Court name
High Court Main Division
Case name
Kondjeni Nkandi Architects v The Namibian Airports Company Limited
Media neutral citation
[2015] NAHCMD 223
Judge
Masuku AJ










REPUBLIC
OF NAMIBIA


HIGH
COURT OF NAMIBIA MAIN DIVISION, WINDHOEK


RULING
ON EXCEPTION


Case
No. I 3622/2014


DATE:
11 SEPTEMBER 2015


REPORTABLE


In
the matter between:






KONDJENI
NKANDI
ARCHITECTS..................................................................FIRST
PLAINTIFF


KONDJENI
NKANDI........................................................................................SECOND
PLAINTIFF


And


THE
NAMIBIAN AIRPORTS COMPANY
LIMITED.................................................DEFENDANT





Neutral
citation: Kondjeni Nkandi Architects v The Namibian Airports Company
Limited (
I 3622-2014) [2015] NAHCMD 223 (11 September 2015)


CORAM:
MASUKU, AJ.


Heard:
1 July 2015


Delivered:
11 September 2015


Flynote:
PRACTICE –
Rules of the High Court – compliance with
rule 32 (9) and (10); Exception – law applicable to exceptions;
CONTRACT – validity of contracts entered into in violation of
statutory enactments – whether courts can give effect to such
contracts.


Summary:
The plaintiffs sued the defendant for architectural work done
apparently in violation of a statutory enactment. PRACTICE –
Rules of Court – held the provisions of rule 32 (9) and (10)
are mandatory and parties should comply therewith and may not choose
or agree whether to comply with same or not; Exception – a thin
line at times exists between a bad cause of action or defence and one
that is excipiable. For an exception to apply, the question is
whether any evidence may be led on the averrals in the particulars of
claim or plea. CONTRACT – held that payment claimed under
contracts entered into in violation of statutory provisions may not
be sanctioned by the court. Defendant’s exception upheld with
costs.


RULING
ON EXCEPTION


MASUKU,
AJ.


[1]
Presently serving before court for determination is the excipiability
or otherwise of a claim instituted by the plaintiffs against the
defendant company.


[2]
The history of the matter may be summarized briefly as follows, the
factual matrix of which is largely common cause: The defendant, a
company duly registered in terms of the Company laws of Namibia,
advertised a tender for the design and overall project management of
its head offices at Eros Airport, Windhoek. The first plaintiff
responded to the tender and was awarded same in terms of a letter
dated 18 April 2012 signed by the defendant’s Chief Executive
Officer (C.E.O.) and the second plaintiff. The said letter contained
a declaration by the second plaintiff to the effect that the first
plaintiff accepts the offer coupled with the terms and conditions
contained in a written agreement which is attached to the particulars
of claim. The terms thereof bear no particular relevance for present
purposes.


[3]
By letter dated 10 September 2012, the defendant’s C.E.O.
informed the plaintiffs that the appointment referred to above was
being terminated with immediate effect and requested the plaintiffs
to submit their invoices for the work undertaken up to that time. No
reasons were advanced for the termination in the letter.


[4]
The plaintiffs accordingly filed their invoice for the work done, in
an amount of N$ 4,110,224.75. The matter, however, took a strange
twist when the defendant’s lawyers Ellis Shilengudwa wrote a
letter dated 12 April 2013 in which they indicated their instructions
from their client to deny liability for the claim. It was pointed out
that the agreement entered into
inter
partes
was
null and void
ab
initio.

It was pointed out in particular that the said agreement was entered
into in contravention of the provisions of the Architects and
Quantity Surveyors Act[1] (the
‘Act’). This denial of liability culminated in the
issuance of a combined summons which is the subject of this ruling.


 


[5]       
In the combined summons, the first plaintiff alleges the existence of
a main and an alternative claim. In the main claim, it alleges that
the parties entered into a written agreement as stated above and that
the first plaintiff complied with all its obligations in terms of the
said agreement and that while the works were in progress, the
defendant terminated its appointment, which appointment it duly
accepted and rendered its invoice as requested by the defendant. It
claims payment of the amount stated in the invoice and which is
captured in the immediately preceding paragraph.


 


[6]       
In the alternative claim, the first plaintiff avers that should the
court find that the agreement in question is in contravention of the
Act as alleged, for the reason that the first plaintiff is not a
natural person and is not registered as an architect in terms of the
Act, then the second plaintiff, who is qualified and duly registered
as an architect, rendered the services in question to the defendant
on the bona fide but erroneous belief that the agreement is
valid. It therefore claims payment of the aforesaid sum on the basis
of unjust enrichment.


 


[7]       
By notice dated 12 February 2015, the defendant filed an exception to
the plaintiff’s particulars of claim on the basis that same did
not contain averments necessary to sustain an action against the
defendant and/or failed to disclose a cause of action against the
defendant and should be dismissed therefor. The principal grounds
upon which the said pleading was impugned, briefly captured, in
relation to the main claim, are in essence the following:


 


(a) 
that the agreement entered into by and between the parties was in
contravention of the Act, particularly section 13 (1) (b) thereof and
moreover, is regarded by the Act as an offence in that only natural
person may engage in the type of work that the first plaintiff
accepted. it is common cause that the first plaintiff is a juristic
person;


 


(b) 
the first plaintiff makes no allegation to the effect that it is
exempted from complying with the provisions of the Act quoted above;


 


(c) 
there is no allegation made that the first plaintiff is a registered
architect by the Council in terms of the Act.


