Past Papers

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Pvl3704 past papers
Oct/Nov 2005
ANSWER ALL THE QUESTIONS
QUESTION 1
A owed B an amount of R12 million. A clerk in A’s employ inadvertently used the bank
account number of another creditor, X, when authorising its bank (ABSA) to make an
electronic payment to B. The money was paid into the bank account of X with First
National Bank instead of the account of B. At the time of payment X’s account was
dormant. When X found out about the undue payment, he withdrew the money and
deposited it in an interest bearing account with Standard Bank. A only discovered the
mistake 2 months later. A now claims the money plus interest from X. Advise X on the
following issues: has X been enriched and at whose expense; if so, which is the
appropriate enrichment action to use; what are the requirements for this action; does X
have any possible defences against such a claim; and is A entitled to claim the interest
earned on the money in the savings account? (20)
QUESTION 2
D a German tourist is on holiday in South Africa. He has rented a vehicle from Rent-A-
Wreck in Johannesburg. While travelling through Springbok the vehicle broke down. D
requested Springbok Motors to inspect the vehicle and repair it. After two days had
expired, D rented another vehicle in Springbok from Avis and has since left the country.
Rent-A-Wreck is now claiming the vehicle from Springbok Motors who in the mean time
has spent 20 hours at R150 an hour on the repair of the vehicle. It has also fitted parts to
the value of R10,000 to the vehicle. Advise Springbok Motors whether it has any claim
against Rent-a-Wreck and of any other defences it may have against Rent-A-Wreck’s
claim. (20)
The student must distinguish between the various enrichment actions. The two pertinent action
here are the true management of affairs action (actio negotiorum gestorum contraria) and the
extended management of affairs action (actio negotiorum gestorum utilis) (2)
Discussion of the requirements for the actio negotiorum gestorum SG 1 page 83-84 (3)
Discussion of the requirements for the extended management of affairs action (actio
negotiorum gestorum utilis) SG 1 p 85-86 (4)
This is an instance where a party is acting in his own interest in the belief that he is acting in the
interest of the other party (2)
Discussion of Gouws v Jester Pools and Absa Bank v Stander SG 1 p 92-93 (4)
Van Zyl’s view point discussed (2)
Discussion of what can be claimed – the lesser of the enrichment or the impoverishment. In this
case B is enriched with the value of the repairs whereas C is impoverished with the value of its
expenses. Discussion on whether C can claim the value of its own work – generally not. (3)
Discussion of C’s right of retention is optional, not actually asked but relevant. (3)
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QUESTION 3
Briefly discuss the field of application and the requirements of the condictio causa data
causa non secuta. (10)
Roman law:
In Roman law the condictio causa data causa non secuta was used to reclaim money or things
transferred in ownership in the following cases:
ius poenitentiae .
When a party had performed in terms of the forms do ut des (I deliver so that you can deliver) or
do ut facias (I deliver so that you can do) of an innominate real agreement (an agreement that
would only be valid and enforceable once performance had taken place) and thereafter, before
counterperformance had taken place, reclaimed the thing delivered in terms of his ius
poenitentiae. The law gave the party performing the opportunity to reconsider before the other
party delivered the counterperformance. This right to rescind in such a case was called the ius
poenitentiae. Thus it appears that the ius poenitentiae of the party who had, for example,
delivered the thing in terms of the do ut des form of the innominate real agreement, was granted
by virtue of the fact that such party had not delivered on the grounds of a valid causa, since the
contract was created only by the delivery. If the person who performed first in terms of the
innominate real agreement decided not to continue with the agreement before
counterperformance had taken place, he could have relied on his ius poenitentiae, rescinded
the contract and reclaimed his performance with the condictio causa data causa non secuta.
The ius poenitentiae fell away if counterperformance became impossible owing to an act of God
(vis maior) or chance.
Roman-Dutch law:
In Roman-Dutch law all contracts were consensual and real contracts no longer appeared. The
effect was that the condictio in question was instituted in the case of consensual contracts do ut
des and do ut facias in the case of (1) cancellation owing to breach of contract by the other
party to the contract, and (2) the fulfilment of a resolutive condition. Because all contracts were
consensual in
Roman-Dutch law, the ius poenitentiae of Roman law fell away. Therefore, a party could no
longer, after he had performed but before the other party had done so, have changed his mind
and reclaimed his performance.
Application in South African law:

South African law of contract has developed to the point that contractual remedies now provide
for circumstances where the condictio causa data causa non secuta used to be implemented
This action is used to reclaim performance. There is uncertainty about the field of application of
this action in modern South African law. The common feature in case law where this action has
been used seems to be where transfer of a thing was made or performance rendered on the
basis of some future event taking place or not taking place (a so-called causa futura). When the
future event does not happen (or does happen in the case of resolutive conditions), the causa
for the transfer falls away and the performance rendered is reclaimed with this action. On this
basis the plaintiff may possibly institute the condictio causa data when he has delivered a thing
to the defendant by virtue of:
1. a resolutive condition which is fulfilled
2. a suspensive condition which is not fulfilled
3. a modus which is disregarded
4. an assumption which is not fulfilled
A. Conditions can take one of two forms in contracts and wills:
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1. Resolutive conditions If the future uncertain event takes place or the condition is fulfilled, it
causes the contract to come to an end or the testamentary disposition to become void.
2. Suspensive conditions have the effect of suspending some or all of the rights and obligations
under the testament or will until the occurrence of an uncertain future event.
B. Unfulfilled assumptions
De Vos refers only to future assumptions in the controversy of the exact nature of the
assumptions. In Fourie an obiter statement distinguished between assumptions and conditions.
An assumption can only relate to the facts of the present or the past, but not the future. If the
assumption is true the contract based on it is immediately valid and binding; if it is false the
contract is immediately void in which case the appropriate enrichment action is the condictio
indebiti because the contract is void from the beginning. An assumption which relates to the
future is no assumption but a resolutive condition.
C. Modus
Where a testamentary disposition is made subject to a modus there is an obligation on the
legatee or heir to comply with the provisions of the modus. Where the disposition is revoked
owing to noncompliance, the disposition can be reclaimed with this remedy.
Breach of contract
De Vos: is of the opinion that the condictio causa data no longer plays a part in our law in the
case of recisission on the ground of breach of contract, but that the innocent party would make
use of contractual remedies. AD confimed De Vos view in Baker v Probert.
(4) Name the three applications of the condictio causa data causa non secuta in South
African law.
There is a great deal of uncertainty about the field of application of this action in modern South
African law. Upon analysis the common feature of all the examples where this action has been
used seems to be cases where transfer of a thing was made or performance rendered on the
basis of some future event taking place or not taking place (a so-called causa futura). When the
future event does not happen (or does happen in the case of resolutive conditions), the causa
for the transfer falls away and the performance rendered is reclaimed with this action. On this
basis the plaintiff may possibly institute this condictio when he has delivered a thing to the
defendant by virtue of:
. A resolutive condition which is fulfilled
. A suspensive condition which is not fulfilled
. A modus which is disregarded
. An assumption which is not fulfilled
The importance of the decision in Baker v Probert 1985 (3) SA 429 (A) for the application
of the condictio causa data causa non secuta in South African law.
Contractual remedies after breach of contract:
De Vos (156 et seq) holds the view that this condictio no longer plays a part in our law in the
case of rescission on the grounds of breach of contract, but that the innocent party in such a
case would make use of contractual remedies. De Vos bases his view on the fact that, for the
purposes of rescission on the grounds of breach of contract, a distinction was drawn in Roman-
Dutch law between contracts which were innominate real contracts in Roman law (in these
contracts the right of rescission was wider and the condictio was used) and contracts which
were consensual even in Roman law (in these contracts the right of rescission was more limited
and a contractual action was used). This distinction, says De Vos, no longer holds in our law,
and consequently this condictio no longer plays a part in regard to cancellation on the ground of
breach of contract. The Appellate Division confirmed this approach in Baker v Probert
1985 (3) SA 429 (A) 438–439
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QUESTION 4
Discuss the rule that estoppel must be allowed by law, referring to relevant case law.
(10)
1. General principle discussed [2]
2. Hire purchase examples and discussion [2]
3. Trust Bank v Eksteen [2]
4. Own relevant examples [2 marks each]
• Case law examples: Brady, Long, Hoisain, Ebrahim, Fuls, Hauptfleisch, Strydom, Rand
Wholesale
Where the upholding of an impression by means of estoppel results in a situation prohibited in

the public interest, by common law or statutory law, estoppel cannot be available as a remedy.
Estoppel is also not available to allow a statutory body to commit an act which is ultra vires the
powers of such body.
Holsain: if a trade licence is wrongly issued to a merchant in spite of an express resolution to

the contrary by the authorized body – the maintenance of the false impression will enable the
trader to continue contrary to statute = estoppel CANT be applied
Exception: estoppel can be applied where the impression would create a situation, which is
merely contrary to policy without being in conflict with any statute.
Ebrahim: local authority mistakenly and in conflict with policy, granted a trade license in respect
of certain areas – when it attempted to cancel the licenses – they relied on estoppel
Ultra vires acts:

estoppel doesn’t allow a statutory body to commit an act, which is ultra vires = they are given
their powers by statute and can’t do anything beyond those powers
In the Eksteen case the hire-purchase seller bound himself to the discounter by means of a
contract of suretyship, in which the seller stood good for the proper fulfilling of the hire-purchase
buyer's duties against the discounter in terms of the discounted hire-purchase agreement. Thus,
apart from the obligation between the discounter and the buyer, there is also in this case the
form of a contract of surety between the seller and the discounter. The seller gave the
discounter the impression that contracts were in order. The discounter claimed the outstanding
balance in terms of the hire- purchase agreements from the hire-purchase seller in terms of the
contract of suretyship between them. The hire-purchase seller raised the nullity of the hire-
purchase contracts as defence (because payment of the deposit required by statute had not
been made), which also resulted in the nullity of the suretyship. The discounter pleaded
estoppel against this.
In the judgment of the court a quo two questions were distinguished:

(1) The argument that the required deposit had not been paid resulted in the original hire-
purchase contracts' being null and void. The first question was whether estoppel could be raised
to enforce the void hire-purchase agreements. It was argued that it could not because a plea of
estoppel would result in a wrongful outcome. The ``claim'' (personal right) in terms of the hire-
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purchase contract thus also remained null and void and could not be enforced by means of
estoppel. If it was found that the hire-purchase agreements were void, it could be argued that
the contract of suretyship was also void, because the liability of the surety was accessory to the
main debtor's liability.
(2) Since the surety implied to the discounter that the hire-purchase contracts were in order, a
further question had to be answered, namely whether the surety could not be held to be bound
to the impression he had created (namely that he was liable as surety) on the grounds of
estoppel regardless of the nullity and unenforceability of the original hire-purchase contracts.
The court summarises this as follows:

The first question to be decided was whether estoppel had a part to play in the case of
prohibited contracts or acts. Stated differently: Would estoppel be a good answer to a denial of
liability on the part of the main debtor? This is the primary question. If the answer is in the
affirmative, the main debtor is personally liable and then it goes without saying that the surety is
liable too - and that will be the end of the matter. However, if the answer to the primary question
is in the negative, it implies that the main debtor is not liable and then the further question arises
whether estoppel is a good defence against a denial of liability on the part of the surety.
QUESTION 5
A takes his car to B, who sells second-hand cars, to have his car valued. The car is
parked on B’s showroom floor where it is left for three days. In this period one of the
sales staff, X, who believed the vehicle to be part of the stock, sold the vehicle to C for
cash. A now claims the vehicle from C with a rei vindicatio. Advise C. (20)
See MAY/JUNE 2010 Q4
C could raise the defence of estoppel. (½)
5 requirements – Misrepresentation made by A (½), negligence on the part of A (½), causal link
between misrepresentation and prejudice suffered by C (½), prejudice suffered by C (½) and to
succeed with estoppel will be allowed by law (½)
Only first two difficult to prove under these circumstances.
Misrepresentation by words or conduct, or even silence. (1)
Misrepresentation must have been such as to lead a reasonable man to believe that it was
meant to be acted upon in that manner. (1)
Did A create the misrepresentation that B had the right to dispose of his property (ius
disponendi)? (1)
It is unreasonable to think that a person that has possession of goods, also has the ius
disponendi, without making further investigations. (1)
Electrolux v Khota (1) mere entrusting a person with the possession of goods is not sufficient to
produce the representation that the possessor has the ius disponendi (1) added indicia eg
documents of title or authority to dispose of the goods (1)
Possible exception if B was A’s agent for sale, but uncertain whether this still applies in
SA law (1)
C must also prove that A acted negligently (1) – Grosvenor Motors v Douglas (1)
Questionable whether A acted negligently by leaving his car with B for three days (1)
C will not succeed with estoppel because A did not act negligently and also did not make a
misrepresentation towards C. (1)
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QUESTION 6
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 defences against this claim and if so what the requirements for those
defences may be. (20)
This is a fairly wide question dealing with estoppel and its requirements, the most pertinent of
which here would be the questions of misrepresentation and negligence on the part of the owner.
Where case law is discussed use own discretion to award marks within the permitted mark
allocation.
1 Identification
This question deals with estoppel as a defence to the owner’s rei vindicatio. The
elements of misrepresentation and negligence on the part of the owner are of specific
relevance here. (2)
2 The law
Re requirements for estoppel:
• Misrepresentation – creation of false belief by estoppel denier. (1)

• Fault (intention or negligence) on part of estoppel denier. (1)
• Prejudice on part of estoppel assertor. (1)
• Causation – the estoppel assertor must have acted to his detriment as a result of
the misrepresentation of the estoppel denier. (1)
• The raising of estoppel must be permissible in law in the circumstances. (1)
3 Misrepresentation
• Misrepresentation is any word or conduct that communicates an untruth. Generally

it must be a misrepresentation of fact and may consist in a positive
misrepresentation or by omission where there is a legal duty to speak or
otherwise act positively. (2)
• Misrepresentation where owner leaves his property in possession of another.

