DUBE v KHUMALO 1986 (2) ZLR 103 (S)

Flynote

Criminal law — fraud — prejudice — whether fact that misrepresentee is induced into contract is prejudice.

Contract — enforceability — contra bonos mores — facilitates adulterous association — whether this immoral in case of unregistered customary marriage — illegality — ex turpi causa non oritur actio — inflexibility of maxim — par delictum rule — depart from.

Practice and procedure — pleading — illegality of contract — duty to plead where not apparent ex facie the transaction — joinder — deferment of judgment pending ascertainment of attitude of party not joined who should have been joined.

Headnote

The parties entered an agreement whereby appellant would purchase a house in the name of respondent. The use of respondent's name as purchaser involved a deception on the seller, the Municipality of Bulawayo, which would not have sold to the appellant himself. The purchase of the house was to allow the parties, both of whom were unhappy in their existing unregistered customary marriages, to live together in an adulterous association. This relationship foundering, the appellant demanded possession of the property from the respondent who refused to comply. In the magistrates court the appellant was refused relief on an application of the par delictum rule. On appeal:

Held, that the fraud on the Municipality was a criminal offence, the inducement to enter a contract with a person with whom a contract would nototherwise have been entered being sufficient prejudice.

Held, further, that the inflexible rule ex turpi causa non oritur actio isof no application since the suit is not one to enforce the agreement which had already been performed and achieved its purpose when the Municipality was defrauded.

Held, further, that a contract furthering adultery is not contra bonos mores where the marriage which would be violated is an unregistered customary union which is not a valid marriage in law.

Held, further, that the respondent relying on the alleged immorality of the contract had a duty to allege and prove a valid marriage.

Held, further, that in the circumstances the par delictum rule should be relaxed in order to do justice between the parties.