movable assets was signed, the appellant and the respondent
understood the terms thereof. He was referred to the sale of the immovable property,
and he confirmed that the appellant and the respondent signed the agreement on
behalf of the Trust and the Company, respectively.
[17] It was his evidence that , initially, everything (including the movable assets
listed above) was included in the sale of the immovable property. However, the
parties could not agree on the selling price of the property. The appellant was not
prepared to let go of the immovable prope rty for less. The appellant wanted R5.5
million as the purchase price for the immovable property. Subsequently, the parties
came to an agreement that the respondent was going to remove the items in dispute.
According to Mr Oliphant, the respondent then sug gested that he would instead
purchase the disputed movable assets. Mr Ol iphant then told the appellant and the
respondent that the separate agreement was outside the sale of the property.
[18] During cross -examination, Mr Oliphant testified that he market ed the
immovable property with all the fixtures and fittings as part of the deal. The witness
conceded that unless a n item is specifically excluded, it would become part of the
sale agreement. The legal representative of the respondent pointed Mr Oliphant to
clause 18 of the sale agreement of the immovable property . This clause specified
that the property was being sold with all fixtures except for the Gaggenau oven, to
which Mr Oliphant agreed.
[19] As a property practitioner, Mr Oliphant also admitted t hat a deed of sale in
respect of the immovable property cannot be amended except in writing. It was his
evidence that the deed of sale in respect of the immovable property in particular
clause 18, was not amended. The witness also admitted that the sale ag reement of
the immovable property was between two entities, namely the Company and the
Trust. The Trust represented itself as the owner of all the fixtures and fittings of the
property. Mr Oliphant could not give a plausible answer when it was put to him that
the appellant, in his capacity, could not sell those items to another person,
particularly the respondent, the very same items sold to the company , which is a
separate legal entity.
[20] That concluded the evidence befo re the trial court as the respondent closed
his case without presenting any evidence.
Grounds of Appeal
[21] The appellant raised various grounds of appeal against the judgment of the
court a quo. The grounds of appeal as discernible from the notice of appeal may, in a
nutshell, be summarised as follows:
[22] That the court a quo misdirected itself by regarding documents discovered by
the respondent as evidence in circumstances where such documents were never
introduced as evidence by the respondent who failed to call any witness to testify or
failed to testify in person . The appellant contended that the trial court misdirected
itself by failing to consider that the appellant and the respondent are different parties
from the sale agreement of the immovable property, and that they willingly
contracted in respect of the sale contract for the movable ass ets and performed
partially in terms of that agreement.
[23] According to the appellant, there was consensus between the parties when
the sale of the movable assets was concluded. The appellant also asserted that the
trial court failed to consider Mr Oli phant's evidence that the property was originally
marketed with the disputed movable assets included. However, it was only after the
parties could not agree on the purchase price that the appellant agreed to ensure
that the sale proceeded, that he would re move those items and accept ed a lesser
value than marketed. The appellant also aver red that the trial court failed to address
the fact that the respondent performed in terms of the sale of the movable assets.
Applicable Legal Principles and Discussion
[24] The appellant's claim is premised on an alleged breach of contract. Our law
proceeds from the point of view that a litigant requesting a remedy must prove that
he is entitled to it. 1 The rule is, therefore, not that the appellant always bears the
burden of proof but that it is the party who asserts (appellant or respondent) and not
the one who denies who has the onus. 2 This is the basic rule today. Simply put, he
who seeks a remedy must prove the grounds therefor.
[25] In contractual matters, a party alleging a contract must prove the terms of the
contract he seeks to enforce, including the absence of any additional terms that
might provide the other party with a defence. 3 The onus of proving the terms of the
agreement may involve proof of a negative, for instance, that the parties did not
agree upon an additional term alleged by the respondent.4
[26] In this case, it is common cause that on 12 November 2020, the appellant and
the respondent concluded a written agreement in terms of which the respondent
allegedly bought certain movable assets from the appellant. This agreement was a
sequel to the sale o f the immovable property between Fadiel Bowas Family Trust
represented by the appellant and Grassy Park Pet s (Pty) Ltd represented by the
respondent. In terms of the second agreement, the respondent agreed to pay an
amount of R500,000 for the movable items . The purchase price was to be paid by
the respondent in equal instalments of R25,000 per month commencing on
10 January 2021 until the entire R500,000 was settled in full. It is common cause
1 Zeffert et al The South African Law of Evidence (2007) at 57.
2 Mobil Oil Southern Africa (Pty) Ltd v Mechin 1965 (2) SA 706 (A) at 711.
3 McWilliams v First Consolidated Holdings (Pty) Ltd 1982 (2) SA 1 (A).
4 Kriegler v Minitzer 1949 (4) SA 821 (A).
that the respondent paid the first four instalments in terms of the agreement until he
stopped making further payments.