General rule: mere leaving of one’s property in possession of another does not
create the impression that the latter has the right to sell the property (1 mark).
(Study Guide 2 21-23)
• Examples from case law
• Adams v Mocke 23 SC 722: A, a postal transport contractor, authorised his driver to hire
post horses and mules in case his horses should become disabled on the road - which in
fact happened. The driver hired a mule from E and left the lame horse with E on the
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understanding that E would look after and, if need be, use the horse until the hired mule
could be returned. E, however, sold and delivered the horse entrusted to him to a certain
Mocke. In the ensuing action A claimed the horse from Mocke and succeeded in his
claim. Lord de Villiers observed that
...’an owner does not lose his right of vindication unless he had so entrusted his goods
under circumstances which might fairly and reasonably induce third parties to believe that the
ostensible owner was the true owner or had authority from the true owner to dispose of the
goods. In the present case no such circumstances have been proved to exist. The fact that the
plaintiff entrusted the postcart horses to his driver could lead no one reasonably to believe that
he had the right to sell or exchange horses.’ (3)
• In Morum Bros Ltd v Nepgen 1916 CPD 392, the facts were the following: A sold two
horses to S, a speculator in horses, a postal contractor and also a vendor of fish and
vegetables. The sale was subject to a suspensive condition that, despite delivery of the
horses, ownership of them would not pass before the purchase price had been paid.
After the horses had been delivered to him but before he had paid the purchase price, S
sold them to a bona fide purchaser. A thereupon instituted the rei vindicatio against the
second purchaser, who invoked the doctrine of estoppel, contending that A, the owner,
had placed S in a position to represent himself as the owner of the horses. The court
rejected this contention and ordered the defendant to return the horses to A. (3)
• Exception
However, if the owner goes further and not only tolerates the possession of his or her
property by another, but also gives him or her the title documents or blank transfer form or
something similar, his or her representation may in fact amount to a misrepresentation, since his
or her conduct may be reasonably conducive to the false conclusion that the possessor is the
owner (and may dispose of the thing). (2)
Example
• The case of Fawdon v Lelyfeld 1937 TPD 339 can serve as illustration. The owner of a
racehorse hired it out to B and L. To evade the jockey club regulations the lease was
drawn up in the guise of a contract of sale. B and L received a false receipt for the
fictitious sum of R200 to enable them to act as owners in their dealings with the jockey
club. B and L subsequently sold the horse to Mrs Lelyfeld. The defendant, Mrs Lelyfeld,
pleaded estoppel against the rei vindicatio of the owner and succeeded in her plea. In
this case the owner of the horse had placed B and L in a position to represent
themselves to Mrs Lelyfeld as the owners of the horse. It was not the mere possession
of the horse by B and L, but the possession together with the fictitious receipt, that had
created an impression of such a nature that it could reasonably mislead third parties. (3)
• In Electrolux v Khota 1961 4 SA 244 (W) court held as follows:
‘I think that generally and logically the first enquiry should be into what was the specific
conduct of the owner that the respondent relies upon for the estoppel. If that conduct is not such
as would in the eyes of a reasonable person, in the same position as the respondent, constitute
a representation that the swindler was the owner of, or entitled to dispose of, the articles, then
cadit quaestio - no estoppel could then arise. But if such conduct does beget that
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representation, then the next enquiry would logically be whether the respondent relied upon, or
was misled by, that representation in buying the articles.
[T]he owner's mere entrusting a person (not being a factor, broker, or agent for selling)
with the possession of its articles is not sufficient to produce the representation that the
dominium or ius disponendi was vested in the possessor. The respondent would not be entitled
to assume from such mere possession that the possessor was authorised to dispose of the
articles. If he made such an assumption he would only have himself to blame for his gullibility.
To give rise to the representation of dominium or ius disponendi, the owner's conduct must be
not only the entrusting of possession to the possessor but also the entrusting of it with the
indicia of the dominium or ius disponendi.’ (3)
• Examples of indicia
Such indicia may be the documents of title and/or of authority to dispose of the articles, as
for example the share certificate with a blank transfer form annexed, as in West v De Villiers
1938 CPD 96; or such indicia may be the actual manner or circumstances in which the owner
allows the possessor to possess the articles, as for example the owner-wholesaler allowing the
retailer to exhibit the articles in question for sale with his other stock in trade. (3)
4 Fault (negligence)
• Negligence does not seem to be a strict requirement for estoppel, but aside from
a few possible exceptions it does seem to be a requirement against the rei
vindicatio of the owner. (2)
• Case law
• In Grosvenor Motors (Potchefstroom) Ltd v Douglas 1956 (3) 420 (A), Steyn JA stated
very clearly that in the case of rei vindicatio there should be at least negligence on the
part of the estoppel-denier. The facts of this case were briefly as follows:
K was introduced to the respondent by P as a possible purchaser of the respondent's
motorcar. K decided to buy the motorcar, but stated that he did not have his cheque book with
him, having left it in Welkom. Arrangements were made for P to accompany K to Welkom and
there to give K possession of the motorcar as against delivery of the cheque. In view of the fact
that the respondent had lost the licence papers of the motorcar he gave K, at his request, a
written document to explain his possession of the motorcar in the event of any enquiries. The
document, which was signed by the respondent, contained inter alia the statement that the
respondent had sold the motorcar to K. The respondent carried out his side of the contract, but
K's cheque was dishonoured. In the meantime K had sold the car to the appellant. The
appellant pleaded estoppel against the rei vindicatio of the respondent. Both the Supreme Court
and the Appellate Division rejected this plea of estoppel. Steyn JA adopted the view that culpa
on the part of the estoppel-denier was required before the estoppel-asserter could succeed. At
427 he remarks, with reference to estoppel:
‘That principle appears to be that an owner forfeits his right to vindicate where the person
who acquires his property does so because, by the culpa of the owner, he has been misled into
the belief that the person from whom he acquires it, is entitled to dispose of it.’
A little further on the same page, he continues:
‘In order to establish the defence of estoppel the appellant, apart from the facts which are
not in dispute, had to prove that culpa on the part of the respondent caused him to be misled
into the erroneous belief that Kriel had the right to dispose of the car.’ (3)
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• In Johaadien v Stanley Porter (Paarl) (Pty) Ltd 1970 (1) SA 394 (A) the facts were briefly
the following: J wanted to buy a motorcar from F, but wished to obtain some evidence of
F's alleged ownership. F referred J to the Stanley Porter Garage. In answer to J's
inquiry, the representative of the garage informed J that F had bought the motor car
under a hire-purchase agreement, that he had paid the last instalment and that the
garage consequently had no further right to the car. Acting on this information, J bought
the motorcar from F. At a later stage it appeared that F had not become owner of the
motorcar and Stanley Porter claimed the motorcar from J by means of the rei vindicatio.
J raised estoppel on the ground of the information supplied to him by Stanley Porter. His
raising of estoppel did not succeed since he could not prove negligence on the part of
the garage. The majority of the Appeal Court decided, per Steyn CJ, that negligence as
laid down in the Grosvernor Motors v Douglas case was a requirement for estoppel
where it was raised as a defence against the owner's rei vindicatio. It was required that a
reasonable person in the position of the plaintiff (Stanley Porter, the estoppel-denier)
should have realised that the information with which he provided the defendant
(Johaadien, the estoppel-asserter) was untrue or possibly untrue (399E, F), and in the
absence of such realisation there could be no question of negligence (see the
explanation at the beginning of this section). However, the defendant, J, did not allege
that the plaintiff was negligent. He submitted that it was sufficient for a successful
invocation of estoppel if the party who created the impression had simply foreseen (or
ought to have foreseen) that the third party would act on the ground of his
representation, and not that he was also aware (or ought to have known) of the
untruthfulness of his representation (395H). Steyn CJ rejected this argument, holding
that estoppel could not succeed in the absence of proof of negligence, and that the
defendant should hand over the motorcar to the plaintiff, the true owner. However, in his
minority judgment Rumpff JA adopted the view that negligence in these particular
circumstances was not a requirement and that the defence of estoppel should be
upheld. He was of the following opinion (as was submitted on the defendant's behalf): ``If
the misrepresentation was of such a nature that a prospective buyer could reasonably
be expected to be led by the representation to buy without enquiring about the
ownership of the thing, the buyer who is moved by such a misrepresentation, should be
protected'' (411G, H; our translation). Nor was it necessary, according to him, that the
plaintiff expressly allege negligence in order to be able to succeed. (3)
• The judgment in Oakland Nominees (Pty) Ltd v Gelria Mining & Investment Co (Pty) Ltd
1976 (1) SA 441 (A) 452 is also important. The following dictum states the legal position:
‘South African law of estoppel in regard to ownership
Our law jealously protects the right of ownership and the correlative right of the owner in
regard to his property, unless, of course, the possessor has some enforceable right against the
owner. Consistent with this, it has been authoritatively laid down by this Court that an owner is
estopped from asserting his rights to his property only
(a) where the person who acquired his property did so because, by the culpa of the owner,
he was misled into the belief that the person, from whom he acquired it, was the owner or was
entitled to dispose of it; or
(b) (possibly) where, despite the absence of culpa, the owner is precluded from asserting
his rights by compelling considerations of fairness within the broad concept of the exceptio doli.
[It should, however, be noted in this regard that the exceptio doli is no longer part of our law.
See Bank of Lisbon and South Africa Ltd v De Ornelas 1988 3 SA 580 (A).]
As to the formulation in (b), supra, the occasion has not yet arisen for its further development by
this Court. Certainly it does not arise in the present appeal, having regard to the pleadings, the
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evidence, and the arguments in this Court. As to (a), supra, it may be stated that the owner will
be frustrated by estoppel upon proof of the following requirements Ð
(i) There must be a representation by the owner, by conduct or otherwise, that the person
who disposed of his property was the owner of it or was entitled to dispose of it. A helpful
decision in this regard is Electrolux (Pty.) Ltd. v Khota and Another 1961 (4) S.A. 244 (W), with
its reference at p. 247 to the entrusting of possession of property with the indicia of dominium or
jus disponendi.
(ii) The representation must have been made negligently in the circumstances.
(iii) The representation must have been relied upon by the person raising the estoppel.
(iv) Such person's reliance upon the representation must be the cause of his acting to his
detriment.
As to (iii) and (iv), see Standard Bank of S.A. Ltd. v Stama (Pty.) T Ltd., 1975 (1) S.A. 730
(A.D.). Over the years there have been many decided cases in this country dealing with
estoppel. They will be found in the reported arguments of counsel in the present appeal. I do not
consider it necessary to discuss, distinguish or approve of them one by one. It is sufficient to
say that they are useful only if and in so far as they are consistent with the milestone decisions
of this Court in the Grosvenor Motors case, and the Johaadien case, above. In particular,
company share certificates with blank transfer forms are not, in law, negotiable instruments.
There is therefore no basis, in law, for regarding them as being excepted from the principle
stated above; although their transferability, as distinct from negotiability, may, depending on the
circumstances, be relevant in considering the question of negligent representation, supra.’ (3)
• From the case law, it is therefore clear that the requirement of fault (negligence) is stated
unequivocally for cases where estoppel is raised as a defence against the rei vindicatio
(excluding the possible exception based on equity mentioned in the Johaadien and
Oakland Nominees cases). (1)
5 Application
• A created the impression (misrepresentation) in the mind of C, both in writing and

telephonically, that B was the owner of the television set (or at least could dispose
of it). He was also clearly negligent in acting in this way and hence estoppel
should succeed against his rei vindicatio. (2)
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Oct/Nov 2006
ANSWER ALL THE QUESTIONS

