PVL3704
ENRICHMENT,
LIABILITY AND
ESTOPPEL
PORTFOLIO MEMO
SEMESTER 2 –
OCTOBER/
NOVEMBER
UNISA – 2022
28 OCTOBER 2022
Disclaimer
Extreme care has been used by our Tutors to draft this document, however the contents are provided “as is” without any
representations or warranties, express or implied. This document is to be used for comparison, research and reference purposes ONLY.
No part of this document may be reproduced, resold or transmitted in any form or by any means without prior written permission from
the Author. – LLB EXAMPACKS & TUTORIALS.
PAST PAPERS & MEMOS, ASSIGNMENT MEMOS, NOTES, SUMMARIES & TUITONS.
Cell: 084 591 8661 Email:
Fax: 086 096 5452 www.llbexampacksandtutorials.co.za
, QUESTION 1
In McCarthy Retail Ltd v Shortdistance Carriers CC 2001 (3) SA 482 (SCA) para
[9] the court said: “We now know from the hard print that there is a common-
law basis for the acceptance of a general enrichment action, at least one of a
subsidiary nature. In this respect the decision of the majority in Nortje’s case
has been shown by the then largely dormant authority to be clearly wrong”.
Critically discuss this statement with reference to relevant case law. (20)
Roman law had specific enrichment actions, each with their own requirements, but
there was no general liability for unjustified enrichment. Relief was granted to a
plaintiff in specific circumstances based on very broad principles stated in two texts
which could not possibly provide a basis for liability. The enrichment actions of
Roman law were received into Roman-Dutch law where they weredeveloped and
extended over time and are still available in South African law. Our courts have also
recognised liability for enrichment in a number of circumstances where none of the
old actions was applicable, thereby further extending the scope of unjustified
enrichment liability in South African law.In Mccarthy Retail Ltd v Shortdistance
Carriers the court stated that unlike other branches of our law, the rich Roman
source material has not led to an unqualified judicial recognition (with a few
exceptions) of a unified general principle of unjustified enrichment.
Having regard to such extensions of enrichment liability, South African academics
had concluded thata general subsidiary enrichment action had developed in South
African law which would lie in any case of unjustified enrichment where none of the
old actions would lie. The view was that a general action had been developed which
was additional and subsidiary to the existing actions. Unjustified enrichment liability
is still underdeveloped in comparison with contract and delict and therefore remains
closer to Roman and Roman-Dutch law sources from which, it, and the greater part
of our private law, including contract and delict is sourced.
Unlike other branches of our law, the rich Roman source material has not led to an
unqualified judicial recognition (with a few exceptions) of a unified general principle
of unjustified enrichment, from which solutions to particular instances may be
ENRICHMENT,
LIABILITY AND
ESTOPPEL
PORTFOLIO MEMO
SEMESTER 2 –
OCTOBER/
NOVEMBER
UNISA – 2022
28 OCTOBER 2022
Disclaimer
Extreme care has been used by our Tutors to draft this document, however the contents are provided “as is” without any
representations or warranties, express or implied. This document is to be used for comparison, research and reference purposes ONLY.
No part of this document may be reproduced, resold or transmitted in any form or by any means without prior written permission from
the Author. – LLB EXAMPACKS & TUTORIALS.
PAST PAPERS & MEMOS, ASSIGNMENT MEMOS, NOTES, SUMMARIES & TUITONS.
Cell: 084 591 8661 Email:
Fax: 086 096 5452 www.llbexampacksandtutorials.co.za
, QUESTION 1
In McCarthy Retail Ltd v Shortdistance Carriers CC 2001 (3) SA 482 (SCA) para
[9] the court said: “We now know from the hard print that there is a common-
law basis for the acceptance of a general enrichment action, at least one of a
subsidiary nature. In this respect the decision of the majority in Nortje’s case
has been shown by the then largely dormant authority to be clearly wrong”.
Critically discuss this statement with reference to relevant case law. (20)
Roman law had specific enrichment actions, each with their own requirements, but
there was no general liability for unjustified enrichment. Relief was granted to a
plaintiff in specific circumstances based on very broad principles stated in two texts
which could not possibly provide a basis for liability. The enrichment actions of
Roman law were received into Roman-Dutch law where they weredeveloped and
extended over time and are still available in South African law. Our courts have also
recognised liability for enrichment in a number of circumstances where none of the
old actions was applicable, thereby further extending the scope of unjustified
enrichment liability in South African law.In Mccarthy Retail Ltd v Shortdistance
Carriers the court stated that unlike other branches of our law, the rich Roman
source material has not led to an unqualified judicial recognition (with a few
exceptions) of a unified general principle of unjustified enrichment.
Having regard to such extensions of enrichment liability, South African academics
had concluded thata general subsidiary enrichment action had developed in South
African law which would lie in any case of unjustified enrichment where none of the
old actions would lie. The view was that a general action had been developed which
was additional and subsidiary to the existing actions. Unjustified enrichment liability
is still underdeveloped in comparison with contract and delict and therefore remains
closer to Roman and Roman-Dutch law sources from which, it, and the greater part
of our private law, including contract and delict is sourced.
Unlike other branches of our law, the rich Roman source material has not led to an
unqualified judicial recognition (with a few exceptions) of a unified general principle
of unjustified enrichment, from which solutions to particular instances may be