[27] As previously stated, the respondent denied in his plea that the appellant was
the owner of the goods allegedly sold in terms of the second agreement and placed
the appellant to pro of thereof. According to the respondent's plea, the goods formed
part of the fixtures and fittings of the property sold by the Fadiel Bowas Family Trust
and paid for by the Grassy Park Pets (Pty) Ltd. From the pleadings, the respondent
did not raise any special defence. Furthermore, the respondent did not plead any
additional term to the contract but instead, denied that the appellant owned the
goods in question.
[28] In my view, there was no duty u pon the respondent to prove his denial.
Conversely, it is abundantly clear from the pleadings that the appellant bore the onus
to establish the terms of the agreement, that he had complied with the agreement
and that he was entitled to payment. 5 Moreover, pursuant to the denial the
respondent raised in his plea, the appellant bore the onus to prove that he owned the
movable assets he allegedly sold to the respondent and that he had given vacant
possession thereof to the respondent . Simply put, the appellan t bore the onus to
prove that the movable assets he allegedly sold to the respondent were his.
[29] The court below dismissed the appellant's claim and found that the immovable
property was marketed and sold with all fixtures except the Gagg enau oven, which
was specifically excluded from the sale. Express ed differently, the court a quo found
that the appellant failed to prove that he was the owner of the assets in question,
which were sold to the respondent. Against this backdrop, I turn to consider whether
the trial court was correct in making this finding and in dismissing the appellant’s
claim.
[30] In his evidence in chief, the appellant asserted that the movable assets sold to
the respondent were his and that he bought them for his private use. The appellant
also contended that the respondent approached him personally with the estate agent
5 Pillay v Krishna and Another 1946 AD 946.
with a view of purchasing the disputed movable assets. The appellant averred that
the respondent offered to pay R500 000 for these items, and he accepted the offer.
Pursuant thereto, a written agreement was prepared, and both the appellant and the
respondent signed the agreement. According to the appellant, the Fadiel Bowas
Family Trust did not own the items. For all intents and purposes, he did not intend to
have these items form part of the immovable property, which was sold by the Trust
to the respondent's Company.
[31] The appellant and his witness' evidence on vacant possession and ownership
of the disputed movable assets was completely discredited and dismantled during
cross-examination. The appellant admitted that the items in question were included
in the house when it was sold. The immovable property was marketed with the
movable items the appellant sold to the respondent. During cross -examination, Mr
Oliphant admitted that the immovable property was marketed with all fixtures and
fittings as part of the deal for the sale o f the immovable property. Mr Oliphant also
conceded that unless one excluded an item in a sale contract, it would become part
of the sale. Significantly, when the court asked Mr Oliphant for clarification purposes,
the following unfolded:
“Court: Just to clarify the second last question the attorney had indicated that
when the property was transferred in terms of the sale agreement not the
movable items. I am talking of the property itself. In terms of those cla uses,
specifically clause 18 that th e att orney is referring to but for the Gaggenau
oven the property was transferred to the purchaser with all fixtures and fittings
in terms of the agreement?”
Mr Oliphant: Yes...”
[32] From the above, it is abundantly clear that the movables that the appellant
purportedly sold to the respondent were part of the immovable property that was sold
by the Trust to the Company. The appellant could not lawfully sell the assets as he
did not own them and could not give vacant possession t o the respondent in his
personal capacity.
[33] In my view, the Fadiel Bowas Family Trust represented itself as the owner of
all the fixtures and fittings on the immovable property. The Trust, represented by the
appellant, sold the immovable property with the relevant fixtures and fittings
(including the disputes movables) to the Grassy P ark Pets (Pty) Ltd, except for the
Gaggenau stove. The appellant, in his personal capacity, could not sell or give
vacant possession of those items to the respondent as the Trust had already sold
those items to the respondent’s Company, a separate legal entity.