 


It
is accordingly claimed that the plaintiff’s claim, contravening
the provisions of the Act mentioned above as alleged, is therefore
illegal and unenforceable.


 


[8]       
In relation, however, to the alternative claim, the basis for the
exception is that the second plaintiff does not allege that she has
been exempted to carry out the works in terms of the Act for the
reason that the Act prohibits such work to be done by any person
other than an architect and that there is no allegation that the
second plaintiff is registered by the Council as an architect. It is
contended therefore that the alternative claim is, for those reasons
also illegal and hence unenforceable. Needless to say, the plaintiff
has taken a position contrary to that of the excipient and I shall
deal with the respective arguments presented by the protagonists in
due course.



 


Compliance
with Rule 32 (9) and (10)


 


[9]       
Before the matter could be argued, the court, mero motu taxed
both parties regarding whether they had complied with the provisions
of rule 32 (9) and (10) of the rules of this court. Mr. Totemeyer
argued that the parties had agreed not to go the route of rule 32 (9)
and (10) since the matter was not capable of being resolved by the
parties amicably. In alternative argument, he submitted that the
parties had substantially complied with the said provisions and in
this regard referred to a letter dated 12 April 2013 written by the
excipient’s attorneys denying liability for the claim.


 


[10]     
In pursuance of this argument, Mr. Totemeyer also referred to a
status report filed in terms of rule 27 received by this court and
bears a court stamp dated 20 January 2015. Particular reference was
made to paragraph 3 thereof, headed ‘Possible exception to be
raised in case I 3622/2014’. In the said paragraph, it is
stated that the defendant intends raising an exception to the
plaintiff’s particulars of claim.


 


[11]     
The question for determination is whether these documents referred
to, whether considered individually or collectively, do comply fully
or substantially with the requirements of the said sub-rules. The
said provisions bear repeating. They provide the following:


 


(9)
In relation to any proceeding referred to in this rule, a party
wishing to bring such proceeding must, before launching it, seek an
amicable resolution thereof with the other party or parties and only
after the parties have failed to resolve their dispute may such
proceeding be delivered for adjudication by the court.


(10)
The party bringing any proceeding contemplated in this rule must,
before instituting the proceeding, file with the registrar details of
the steps taken to have the matter amicably resolved as contemplated
in subrule (9) without disclosing privileged information’.


 


[12]     
There is no argument that the proceeding in question, being an
exception is interlocutory in nature and therefore is governed by the
provisions of this subrule. What should also not sink into oblivion,
is that from the nomenclature employed by the rule-giver, it is clear
that the provisions of these subrules are peremptory in nature and
this cannot be gainsaid. That this is the case can be deduced from
the language, for instance as found in the use of the words “must
before launching it” in subrule (9) and ‘must, before
instituting the proceeding’ occurring in subrule (10). See
Irvine
Mukata v Lukas Appolus.
[2]


 


[13]     
In
Chantal
Visagie v Josias Alexander Visagie
[3]
I
had occasion to comment on the above subrules as follows:[4]


 


The
import is that a party, who seeks to raise an application for an
irregular step must before launching the said proceeding do
two things: (a) seek an amicable solution to the dispute and (b) file
with the registrar details of the steps taken to attempt to resolve
the matter amicably.


It
is plain, in my view that failure to comply with either or both
requirements in rule 32 (9) and (10), is fatal. The court cannot
proceed to hear and determine the interlocutory application. The
entry into the portals of the court to argue an interlocutory
application must go via the route of rule 32 (9) and (10) and any
party who attempts to access the court without having gone through
the route of the said subrules can be regarded as improperly before
court and the court may not entertain that proceeding. In colloquial
terms, that party can be said to have ‘gatecrashed’ his
or her way into court. Gatecrashers are certainly unwelcome if regard
is had to the provisions of the said subrules.


A
proper reading of the above rule suggests unequivocally that once an
application is interlocutory in nature, then the provisions of the
subrule are peremptory and a party cannot wiggle its way out of
compliance therewith . . . For that reason, I am of the considered
view that a party may not circumvent compliance with the said
subrules, whatever the circumstance and the one at hand, namely, that
the case involves minors, is not, in my view one that brooks an
exception.’


 


[14]     
Reverting to the matter at hand, it is clear that the letter referred
to as compliance with subrule (9) was written at demand stage i.e.
even before the combined summons was issued. Compliance with the said
subrule demands that having drafted the pleading containing the
interlocutory application but ‘before launching it seek an
amicable resolution thereof . . .’ In this case, it means that
having drafted the exception, but before launching it, the excipient
should have sought an amicable resolution of the dispute and this
evidently did not happen. It would appear to me that the onus to
ensure compliance with the subrules rests on the party initiating the
interlocutory application, namely the excipient in the instant case.


