METRO WESTERN CAPE (PTY) LIMITED	Appellant
and
DENNIS ROBERT ROSS	Respondent

 THE SUPREME COURT OF SOUTH AFRICA
(APPELLATE DIVISION)
In the matter between:
METRO WESTERN CAPE (PTY) LIMITED	Appellant
and
DENNIS ROBERT ROSS	Respondent
Coram: Rabie, CJ , Jansen, Trengove, Viljoen et
Boshoff, JJ A
Heard: 20 February 1986
 Delivered: 26 March 1986
JUDGMENT
BOSHOFF, J A :
This is an appeal against the judgment of
KRIEGLER	/2

2
KRIEGLER J in the Witwatersrand Local Division dismissing
a claim for the purchase price of goods sold and delivered
on the ground that the transactions involved were con-
ducted in the course of illegal trading.
 Towards the end of 1980 the respondent (defen
dant ) obtained a concession from Consolidated Diamond
Mines Limited to operate a take-away and restaurant
business in Oranjemund in South West Africa. He arranged
with Harry Smith, the manager of a wholesale business
conducted in Kowie Cloete Street in Springbok, Namaqua-
land, under the style of Gelb Brothers to sell to him
such supplies as he required from time to time on thirty
days credit. He commenced trading under the style
of	/3

-3-
of the Desert Inn towards the beginning of 1980 and
purchased cigarettes, cold drinks, sweets, groceries and
other foodstuffs from Gelb Brothers up to May 1981
when he ceased business. He failed to pay for the
goods he purchased during the period March 1981 to May
1981 and it is common cause that he owes R25 785,44 in
respect thereof.
The appellant company (plaintiff) claiming to
be trading as Gelb Brothers instituted action against the
respondent for payment of the purchase price of the goods
so purchased by and delivered to the respondent. The
respondent in his plea in effect denied that he purchased
the goods from the appellant and that he owed the
appellant	/4

-4-
appellant any money.
On the date when the trial was to commence the
court allowed an application for an amendment of the
declaration so as to allege that a company known as
Metro Cash and Carry (Proprietary) Limited (MCC) and not
the appellant sold and delivered the goods to the respondent and that MCC had ceded its claim in respect of the total purchase price of the goods to the appellant. in consequence of this amendment the respondent was allowed to amend his plea to raise the defence that the claim of the appellant was unenforceable because MCC when it sold and delivered the goods to the respondent was trading illegally. The defence was based on the
following	/5

-5-
following allegations:-
 At all material times hereto, ie during the period March 1981 to May 1981, Metro Cash and Carry carried on business by selling or offering or exposing for sale goods, wares, foodstuffs, produce or livestock, such goods including aerated or mineral waters, cordials, syrups or other beverages of a like nature, patent and proprietary medicines and inflammable material, from or on its fixed business premises at Kowie Cloete Street, Springbok (the premises).
 Metro Cash and Carry accordingly carried on at the premises the business of a general dealer as defined in Item 3 of the first schedule to the Registration and Licensing of Businesses Ordinance Number 15 of 1953 (Cape) as amended (the ordinance).
 In terms of Section 3 of the ordinance
Metro	/6

-6-
Metro Cash and Carry was prohibited from carrying on such business unless it was in possession of a certificate of registration and a licence issued to it in terms of the ordinance.
d Metro Cash and Carry was not in possession of such a certificate of registration or licence in respect of the premises at the said material times.
e In terms of Section 21 of the ordinance
any person who contravenes or fails to comply with any provision of the ordinance or any condition or restriction imposed thereunder is guilty of a criminal offence.
f The goods sold by Metro Cash and Carry to the defendant in respect of which the plaintiff proceeds against the defendant comprised goods referred to in (a) above which Metro Cash and Carry sold in the course of its
business	/7

— 7 —
business as general dealer from or on the premises during the said material times.
g In the premises Metro Cash and Carry
committed a criminal offence in carrying on business as a general dealer from the premises and each agreement of sale between Metro Cash and Carry and the defendant in respect of which the plaintiff claims from the defendant constituted a criminal offence.
h Such agreements of sale are accordingly void for illegality and unenforceable."
In subsequent correspondence between the parties
the appellant admitted that,(i) at all material times,
that is during the years 1980 to 1984,MCC neither applied
for nor was granted any licences either in terms of
the ordinance or the Licence Ordinance of 1981 authorising
or	/8