QUESTION 1
A and B have concluded a contract for the sale of B’s house for R750,000. In terms of the
agreement A would receive occupation of the house on 1 February 2006 and an
occupational rental of R5,000 would be payable, which he subsequently paid. A also paid
a deposit of R30,000. A moved in on 1 February 2006 and immediately started improving
the house. He spent R30,000 on renovating the kitchen; R25,000 on redesigning the
garden; R20,000 on repainting various parts even though it had been recently painted
because he did not like the colours; and R15,000 on an impressive new entrance. His
architect friend informed him that the improvements has enhanced the value of the
house by at least R80,000. On 1 July 2006 A is informed by B’s attorney that the property
could not be registered in his name, because the contract of sale was never signed by B.
B now refuses to sign the document because he has an offer from C to buy the house for
R900,000. The attorney also informed A that he must vacate the house by 10 July
otherwise B will apply for an ejection order due to A’s unlawful occupation. Advise A
fully on all remedies and defences at his disposal. (25)
See May/June 2012 Q2
QUESTION 2
D is a deputy-director in the Gauteng Provincial Department of Works and is responsible
for managing certain contracts. E is a private contractor who is contending for a certain
contract to be awarded by the Department. E has paid D R20,000 in order that D ensure
the contract goes to E. D accepted the payment, but the contract was subsequently
awarded to X on the recommendation of D. E has now lodged a claim against D for
repayment of the money. Advise D on the validity of the claim and any defences he may
have.(15)
In this case the contract between the parties is illegal due to it being contrary to the law. Such a
contract is, therefore, void from the outset. When a contract is void ab initio two enrichment
actions come into play:
1. condictio indebiti - if the contract is void for reasons other than illegality
2. condictio ob turpem vel iniustam causam - if the contract is void due to illegality.
The latter is relevant in this case and the requirements for the action and defences against it
are:
1. Performance was rendered in terms of an illegal agreement.
An agreement may be deemed illegal:
(1) in terms of the common law where either the subject matter of the contract, its object
or its conclusion is contra bonos mores or against public policy; or
(2) Where it is prohibited expressly or by necessary implication by statute.
2. The other party was enriched at the expense of the plaintiff, who was
impoverished by the performance.
3. A tender was made to return any performance received by the plaintiff.
In Albertyn v Kumalo 1946 WPA 529 it was held that the plaintiff had to tender the return of that
which he had received from the defendant in terms of the void contract when sueing with the rei
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vindicatio for the return of something which he had delivered. The court decided obiter that this
also applies to the present condictio.
4. The plaintiff is not a turpis persona or there are cogent reasons why the par
delictum rule should not be strictly applied.
The right to institute this condictio is restricted by the par delictum rule, in terms of which a party
is not entitled to reclaim money or property if such a party is a turpis persona, that is where his
actions are tainted with turpitude or impropriety. That which a party has performed in terms of
an unlawful agreement is reclaimed with this action. An agreement is unlawful if the conclusion
thereof in itself, or the performance or the aim of the parties, is contrary to common law, statute
law, good morals or the public interest. In the assessment of the unlawfulness or lawfulness an
objective criterion must be employed, that is the ignorance of the parties about the
unlawfulness is irrelevant.
Since the decision in Jajbhay v Cassim, the courts have exercised a general discretion to relax
the rule if simple justice requires it. In Jajbhay v Cassim the Appellate Division held that the par
delictum rule is not inflexible, and that the shamefulness of the parties can be weighed up if it is
in the public interest. The court approaches the question whether a plaintiff who is a turpis
persona (person who acted in a shameful manner) can reclaim on the basis of ‘‘simple justice
between man and man’’. The fact that a plaintiff is a turpis persona therefore does not per se
exclude his right to reclaim what he has performed, since he may well succeed if the court finds
that ‘‘simple justice between man and man’’ so requires.
Turpis persona tested subjectively

To determine whether a contract is unlawful, an objective test is used. To establish whether a
party is a turpis persona or has acted shamefully, a subjective test is used, namely was the
party to the unlawful agreement aware of the unlawfulness of the agreement which implies that
actual knowledge of the possible illegality of the transaction is required.
Application to the facts
a) The contract is illegal in terms of statutory law.

b) The other party was enriched at the expense of the plaintiff, who was
impoverished by the performance.
c) Both parties are turpi personae as they were aware of the illegality of their
contract.
d) There is no reason for the court to relax the par delictum rule in these
circumstances.
E will not be successful with this enrichment action if the par delictum rule is strictly applied.
However, E may be successful if the court shows leniency and exercises its discretion to relax
the rule. However, courts will not be inclined to help a person who acted shamefully, contrary to
common law, statutory law, good morals or the public interest.
QUESTION 3
Write notes on the field of application and requirements for the condictio causa data
causa non secuta in the South African law. (10)
See Oct/Nov 2005 Q3
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QUESTION 4
It has been said that estoppel cannot found a cause of action but is merely a shield of
defence. It can therefore not be relied on by a plaintiff. Discuss this statement critically
with reference to your own example. (10)
In Mann v Sydney Hunt Motors it was held that estoppel cannot found a cause of action. This
implies that estoppel was not an actio. An estoppel pleaded by the plaintiff in his replication to
meet allegations raised in the plea is not the same thing as an estoppel used in the declaration
as an instrument of attack. In our law estoppel remains a weapon of defence.'' In Combe v
Combe it was held that estoppel could not be used as a ``sword'' but only as a ``shield''.
The basis of estoppel should not simply be sought in delictual misrepresentation.

Misrepresentation can give rise to delictual liability in terms of the actio legis Aquiliae and it can
result in the remedy of estoppel. However, to try and simply force estoppel into the framework of
the law of delict and to view it as yet another delictual remedy can give a warped picture. The
first danger associated with such an approach is that the distinctive requirements for a plea of
estoppel which have developed in legal practice over the years, are simply equated with the
well-known requirements for delictual liability. The requirements for a successful plea of
estoppel are not identical with the requirements for delict. One needs only to have regard for the
requirements of fault and prejudice, as well as causation, and for the fact that for estoppel to
succeed, the reliance on estoppel must be legally permissible. The latter requirement has no
equal in the law of delict. These differences between the delictual requirements and those for a
plea of estoppel can be explained on the basis of the important differences between the remedy
of estoppel and delictual remedies in so far as their nature, operations and functions are
concerned.
QUESTION 5
A takes her car to B who sells second-hand cars to have it valued. The car is parked on
B’s showroom floor where it is left for three days. In this period one of the sales staff
sold the vehicle to C for cash. A now claims the car with the actio rei vindicatio. Advise
C whether she can raise estoppel under these circumstances. (20)
disponendi)? (1)
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SA law (1)
QUESTION 6
A is the town clerk of the city of Nelspruit. In this capacity he receives applications for
trading licences which he may grant in certain circumstances, and which in other
circumstances he must refer to the executive committee of the city council. He also
receives applications for liquor licences which he must refer to the Liquor Licensing
Board. A has accidentally approved an application for a liquor licence by B while he was
busy approving other trading licences within his jurisdiction. After B had received the
letter of approval he has started to furnish his shop at a cost of R200.000 and he has also
bought stock to the value of R500.000. X, a rival liquor store owner has now objected to
B’s activities by complaining to the Liquor Licensing Board. Advise B on whether he
would be successful on a reliance on estoppel against any application for an interdict to
stop him from trading as well as any possible claim for damages. (20)
With estoppel the false impression is upheld as the truth – this can only operate where the false
impression can be legally upheld by means of estoppel. Where the impression is prohibited in
the public’s interest or legislation, estoppel can’t be a remedy.
In principle the effect of the estoppel claimed by the appellant will be to create a state of affairs
which respondent is not legally empowered to create. The estoppel would thus give rise to an
illegality. This the law does not permit.
Hoisain: if a trade license is wrongly issued to a merchant in spite of an express resolution to

trader to continue contrary to statute and estoppel CANNOT be applied. The reasoning being
that the issuer could not by his mistake be compelled to bring about a position which he had no
power in law to create of his own free will.
Exception: Estoppel can be applied where the impression would create a situation, which is
Ebrahim: a local authority mistakenly and in conflict with its long-standing policy granted a trade
licence in respect of certain areas. When, thereafter, it attempted to cancel the license, the court
held that the local authority could not say in response to a plea of estoppel that, if upheld,
estoppel would have the effect of compelling it to do something beyond its powers, or refrain
from doing that which it was its duty to do. Van Winsen J concluded: ``It seems to me that
where no statutory prohibition would be violated or duty left unfulfilled by reason of the operation
of estoppel, the local authority must be held bound to its decision.''
Thus B would be successful on a reliance on estoppel since the impression is merely contrary to
policy without being in conflict with any statute.
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The reliance on estoppel must be allowed by law

Where the upholding of an impression by means of estoppel results in a situation prohibited in
the public interest, by common law or statutory law, estoppel cannot be available as a remedy.
Estoppel is also not available to allow a statutory body to commit an act which is ultra vires the
powers of such body.
Holsain: if a trade licence is wrongly issued to a merchant in spite of an express resolution to

trader to continue contrary to statute = estoppel CANT be applied
Exception: estoppel can be applied where the impression would create a situation, which is
Ebrahim: local authority mistakenly and in conflict with policy, granted a trade license in respect
of certain areas – when it attempted to cancel the licenses – they relied on estoppel
Ultra vires acts:

estoppel doesn’t allow a statutory body to commit an act, which is ultra vires = they are given
their powers by statute and can’t do anything beyond those powers
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May/June 2009
SECTION A
Choose the most correct option in every instance.
(1) 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 into 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. Which
statement best explains the nature of the claim against A?
1. B has a claim against A based on delict for a fraudulent misstatement.