 


[15]     
I am of the firm view that the excepient did not comply with the said
provisions at all. The letter written before the issue of summons can
hardly be said to answer to the clear and unambiguous requirements of
the said subrule (9). There was simply no attempt to comply with
same. The fact that the issue of an exception was mooted in the
status report referred to earlier as ‘possible’ also does
not meet muster. It is also my view that there was no attempt to
comply with the provisions of subrule (10). The court order dated 21
January 2015 adopting the proposed case plan does nothing to advance
the case of compliance with the said subrules.


 


[16]     
I must also consider the argument that if there was no full
compliance with the subrules in question, then there was substantial
compliance. I recently had occasion to deal with this very issue in
Old
Mutual Life Assurance Company (Namibia) v Risto Hasheela and
Another
[5].
In that case the plaintiff (excipient) had written a letter to the
defendant pointing out the issues in need of attention in their plea
in the spirit of rule 32 (9) and called upon the defendants to amend
their counterclaim, failing which they would then deliver the
exception for determination.


 


[17]     
The amended counterclaim was still excipiable in the excipient’s
view and it accordingly delivered the exception for determination.
The plaintiff however neglected to file the letters exchanged by the
parties in an effort to resolve the matter amicably with the
registrar in terms of subrule (10). Relying on cases such as
Kanguatjivi
v Shovoro Business and Estate Consultancy
[6],
Kessl
v Minsitry of Lands Resettlement and Two Others
[7]
and
Rally
for Democracy v Electoral Commission
[8]
I
found and held that in those circumstances, there was substantial
compliance. In the instant case, there was simply no attempt
whatsoever, to comply with any of the two requirements by the
excipient. I accordingly find that a case of substantial compliance
has not been made out and it is not at all borne out by the cold
facts of the matter.


 


[18]     
I understood Mr. Totemeyer to suggest in the alternative that as the
parties representing the litigants, they took the position that there
was, on account of the disputed nature of the issues, no prospect of
settling the matter amicably and hence no need to comply with the
said provisions. My reading of the subrule does not leave it to the
parties to agree or disagree to comply with what are clearly
mandatory provisions.  Parties cannot be allowed to opt out and
to choose which rules to comply with and which ones not to comply
with. Such an election would be perilous and result in anarchy and a
complete breakdown in the orderly conduct of litigation.


 


[19]     
Having said the above, and considering that all the parties were
before court, with instructing and instructed counsel ready to fire
on all cylinders, and amply prepared to argue the exception, I
grudgingly condone the non-compliance but hasten to point out very
sternly that this must not be taken as a precedent that parties who
choose not to comply with this subrule can be allowed to gatecrash
the court’s portals and be allowed to access the fountains of
justice with the freshness of the non-compliance very evident. Far
from it. Other overriding principles, including the saving of time
and costs and the need to speedily dispatch the application have
impelled me from strictly following the strictures of the said
subrules and in the peculiar circumstances of this matter,
subordinating the overriding principle of seeking amicable resolution
of disputes to the others I have just mentioned. I accordingly, on
that note turn to consider the exception proper.


 


The
exception


 


The
alternative claim


[20]     
In dealing with the exception, I choose to first consider the
exception to the alternative claim for it appears there is a possibly
easy answer. In response to the exception, the plaintiff filed an
application to amend same, which at the time of the hearing of the
exception the time limits for considering same were still running.


 


[21]     
It will be recalled that the principal basis for the exception, as
foreshadowed and captured in paragraph [8] above is that whereas the
plaintiff’s alternative claim is based on work specially
reserved for architects and performed for gain, the second plaintiff
does not make any averral to the effect that she was exempted to
carry out the work in terms of the provisions of section 13 (1) of
the Act. It was also averred that section 11 of the Act requires
registration by the Namibia Council for Architects and Quantity
Surveyors (‘the Council’) established in terms of section
2 of the Act. The contention is that the second plaintiff, in so far
as the alternative claim is concerned, has not made the allegation
that she is registered as an architect by the said Council.


 


[22]     
In addressing the cause of the complaint as borne out in the
exception in relation to the alternative claim, the second plaintiff
filed a notice of intention to amend paragraphs 1 and 2 of the
particulars of claim by deleting the words ‘Namibia Institute
of Architects’ and substituting same with ‘Namibia
Council for Architects and Quantity Surveyors’. This amendment
would appear to address the complaint that the second plaintiff makes
no allegation that she has been registered as an architect by the
Council as required.


 


[23]     
I am not properly placed to consider whether the amendment does
actually meet muster and appropriately answers the cause of the
complaint. This will be the prerogative of the excipient once the
dies has expired. All I can do at this juncture is to record
that the second plaintiff by conduct admitted that its particulars of
claim lacked certain averrals rendering it excipiable by filing the
proposed amendment. It can only be after the excipient has responded
to the proposed amendment that the court can properly pronounce
itself and only if the excipient still maintains the view that in the
amended form, the second claim still does not found a cause of action
or is vague and embarrassing.


 


[24]     
I can only mention en passant that the fact that the second
plaintiff has conceded the correctness of the exception on the
alternative claim is a clear pointer that had the provisions of rule
32 (9) and (10) been complied with to the letter, a portion of the
exception may well have been disposed of without a need to launch the
application for determination by the court.