8
or entitling MCC to carry on business as a general
dealer, dealer in patent medicines or dealer in inflam-
mable substances under the style of Gelb Brothers at the
premises; (ii) MCC conducted the business referred to
in (i) above during the stated period; (iii) MCC traded
in fresh and preserved foodstuffs, patent medicines and
inflammable substances; and (iv) the appellant applied
for and was granted such a licence in each of the years
in question.
The circumstances in which MCC came to conduct the aforemen-
tioned business for its own account under the trading licence of
the appellant are the following:
The Gelb brothers had originally conducted the wholesale
business at the premises. They made the business over to a company
known...........19

—9—
known as Gelb Brothers (Proprietary) Limited (GB) of
which Gelb Management and Holdings (Proprietary) Limited
was the holding company. In 1978 or 1979 Metro Upti
(Proprietary) Limited a subsidiary of MCC acquired the
shares in GB. Thereafter pursuant to a resolution passed
on 15 May 1979 the appellant acquired all the assets and
liabilities of GB with effect from 1 March 1979. The
appellant applied for and was granted a certificate of
registration under the ordinance to carry on the business
of a general dealer, dealer in patent medicines, and dealer
in inflammable substances under the name and style of
Gelb Brothers at the premises and took out the necessary
trading licence to conduct such business.
Pursuant to a resolution of 28 February 1981
MCC ......./10

-10-
MCC acquired the business of the appellant as from 23
February 1980. The assets and liabilities of the appellant
were made over to MCC and the appellant became a dormant
company. MCC thus became the proprietor of the business
in question and from then on conducted it for its own account. MCC
took no steps to apply for a certificate of registration
under the ordinance and was consequently also not in a
position to take out a trading licence in respect of the
business in its own name.
According to Smith who at all material times
was the manager of the business in Springbok, the 1ocal
authority annually sent the necessary application forms
for the renewal of the licence to him in Springbok and
he	/ 11

-11-
he forwarded them to the head office in Johannesburg
The completed forms were then sent from Johannesburq
direct " to the local authority. The issued licences
were then sent by the local authority to Smith in Spring-
bok . It is common cause that MCC had since 1980
annually renewed the trading licence of the business in
the name of the appellant.
The court a quo upheld the defence raised in
the amended plea and dismissed the appellant's action.
No order for costs was made because the court disapproved
of the manner in which the respondent behaved
in opposing the action.
The	/12

-12-
The appellant is now challenging the correctness
of the judgment of the court a quo substantially on the
ground that the court erred in holding that contracts
entered into in the course of his business by a trader
who carried on such business without a certificate
of registration and a licence issued to him in terms
of the ordinance, are void.
The plea sustained by the court a quo was
based on statutory illegality. Section 3 of the
ordinance provides that "no person shall carry on a
business unless he is in possession of a certificate
of registration and a licence issued to him in terms
of this ordinance." Business in this context means
a	/13

-13-
a trade or occupation specified in the first schedule
to the ordinance (sect 1). The trade relevant to the
facts of this case is that specified as general dealer
under item 3 in the first schedule. The item provides
for a registration fee of R10 and a licence fee ranging
from R30 to Rl 000 depending on the average value of
the stock on hand. In terms of the item a general
dealer's licence is required by a person who carries
on business by selling bartering or exchanging, or offer-
ing or exposing for sale, barter or exchange goods,
wares, foodstuffs, produce or livestock from or on
any fixed business premises, if any other licence is
not required in terms of this ordinance for carrying
on	/14

-14-
on such business, or who sells or supplies by wholesale
any medicines, drugs or poisons.
Section 21(1)(a ) of the ordinance provides
that any person who contravenes or fails to comply
with any provision of the ordinance or any condition
or restriction imposed thereunder shall be guilty of
an offence and liable on concivtion to a fine not
exceeding R200 or to imprisonment for a period not
exceeding 6 months or to both such fine and imprisonment
It is a principle of our law that a thing
done contrary to the direct prohibition of the law is
generally void and of no effect; the mere prohibition
operates	/15