[34] At the hearing before the trial court, Mr Oliphant and the appellant asserted
that the discussion of the sale of the movable assets and the sale of the immovable
property was done simultaneously. The facts do not bear out this contention. Surel y,
if the disputed movable assets were to be excluded from the sale of the immovable
property, one would have expected such exclusion to be specifically included in the
sale agreement. The only fixture that was excluded was the G aggenau oven. It is
apposite to remind ourselves that in an endeavour to discharge his onus, the
appellant could not lead any evidence extraneous to the sale agreement of the
immovable property that was signed and discovered in these proceedings . The law
is definite on this point. In Union Government v Vianini Ferro -Concrete Pipes (Pty)
Ltd,6 Watermeyer JA, as he then was, stated as follows:
"Now this Court has accepted the rule that when a contract has been reduced
to writing, the writing is, in general, regarded as the exclusive memorial of the
transaction and in a suit between the parties no evidence to prove its terms
may be given save the document or secondary evidence of its contents,
nor may the contents of such document be contradicted, altered, added to or
varied by parol evidence."
[35] This is still the law in South Africa . In University of Johannesburg v Auckland
Park Theological Seminary ,7 the court held that the parole evidence rule is of
continued application and that not all evidence as to context is admissible and to
establish context to a contract, evidence is to be used as conservatively as possible.
6 1941 AD 43 at p. 47.
7 2021 (6) SA 1 (CC).
[36] In my view, the trial court did not look at extraneous evidence when it
considered the sale agreement of the movable assets as suggested by the appellant.
The trial court had to determine whether the appellant had complied with the sale
contract of the mov ables and was entitled to payment. In doing so, the court could
not look at the sale agreement of the movable assets in isolation, particularly when
one considers the onus the appellant bore and the denial of ownership of these
items raised by the responde nt's plea. The respondent stated that these goods
belonged to the Trust, which sold them to his Company. In the circumstances, it
became inherently necessary for the trial court to consider the first agreement
dealing with the sale of the immovable property.
[37] At the risk of repeating myself, the respondent asserted in his plea that the
appellant was not the owner of the goods but that they were, in fact, owned and sold
by the Fadiel Bowas Family Trust. Simply put, the respondent's plea contained a
denial of an essential element of the appellant's cause of action and the onus rested
on the appellant. Although the respondent admitted the existence of the sale of the
movable assets relied upon by the appellant, he denied that the appellant owned the
property in question. His plea, therefore, cut through the appellant's cause of action.
The appellant was accordingly required to prove all the terms of this contract,
including the delivery of vacant possession and the disputed ownership of the
property, which necessitated the consideration of the first agreement.
[38] Evidently, the agreement in respect of the immovable property is critical in this
matter. The appellant had to show on a preponderance of probabilities that he
owned the movable assets in question and that the suggestion that the property
belonged to the Trust was false. Thus, the argument by the appellant’s Counsel that
the court a quo erred in considering the sale agreement of the immovable as it
involved different parties is misplaced and unsustainable.
[39] I accept that the respondent did not present oral evidence; however, that is
neither here nor there. The appellant had to prove that the movable assets were his
and that he complied with the agreement. The appellant had to prove that the assets
in question did not belong to the Trust but to him. When the appellant was quizzed
during cross -examination, he confirmed that the only item that had to be removed
from the immovable property as per clause 18 of sale contract when it was sold was
the Gaggenau oven. For completeness, clause 18 of the sale of the immo vable
property stated:
“The [immovable] property is Not sold as is wi th all fixtures and permanent
fittings. 1 X Gaggenau will be removed and wil l be replaced with a new oven
in its place. All other fixtures to remain.”
[40] To this end, the following unfolded during the cross-examination of the
appellant:
“Mr Nacerodien: Okay. Now I am putting it to you that all the items listed in
schedule A or schedule 1 of the agreement which is subsequently signed was
in the property and was included in that sale. What is your answer to that?
You sold the property with everything in it . It was marketed like that and t he
only thing that you excluded was that Gaggenau stove.
Mr Bowas: I refuse to say something now.
Mr Nacerodien: You refuse to answer that?
Mr Bowas: I refused to answer that.
Mr Nacerodien: Okay
Mr Bowas: To contradict myself...”
[41] From the above, it is evident that the movable assets that the appellant sold to
the respondent did not belong to him, and he could not give vacant possession
thereof. The items were part of the immovable property that Fadiel Bowas Family
Trust sold to Grassy Park Pets (Pty) Ltd, represented by the respondent. Importantly,
the sale agreement in respect of the immovable property between the Trust and the
Company was entered into on 5 October 2020. This agreement explicitly stated that
all other fixtures save for the Gaggenau stove had to remain. The appellant could
not, in my view, sell the properties that had already been sold by the Trust to the
Company in a subsequent agreement that was concluded a month later, on 12
November 2020.
[42] The evidence before the trial court clearly indicates that the appellant could
not and did not give vacant possession of the disputed assets to the respondent.