  


The
principal claim


 


[25]     
I now turn to address the exception relating to the principal claim.
The main bases on which the said claim is sought to be impugned are
set out briefly in paragraph [7] above. Before I can fully determine
the question whether the exception to this claim is meritorious or
not, there is one issue that I find myself in duty bound to make and
it is this - there is a difference between what may ultimately, after
evidence has been led, be a bad claim or defence, as the case may be
and a claim or defence that is excipiable. The fact that a claim or
defence appears at first blush to be unsustainable in the long run,
does not per se entitle the opposite party to except thereto.
At the end of the day, if some evidence may be led to prove the claim
or the defence, as the case may be, that serves to point to the fact
that an exception is not the appropriate means of dealing with what
may appear, on first principles, to be a weak, limping or
unsustainable and therefor unmeritorious claim or defence.


 


[26]     
In
Mkhangezi
Gule v The Commissioner of Correctional Services and Others
[9]
I
had occasion to comment as follows:


 


There
is, in my view, a fine line, fine as it may be, between a bad defence
and one in which the allegations made do not have the material
averrals to found a defence. An exception is applicable in the latter
case. If a defence is bad, it is not excipiable but must be allowed
to be dismissed at the end of the trial, with evidence being led or
relevant facts agreed.’


 


[27]     
For the foregoing proposition, I found solace in the works of the
learned author Harms[10]


An
exception is a valuable part of the system of procedure: its
principal use is to raise and obtain a speedy and economical decision
on questions of law which are apparent on the face of the pleadings.
It also serves as a means of taking objection to pleadings which are
not sufficiently detailed or otherwise lack lucidity and are thus
embarrassing. Unless an exception is taken for the purpose of raising
a substantive question of law which may have the effect of settling a
dispute between the parties, an excipient should make out a very
clear case before he is allowed to succeed. If evidence can be led
which can disclose a cause of action or defence alleged in a
pleading, that pleading is not excepiable. A pleading is only
excepiable on the basis that no possible evidence led on the pleading
can disclose a cause of action or defence’.


 


[28]     
It will be seen that in the instant case, although the exception is
not directed at pleadings which are not sufficiently detailed or not
drafted with lucidity, the point raised in the exception is one
directed at a substantive question of law, which if upheld, may have
the effect of settling the dispute. From the quotation immediately
above, it is clear that the present exception falls within the matrix
of the delineation by the learned author and therefore perfectly in
order.


 


[29]     
Having regard to the exception on the main claim, it would seem to me
that the main, if not the decisive question to ask is this: what is
the effect of the Act declaring the conduct of architectural work
illegal for an entity other than a natural being? The defendant
submits that the effect of the prohibition is to render any contract
entered into in contravention of the Act unenforceable, unless there
has been an exemption obtained by the said entity in terms of the
Act. The plaintiffs argue to the contrary and state that the Act does
not expressly invalidate the said contract if not entered into by a
natural person and further, does not specifically render the
agreement unenforceable.


 


The
Statutory Regime


 


[30]     
In order to place the questions in need of determination in proper
perspective, it is prudent, first of all, to have regard to the
legislative regime on which the question craving an answer
oscillates. The starting point, in this regard, are the provisions of
section 11 of the Act. The relevant provisions of section 11 (1) of
the Act provides as follows:


 


(1)
Any person who desires to be registered as an architect or quantity
surveyor or architect in training shall lodge with the Council in the
manner prescribed by it, an application in writing for such
registration, and such application shall be accompanied by the
prescribed registration fee, and such information as may be required
by the Council.


(2)
If after consideration of any such application the council is
satisfied that the applicant –


           
(a) Is not less than
twenty-one years of age; and


(b)
has passed the examination prescribed by any regulation or any
examination recognized by the Council for the purpose of this
paragraph; and


(c)
has for a period determined from time to time by the Council and
commencing before or after the date of passing of any examination
referred to in paragraph (b), performed architectural or quantity
surveying work which in the opinion of the Council is of sufficient
variety and of a satisfactory nature and standard, and has performed
such work;


(i)
in Namibia, under the direction and control of an architect or
quantity surveyor;


(ii)
elsewhere than in Namibia, under the direction or control of any
other person who has passed an examination recognized by the Council
for the purposes of this subparagraph, if such person is engaged
primarily in the performance of the kinds of work prescribed under
section 7 (3) (b); and


(iii)
is a member of the Namibia Institute of Architects or the Institute
of Quantity Surveyors, as the case may be, of such a class of members
as the Council may approve;


The
Council shall, subject to the provisions of subsection (7), register
the applicant as an architect or a quantity surveyor, as the case may
be, and issue to him a certificate of registration.’


 


[31]     
Section 13 (1) (a) of the Act, on which large store is placed by the
excipient, provides the following:


 


           
Subject to
any exemption granted under this Act –


(a) 
any person other than an architect or a quantity surveyor who –


 


(i)           
for gain performs any kind of work reserved for architects or
quantity surveyors under section 7 (3) (b); or


(ii)          
pretends to be or by any means whatsoever holds himself out as an
architect or  quantity surveyor or uses the name of architect or
quantity surveyor or any name, title, description or symbol
indicating or calculated to lead persons to infer that he is
registered as an architect or quantity surveyor in terms of this
Act.’