-15-
operates to nullify the act; Schierhout v Minister of
Justice 1926 AD 99 at p 109. If therefore on a true
construction of section 3 the contracts in question are
rendered illegal, it can make no real difference in
point of law what the other objects of the ordinance
are. They are then void ab initio and a complete
nullity under which neither party can acquire rights
whether there is an intention to break the law or not.
The first question to consider is whether section
3 on its proper construction prohibited the making or
performance of the contracts in question. Section 3 in
effect provides that no person shall carry on business
by selling, bartering or exchanging, or offering or
exposing	/16

-16-
exposing for sale, barter or exchange the kind of goods
specified in item 3 from or on any fixed business
premises unless he is in possession of a certificate
of registration and a licence issued to him in terms of
the ordinance. A contravention of section 3 would
thus inevitably always involve the making of a contract
or conduct intended to induce a contract in respect
of the specified goods from or on any fixed business
premises. Such contract and conduct would be evidence
of the carrying on of the business which is expressly
prohibited. The language of the section indicates
that it is directed, not at the making or performance
of particular contracts, but at the carrying on of a
general	/17

-17-
general dealer's business without a certificate of
registration and a licence.
Since the section prohibits a general dealer
from carrying on business by entering into particular
contracts on or from fixed premises without the required
certificate of registration and licence, the contracts
themselves are prohibited by implication.
As a general rule a contract impliedly prohi-
bited by statute is void and unenforceable but this rule
is not inflexible or inexorable. Although a contract
is in violation of a statute it will not be declared
void unless such was the intention of the legislature
and	/18

-18-
and this is nonetheless the rule in the case of a contract
in violation of a statute which imposes a criminal sanction
The legislative intent not to render void a contract
may be inferred from general rules of interpretation
Each case must be dealt with in the light of its own
language, scope and object and the consequences in rela-
tion to justice and convenience of adopting one view
rather than the other. In the case of Standard Bank
v Estate van Rhyn 1925 AD 266 Solomon JA at page 274 stated
the position as follows:-
"what we have to get at is the intention of the Legislature, and, if we are satisfied in any case that the Legislature did not intend to render the act invalid, we should
not	/19

-19
not be justified in holding that it was. As Voet (1.3.16) puts it -'but that which is done contrary to law is not ipso jure null and void, where the law is content with a penalty laid down against those who contravene it.' Then after giving some instances in illustration of this principle, he proceeds: 'The reason of all this I take to be that in these and the like cases greater inconveniences and impropriety would result from the rescission of what was done, than would follow the act itself done contrary to the law.'"
See also Swart v Smuts 1971(1) SA 819(A) at pages
829C to 830C and Dhlamini en 'n ander v Protea Assurance
Co Ltd 1974(4) SA 906(A) at pages 913H to 914C.
The intention of the legislature must be
ascertained from the statute as a whole and no single
consideration	/20

-20-
consideration, however important it may seem to be is
necessarily conclusive. In the case of McLough1in NO v
Turner 1921 AD 537 Innes CJ at page 544 in construing a
prohibition in a revenue statute remarked as follows:-
"This is a revenue statute and it is a wel1 recognised rule of construction that the mere imposition of a penalty for the purpose of protecting the revenue does not invalidate the relative transaction ... But, of course, the Legislature may prohibit or invalidate the transaction even where the sole object is to protect the revenue. And if that intention is clear effect must be given to it. But the literal meaning of the language used is not always decisive on the point."
It is now necessary to consider the whole
context and purpose of the ordinance in the light of
these......./21

-21-these principles.
1
The purpose of the ordinance is to provide a
system of control for the 54 classes of business specified in the first schedule to the ordinance by means of certificates of registration and licences issued by the local authority.
The control is exercised in respect of both
the suitability of the person to be in charge of the
business and the suitability of the premises from or
on which the business is to be conducted or at which
the goods traded in are to be stored, depending on the
nature of the particular business.
A	/22

