In addition, the Court of Appeal held that a crude application of the general rules of contractual illegality could give rise to harsh decisions, which is why the gravity, centrality and nature of the illegality must in any event be taken into account on the basis of their facts. In Patel v Mirza (2016), the Supreme Court stated that the factors for assessing illegality and its consequences are as follows: the underlying purpose of this law – prohibited conduct – is assessed to identify precisely what was illegal. Contracts are illegal or become illegal for all sorts of reasons. The general consequence of illegality is that courts do not give any support to a party to the trial by giving recourse to a party to profit from illegal conduct. The result is usually that the contract is illegal and: The seriousness of the illegality plays a role, as well as the knowledge of the parties at the time of conclusion of the contract. The illegality in a clause of a contract may be sufficient to dry up an entire contract if it cannot be dissociated from the contract to eliminate the illegality. The process of evaluating the removal of part of a contract to protect the contract from illegality is called severance pay. Although an offence may be considered illegal, it is not illegal in the legal sense of the term. By default, these are valid and legitimate agreements on the basis of the principles of freedom of contract.
Rights and remedies are sometimes on the margins of illegality. Sir Robin Jacob`s disproportional test deserves further comment. Is it fair to describe it as such? As a reminder: “Proportionality. includes an assessment of the extent to which the dismissal of the appeal favours one or more of the specific policies underlying the defence of illegality. It is certainly not so much a question of proportionality as of a policy-based approach. South African law is a good example of a legal system that takes a policy-based approach: only if the non-application of the treaty favours an important policy should the court refuse to apply the treaty (see, for example.B Jajbhay v Cassim 1939 AD 537). . . .