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PVL3704
28 Ocotber Exam
Semester 2
Solutions
2022
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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)
In the McCarthy Retail Ltd v Shortdistance Carriers case, the court had to look at
the foundations of the South African enrichment laws. Through Roman law, there
has been an augmentation of old causes of action from case to case, with reference
to rules that are of general application. There has been no clear recognition of general
enrichment actions, and unjustified enrichment principles have been regarded as
being a source of the law of obligations. In the Nortjé en ’n Ander v Pool case, the
majority judgment was held out as having given the final death blow to a general
enrichment action. But whether such an action should be recognized was passed in
Kommissaris van Binnelandse v Willers en Andere. One of the fears upon the
acceptance of a general action is, that a tide of litigation would be let loose.
Initially there may be some surge of litigation, particularly under the emotive banner of
“unjust enrichment”. But it should not last long, once the restrictions even on a general
action are appreciated. Under a general action, only very few actions would succeed
which won’t be succeeded under one or other of the old
forms of action or their continued extensions. For this reason, the acceptance of a
general action may not be as important as is sometimes thought. The main reason
why this development did not affect Roman-Dutch law in Southern Africa, and Nortjé’s
case, is that the decisions lay unpublished for over more than two centuries. Which
shows the weaknesses of a practice that did not require Judges to give full reasons
for their decisions and which lacked organized law reporting. If the Court is to adopt a
general action into modern law. It would be wise to wait for a case that cannot be
accommodated within the existing framework and which needs such recognition.This
does not mean, that the old structure’s relatively few distinctive rules apply only to
particular forms of action, such as the requirement in the condictio indebiti thatthe
mistake should disappear if reasonable.
QUESTION 2
Discuss the requirement that the defendant’s enrichment must be at the expense of
the plaintiff. Refer to relevant case law in your discussion. (10)
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This requirement requires that , the defendant’s enrichment must have been at the
expense of the plaintiff:
There must be a causal link between the enrichment and the impoverishment.
The following cases have standing .
In Gouws v Jester Pools:
Facts: A had built a pool for B in terms of the contract between them; he built it on land
he believed belonged to B, BUT was in fact the property of C.
After B disappeared without paying A for the pool, A brought an enrichment action
against C.
Held: the action failed, it was held that C had been enriched at B’s expense and not
A’s (De Vos agrees).
Van der Walt – is of the view that C was enriched at the expense of A and that A’s
action should have succeeded – he looks at the 'at the expense of” requirement – this
is satisfied as soon as there was a transfer of assets from A’s estate to C’s .
Buzzard Electrical:
The court distinguished between 2 situations:
1) Where A effects improvements to the property of the owner (with no
contract with the owner, but with a contract between A and B) and A then sues for
enrichment (Gouws).
2) Where the owner contracts with B for improvements to his property, B subcontracts
the job to A and once he has completed the work A sues the owner on the basis on
enrichment liability (Buzzard).
Right of retention:
In circumstances where one person has used his money, materials or labour on
preserving or improving another’s property and at his own expense has enriched that
other person ,can have a right to keep possession of the property until he is
compensated , enrichment lien.
Brooklyn House Furnishers v Knoetze:
AD allowed an enrichment lien
Facts: B bought furniture from C on hire purchase – in terms of the contract C reserved
ownership until the final installment had been paid. The contract prohibited B from
storing the furniture with anyone but C. B in breach of this entered into a storage
contract with A.
When C later cancelled the contract, he brought the rei vindicatio against A to get the
furniture.
A contended that he had a lien over the furniture until he had been paid for the storage.
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QUESTION 3
A has sold his television set to B for R2 000. The contract stipulates that ownership
will only pass to B after the last instalment has been paid. A has given a letter to B
stating the following "Herewith I, A, confirm that I have sold Sony TV set No 123321
to B". After a period of six months and payment of R1 200 B wants to sell the set to C
and shows C the letter from A. C who is very cautious, first phones A who again
confirms the sale to B. C buys the set from B for R1 500. Thereafter B fails to make
any further payments to A. A now claims back his TV set from C with a rei vindicatio.
Advise A whether C may have any possible defenses against this claim, and if so,
what requirements A should prove for the defense to succeed. (20)
This question deals with estoppel as a defence to the owner’s rei vindicatio. In this set
of facts, the elements of misrepresentation and negligence on the part of the owner
are are relevant .
In terms of the law the requirements for Estoppel are as follows:
1. Misrepresentation – creation of false belief by estoppel denier.
2. Fault (intent or negligence) on part of estoppel denier.
3. Prejudice on part of estoppel assertor.
4. Causation – the estoppel assertor must have acted to his detriment as a result of
the misrepresentation of the estoppel denier.
5. The raising of estoppel must be permissible in law in the circumstances.
Misrepresentation is any word or conduct that communicates an untruth. Generally
it must be a misrepresentation of fact and may consist of a positive misrepresentation
or by omission where there is a legal duty to speak or otherwise act positively.