22-
A person desiring to obtain a certificate of
registration must apply to the local authority for the
registration of such business and the application must
contain information of the plan of the premises where
the business is to be carried on if the premises are
stil1 to be erected or are to be reconstructed and such
other information as the local authority may desire in
order to decide upon the suitability of the applicant
or the premises for the carrying on of the proposed
business {sect 4(1)).
Upon receipt of the application the local authority
must obtain a report on the suitability from a public
health point of view of the premises and enquire from
the	/23

-23-
the police whether there is anything known against the
owner of the business or in case of a partnership or
company, each partner or director, as the case may be,
and also of the manager of the business (sect 5).
A local authority must refuse the application
if in its opinion the applicant or the person who will
be in actual control of the business is not a fit and
proper person to carry on the proposed business, whether
by reason of his character, his past conduct, the un-
cleanliness of his habits or methods, or for any other
reason (sect 6(3))b)) or if the premises are not suitable
for the purposes of the proposed business, whether as
regards the size, character, construction, lighting,
ventilation	/24

-24-
ventilation, accommodation or in any other respect
(sect 6(3)(c)). There are a number of other stated
grounds upon which an application must be refused,
grounds clearly intended for the protection of the
public and more specifically members of the public
who wil1 do business with the owner or the person in
actual control of such a business.
When the application is granted a certificate
of registration is issued to the applicant containing
the full name and race of the owner of the business
or in the case of a partnership or company the full name
and race of each partner or director, as the case may
be, and also the full name and race of the manager, if
any, of the business (sect 7(1)). A local authority
which	/25

-25
which has issued a certificate of registration to any
person must on application by such person and payment to
it of the licence fee prescribed in the first schedule
issue to such person a licence authorising him to carry
on the business in respect of which such certificate was
granted (sect 7A(1)). The licence lapses on the 31 st day of
December of the year for which it was issued and must be
renewed during the month of January next succeeding the
date on which the licence lapsed. A holder of a licence
who fails to renew the licence is in addition to the
licence fee, liable for payment of a penalty calculated
at the rate of such licence fee for every month or part
of a month during which such fee remains unpaid.
The	/26

26
The payment of the penalty does not absolve him from
criminal liability arising from a failure to renew
his licence nor does the fact that he has been criminally
punished in connection with such a failure absolve him from
liability for payment of the penalty (sect 7A{4J).
A certificate of registration lapses upon
the transfer of the business to some other person (sect 12).
If a new director is appointed for a company before the
thirtieth day of June in any year the certificate of
registration issued in respect of the business carried
on by such company lapses on the thirty first day of
December of the year in which such new director was appointed
or if such new director was appointed after the thirtieth
day	/27

-27-
day of June in any year such certificate of registration
lapses on the thirty-first day of December of the following
year (sect 13(1)). A certificate of registration
issued to a partnership lapses upon admission of a new
member to such partnership. If a member of a partnership
dies or retires the certificate of registration lapses
provided that the remaining partners are entitled, upon
payment within one month of such change of a fee equal
to one quarter of the fee ordinarily payable on application
for a certificate of registration, to obtain transfer of
the certificate of registration (sect 14).
In the event of the death of a person to whom a certi-
ficate of registration was issued such certificate may
be transferred to the wife or husband of such person
or	/28

-28-
or to the executor of his estate, subject to the payment
within three months of the death of a fee equal to one
quarter of the fee ordinarily payable on application for
a certificate of registration. In the event of the
insolvency, assignment or other form of legal disability
of a person to whom a certificate of registration was
issued or in the event of the winding up or placing
under judicial management of a company to whom a cer-
tificate of registration was issued, such certificate may
be transferred to the trustee, assignee, curator bonis,
liquidator or judicial manager as the case may be
subject to the payment within 3 months of such occurrence
of a fee equal to one quarter of the fee ordinarily
payable	/29

-29
payable on application for a certificate of registration
{sect 15).
Any change in a business including the parti
culars specified in the certificate of registration
issued in respect of that business, and the termination
of any business must be reported to the local authority
by the person to whom the certificate was issued. Upon
receipt of such a report the local authority must
amend its business register which it is enjoined to
keep in terms of section 2 of the ordinance accordingly
(sect 17).
As is evident from these provisions the ordinance
is	/30