 


[32]     
On the other hand, section 11 (1) (b) provides the following:


 


           
Any person
other than a natural person which:


(i)           
for gain performs any kind of work reserved for architects or
quantity surveyors under section 7 (3) (b) or in any way makes known
that it is prepared to perform any such work; or


(ii)          
uses any name, title, description or symbol or calculated to lead
persons to infer that it performs any kind of work reserved for
architects or quantity surveyors shall be guilty of an offence and
liable on conviction to a fine not exceeding R1,000’.


 


[33]     
In this regard, the excipient claims that the reading of the
provisions together, indicate inexorably that persons who may carry
out architectural or quantity surveying work must be natural persons
unless an exemption in terms of the Act has been granted by the
Council. It is contended on the excipient’s behalf that there
are no averrals to the effect that the first plaintiff has been
registered by the Council as an architect in terms of section 11 or
has been exempted by the Council from compliance with the
requirements of section 13 (1) as read with section 23 of the Act.


 


[34]     
It is the excipient’s further case that if any person who is
not a natural person but which performs such work or holds itself out
as qualified to do so but is not a natural person and has not been
granted an exemption in terms of the Act commits an offence and the
result is that any contract entered into in contravention of the
above prescripts is null and void and therefore unenforceable.


 


[35]     
The argument by the plaintiffs is a horse of a different colour.
Whilst admitting the conclusion that a person who carries out the
stipulated categories of work contrary to the provisions of the Act
commits an offence in terms of the Act, the legislature did not in
any terms, whether direct or by implication seek or serve to render
any agreement reached by contractants in violation of the said
section null and void or unenforceable. It is the plaintiff’s
contention that a proper and close reading of section 11 together
with Regulation 4 (kk) of the Regulation made under section 18 of the
Act lead inexorably to the conclusion that a company may perform such
work provided certain circumstances and conditions are met.


 


[36]     
The plaintiffs contend and quite forcefully too, that juristic
persons always act through natural persons, who in a sense become the
hands, feet and ears of the juristic person. In the instant case, it
is argued, that the work was actually being performed, not by a
juristic person but by a natural person in the name of the second
plaintiff, who was properly registered as an architect by the Council
in terms of the Act. It is contended therefor that there was no
intention on the part of the plaintiffs and the defendant to
contravene the provisions of the Act. I shall return to deal with the
various arguments in respect of these very vexing issues and in
respect of which this Court is expected and in duty bound to untie
the Gordian Knot as it were.


 


 


 


The
Law


 


[37]     
By virtue of the maxim
ex
turpi causa non oritur actio
(from
a dishonourable cause no action [11]arises)
agreements in violation of the law are rendered unenforceable. It is
common cause that this maxim admits of no exception. In the instant
case, it is clear that the agreement in which the contractants
entered was in violation of the Act as aforesaid. In
IS
& GM v Construction Tunmer
[12]
the
following is recorded:


 


           
The plaintiff
further submitted that the Act merely made the receiving of
consideration by an unregistered homebuilder an offence but did not
preclude such person from receiving consideration. In my view, this
submission is without substance and flies in the face of the clear
and unambiguous wording of the Act, which unequivocally prohibits
such a person from receiving any consideration. The court will not
make an order contrary to an express prohibition imposed by the
Legislature. The Court cannot be asked to order the performance of a
prohibited or criminal act. I am satisfied that the particulars of
claim do not disclose a cause of action in that the plaintiff, in
view of the facts pleaded, is obliged to allege that it is a
registered home builder as defined in the Act before it can receive
any consideration.’


 


[38]     
On the other hand, the learned author Christie[13],
states the following:


 


           
An act that
is made unlawful by statute is, it need hardly be said, unlawful, so
whether or not on a proper interpretation of the statute a contract
is in itself the unlawful act is void as well as being criminally
punishable, a contract to commit the unlawful act must be void, and
so is a contract that facilitates or encourages the commission of the
unlawful act, even if only indirectly, provided the connection is
sufficiently close.’


 


In
the case of
Pottie
v Kotze
[14]
the
Appellate Division expressed itself in the following terms on the
issue under consideration:


 


           
The usual
reason for holding a prohibited act to be invalid (is) . . . the fact
that recognition of the act by the Court will bring about, or give
sanction to, the very situation which the legislature wishes to
 prevent’.


 


[39]     
Having regard to the foregoing authorities, it would appear that
where the legislature criminalises certain behavior or conduct, any
contract entered into in violation of the statute becomes unlawful
and for that reason, it will not normally behove the court  to
countenance that conduct by giving it any degree of legitimacy by
sanctioning and giving effect to same. Put in the particular facts of
the case, the defendant’s case is that the legislature
prohibited the carrying out of architectural or surveying work for
gain by entities other than natural persons, unless an exemption was
granted. There can be no doubt that the work carried out by the
plaintiffs in this instance, was for gain and therefore, in violation
of the provisions of the section in relation to the first plaintiff.