According to clause 3.1 of the sale agreement for the movable assets, the seller
(appellant) warranted that he is the lawful owner of the listed items. In clause 3.3 of
the same agreement, the parties agreed that possession of items listed in the
inventory has been given to the purchaser. However, during cross -examination, it
became evident that the appellant did not give possession or could not give
possession of the said assets as they were already sold together with the immovable
property by the Fadiel Bowas Family Trust to Grassy Park Pets (Pty) Ltd .
Furthermore, it became evident that the Trust p aid for some of the movable assets,
not the appellant. In my opinion, the appellant utterly failed to demonstrate that he
had given vacant possession of the assets in question or that the said assets were
his.
[43] In our law the contract of sale envisages the transfer of possession and not of
ownership.8 I am mindful that although parties to a contract of sale usually
contemplate a transfer of ownership in the thing sold, however this is not an
essential feature of the contract . I am also regardful of the fact that sales by non -
owners are quite permissible . However, I must stress that the delivery required of a
seller is undisturbed possession (vacua possessio) coupled with the guarantee
against eviction.9 It is further not necessary that the seller pass the ownership, for
the seller's implied engagement is a warranty again st eviction and not a warranty of
title, but he must divest himself of all his proprietary rights in the thing sold in favour
of the purchaser.10
[44] The conclusion of a valid contract of sale casts on the seller the obligation to
deliver possession of the thing sold to the purchaser. From the conspectus of the
evidence, I am of the firm view that the appellant as a seller, did not d eliver
undisturbed p ossession of the disputed assets coupled with the guarantee against
eviction to the respondent. In my respectful opinion, the trial court was correct in its
finding that the sale of immovable property agreement included all the items which
8 See Hackwill Sale of Goods in South Africa (1984) 5 ed at p. 23.
9 Alpha Trust (Edms) Bpk v Van der Watt 1975 (3) SA 734 (A) 743H-744A.
10 Koster v Norval (20609/14) [2015] ZASCA 185 (30 November 2015) at para 4.
the appellant sold to the respondent in the second agreement. Thus, the appellant
could not discharge his obligation to deliver possession of the thing sold to the
respondent. Simply put, t hose items listed above, had already been sold to Grassy
Park Pets (Pty) Ltd and could not be sold separately . They were not excluded from
the sale contract of the immovable property.
[45] Lastly, the appellant's counsel argued in his written submissions t hat the court
a quo erred when it proceeded to consider a contract (the sale of the immovable
property) that was concluded between unrelated parties to the sale of the movable
assets. Counsel also argued that the court a quo erred when it based its findings that
the agreement for the sale of the movables could not have been concluded on the
basis that a different contract existed between different parties which provided for
something other than the terms contained in the written sale agreement for the
movable assets. According to Counsel, this finding was made in circumstances
where the respondent did not present any evidence to the court and, as a result, did
not ventilate a version before the court.
[46] In my opinion, this argument is mistaken and misses the point. As previously
stated, the respondent challenged the appellant in the plea to prove that the movable
assets in question belonged to him. The respondent asserted in his ple a that when
the Fadiel Bowas Family Trust sold the immovable property, it was sold together with
the movable assets to Grassy Park Pets (Pty) Ltd. The appellant had to prove that
the movable assets were his and did not belong to the Fadiel Bowas Family Trust, as
alleged. The appellant had to prove that he gave the respondent vacant possession
of the assets in question and that he had divested himself of all his proprietary rights
in the disputed assets in favour of the respondent. It is my opinion that the appellant
did not provide sufficient evidence to satisfy the onus in question.
[47] The fact that the respondent did not present evidence is inconsequential. The
appellant had a duty to adduce satisfactory evidence that he was entitled to a
remedy. Furthermore, the fact that the respondent paid R100 000 to the appellant is
immaterial. The agreement between the parties was void ab initio as the appellant
did not own nor give possession of the merx or the res vendita to the respondent. In
our law performance by one or even both parties to an illegal contract does not make
the contract legal .11 Neither party can institute action on the contract or claim
performance from the other party because from an illegal cause no action arises ( ex
turpi causa non oritur actio – also known as the ex turpi rule). In my opinion, the
appellant failed to discharge the onus rested on him. Thus, the trial court was
correct, in my view, in dismissing the appellant’s case.
[48] Consequently, given all these considerations, this appeal must be dismissed.
Order
[49] The appeal is dismissed, and no order is made regarding costs.
___________________________
LEKHULENI JD
JUDGE OF THE HIGH COURT
I agree:
______________________________
MTHIMUNYE S
ACTING JUDGE OF THE HIGH COURT
11 See Hutchison D et al The Law of Contract in South Africa (2017) 3 ed at 14.