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PVL3704
28 Ocotber Exam
Semester 2
Solutions
2022
, Stuvia.com - The study-notes marketplace
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)
In the McCarthy Retail Ltd v Shortdistance Carriers case, the court had to look at
the foundations of the South African enrichment laws. Through Roman law, there
has been an augmentation of old causes of action from case to case, with reference
to rules that are of general application. There has been no clear recognition of general
enrichment actions, and unjustified enrichment principles have been regarded as
being a source of the law of obligations. In the Nortjé en ’n Ander v Pool case, the
majority judgment was held out as having given the final death blow to a general
enrichment action. But whether such an action should be recognized was passed in
Kommissaris van Binnelandse v Willers en Andere. One of the fears upon the
acceptance of a general action is, that a tide of litigation would be let loose.
Initially there may be some surge of litigation, particularly under the emotive banner of
“unjust enrichment”. But it should not last long, once the restrictions even on a general
action are appreciated. Under a general action, only very few actions would succeed
which won’t be succeeded under one or other of the old
forms of action or their continued extensions. For this reason, the acceptance of a
general action may not be as important as is sometimes thought. The main reason
why this development did not affect Roman-Dutch law in Southern Africa, and Nortjé’s
case, is that the decisions lay unpublished for over more than two centuries. Which
shows the weaknesses of a practice that did not require Judges to give full reasons
for their decisions and which lacked organized law reporting. If the Court is to adopt a
general action into modern law. It would be wise to wait for a case that cannot be
accommodated within the existing framework and which needs such recognition.This
does not mean, that the old structure’s relatively few distinctive rules apply only to
particular forms of action, such as the requirement in the condictio indebiti thatthe
mistake should disappear if reasonable.
QUESTION 2
Discuss the requirement that the defendant’s enrichment must be at the expense of
the plaintiff. Refer to relevant case law in your discussion. (10)
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This requirement requires that , the defendant’s enrichment must have been at the
expense of the plaintiff:
There must be a causal link between the enrichment and the impoverishment.
The following cases have standing .
In Gouws v Jester Pools:
Facts: A had built a pool for B in terms of the contract between them; he built it on land
he believed belonged to B, BUT was in fact the property of C.
After B disappeared without paying A for the pool, A brought an enrichment action
against C.
Held: the action failed, it was held that C had been enriched at B’s expense and not
A’s (De Vos agrees).
Van der Walt – is of the view that C was enriched at the expense of A and that A’s
action should have succeeded – he looks at the 'at the expense of” requirement – this
is satisfied as soon as there was a transfer of assets from A’s estate to C’s .
Buzzard Electrical:
The court distinguished between 2 situations:
1) Where A effects improvements to the property of the owner (with no
contract with the owner, but with a contract between A and B) and A then sues for
enrichment (Gouws).
2) Where the owner contracts with B for improvements to his property, B subcontracts
the job to A and once he has completed the work A sues the owner on the basis on
enrichment liability (Buzzard).
Right of retention:
In circumstances where one person has used his money, materials or labour on
preserving or improving another’s property and at his own expense has enriched that
other person ,can have a right to keep possession of the property until he is
compensated , enrichment lien.
Brooklyn House Furnishers v Knoetze:
AD allowed an enrichment lien
Facts: B bought furniture from C on hire purchase – in terms of the contract C reserved
ownership until the final installment had been paid. The contract prohibited B from
storing the furniture with anyone but C. B in breach of this entered into a storage
contract with A.
When C later cancelled the contract, he brought the rei vindicatio against A to get the
furniture.
A contended that he had a lien over the furniture until he had been paid for the storage.
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QUESTION 3
A has sold his television set to B for R2 000. The contract stipulates that ownership
will only pass to B after the last instalment has been paid. A has given a letter to B
stating the following "Herewith I, A, confirm that I have sold Sony TV set No 123321
to B". After a period of six months and payment of R1 200 B wants to sell the set to C
and shows C the letter from A. C who is very cautious, first phones A who again
confirms the sale to B. C buys the set from B for R1 500. Thereafter B fails to make
any further payments to A. A now claims back his TV set from C with a rei vindicatio.
Advise A whether C may have any possible defenses against this claim, and if so,
what requirements A should prove for the defense to succeed. (20)
This question deals with estoppel as a defence to the owner’s rei vindicatio. In this set
of facts, the elements of misrepresentation and negligence on the part of the owner
are are relevant .
In terms of the law the requirements for Estoppel are as follows:
1. Misrepresentation – creation of false belief by estoppel denier.
2. Fault (intent or negligence) on part of estoppel denier.
3. Prejudice on part of estoppel assertor.
4. Causation – the estoppel assertor must have acted to his detriment as a result of
the misrepresentation of the estoppel denier.
5. The raising of estoppel must be permissible in law in the circumstances.
Misrepresentation is any word or conduct that communicates an untruth. Generally
it must be a misrepresentation of fact and may consist of a positive misrepresentation
or by omission where there is a legal duty to speak or otherwise act positively.
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