-30-
is almost exclusively concerned with the running of the businesses
specified in the first schedule by suitable persons on
suitable premises in the public interest. The real
control is exercised by a system of registration which
becomes necessary when there is some change in the owner-
ship of the business. The annual licence is the authority
to carry on business on the premises in question and is
only issued to a person in possession of a certificate
of registration. The licence and the certificate there-
fore serve different purposes.
The prohibition in section 3 is directed
not at the making or performance of particular contracts
but at the person who carries on business without a
certificate	/31

31-
certificate of registration and a licence and on a proper
interpretation of the ordinance this is necessary to
make the control of the local authority over the specified
businesses effective in the sense envisaged in the
ordinance. The ordinance does not purport to regulate
the business relationship between the trader and his
customer. Ordinarily there is nothing illegal in a
contract of sale, barter or exchange in respect of the
goods specified in item 3 and it is the person who carries
on business by entering into these contracts from or on
fixed business premises without a certificate of registra-
tion and a licence who breaks the law and commits an
offence. Unless the customer knows that he is contracting
with	/32

-32-
with a person who is committing the offence he is in
all respects an innocent party to the contract. One
of the objects of the ordinance is to protect members of
the public, particularly members of the public who do
business with a trader. The prohibition in section 3 and
the penalties provided in section 21 are intended to make
that protection effective.
To construe section 3 read with section 21{1)(a) as af-
fecting contractual rights and as rendering the specific contracts
concluded by the trader with his customers void and unenforceable
would cause grave inconvenience and injustice to innocent members of
the public. It would inevitably follow that innocent customers
will be without their contractual remedies and will for
example	/33

-33-
example have no claim for damages against the guilty
trader in respect of defective goods sold and delivered
or goods not conforming to a guarantee given in respect
thereof.
As is apparent from the provisions of the ordi-
nance a certificate of registration and a licence can
lapse for different reasons, reasons which are not
necessarily clear or obvious to customers. It is
inconceivable that the legislature could have intended
that the validity of the contracts of customers should
be dependent upon such a variety of contingencies.
The question that remains is whether the legis-
lature 	/34

-34-
lature in addition to the penalties provided in section
21(1} (a) intended to render the trader's contracts 
void and unenforceable in order to deter him from trading
in contravention of the provisions of the ordinance.
The contracts which a trader concludes in the course
of his business generally do not involve moral culpability.
The section provides penalties for the illegal trading
but it must be remembered that when a person is charged
with a criminal offence the court always has a discretion
as regards the sentence and a particular accused may
be and frequently is simply given a caution and discharge.
But in the law of contract these factors have little
weight. Either the law has been broken or it has not
In	/35

-35-
In the former event the contract may be treated as illegal
and that is the end of the case. The use of contract
law to supplement the deficiencies of the criminal law
has serious disadvantages which outweigh any utility
it has in this respect. These disadvantages are
principally that contract law lacks the flexibility
of criminal law in regard to punishment. A trader
may therefore by sheer inadvertence or negligence fail
to renew his licence and find that he has traded illegally
The sentence on a conviction could in the circumstances
be trivial but if he had given credit for the purchase
price of goods sold during the period he traded without
a licence the consequences could be an unmerited windfall
for	/36

-36-
for the purchaser and a considerable hardship for the
trader utterly incommensurate with the gravity of the
contravention committed by him if the contracts were
to be regarded as void and unenforceable.
In the case of Pottie v Kotze 1954(3) SA
719(A) Fagan JA considered the mischief which the legis
lature wished to prevent by a prohibition in a certain
ordinance and at page 726 -727 said:
"The usual reason for holding a prohibited act to be invalid is not the inference of an intention on the part of the Legislature to impose a deterrent penalty for which it has not expressly provided, but the fact that recognition of the act by the Court wil1 bring about, or give legal sanction
to	/37