 


[40]     
If the court were to give effect to a contract concluded in violation
of this piece of legislation, then the court would be seeking to
facilitate or encourage the very act or conduct that parliament, in
its wisdom, saw it fit to proscribe and render a criminal offence.


 


[41]     
The plaintiffs argue that not every criminalization of an act or
conduct visits the agreement arising therefrom with invalidity and
that where the law-giver does not expressly invalidate a contract
performed in contravention thereof, the court must determine, on a
proper interpretation whether the legislature can be said to have
intended to visit the said agreement with invalidity. In support of
this contention, the court was referred to
City
of Tshwane v Marius Blom And GC Germihuizen Inc & Another
[15]
where
the court reasoned as follows:


 


           
Whatever the
nature of the document, consideration must be given to the language
used in the light of the ordinary rules of grammar and syntax; the
context in which the provision appears; the apparent purpose for
which it is directed and the material known to those responsible for
its production.’


 


[42]     
It is the plaintiffs’ further contention therefore that the
mischief sought to be arrested by the promulgation of the
prohibition, was to protect the public by ensuring that architectural
and quantity surveying services are performed by qualified architects
and quantity surveyors and thereby outlawed the performance of same
by non-architects and quantity surveyors not duly registered. It was
submitted that in the instant case, the first plaintiff, though a
legal person, did not itself carry out the architectural work but
same was done by the second plaintiff, who is a registered architect
in terms of the Act. There was, it was contended, no breach of the
law for that reason. It was moreover argued that the objects of the
Act were not thereby contravened in the special circumstances of this
case.  Is this contention sustainable?


 


[43]     
I am of the considered view that this argument should not hold for
the reason that the Act is clear that any other person than a natural
person who carries out architectural or quantity surveying work,
unless properly exempted in terms of the Act, commits an offence. The
only way in which the work done by a person who is not a natural
person registered in terms of the Act, is when that person or entity
has been exempted in terms of the Act. The plaintiffs are, in a
sense, asking the court to pierce the corporate veil and look behind
the secret chambers of the first plaintiff, and find that in fact, it
was the second plaintiff who was doing the work and not the first
plaintiff.


 


[44]     
To allow the argument advanced by the plaintiffs to hold would result
in this court sanctioning what parliament sought to prohibit, as the
court would not only give exemptions, which it is not empowered by
law to do, but it would also issue serious decisions on architectural
and related matters (including matters of exemptions in terms of the
Act) outside the confines of the experience and specialized training
available within the relevant industry with possibly calamitous
consequences to consumers. Furthermore, by so doing, the court would
also sanction the carrying out of architectural or quantity surveying
work awarded to a person who is not exempted under the Act and this
would defeat legislative solicitudes expressed in the nomenclature
employed in the Act.


 


[45]     
It would seem to me that the raison detre for the requirement
that only natural persons be registered as architects and quantity
surveyors, was to protect the public from unscrupulous persons who
would float companies or other juristic persons to perform
architectural or quantity surveying work and when liability for poor
workmanship or other complaint arises, and the court finds that the
client was short changed, the client would not have any recourse as
the juristic person would have no realizable assets from which
execution of any judgment can be properly and satisfactorily
satisfied. This would render the clients, who would, in some
instances be men or women of straw, bereft and remediless and in the
process losing what may have been to them a lifetime worth of
investment. This, it is my view not an idle and inconsequential or
pedantic requirement.


 


[46]     
To adopt the approach recommended by the plaintiffs would, to borrow
from the Tunmer judgment (supra), result in a situation
where the court lends its processes and gives its imprimatur to the
performance of a prohibited or criminal act, and this I cannot, in
good conscience do, whatever the inequities, regrettable as they may
be, that may result.


 


[47]     
The plaintiffs, on the other hand, contend probably with a lot of
justification, that the application of the law as propounded above
brings about unfair and inequitable results, considering that the
parties had no intention to breach the legislation in question and
that a decision that the contract is unlawful and hence
unenforceable, would herald unfair consequences. This, it is argued,
is so because that there is benefit in this case being derived by the
defendant from the impugned contract to the detriment of the
plaintiffs who will have performed but may not recover anything for
their effort and time. In other words, the plaintiffs would have
ploughed but never enjoy the fruits of their labour, and conversely,
the defendants would, on the other hand, derive free labour as it
were and reap where they have not sown in a sense.


 


[48]     
In support of their argument, the plaintiffs referred the court
usefully to the case of
Hubbard
v Cool Ideas 1168 CC
[16].
Briefly stated, the facts in that case were that the appellant and
the respondent entered into an agreement for the building of home.
The respondent, however, did not register as it was supposed to, in
terms of the Housing Consumers Protection Measures Act.[17]
After the home had been completed, a dispute arose between the
parties about the quality of the work done and the appellant refused
to pay the amount claimed by the respondent, contending that there
was poor workmanship. The appellant filed a claim for remedial works
that she needed to make to the building as a result of poor
workmanship by the respondent.


 


[49]     
The matter was referred to arbitration in terms of the contract and
the arbitrator found in favour of the respondent. The respondent,
consequent upon the appellant refusing to pay the amount declared in
the award, approached the High Court in South Gauteng, seeking an
order making the award an order of court. The appellant opposed the
order sought and raised the issue that the respondent had not been
registered as a home builder in terms of the aforementioned Act and
that the award was incapable of being made an order of court. The
court dismissed the appellant’s contentions and granted the
order as prayed for by the respondent. Unfazed by the result, the
appellant appealed for leave from the Supreme Court of Appeal (SCA).


