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201 1 2013 Assignment Feedback
201 1 2013 Assignment Feedback
PVL3704/201/1/2013
PVL3704
Semester 1
Bar code
CONTENTS
PVL3704/201
Dear Student
Question 1
Discuss the general requirement that the defendant’s enrichment must have been at the
expense of the plaintiff. Refer in your answer to case law. (15)
Answer
See your Study guide par 2.2.3 page 17 ff
(a) Discussion of the causal link requirement and provision of relevant examples. (2)
(b) Discussion of indirect enrichment problem
(i) Explanation of the problem (2)
(ii) De Vos’ view (2)
(iii) Discussion of Gouws v Jester Pools case (2)
(iv)Discussion of Buzzard Electrical case (2)
(v) Discussion of the retention issue and Brooklyn House Furnishers case (2)
(vi)Discussion of Hubby’s Investment case and ABSA Bank v Stander (3)
(vii) Motivated exposition of your own view (2)
[max 15]
Question 2
A has sold uncut diamonds to B for an amount of R100,000 in contravention of statutory law. B
has paid the amount but before the diamonds could be delivered, the money was confiscated by
the police during a raid of A’s house. Advise B on the availability of an enrichment action to
reclaim the R100,000. Refer in your answer to case law. (10)
Answer
If you receive a similar type of question in the exams, you should follow the following steps in
answering the question:
(a) You first need to identify the correct unjustified enrichment action. If necessary explain
why another enrichment claim cannot be used. (2)
(b) Then discuss the relevant requirements for a successful claim under the action and any
defences against such claim. (4-5)
(c) Apply the requirements of the claim to the facts provided. (2-3)
PVL3704/201
Questions 1 to 3.
The following facts are relevant for questions 1 to 3.
A has demanded payment from B of an amount of R50,000 which he believes B is owing. B has
checked its records and has paid the amount in the bona fide belief that the amount is owing in
terms of their contract. Unbeknown to B, his bookkeeper, C had already paid the amount a
week earlier by way of an electronic funds transfer in to the account of A. At the time of the
second payment A's account was overdrawn in the amount of R30,000 and was therefore in
credit of R20,000 after the payment. A has taken R15,000 out of his account to pay his
employees their monthly wages. He has also paid R10,000 for a luxury weekend after realising
that his account was in credit.
Answer: These questions deal with the condictio indebiti and its requirements. The claim
cannot be delictual because A's misrepresentation was innocently made. The claim can also not
be based on the contract, because there had already been payment which extinguished the
duty to pay in terms of the contract. Next evaluate the answers against the requirements of the
condictio indebiti. Here the one party made a bona fide payment that was not owing and under
circumstances that were excusable, partly because the mistake was induced by A's
misrepresentation.
Question 1
Which statement best explains the nature B’s the claim against A?
1. B has a claim against A based on delict for a fraudulent misstatement.
2. B has contractual claim against A based on their contract.
3. B has an enrichment claim against A based on the condictio causa data causa non secuta.
5. B can claim only R40,000 because the rest of the enrichment amount has been lost on the
luxury holiday.
Question 4
Answer: Have another look at the requirements for the condictio indebiti. Unlawfulness is not a
requirement. For the condictio indebiti it is required that the impoverished party must have made
a payment that was not owing as a result of an excusable mistake.
In order to be successful with a claim based on the condictio indebiti, the plaintiff must
prove the following fact(s) or requirement(s):
1. That the impoverished party made a payment that was not due.
2. That the enrichment was unlawful.
3. That the mistake of the impoverished party was excusable.
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Question 5
Answer: In the case of stopped checks the appropriate action is the condictio sine causa
specialis. Where a contract is terminated due to breach, the action ground is contractual and not
in enrichment. Where one is dealing with illegal contracts, the appropriate action is the condictio
ob turpem vel iniustam causam. In instance number 5 the correct action is the condictio sine
causa.
In which one of the following circumstances can the condictio indebiti be used?
1. Where a bank has made payment in terms of a countermanded cheque.
2. Where a party knowingly makes a payment that is not due, but under duress and protest.
Question 7
Which statement best explains the authority on which you based your answer in
question 6?
1. In terms of the decision in Gouws v Jester Pools (Pty) Ltd 1968 3 SA 63 (T) it was held that
Y has no claim against Z because Z had not been enriched at his expense.
2. In terms of the decision in Gouws v Jester Pools (Pty) Ltd 1968 3 SA 63 (T) it was held that
Y has a claim against Z because Z had been enriched at his expense.
