Klokow v Sullivan (410/2004) [2005] ZASCA 99; 2006 (1) SA 259 (SCA) (29 September 2005)

Klokow v Sullivan (410/2004) [2005] ZASCA 99; 2006 (1) SA 259 (SCA) (29 September 2005)

The Supreme Court of Appeal held that the agreement for the sale of the liquor-licensed business was illegal and void due to non-compliance with section 38(1) of the Liquor Act. Both parties were in pari delicto, but the court found that the equities favoured the appellant, who had returned the business yet was denied repayment of R250 000. The court rejected the notion that further facts needed to be pleaded to justify relaxation of the par delictum rule, emphasizing that substantive justice and public policy required the prevention of unjust enrichment. The technical approach of the full court was incorrect; the facts as pleaded and admitted were sufficient to warrant relief. The appeal...

Citation
[2005] ZASCA 99
Parties
Appellant: Hitler Adolf Klokow; Respondent: Michael Boyton Sullivan
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
29 September 2005
Case Number
410/2004
Procedural Posture
Civil Appeal / Appeal From Full Court Decision
Outcome
Appeal upheld; order of the full court set aside; respondent ordered to repay R250 000 with costs.
Judges
Mpati, Cameron, Brand, Nkabinde, Cachalia
Legal Topics
Illegality of Contract, In Pari Delicto, Unjust Enrichment, Liquor Act Compliance
Commercial and Corporate Civil Procedure Illegality of Contract In Pari Delicto Unjust Enrichment Liquor Act Compliance

Case Brief

Summary, issues, holding and outcome

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Parties

Hitler Adolf Klokow

Appellant

Michael Boyton Sullivan

Respondent

Procedural Posture

Civil Appeal / Appeal From Full Court Decision

Legal Issues

  1. 1 Whether the agreement for the sale of the liquor-licensed business was void for illegality under the Liquor Act.
  2. 2 Whether the parties were in pari delicto and thus precluded from relief.
  3. 3 Whether the plaintiff was required to plead further facts to justify relaxation of the par delictum rule.

Ratio Decidendi

The Supreme Court of Appeal held that the agreement for the sale of the liquor-licensed business was illegal and void due to non-compliance with section 38(1) of the Liquor Act. Both parties were in pari delicto, but the court found that the equities favoured the appellant, who had returned the business yet was denied repayment of R250 000. The court rejected the notion that further facts needed to be pleaded to justify relaxation of the par delictum rule, emphasizing that substantive justice and public policy required the prevention of unjust enrichment. The technical approach of the full court was incorrect; the facts as pleaded and admitted were sufficient to warrant relief. The appeal...

Court Disposition

Appeal upheld; order of the full court set aside; respondent ordered to repay R250 000 with costs.

Orders

  • The appeal is upheld with costs.
  • The order of the full court is set aside.