 


[50]     
Her appeal was upheld by the majority of the S.C.A. with one judge
Mr. Justice Willis dissenting. Ms. Bassingthwaite for the plaintiffs
implored this court to adopt the reasoning of the dissenting
judgment, as being consonant with the interests of justice that apply
to this case. It will be seen, from the facts recounted above that
the case is, in a sense, on all fours with the main question
confronting the court in the instant matter.


 


[51]     
Although this may appear to be a work of supererogation, I find it
useful to quote quite extensively from the S.C.A. judgment, as it
will appear that quite a lot the majority of the court held, appears
to coincide with some of the views I have expressed above. Mr.
Justice Ponnan, who wrote for the majority of the court made the
following major findings:


At
para [11]


           
The
prohibition in those sections is not directed at the validity of the
particular agreements but at the person who carries on the business
of a home builder without registration. They thus do no more than
disentitle a home builder from receiving any consideration. That
being so a home builder who claims consideration in conflict with
those sections might expose himself or herself to criminal sanction
(s21) and will be prevented from enforcing his or her claim.’


 


[52]     
At para [14], the court reasoned as follows, addressing the point of
the justice of the case raised by the plaintiffs:


 


           
And although
on the face of it, it may appear to work an injustice that a consumer
should garner the benefit of those labours without having to
compensate the home builder that is the outcome that has been decreed
by the legislature. It is one that is applicable to all home builders
who have failed to register as such, not just those who may prove to
be unscrupulous. It is thus wholly irrelevant that the work may have
been undertaken with the necessary skill or that, as is the case
here, the housing consumer happens to be a fairly sophisticated
individual from one of the more affluent suburbs of Johannesburg
rather than a historically disadvantaged resident from one of the our
poorer townships.’


 


[53]
     Then crucially at para 15, the court
expressed itself in the following language regarding the need for it
follow legislative solicitudes:


 


           
I venture to
suggest that it is the very antithesis of the rule of law for a court
simply disregard a clear legislative prohibition that neither party
has sought to constitutionally impugn. Here the legislature has
chosen, in its wisdom, not to vest the courts with a discretion as to
whether or not to allow claims by home builders for consideration in
circumstances where they have failed to register as such. All such
claims, without exception are hit by the prohibition. The language
employed by the legislature could not have been clearer. And where
the legislature, as here, has expressed itself in clear and
unambiguous terms, a court cannot appropriate for itself a power it
does not have under the guise of ameliorating any perceived harshness
that may result from the enforcement of that legislation. A court, no
matter how well intentioned, is therefore not free simply on a whim
to act in flagrant disregard of a statutory prohibition thereby
rendering the will of the legislature nugatory. That, in my view, our
Constitution does not countenance.’
(Emphasis
added).


I
fully embrace these remarks as being applicable in the instant case,
without exception. They, in a sense, coincide with my views expressed
earlier in this judgment.


 


[54]     
The dissenting judgment of the Willis JA, seems to have been
underpinned by the argument that the maxim nullum crime sine lege
calls for the contemporaneity of the mens rea and the
actus reus. It was his finding that there was no evidence
before court that the respondent, Cool Ideas had the requisite mens
rea
to conduct its business illegally. Though that may well be
true, the facts of the matter is that to sanction a payment of
consideration contrary to express legislative direction would pit the
courts against the legislature in matters where there is no absurdity
or fluidity in legislative nomenclature and draw an unnecessary
contestation on the domain and extent of legislative and judicial
turfs. I am, notwithstanding the injustice that appears, of the view
that legislative intent must in this case be given supremacy.


 


[55]     
It must necessarily be mentioned that the matter did not end up
there. It proceeded to the Constitutional Court of South Africa and
was reported as
Cool
Ideas v Hubbard
[18].
Even
at the Constitutional Court, the case proved as fractious and
divisive, in the legal sense. The Constitutional Court was not
unanimous either. The majority of the Court (Moseneke ACJ, Skweyiya
ADCJ, Khampepe J and Madlanga J. with Jafta J (concurred in by Zondo
J) writing a concurring judgment, although finding that the contract
was invalid) concurred in the judgment of Majiedt A.J. and dismissed
the appeal by Cool Ideas. The minority concurred in the judgment of
Froneman J, namely Cameron J, Dambuza J and Van Westerhuizen J.


 


[56]     
The majority of the Court in essence upheld the judgment of the
majority of the SCA. The minority judgment of Froneman J came to the
view that the majority judgment had the effect of depriving Cool
Ideas of property within the meaning of section 5 of the Constitution
of South Africa, for work fairly and properly done. This panel held
that it is preferable to favour an interpretation that protects and
enhances a fundamental right. In this connection, the court stated
the following at para [67]:


 


           
It is thus
reasonable to interpret the provisions of the Housing Protection Act
in a manner that is fair, does not deprive Cool Ideas of its property
and does not necessitate the enhancement of the power of courts to
interfere in private arbitration awards. Will this construction be
detrimental to Ms. Hubbard? It will not, because she has enjoyed all
the substantive protections under the Act.’


