Ferrari v Ruch (SA 6 of 1993) [1994] NASC 4 (14 October 1994);
CASE NO. : SA 6/93
In the matter of:
L. FERRARI
APPELLANT
and
W. RUCH
RESPONDENT
Coram: Mahomed, C.J.; Dumbutshena, A.J.A; and Strydom, A.J.A. Heard on: 1994/04/04-05 Delivered on: 1994/10/14
JUDGMENT
MAHOMED, C.J.
colleague of the Plaintiff, to transfer some of the Defendant' own funds from Switzerland to Namibia in the form of financia Rands, under the pretence that Zysset was making an investment i the company. The Treasury was deceived by this pretence an shares were subsequently issued in the company to Zysset, bu Zysset never paid for these shares and eventually the Defendan was able to retransfer those shares into his own name by havin the restrictive endorsement on the transfer of the share cancelled. The fact that the records of the company reflected . transfer of 92 shares in the name of Zysset on the 26th June 198 and a transfer of another 38 shares to him on the 19th Novembe ?1981 therefore did not mean that Zysset had ever paid for thes; shares or that he was in truth the holder thereof or that he ha', ever intended to make an investment in the company. Zysset wa: simply used by the Defendant to enable the Defendant to bring hii own money back to Namibia in the form of financial Rands.
"Our payment to the Namibia Jannery Standard Bank Windhoek in favour of Mr. Lellio Ferrari, Windhoek".
For the submission he relied on Regulations 2(1), 8(1) and 14A(1) of the Exchange Control regulations which read as follows: Regulation 8(1) provides as follows: Regulation 14A(1) provides as follows: - 14 - It is necessary, however, to have regard to Regulations 8(1) and
Regulation 22 provides as follows:
The maxim ex turpi causa non oritur actio must, however, be
distinguished from the maxim .in pari delicto potior conditio
defendentis. The former maxim prohibits the enforcement of
illegal contracts and the latter seeks to restrict the right of
the offending parties to avoid the consequence of their
performance or part performance of such prohibited contracts.
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- 23 -
COSTS
circumstances of each case.
THE ORDER
I accordingly make the following order: - 28 - A copy of such affidavit is to accompany any writ of execution issued in terms of Rule 45(1) of the High Court Rules, and Form 19 of the First Schedule or Form A of the Second Schedule. Subject to any further order the plaintiff is to use the rate of exchange stated in such affidavit to calculate the sum which the sheriff is directed to realise. Save for one half a day's wasted costs, the Plaintiff is awarded costs of suit, including the costs of two counsel; and The Plaintiff, Ernst Zysset and Charles Van Staden are declared necessary witnesses." The Registrar is directed to bring this judgment to the attention of the Attorney-General and the Prosecutor-General. I. MAHOMED CHIEF JUSTICE
1. The appeal is upheld and the order of the Court a quo is set aside and substituted by the following:
5.
No order is made in respect of the costs of appeal.
I concur
E. DUMBUTSHENA
ACTING JUDGE OF THE SUPREME COURT
I concur
G.J.C. STRYDOM
ACTING JUDGE OF THE SUPREME COURT
APPELLANT'S ADVOCATES:
RESPONDENT'S ADVOCATES:
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S. du Toit, S.C. D.F. Smuts
(A. Vaatz)
Dr. P.J. v. R. Henning, S.C. S. Vivier-Turck