2. B has a 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.
√4. B has an enrichment claim against A based on the condictio indebiti.
5. B has an enrichment claim against A based on the actio negotiorum gestorum
utilis. (2)
(2) Assume the same facts as in question (1). Which statement regarding the
requirements for an enrichment action is correct?
√1. A has been enriched at the expense of B.

2. A has been enriched at the expense of C, who made the payment.
3. A's enrichment is not unjustified as there was a contract between A and B.
4. A's enrichment is unlawful because he made a demand for payment at a time
that it was not due.
5. B has been impoverished at the expense of the bank. (2)
(3) Assume the same facts as in question (1). Which statement best explains the
calculation of the enrichment claim?
1. B can only claim R20,000 from A because his account was overdrawn and the
bank received the benefit of the other R30,000.
2. B can claim nothing as A has not been unjustifiably enriched at his expense.
3. B can claim only R25,000 because the rest of the enrichment amount has been
spent on the wages and A's holiday.
√4. B can claim only R40,000 because the rest of the enrichment amount has been
lost on the luxury holiday.
5. B can claim only R35,000 because the rest of the enrichment has been lost on
the wages paid. (2)
(4) In order to be successful with a claim based on the condictio indebiti, the plaintiff
must prove the following fact(s) or requirement(s).
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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.
4. 1 and 2 are correct.
√5. 1 and 3 are correct. (2)
(5) 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.
3. Where a contract is rescinded due to a breach of contract.
4. Where a party has made an undue payment in terms of an illegal contract.
5. Where a party has made payment which is due but where the cause for the
payment later falls away. (2)
(6) X has concluded a contract with Y to build a tennis court at a cost of R40,000 on
the property it is renting from Z. It can be shown that the value of the property has
increased by R20,000 due to the improvement. X has disappeared before paying Y for the
work done. Y now wants to lodge a claim against Z, the owner of the property. Which
statement best explains the ground on which and amount that Y can claim (Read
question (7) before you answer this question).
1. Y has an enrichment claim against Z for an amount of R40,000.

√3. Y has a contractual claim against X for R40,000.
4. X has an enrichment claim against Z for R40,000.
5. Y has an enrichment claim against X R 20,000.
(2)
authority for the answer to 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
5. The decision in the Gouws case was confirmed in Brooklyn House Furnishers Ltd
v Knoetze & Sons 1970 3 SA 264 (A). (2)
(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
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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?
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 has a claim against H as the agent of H. (2)
(9) G has noticed that his neighbour's (H) stud bull is seriously ill. The neighbour is
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 his brother 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?
√1. G has no claim against H because the bull has died and the expenses have been
wasted.
3. G has a claim against H in terms of the actio negotiorum gestorum contraria for
R12,000.
R12,000.
5. G's claim against H in terms of the actio negotiorum gestorum contraria will fail
because the bull died.
(10) Which statement correctly explains the possession or occupation of another's

property?
1. A bona fide occupier is someone who lawfully occupies the immovable property
of another person.
of another person as if he is the owner thereof.
3. A bona fide possessor is someone who lawfully occupies the property of another
person as if he is the owner thereof.
√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.
(2)
(11) Which statement best explains the legal position on the recognition of a general
enrichment action in South African law?
1. In Nortje v Pool 1966 3 SA 96 (A) the Appellate Division recognised the

existence of a general enrichment action in South Africa without any qualifications.
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existence of a general enrichment action in South Africa, but with certain qualifications.
3. In Kommissaris van Binnelandse Inkomste v Willers 1994 3 SA 283 (A) the
Appellate Division recognised the existence of a general enrichment action in South Africa.
√4. In Kommissaris van Binnelandse Inkomste v Willers 1994 3 SA 283 (A) the
Appellate Division rejected the existence of a general enrichment action in South Africa but
recognised that courts can extend enrichment liability to circumstances where it is deemed
necessary.
Appellate Division recognised the existence of a subsidiary, general enrichment action in South
Africa. (2)
(12) A, an American tourist, has leased a vehicle from B. While travelling in the
Northern Cape, the vehicle breaks down. A contracts with C, a garage in Springbok, to
repair the vehicle at a cost of R12,000. After two days A leases another vehicle from X
and completes his trip. A departs for America. C wants to claim the R12,000 from B.
Which statement best explains whether C has a claim against B and the authority on
which it is based?
1. In terms of the decision in ABSA Bank t/a Bankfin v Stander t/a CAW
Paneelkloppers 1998 1 SA 939 (C) C has no claim against B because B has not been enriched
at C's expense.
Paneelkloppers 1998 1 SA 939 (C) C has no claim against B because there was no
impoverishment.
√3 In terms of the decision in ABSA Bank t/a Bankfin v Stander t/a CAW
Paneelkloppers 1998 1 SA 939 (C) C has a claim against B based on the extended
management of affairs action.
Paneelkloppers 1998 1 SA 939 (C) C has a claim against B based on the condictio causa data
causa non secuta.
Paneelkloppers 1998 1 SA 939 (C) C has a claim against B based on the condictio sine causa.
(2)
(13) Assume the same facts as in question (12). Which statement best explains
whether C has a right of retention and the authority on which it is based?
1. In terms of the decision in Brooklyn House Furnishers Ltd v Knoetze & Sons
1970 3 SA 264 (A) C has no right of retention in respect of the vehicle.
√2. In terms of the decision in Brooklyn House Furnishers Ltd v Knoetze & Sons
1970 3 SA 264 (A) C has a right of retention against B in respect of the vehicle.
1970 3 SA 264 (A) C has a right of right retention against A in respect of the vehicle.
4. In terms of the decision in Gouws v Jester Pools (Pty) Ltd 1968 3 SA 63 (T) C
has a right of retention against B in respect of the vehicle.
has a right of retention against A in respect of the vehicle. (2)
(14) Which statement(s) provide(s) the most correct explanation of the current legal
position?
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1. Estoppel and waiver are one and the same.

2. Estoppel cannot be used to maintain an impression that a right has been waived.
3. Estoppel cannot apply to waiver because waiver relates to an existing right while
estoppel is merely a defence.
√4. A party may be estopped from denying waiver in certain circumstances.
5. 2 and 3. (2)
(15) Which statement is the most correct?
1. The protection of good faith is the basis of estoppel.

2. The basis of estoppel is to be found in a delictual action for misrepresentation.
3. The basis of estoppel is the exceptio doli.
√4. Estoppel is often seen as a doctrine of the law of evidence.
5. The basis of estoppel is the maxim nemo contra suum factum venire debet.
(2)
(16) A local authority mistakenly and in conflict with its own policy granted a trade
licence in respect of certain areas to X. When, thereafter, it attempted to cancel the
licence, X raised estoppel to prevent it from doing so. Which statement most correctly
reflects the position in regard to X's reliance on estoppel?
1. X will not be successful with its reliance on estoppel because estoppel is not
allowed by law in instances where a local authority must carry out a statutory duty.
2. X will not be successful with its reliance on estoppel because X did not act to its
detriment.
√3. X will probably be successful with its reliance on estoppel.
4. X will not be successful with its reliance on estoppel because the city council did
not make a misrepresentation.
5. Estoppel will always succeed where a statutory body attempts to revoke its own
decision. (2)
(17) Which element of estoppel do the facts in question (16) specifically relate to?
1. Misrepresentation.
2. Fault.
3. Prejudice.
4. Causation.
√5 Permissible in law.
(2)
(18) Chose the most correct statement.
1. In Van Ryn Wine and Spirit Co v Chandos Bar 1928 TPD 417 estoppel
succeeded.
2. In Van Ryn Wine and Spirit Co v Chandos Bar 1928 TPD 417 estoppel did not
succeed.
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3. In Van Ryn Wine and Spirit Co v Chandos Bar 1928 TPD 417 one of the parties
was not prevented from proving dissensus because his conduct had been reasonable and
without fault.
4. 1 and 3.
√5. 2&3 (2)
(19) Estoppel is most similar to which theory?
1. The declaration theory.

