MEGA PAK ZIMBABWE (PVT) LTD v GLOBAL TECHNOLOGIES CENTRAL AFRICA (PVT) LTD 2008 (2) ZLR 195 (H)

Flynote

Contract — enforceability — illegal contract — maxim ex turpi causa non oritur actio — inflexibility of maxim — no exceptions will be entertained by the courts

Headnote

? The plaintiff, which wanted to purchase two luxury cars from outside the country, entered into an arrangement with the defendant in terms of which the plaintiff would pay the defendant local currency (plus a commission) and the defendant would source funds from another party. ? The third party did not transmit all the funds expected and payment for one of the cars was not made. The plaintiff sought specific performance of the contract, and the delivery from the defendant of the car that was not paid for. Alternatively, it sought damages to place it in a position where it could procure a similar vehicle to the one the defendant allegedly failed to deliver.

? Held, that the plaintiff could not succeed: the maxim ex turpi causa non oritur actio applied. An illegal agreement which has not yet been performed, either in whole or in part, will never be enforced. This rule is absolute, admitting of no exceptions. Were the plaintiff simply seeking to extricate itself from the contract by seeking a refund of the local currency payment it made in respect of the motor vehicle yet to be delivered, there may ? have existed scope for the court to apply the in pari delicto rule and attempt to do justice between the parties. Here, however, the court a quo was dealing with the attempted enforcement of a contract which arose ex turpi causa and not an attempt to undo performance pursuant to an illegal contract. It followed that the plaintiff must be entirely non-suited.