-37-
to the very situation which the Legislature wishes to prevent."
Referring to the rendering invalid of contracts
as a deterrent penalty the learned judge also remarked
as follows at 727 E-G :
"A further compulsory penalty of invalidity would - as the cases I have referred to show - have capricious effects the severity of which might be out of all proportion to that of the prescribed penalties, it would bring about inequitable results as between the parties concerned and it would upset transactions which, if the safeguard of an examination for roadworthiness can be enforced (as it can be under the sections I have mentioned), the Legislature could have had no reason to view with disfavour. To say that we are compelled to imply such consequences
in. . .. . ./38

-38-
in the provisions of sec. 13 bis seems to me to make us the slaves of maxims of interpretation which should serve us as guides and not be allowed to tyrannise over us as masters."
The ordinance provides for a penalty if a
licence is not renewed after it has lapsed. It also
provides for penalties to ensure that the object of the
ordinance is not defeated or frustrated, the main object
being to control the suitability of the persons carrying
on business in the trades and occupations specified in
the first schedule and the suitability of the premises
from or on which they so carry on business. The control
is intended to protect the public and members of the
public who engage in business with such persons. The
prohibition	/39

- 39-
prohibition is not against particular contracts because
there are none which may be described as distinctive
of a particular trade or occupation but against the
carrying on of business in a particular trade or occu-
pation . The object of the ordinance is thus not ad-
vanced by treating all contracts entered into in the
course of a. business of such unregistered or unlicensed
trades and occupations as void. Moreover treating
them as void will, as has been indicated above, result
in greater inconvenience and impropriety than would
follow the illegal carrying on of business.
I am consequently of the view that on a proper
construction	/40

-40-
construction of the ordinance the purpose there
of is sufficiently served by the penalties prescribed
for illegal trading. The ordinance was not intended
to render contracts entered into between a trader and
his customers void. Indeed the avoidance of the con-
tracts concluded by a trader with his customer would
cause grave inconvenience and injustice to innocent
members of the public without furthering the object
of the ordinance.
The court a quo in upholding the respondent's
plea and dismissing the appellant's action purported
to	/41

-41-
to rely on the case of Delport and another v Viljoen and
others 1953(2) SA 51KT) (Delport's case) on the basis
that it was expressly approved in the case of Dhlamini
en ander v Protea Assurance Co Ltd 1974(4) SA 906(A)
(Dhlamini's case) and decided that a person who trades
without a trading licence acts illegally and that such
illegal conduct is not only visited by criminal sanctions
but that acts performed in the course of such business
are legally void. The court a quo consequently decided
that the transactions which were concluded in the course
of the illegal trading of MCC were legally void and that
the appellant's claim for the purchase price of the goods
was unenforceable.
Counsel	/42

-42-
Counsel for the respondent endeavoured to
support the judgment of the court a quo substantially
on reasoning which he sought to derive from the judgments
in the lastmentioned cases.
Delport's case is distinguishable and does
not deal with the validity of contracts concluded during
the course of illegal trading with innocent customers
and in effect merely decides that the carrying on of
trade is prohibited until a licence has been obtained
This decision was arrived at in the following circum-
stances . On the 19th February 1952 the Stilfontein
Gold Mining Company was granted a mining lease over
a certain piece of ground. In terms of the provisions
of	/43

-43-
of the Mines Trading Amendment Act no 20 of 1941, if
the owner of ground held under mining title has requested
the Mining Commissioner in writing to set apart in his
favour a trading site on that ground the Mining Commissioner
must comply with that request provided that the business
of a general dealer has been carried on on the proposed
site for a continuous period of three years or longer
immediately preceding the date on which the mining
title was acquired, that is to say 19 February 1952
in that case. The owner of the ground made such a
request to the Mining Commissioner on the strength of
the fact that one Bezuidenhout had been carrying on a
general dealer's business on the proposed site from
the	/44

-44-
the 24th January 1949, that is to say more than three
years preceding the lastmentioned date. In actual fact
Bezuidenhout had applied to the licensing authorities
in Klerksdorp under the Licences Consolidation Ordinance,
3 of 1932, for a certificate to enable him to take out
a trading licence in respect of this particular site
and the authority was granted subject to two conditions.
The first was that the building on the proposed site be pass
ed as suitable and the second was that the health of
the young man who was to run the business was to be certi-
fied as satisfactory. The two conditions were complied
with by the 24th February 1949 and trading on the site
de facto commenced on that date. The trading 1icence
was	/45