2. The will theory.
√3. The reliance theory.
4. The reception theory.
5. None of the above. (2)
(20) 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 of R200 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. Which
statement provides the most correct explanation of the current legal position?
1. A has committed a misrepresentation to C by giving the misleading letter to B

while he should have realised that B could abuse the letter according to the decision in
Grosvenor Motors (Potchefstroom) Ltd v Douglas 1956 3 SA 420 (A).
2. A has committed a misrepresentation to C by giving the letter to B.
√3. A has committed a misrepresentation to C by giving the letter to B and failing to
inform C at the time when C phoned him, that the TV set had not yet been paid in full.
4. A misrepresentation cannot be made by silence.
5. A misrepresentation cannot be made by conduct.
(2)
(21) Assume the same facts as in question (20). Indicate which statement most
correctly states the position in regard to the fault requirement?
√1. The person relying on estoppel must at least allege and prove negligence in
cases where a loss of ownership is involved.
2. The person relying on estoppel must at least allege and prove intent in cases
where a loss of ownership is involved.
3. Fault is never required for a successful reliance on estoppel.
4. Fault is always required for a successful reliance on estoppel.
5. None of the above.
(2)
correctly states the position in regard to the causality requirement.
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1. The misrepresentation by the person denying estoppel must have been the only
cause of the detrimental conduct of the person relying on estoppel.
2. In terms of the "proximate cause" as applied by the courts, the misrepresentation
by the person denying estoppel must have been the only cause of the detrimental conduct of
the person relying on estoppel.
√3. In terms of the "proximate cause" as applied by the courts, it is sufficient that the
misrepresentation by the person denying estoppel made a material contribution to the
detrimental conduct of the person relying on estoppel.
4. The "proximate cause" as applied by the courts, includes only factual causality
and not legal causality.
5 The courts use the conditio sine qua non test to determine causality in general.
(2)
correctly states the position in regard to the detriment requirement.
√1. It is sufficient to prove that the person relying on estoppel has changed his
position to his detriment even if he cannot prove concrete damage suffered.
2. It is not sufficient to prove that the person relying on estoppel has changed his
position to his detriment if he cannot prove concrete damage suffered.
3. The person relying on estoppel must prove that he has already suffered damage
as a result of the misrepresentation in all instances.
4. The person relying on estoppel must prove that he has suffered either
patrimonial damage or personal damage.
5 None of the above. (2)
(24) Assume the same facts as in question (20). Which statement most correctly
indicates whether C's reliance on estoppel will be successful?
√1. C has acted to his detriment because he has concluded the contract with B,
made payment and now possibly stands to lose the TV set.
2. C has not acted to his detriment because he has not suffered any patrimonial
damage.
3. C has not acted to his detriment by concluding the contract with B, because he
still has a claim for breach of contract against B.
4. C cannot rely on estoppel at all in cases where ownership is at stake.
5 C cannot rely on estoppel when he has a contractual claim against a third party.
(25) Choose the correct statement.
1 In Fawden v Lelyfeld 1937 TPD a plea of estoppel did not succeed.

√2 In Grosvenor Motors (Potchefstroom) Ltd v Douglas 1956 3 SA 420 (A) a plea of
estoppel did not succeed.
3 In Johaadien v Stanley Porter (Paarl) (Pty) Ltd 1970 1 SA 394 (A) a plea of
estoppel succeeded.
4 In Morum Bros v Nepgen 1916 CPD a plea of estoppel succeeded.
5 In Adams v Mocke 23 SC 722 a plea of estoppel succeeded.
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SECTION B
NB: TO BE MARKED LIGHTLY: USE OWN DISCRETION
QUESTION 1
A postal agent and part-time government employee, P, permitted S, whom he had known
for many years and whom he had no reason to distrust, to work in his office, S having
told him that he wanted a quiet place in which to work. While he was in P's office, S used
the post office's official date stamp, which P had neglected to keep under lock and key,
to stamp a number of unused blank postal order forms which had been stolen from a
post office in another town about three years before. Having given the order forms the
appearance of validity by stamping them, S disposed of them to various persons. Some
of these persons deposited the orders they had acquired with a bank. The bank
presented the orders to the post office and was paid their face value. The government, on
discovering that the orders were not genuine, sought to recover the amount the post
office had paid to the bank. The bank set up a defence of "estoppel by negligence",
alleging that P had been negligent in not keeping the date stamp under lock and key and
in allowing S access to the room in which the stamp was kept.
1.1 What action should the government institute to recover the amount the post office
had paid to the bank and what are its requirements? Discuss briefly. (5)
The facts pertain to the case of Union Government v National Bank of SA Ltd 1921 AD 121 (1).
The action instituted by the government was the conditio indebiti (1); the requirements for which
are:
Transfer of thing (which can be corporeal or incorporeal) in ownership to another;

due to a mistake (of law or fact); and
which must be reasonable under the circumstances.
(3-5 marks depending on depth of discussion. See SG 2 48 and SG 1 32).
1.2 Discuss whether the defence of estoppel will be succesful with reference to
appropriate case law. (10)
Discussion of the element of causation within the context of estoppel (1). Discussion of factual
and legal causation in general or with reference to law of delict (2). Discussion of ‘proximate
cause test’ as combined test in estoppel for factual and legal causation should form focus of
answer:
Proximate cause or real and direct cause one test generally encompassing both factual and
legal causation (1)
Discussion of Union Government v National Bank of SA Ltd 1921 AD 121 and its outcome (8-
10) dealing with - facts, discussion of problem of fraud of third party causing fraud upon the
representee. In casu lack of negligence and proximate cause tests not having been satisfied for
estoppel to succeed (8-10).
Discussion of LAWSA para 665 that some cases indicate a different approach (2-3)
Discussion of approach in Kajee v HM Gough (Edms Bpk) 1971 3 SA 99 (N) (2-3).
(See SG 2 47-50) [15]
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QUESTION 2
Discuss the right of a lessee to claim compensation for improvements to rural property
(farmland) as provided for in the Placaats of 26 September 1658 and 24 February 1696.
(10)
Lessee may remove all structures, except necessary improvements, during lease period,
provided property not left in worse condition.
That which is not removed becomes property of the owner
Lessee may claim compansation for improvements effected with consent of owner. Restricted to
value of materials (no claim for labour); in addition cost of seed, ploughing, tilling and sowing of
crops left behind.
Lessee may be compelled to remove attachments after expiry of lease.
Lesse does not have ius retentionis
De Beers Consolidated Mines v London and SA Exploration Co (1893) 10 SC 359 –
compensation restricted to useful improvements, necessary improvements according to
principles applicable to bona fide possessors. Criticised because Placaats do not distinguish
between different types of improvements.
Lesse can claim compensation only when lease expires.
Use own discretion – possible 10-15 marks available(ie approx 2-3 marks per point indicated
above depending on content) . See SG 1 115.
[10]
QUESTION 3
X is an employee of Company Y. X is paid a monthly salary of R30,000 which is payable
at the end of the month. During July 2008 X receives a very lucrative offer from Company
Z provided he can start work immediately. X does not return to his employment with Y
after 20 July 2008. Y now refuses to pay X anything for his employment during July 2008.
Advise X whether he has any claim against Y, and if so discuss the nature of the claim as
well as the amount that he can claim. (10)
Contract of service or employment (locatio conductio operarum) – employee only entitled to

compensation when completed term of employment (2).
No claim in contract because of exceptio non adimpleti contractus, but claim based in
enrichment (2)
Requirements (2-3).
Discussion Spencer v Gostelow 1920 AD 617 (3-4)
Pro rata payment (3)
Case of deserter and criticism (3)
See SG 1 138-139.
[10]
QUESTION 4
4.1 Write a brief note on the effect of fault on the part of the estoppel assertor. (5)
Deceived party himself must not have negligent for estoppel to succeed (1).
Eg someone who assumes person in possession of thing is owner, is himself negligent (1).
Examples where deceived party was negligent like Adams v Mock (2-3).
Fault of estoppel esserter often indicates lack of fault on part of estoppel-denier(1).
Intentional misrepresentation, however, rules out negligence on part of deceived party (1).
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See SG 2 37.
4.2 State the requirements for the true actio negotiorum gestorum. (5)
Gestor must perform service without instruction.

He must act utiliter coeptum (reasonably).
Intention to act in interest of dominus.
Not intended to act free of charge.
May not act in contravention of express prohibition of dominus.
(1-2 for each requirement depending on content). See SG 1 83.
4.3 Distinguish between a bona fide possessor and a mala fide possessor. (5)
bona fide possessor:
Has possession of thing in mistaken belief he is owner thereof.

Mistaken belief must also be reasonable.
Criticism of reasonability requirement. (2-3)
Mala fide possessor:
Has possession of thing knowing that he is not the owner thereof.