3. The decision in the Gouws case was confirmed in Buzzard Electrical v 158 Jan Smuts
Avenue Investments 1996 4 SA 19 (A)
4. The decision in the Gouws case was rejected in Buzzard Electrical v 158 Jan Smuts Avenue
Investments 1996 4 SA 19 (A)
5. The decision in the Gouws case was confirmed in Brooklyn House Furnishers Ltd v Knoetze
& Sons 1970 3 SA 264 (A)
Question 8
G has noticed that his neighbour's (H) stud bull is seriously ill. The neighbour is
currently on a hiking trip in Nepal and cannot be reached. G has called out a veterinary
doctor to attend to the bull and has paid all his bills as well as for the medication. The
total cost was R12,000. Despite the treatment the bull has died. Which statement best
explains the basis of G's possible claim against H?
Answer: In this case G does not have to rely on an enrichment claim, because in that case he
would have no claim as the neighbour is not enriched any longer. G can rely on the real action
for tending to another's property, namely the actio negotiorum gestorum contraria. In terms of
this action he can reclaim all expenses reasonably made in the attempt to preserve his
neighbour's property.
1. G has no claim against H because the bull has died and the expenses have been wasted.
2. G has an enrichment claim against H for his expenses as necessary expenses.
3. G has a claim against H in terms of the actio negotiorum gestorum contraria for R12,000.
4. G has a claim against H in terms of the actio negotiorum gestorum utilis for R12,000.
5. G's claim against H in terms of the actio negotiorum gestorum contraria will fail because the
bull died.
Question 9
G has noticed that his neighbour's (H) stud bull is seriously ill. The neighbour is
currently on a hiking trip in Nepal and cannot be reached. G has called out a veterinary
doctor to attend to the bull and has paid all his bills as well as for the medication. The
total cost was R12,000. Despite the treatment the bull has died. G is a meddlesome
neighbour and H has previously warned him not to do anything on his farm under any
circumstances, but rather to call K, if G should notice any problem. G did not bother to
call K. Which statement best explains the basis of G's possible claim against H?
PVL3704/201
Answer: In this case G cannot rely on the true actio negotiorum gestio because he has acted
against the express instructions of his neighbour. He can only rely on the actio negotiorum
gestorum utilis, which is a true enrichment action. Because the bull died, the neighbour is no
longer enriched.
1. G has no claim against H because the bull has died and the expenses have been wasted.
4. A bona fide possessor is someone who unlawfully occupies the property of another person
as if he is the owner thereof.
5. A mala fide possessor is someone who unlawfully occupies the property of another person
temporarily as if he is entitled to occupy the property as a lessee.
The essay part of the examination paper is a so-called fill in paper, in other words you
must answer all those questions on the examination paper itself, and then hand in the
completed paper. Space for your answer is supplied directly below each question. Short as
well as longer questions may be asked. The answers to the multiple choice questions must
be completed on the mark reading sheet that will be provided to you and which you must
also hand in after completion. See further point 8 of Tutorial Letter 101/3 in this regard.
Please note that it is your responsibility to find out whether you have gained examination
admission and on which day the examination will take place.
Please note further that you will not directly be questioned on Roman and Roman-Dutch
Law.
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PVL3704/201
QUESTION 2
Discuss the requirement that the reliance on estoppel must be allowed by law. (10)
QUESTION 3
Can estoppel play a role in the conclusion of a contract. Discuss with reference to case law. (10)
QUESTION 4
4.1 Can a person’s estate be enriched by moral benefits? Discuss. (5)
4.2 Discuss Willis Faber Enthoven (Pty) Ltd v Receiver of Revenue 1992 4 SA 202 (A) in
regard to the condictio indebiti. (5)
4.3 Briefly discuss the condictio ob turpem vel iniustam causam with reference to Minister
van Justisie v Van Heerden 1961 3 SA 25 (O). (5)
4.4 Briefly discuss the sine causa requirement for enrichment liability. (5)
QUESTION 5
Discuss with reference to case law whether a general enrichment action exists in the South
African law (15)
QUESTION 6
Peter leases a car from John to travel to Cape Town. The lease contract stipulates that in the
event of a breakdown Peter must immediately contact John and not arrange for a third party to
repair the vehicle. On the way to Cape Town the car breaks down and Peter leaves it with
Wasim to repair. Wasim believes that the vehicle belongs to Peter. Peter does not return to
collect the car. When John claims his car from Wasim, Wasim refuses to hand it over until
compensated for the repairs he has effected to the vehicle. At whose expense has John been
enriched? Discuss with reference to case law. (15)
UNISA
/hs
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