-45-
was however not obtained until the 4th March 1949 which
meant that trading on the site was without a licence
until the 4th March 1949. If trading only commenced
on the 4th March 1949 then trading was not carried on
on the site for a continuous period of three years and
the Mining Commissioner need not have complied with the re-
quest of the owner of the ground. The Court was only
concerned with the question whether for purposes of the
aforementioned Act trading on the site commenced on
the 24th February 1949 or the 4th March 1949. The
Court, after considering the provisions of the Licences
Consolidation Act, 32 of 1925, came to the conclusion
that the provisions of the Act prohibited the carrying
on	/46

-46-
on of a trade until a licence had been obtained and accord-
dingly held that lawful trade on the site commenced
only from the 4th March 1949 and since that was less
than the required three year period the Mining Commis-
sioner did not have to comply with the request of the
owner of the land. The court in order to arrive at
this conclusion referred to a passage in Craies on
Statute Law at page 522 and held that the relevant Act
was not a revenue statute and that it was an Act inter
alia to regulate trade and the issue of trade licences
was a jealously-guarded affair.
In the Dhlamini case the court was also con-
cerned with illegal trading but the case is distinguishable
in	/47

-47-
in that the court was not called upon to consider the
validity of contracts concluded in the course of such
trading with innocent customers. The question which the
court had to consider was whether a person injured in a
motor collision as a result of negligence was entitled to
claim as delictual damages loss of earnings and future
loss of earnings based on income derived and to be derived
from her illegal trading as a hawker by selling fruit
without a hawker's licence. Counsel for the respondent
who resisted the claim for the damages relied upon the
Delport case and the court merely referred to it and
the reasoning of that court as being a case dealing
with the effect of trading which was illegal under the
provisions	/48

-48-
provisions of the same legislation which was then
before the court. The court (at pages 913F to 915C) con-
sidered the legal principles that applied to such a
claim and after referring to authorities concluded
(at page 915B-C):-
"Skade wat bereken word volgens die maatstaf van inkomste verkry uit 'n aktiwiteit wat teen die goeie sedes of wat misdadig is, sal dus nie ver-goed word nie omdat dit teen die publieke beleid sou wees om dit wel te vergoed. Hierdie reel sou ook van toepassing wees op inkomste van 'n kleurlose statutêr verbode aktiwiteit (kleurloos in die sin dat dit nie as misdadig of teen die goeie sedes beskryf kan word nie) wanneer die inkomste van so 'n aktiwitiet nie afdwingbaar is nie weens ongeldigheid. Vergoed-ing van gederfde inkomste van so 'n
aard	/49

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aard sou ook teen die publieke beleid wees. ...
Die verkoop van vrugte op sigself is volkome wettig. Indien die verkoop van vrugte onderhewig gestel word aan die besit van 'n lisensie wat op sy beurt uitgereik word met inagneming van oorwegings van openbare gesondheid, of ander oorwegings van openbare belang, sou kon bevind word dat enige verkoop van vrugte sonder lisensie ongeldig is. Indien dit die geval sou wees, sou eerste appellante (eiseres) haar eis gebaseer het op nie-regmatige inkomste, en sou haar inkomste van dieselfde aard moet beskou word as die inkomste verkry deur, bv. 'n dief, wie se inkomste as nie-regmatige inkomste beskou moet word. Dit word namens appellante toegegee. Die vraag is dus of oorwegings van openbare belang 'n rol speel by die ver-leen van 'n marskramerslisensie . "
The court then proceeded to consider the pro-
visions 	/50