 


[57]     
In dealing with the equity considerations, the majority of the court
deal with that issue in the following terms at para [52] of the
judgment:


 


           
I am of the
view that equity considerations do not apply. But even if they do, as
my colleague Froneman J suggests, the law cannot countenance a
situation where, on a case-by-case basis, equity and fairness
considerations are invoked to circumvent and subvert the plain
meaning of a statutory provision which is rationally connected to the
legitimate purpose it seeks to achieve, as is the case here. To do so
would be to undermine one essential fundamentals of the rule of law,
namely the principle of legality. The following dictum by Kentridge
AJ in S v Zuma is apposite:


If
language used by the lawgiver is ignored in favour of a general
resort to ‘values’ the result is not interpretation but
divination”’.


 


[58]     
In the premises, I am of the view that close as the views are on this
matter, and considering how the dissentions of the past have over
time become the law, it would still be unconscionable for me to
sanction the payment of money to the plaintiffs for work done
contrary to the express prohibition of statute and under
circumstances where this serves to controvert the letter and spirit
of a legislative enactment. I choose, in the circumstances, to lean
in favour of the adage that in a multitude of counsellors, there is
safety.


 


[59]     
Coming close home, the Supreme Court in
Shikale
v Universal Distributors of Nevada South Africa (Pty) Ltd
[19],
quoted
with approval, the words that fell from the lips of Tindall J.A. in
Moser
v Milton
[20],
where the learned Judge said:


           
In our system
of law, as Kotze J.A. pointed out in Weinerlein’s case
(at p.295), equity does not prevail as distinct from and opposed to
the law; and equitable considerations do not entitle the Court to
enforce a contract which a statutory enactment declares to be of no
force or effect, . . .’


 


I
accordingly heed this admonition, coming as it does, from the highest
court in the land.


 


 


[60]     
The plaintiffs are unfortunately on the wrong side of the law and the
court is not, in my view, possessed of the wherewithal to ameliorate
the harshness of the result, if that will amount to subverting
legislative solicitudes. The plaintiffs have not alleged that they
have been exempted from compliance with the provisions of the law.
For that reason, I am of the considered view that the exception is
well taken.


           


[61]     
It will be recalled that there were exceptions taken to both the main
and alternative claims and just before the exception on the main
claim was to be heard, a proposed amendment on the alternative claim
was filed on behalf of the plaintiffs. In order to avoid a work of
supererogation, I called the parties in and requested them to
indicate whether they intended arguing the exception to the
alternative claim. I found it prudent to do this in order to avoid
writing two separate rulings on substantially similar issues
occurring in one action.


 


[62]     
The parties indicated they needed time to closely consider whether it
would be necessary to argue the exception to the alternative claim.
They eventually indicated that it would be unnecessary to do so as
the issues at play are more or less similar and are in any event
inextricably linked. It is for the foregoing reason that this ruling
comes much later than would have been the case, considering also that
the issues up for determination were very complex and required close
and careful examination as evident from the foregoing exposition.


 


[63]     
In the result, I issue the following order:


 


[63.1] 
The exception to the plaintiffs’ main claim is upheld with
costs. Such costs are ordered to include the costs of one instructed
and instructing counsel.


[63.2] 
The plaintiffs are afforded an opportunity to amend their particulars
of claim within fifteen (15) days from the date of this order.


[63.3] 
The matter is postponed to 21 October 2015 at 15:15 for a status
hearing.





TS
Masuku,


Acting
Judge


APPEARANCES


PLAINTIFFS:
N Bassingthwaighte


Instructed
by LorentzAngula Inc.


DEFENDANT:
R Totemeyer SC (with him JPR Jones)


Instructed
by Ellis Shilengudwa Inc.



[1]
Act 13 of 1979.




[2]
(I 3396/2014) NAHCMD 54 (12 March 2015).




[3]
(I 1956/2014) [2015] NAHCMD 117 (26 May 2015).




[4]
Ibid
at
paragraphs 10 and 11.




[5]
( I 2359/2014) [2015] NAHCMD 152 (26 June 2015).




[6]
2013 (1) (NR) 271.




[7]
2008 (1) R 212-213.




[8][8]
2010 (2) NR 487 at 515 D-E.




[9]
Civ. Case 2419 of 2011 (High Court of Swaziland)




[10]
Civil
Procedure in the Supreme Court,
Butterworths,
1998 at p 285, para J26.




[11]
The
Law of Contract in South Africa,

6
th
Ed at 371.




[12]
2003 (5) SA 218 (W) at 220.




[13]
The
Law of Contract in South Africa
(supra)
at 371




[14]
1954 (3) SA 719 (A) at 727 A.




[15]
2014 (1) SA 341.




[16]
(580/2012) [2013] ZASCA 71 (28 May 2013).




[17]
Act 95 of 1088.




[18]
2014 (4) SA 474 (CC).




[19]
(SA 10-2013) [2015] NASC (17 April 2015) at para [46]




[20]
1945 AD 517 at 527 to 528