Exercises de facto power over thing as if he is owner.
Unlawful (2-3)
Use discretion – much can be said about claims for compensation of these two possessors see
SG 103-109.
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Oct/Nov 2009
SECTION A
Question 1
Indicate which one of the following statements most correctly describe the existence of a
general enrichment action in South African law.
1. In Nortjé v Pool 1966 (3) SA 96 (A) the Appellate Division recognised the existence of a
general enrichment action in South African law.
2. In Nortjé v Pool 1966 (3) SA 96 (A) the Appellate Division rejected the existence of
a general enrichment action in South African Law.
3. In Willis Faber Enthoven (Pty) Ltd v Receiver of Revenue 1992 (4) SA 202 (A) the
Appellate Division recognised the existence of a general enrichment action in South African law.
4. In Willis Faber Enthoven (Pty) Ltd v Receiver of Revenue 1992 (4) SA 202 (A) the
Appellate Division rejected the existence of a general enrichment action in South African law.
5. Although the Appellate Division rejected the existence of a general enrichment action in
South African law in Nortjé v Pool 1966 (3) SA 96 (A), the existence of such an action has since
been recognised in the case law.
Question 2
Which one of the following statements cannot be regarded as a general requirement for
enrichment liability.
1. The plaintiff must have been impoverished.
2. The enrichment must have taken place without a justifiable cause.
3. The enrichment must have taken place unlawfully.
4. The defendant must have been enriched.
5. The plaintiff is only entitled to the lesser of his impoverishment and the enrichment of the
defendant.
Question 3
S has concluded a contract with P for the sale of his horse, Big Boy, at a price of R
50,000. P immediately paid the purchase price to S. Unknown to both parties at the time
of the conclusion of the contract, Big Boy had died the day before the conclusion of the
contract when he was kicked by another horse. S immediately used the purchase price to
buy a new young foal for R15,000, to pay his workers weekly wages of R 8,000, to pay his
overdraft of R 10,000 and to pay for a luxury weekend away of R 12,000. There remains R
5,000 of the money in his savings account with the bank. This contract is void due to
initial impossibility
Which statement best explains the basis of P’s claim against S?
1. P has an enrichment claim against S for repayment of the purchase price based on the
condictio ob turpem vel iniustam causam.
condictio causa data causa non secuta.
condictio sine causa specialis.
4. P has an enrichment claim against S for repayment of the purchase price based
on the condictio indebiti.
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actio negiotiorum gestorum utilis.
Question 4
Assume the same facts as in Question 3. Indicate which statement best explains the
quantum of P’s enrichment claim.
1. P has an enrichment claim, for the full R 50,000 deposit paid.
2. P has an enrichment claim only for the R 5,000 left in the savings account, the R 15,000
paid for the foal and the weekly wages paid of R 8,000 t.
3 P has an enrichment claim only for the R 5,000 left in S’s savings account.
4. P has an enrichment claim only for the R 5,000 left in the savings account and the R
15,000 paid for the foal.
5. P has an enrichment claim only for the R 5,000 left in the savings account, the R 15,000
paid for the foal, the weekly wages paid of R 8,000 and the R 10,000 paid on the overdraft.
Question 5
Indicate which one of the following is not a correct statement in respect of the condictio
ob turpem vel iniustam causam:
1. A party who acted with knowledge of the unlawfulness of the contract, can never
have an enrichment claim against the other party.
2. Performance by the plaintiff must have taken place as a result of an unlawful agreement.
3 The plaintiff must offer to return any performance received when lodging this enrichment
action.
4. The court has an equitable discretion to “do justice between man and man” when
dealing with claims based on this enrichment action.
5. 1 and 4 are both wrong.
s--Question 6
L is renting a farm from O for an amount of R 10,000 per month. Without notifying O, L
concludes a contract with R to build a new storeroom at a cost of R 100,000 and to make
repairs to the roof of the house on the farm at a cost of R 15,000 because the roof is leaking
and causing damage to the interior of the house.
Indicate which statement best explains L’s presence on O’s land

1. L is a lawful occupier of the farm.
2. L is a bona fide occupier of the farm.
3. L is a bona fide possessor of the farm.
4. L is a mala fide occupier of the farm because he did not have the permission of O to
effect the improvements and repairs.
5. 1 and 3 are both correct
Question 7
Assume the same facts as in Question 6. Indicate which statement best explains the L’s
possible claim.
1. L as lawful occupier has an enrichment action against O for the value of all of the
improvements effected to the farm.
2. L as bona fide occupier has an enrichment action against O to the extent that the
improvements increased the value of the farm..
3. L as lawful occupier has an enrichment action against O for only the value of all of the
necessary improvements effected to the farm, i.e. the repairs to the roof.
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4. L as lessee of rural land, has no claim against O in terms of the Roman-Dutch

Placaaten that still applies in South African law.
5. L as lessee of rural land, has a claim against O in terms of the Roman-Dutch Placaaten
that still applies in South African law.
Question 8
Assume the same facts as in Question 6. Assume further that L has absconded after the
improvements were effected and cannot be found as he has apparently emigrated.
Indicate which statement best explains the case law on whether R will have a claim under
these circumstances..
1. In Buzzard Electrical v 158 Jan Smuts Avenue Investments 1996 (4) SA 19 (A) it was
held that under these circumstances R has a claim against O for the value of the improvements
made to the farm.
2. In Buzzard Electrical v 158 Jan Smuts Avenue Investments 1996 (4) SA 19 (A) the
question on whether R has a claim against O for the value of the improvements made to the
farm under these circumstances, was left undecided.
3. In Gouws v Jester Pools (Pty) Ltd 1968 (3) SA 563 (T) it was held that under these
circumstances R has a claim against O for the value of the improvements made to the farm.
circumstances R has a no claim against O for the value of the improvements made to the farm.
5. 2 and 4 are both correct.
Question 9
B has bought an operating business from S for R 1.5 million. After B had taken over the running
of the business, X, a major supplier to the business, refuses to supply B with any product until S
has settled a debt owed to X for goods delivered in an amount of R 50,000. B pays S’s debt with
X because he cannot operate the business without the product supplied by X. S refuses to
repay the amount to B.
Indicate which statement best explains which enrichment action, if any, is available to B
against X.
1. B has no claim against X in terms of any enrichment action.
2. B has a claim against X based on the condictio indebiti.
3. B has a claim against X based on the condictio sine causa specialis.
4. B has a claim against X based on the actio negiotiorum gestorum utilis (extended
management of affairs action).
5. B has a claim against X based on the actio negiotiorum gestorum contraria (true
Question 10
Assume the same facts as in question 9. Indicate which statement best explains which
enrichment action, if any, is available to B against S.
1. B has a claim against S based on the condictio indebiti.
2. B has a claim against S based on the condictio sine causa specialis.
3. B has a claim against S based on the actio negiotiorum gestorum utilis (true
management of affairs action)
4. B has a claim against S based on the actio negiotiorum gestorum contraria (extended
5. B has no claim against S because he is not entitled to meddle in the affairs of S without
the permission of S.
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Question 11
Assume the same facts as in Question 9. Further assume that the reason why S refused to pay
X was because the goods delivered were defective. S had a valid claim for the reduction of the
purchase price of those goods in an amount of R 13,000.
Indicate which statement best explains the quantum of B’s claim, if any.
1. B has a claim against S for the full amount of R 50,000.
2. B has a claim against S for only R 37,000.
3. B has a claim against X for the full amount of R 50,000.
Question 12
E is an employee of M. E is paid a monthly salary of R 20,000. On 15 June 2008 M summarily
dismissed E because of theft of company assets. The dismissal was lawful in terms of the
employment contract and employment law.
Indicate which statement best explains the possible claim that E might have against his
employer.
1. E has no claim for any part of his salary.
2. E has a contractual claim for the full amount of his salary for June 2008.
3. E has a pro rata claim for half of his salary of June 2008 based on the principle of
unjustified enrichment.
4. E has a contractual claim for a pro rata part of his salary for June 2008.
5. E has a claim for the full amount of his salary based on the principle of unjustified
enrichment.
Question 13
A has paid B an amount of R 40,000 by cheque. Before B could present the cheque to his bank,
A countermanded the cheque because B had delivered defective goods to him. X, a clerk at A’s
bank failed to notice the countermand notice and payment of the amount was made to B.
Indicate which statement best explains the nature of the possible claims by A or the
bank.
1. B has been enriched at the expense of the bank, because the bank had no mandate to
make a payment from A’s account.
2. B has been enriched at the expense of A, from whose account the payment was made.
3. A has an enrichment claim against B for the full amount of R 40,000.
4. A has an enrichment claim against B for a reduced amount.
Question 14
A’s car is stolen. At an auction where A is present he recognises his car which has been
put up for sale, but he remains silent. B buys the car for R 50,000. A now claims the car
from B with the actio rei vindicatio. Choose the statement that best explains whether
estoppel will succeed in these circumstances.
1. B has no defence against A’s claim as A is the rightful owner of the car.
2. A’s silence at the auction can be viewed as a misrepresentation which should be
sufficient for purposes of relying on estoppel as a defence.
3. Silence or an omission can never be sufficient to constitute a misrepresentation when
relying on estoppel.
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4. B can resist A’s claim with the defence that she was an innocent purchaser because she
did not know that the vehicle was stolen.
Question 15
Indicate which statement best explains the effect of fault on the part of the estoppel
assertor..
1. Where a person has acted negligently in relying on a misrepresentation, he can never
rely on estoppel.
2. The negligence of the person relying on estoppel is not relevant.
3. The negligence of the person relying on the misrepresentation will exclude a successful
reliance on estoppel, even if the misrepresentation was made intentionally.
4. Where a person has made an intentional misrepresentation, the negligence of the
person relying on the misrepresentation will not exclude a successful reliance on estoppel.
Question 16
A sells merchandise to customers on the basis of standard terms and conditions. A’s
agent, in order to make a sale, makes a misrepresentation to B about the standard terms
and conditions. B, relying on the misrepresentation, enters into an agreement with A. A
now seeks to enforce the standard terms and conditions on B. B wants to raise estoppel
as a defence against the enforcement of these terms.
Indicate which statement best explains whether and when the conduct of an agent can
bind the principal for the purposes of estoppel.
1. B cannot rely on estoppel because A did not make the misrepresentation to B.
2. A person is not responsible for the misrepresentation made by an agent acting on his
authority.
3. A is responsible for any misrepresentation made by his agent acting on his authority for
purposes of estoppel.
4. A is only responsible for the misrepresentations made by his agent, if he instructed the
agent to make the misrepresentation.
Question 17
Assume the same facts as in Question 15. Indicate which statement best explains the
prejudice requirement in these circumstances.
1. B will not be entitled to rely on estoppel unless he can prove that he has acted to his
detriment.
2. B will not be entitled to rely on estoppel unless he can prove that he has suffered
patrimonial damage.
3. The mere conclusion of the contract on different terms by B constitutes a detriment that
is sufficient for purposes of estoppel.
4. The conclusion of the contract on different terms by B can only constitute detriment for
purposes of estoppel if it is likely to lead to patrimonial damage.
The following set of facts is relevant for questions 18-22