-50-
visions of the legislation in terms of which a hawker's
licence was issued and concluded (page 917D-E):-
"In die lig van hierdie wetgewing moet die uitreiking van 'n lisensie aan 'n marskramer m. i . beskou word as 'n handeling deur die plaaslike in-stansie waarby oorwegings van openbare belang en veral van volksgesondheid 'n belangrike rol speel . ... Na my mening het die Wetgewer beoog dat daar geen handeldryf mag plaas-vind dear 'n marskramer sonder lisensie nie. Om dit wel te doen is nie alleen strafbaar nie, maar, weens belangrike oorwegings van publieke beleid, behoort die gevolge van so 'n handeldryf ook nie regsgeldig te wees nie.
Na my mening was die inkomste van die eerste appellante dus nie-regmatige inkomste."
The court in this case did not intend nor purport to
decide	 . . /51

-51-
decide on the validity of contracts concluded with
innocent customers in the course of such illegal trading
Different considerations would have applied and it would
have been necessary to construe the legislation in order
to determine whether the legislature intended to render
such contracts void and unenforceable. That was not
necessary in the circumstances of the case. The fact
that the court did not recognise income derived from
illegal trading as affording a proper basis for the
award of damages mainly on grounds of public policy.
also appears from the case of Santam Insurance Ltd v
Ferguson 1985(4) SA 843(A) in which the Dhlamini case
was followed. At page 850B-D Joubert JA remarked
as	/52

as follows:-

-52-
"Na my mening is dit duidelik in die lig van sy aangehaalde bepalings dat die ordonnansie nie suiwer fiskale wetgewing is nie. Die verbod om die besigheid van duikklopwerk binne die regsgebied van 'n plaaslike owerheid sonder lisensie te dryf, is ook nie 'n kleurlose statutêr verbode aktiwiteit nie aangesien oortreding van die verbod strafbaar as 'n misdryf is, soos hierbo vermeld. Dit is verder duidelik dat baie belangrike oorwegings van publieke belang met betrekking tot gesondheid, veiligheid, brandgevaar en die woongeriewe van die omgewing 'n belangrike rol speel by die uit-reiking van 'n lisensie aan 'n duikklop-per. Dit volg dan dat waar die besigheid van duikklopwerk sonder lisensie plaasvind die gevolge van so 'n besigheid nie regsgeldig is nie
en	/53

-53-
en dat die inkomste wat daardeur
verkry word nie-regmatige inkomste is volgens die beslissing van hierdie Hof in Dhlamini en Ander v Protea Assurance Co Ltd 1974(4) SA 906 (A)..."
 Delport case and the Dhlamini case were
both concerned with a contravention of the law by a par
ticular person and in both of them public policy was
the principal consideration. Having regard to the
intention of the legislature as it appears from what
has been said above, public policy does not demand that
transactions concluded by unlicensed traders should be
visited with nullity. The two cases are accordingly
not applicable to the facts of the case
under	/54

-54-
under consideration and the court a quo erred in relying
on them in dismissing the appellant's claim for the
purchase price of the goods sold and delivered to the
respondent in the course of the trading without the
certificate of registration and the licence.
The provisions of the ordinance did not render
the contracts concluded by MCC with the respondent in
the course of its illegal trading void. It was common
cause that MCC sold and delivered to the respondent
goods to the value of R25 785,44 for which he has not
paid.
Because of the comments which the court a quo
in	/55

-55-
in its judgment made about the respondent, counsel for
the appellant asks that the costs in the court a quo
be awarded on the attorney and client scale. The
comments related mainly to the defence raised in his plea
and in the affidavit with which he opposed an application
for summary judgment. The defence in effect was that
he did not purchase anything from the appellant and that
he did not owe it anything. This turned out to be
the position when the appellant subsequently amended
its declaration to allege that MCC sold and delivered
the goods to the respondent and that MCC ceded its claim
for the purchase price thereof to the appellant. Counsel
for the appellant pressed this request but faintly and
I	/56

-56-
I do not consider this an appropriate case for such
an award.
In the result the appeal succeeds with costs
and the judgment of the court a quo is altered to read:-
Judgment for the plaintiff in the amount of R25 785,44 with interest thereon at the rate of 11 per cent per annum from the 19th November 1981 to date of payment and costs of suit.
JUDGE OF APPEAL

RABIE CJ) JANSEN JA) TRENGOVE JA) VILJOEN JA)

concur