Par Delictum Rule PDF

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Par Delictum Rule

1. Introduction 1.1.1 I have read the discussion around the employment of illegal foreigners in the prescribed book and wish to express my views for which I will appreciate a response from fellow students. 1.1.2 The purpose of this discussion is to explore and interrogate the legal consequences of parties to an illegal employment contract. It is trite that the employment contracts are regulated by the common law and relevant legislations. Needless to mention that the employment relationship commences once an agreement or an employment contract between the parties has been concluded. Furthermore, the general principles of the law of contract are applicable. The requirements for the conclusion of a contract are that, there must be a meeting of minds, the parties must have the capacity to enter into a contract, and the contract must be lawful [my emphasis] and possible to perform. 1.1.3 In terms of legislation, the relationship between an employer and employee is primarily regulated by inter alia, the Labour Relations Act 66 of 1995 (as amended “hereinafter the LRA”), the Basic Conditions of Employment Act 75 of 1997 (as amended” hereinafter BCEA”).International laws and International Labour Organization’s conventions play a significant role in the interpretation of South African labour laws, so is the Constitution. In exploring the discussion on the subject at hand, I have taken the liberty to cite two matters which somewhat dealt with the issue in discussion. 1.1.4 In the Discovery Health Limited v Commission for Commission Mediation and Arbitration & others (2008) 29 ILJ 1480 (LC) the court was called upon to decide whether an employee with a valid contract but without a work permit could claim unfair dismissal. It would appear that the court had considered Section 38 of the Immigration Act of 2002 (hereinafter “the Act’) which prohibits the employment of illegal foreigners. It would further appear that it considered Section 49 thereof. The latter section makes it a criminal offence for an employer to employ an illegal foreigner. 1.1.5 However, the court somehow came to the conclusion that an employer cannot use the Immigration Act(supra) to escape its obligation in terms of the employment contract. In Dunwell Properties CC v Sibande & others [2012] 2 BLLR 131 (LAC), the court held that an illegal foreigner may enforce rights flowing from an illegal contract. 1.1.6 It is my respectful view that if the court were to apply the common law condictio ob turpem vel iniustam causam the results would have been different . The result thereof would have been that no party has automatic rights accruing from an illegal contract. This condictio is normally applied to reclaim performance (money or property) that has been transferred to another in terms of an illegal contract. Performance in this regard includes doing work for another. It is worth mentioning that an illegal contract may be illegal in terms of the common law or a statute which expressly prohibits a specific

conduct. In this instance Section 38 of the Act expressly prohibits the employment of an illegal foreigner.

1.1.6 An employee to an illegal employment contract should be restricted from pursing an unfair dismissal dispute by the par delictum rule. In terms of this latter rule a party is not entitled to reclaim money or property if he/she is a turpis persona. In other words, a party that wishes to succeed with this condictioshould not be tainted with turpitude or impropriety. 2.

What are the consequences of being a turpis persona?

2.1.1 The consequences of being a turpis persona are that such a party is not entitled to reclaim performance (money or property) from an illegal contract. However since the decision of Jajbhay v Cassim courts have since exercised a general discretion not to strictly apply the rule where simple justice between man and man so requires. The court held that the par delictum rule has never been an inflexible rule in the Roman Dutch law. 2.1.2 The right not to be unfairly dismissed as contemplated by Section 185 of the LRA is a right extended to employees as defined by Section 213 of the LRA (supra). These employees cannot be employees who have consciously and knowingly entered into illegal employment contracts. Alternatively, it must be submitted that employees to illegal contracts cannot be employees contemplated by the Section 213 of the LRA. There is no way in which the legislature could have directly or otherwise intended to promote illegality. 2.1.3 In the Dunwell matter supra the court invoked a constitutional right to dignity in its attempt to justify the decision to grant rights to an illegal foreigner. I am puzzled by the relevance of the right to dignity where the primary issue was whether an illegal foreigner can enforce the provisions of an illegal contract. 2.1.4 This should have been addressed in terms of the national legislation, and to a certain extent, the common law. Therefore there was no need to invoke the provision of the constitution. Otherwise such disputes should be categorized as being automatically unfair as they relate to the infringement of rights (See Section 187 of the LRA). Interestingly, Section 8 (4) of the Employment Service Act 4 of 2014 provides that an illegal foreigner may pursue certain rights arising from an illegal contract. This is however at variance with the common law par delictum rule. 2.1.5 Section 38 of the Act (as indicated above) expressly prohibits the employment of illegal foreigners. Therefore it is absurd to suggest that such a party may automatically accrue rights from an illegal contract. This, in my view, has serious consequences. Unscrupulous employers would invariably be encouraged to continue committing criminal offences knowing well that there would be no consequences. This is certainly not what the legislature had in mind. Most importantly, employer will continue to evade the law and this will lead to a glaring absurdity. 3.

How the illegality should be discouraged

4.1.1 A general bar should be placed on the right not to be unfairly dismissed (Section 185 of the LRA) by a party to an illegal contract. Where such a party declares a dispute, it must firstly be determined if the aggrieved party is not a turpis persona. If s/he is found to be turpis persona then s/he should be barred from pursuing an unfair dismissal case . This will be in keeping with the par delicum rule. 4.1.5 The par delictum rule should however be relaxed only where justice so dictates. In this regard an objective test must be applied in assessing whether such an individual is turpis persona or not. It must be noted that ignorance of the law by the parties in this regard cannot be an excuse (See Reynolds v Kinsey 1959 4 SA 50 (FC). Employers who enter into illegal employment contracts must be arrested in keeping with Section 49 of the Act supra. 5.

Contractual Dispute

5.1.1 The alternative approach is to treat dismissal disputes arising from illegal contracts as purely contractual disputes. 5.1.2 Consequently such disputes would fall within the jurisdiction of the Labour or Civil Court in terms of Section 77 (3) of the BCEA (supra). These forums are better placed and equipped to deal with contractual disputes. Illegal foreigners may get better protection than they would in other forums such as the CCMA and various Bargaining Councils. References Unisa Study Guide – (2019) Unjustified Enrichment Liability and Estoppel (PVL3704) Unisa Study Guide – (2019) Labour Law (MRL3702) Labour Law Rules – McGregor M, Dekker AH, Budeli M, Germishuys W, Manamela ME, ManamelaTE and Tshoose CI. The Labour Relations Act 66 of 1995 (as amended) Basic Conditions of Employment Act 75 of 1997 (as amended) Immigration Act 13 of 2002 The Employment Service Act 4 of 2014 Case Law Dunwell Properties CC v Sibande & others [2012] 2 BLLR 131 (LAC) Discovery Health Limited v CCMA & others (2008) 29 ILJ 1480 (LC) Reynolds v Kinsey 1959 4 SA 50 (FC) Jajbhay v Cassim...