A has sold his car to B for R 50.000. 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 my car, 1995 Ford Fiesta, FFF888GP to B”. After a period of six
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months and payment of R 12,000 B wants to sell the car 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 car from B for
R 40,000. Thereafter B fails to make any further payments to A. A now claims back his car
from C with the actio rei vindicatio.
Question 18
Which statement provides the most correct explanation of the current legal position with
regards to the possible misrepresentation made in these circumstances?
1. A has committed a misrepresentation to C by giving the misleading letter to B while he
should have realised that B could abuse the letter according to the decision in Grosvenor
Motors (Potchefstroom) Ltd v Douglas 1956 3 SA 420 (A).
2. A has committed a misrepresentation to C by giving the letter to B and failing to inform
C at the time when C phoned him, that the car had not yet been paid in full.
Question 19
Indicate which statement most correctly states the current legal position in regard to the
fault requirement of estoppel.
1. The person relying on estoppel must at least allege and prove negligence in cases
2. The person relying on estoppel must at least allege and prove intent in cases where a
loss of physical possession is involved.
5. 1, 2 and 4 are all correct.
Question 20
causality requirement.
1. The misrepresentation by the person denying estoppel must have been the only cause
of the detrimental conduct of the person relying on estoppel.
2. In terms of the "proximate cause" test as applied by the courts, the misrepresentation by
the person denying estoppel must have been the only cause of the detrimental conduct of the
person relying on estoppel.
3. The "proximate cause" test as applied by the courts, includes only factual causality and
not legal causality.
4. In terms of the "proximate cause" test as applied by the courts, it is sufficient that the
Question 21
Decide which statement most correctly indicates whether C's reliance on estoppel will be
successful.
1. C has not acted to his detriment by concluding the contract with B, because he still has a
claim for breach of contract against B.
2. C has not acted to his detriment because he has not suffered any patrimonial damage.
3. C has acted to his detriment because he has concluded the contract with B, made
payment and now possibly stands to lose the car.
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Question 22
Indicate which statement most correctly reflects the position in regard to use of estoppel
in cases of conclusion of contracts.
1. In accordance with the case law estoppel cannot be utilised to keep a party bound to the
misrepresentation he has made in respect of his intention to contract.
2. It is undesirable to use estoppel in cases of mistake to bring a contract into existence
because it creates a fiction or an appearance which only applies between the parties.
3. In Sonap Petroleum (SA) Pty Ltd v Papadogianus 1992 3 SA 234 (A) the court accepted
that it may sometimes be necessary to use estoppel in the case of mistake.
4. Estoppel has never been used in South African law to keep an apparent contract in tact.
Question 23
The city council of Cape Town has a statutory duty to collect property rates and taxes at
certain rates. During the past two years the city council has only collected half of the
correct amount of taxes from XYZ (Pty) Ltd. The city council has now discovered the
mistake and claims immediate payment of an amount of R 500,000 from XYZ. XYZ has
raised a defence of estoppel against the claim. They maintain that they have paid more
dividends to their shareholders in the past two years than they would have done if the
city council had claimed the correct amount of rates and taxes.
Indicate which statement most correctly reflects the position in regard to XYZ's reliance
on estoppel:
1. XYZ will not be successful with its reliance on estoppel because estoppel is not allowed
by law in instances where the city council must carry out a statutory duty.
2. XYZ will not be successful with its reliance on estoppel because XYZ did not act to its
detriment.
3. XYZ will not be successful with its reliance on estoppel because the city council did not
make a misrepresentation.
4. XYZ will probably be successful with its reliance on estoppel.
Question 24
Indicate which one of the following is NOT a requirement for a valid reliance on estoppel:
1. There must have been a material misrepresentation.
2. The misrepresentation must have caused detrimental conduct by the person relying on
the estoppel.
3. The person denying estoppel must have made the misrepresentation intentionally to
mislead the person relying on the estoppel.
4. The misrepresentation must have been unlawful.
5. Both 3 and 4 are not requirements.
Question 25
Indicate which of the following statements regarding the basis of estoppel is wrong.
1. Estoppel was introduced into South African law ‘on the passport’ of the exceptio doli.
2. There are theoretical objections to regarding the exceptio doli as the basis of estoppel in
South African law.
3. There are theoretical objections to regarding the maxim nemo contra suum factum
venire debet as the basis for estoppel in South African law.
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4. Estoppel is a legal remedy sui generis, that is in its own right which does not correspond
with a delictual action.
5. Estoppel is a form of delictual conduct.
SECTION B
Question 1
A has bought goods from B at a price of R 100,000. The goods have been delivered and A
has made a direct payment into B’s account by electronic funds transfer. B who is
unaware of the payment sends an invoice for the goods to A. A clerk in A’s employment
receives the invoice and again makes payment of the R 100,000 to B. A now wants to
claim the R 100,000 from B. Advise A on whether he has any claim, the nature and
requirements of the claim and any defences that B may have against the claim. (10)
Memorandum:
Identification of the issues – condictio indebiti; defence of excusable mistake (3)
Discussion of the various requirements for the condictio indebiti –payment/performance/transfer
of ownership; based on mistake; mistake must be excusable. (3)
Emphasis on discussion of excusability requirement and (4)
Application to the facts – mistake excusable (debatable), calculation all amounts except watch
given to his girlfriend (enrichment no longer in his estate) (3)
Question 2
R is leasing a business property from P, the owner of a shopping centre at R 12,000 per
month. In order to establish her retail fashion business R has spent the following
amounts: R 10,000 cleaning and on painting the premises because the previous
occupant had left it in a very dirty state; R 25,000 on shop-fittings such as counters,
railings and dressing rooms; R 6,000 on signage fitted to the outside of the shop and
painted on the windows; R 13,000 on display mannequins; R 200,000 on stock. After R
had been occupying the premises for three months, it now turns out that the rental
agreement is void due to the fact that the required formalities for the contract have not
been complied with. P refuses to formalise the agreement with R and has now applied for
an ejection order against R. R has not paid the last month’s rent and refuses to vacate
the property. It is now known to R that P wants to lease the shop to his wife who will also
run a fashion shop from the premises as R had been very successful in establishing the
business. Advise R on any defences that she may have against the application for the
ejection order as well as any claims she might have against R. (10)
Memorandum:
Identification of issues – claims of bona fide occupier; retention right; quantification (3)
Discussion of legal position of bona fide occupier – possible claims for improvements to P’s
property (4)
Discussion of P’s defences of non-enrichment – improvements may not increase the value of
the property, except that new tenant will probably use the property as is; definite claim for
repainting and repair costs (necessary or useful); shopfitting costs debatable; signage probably
not; no claim for movables (mannequins and stock);(4)
Discussion of R’s retention rights (3)
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Question 3
Write brief notes on the circumstances where the enrichment of the defendant will not be
reduced even though his enrichment has been extinguished. (5)
Memorandum:
See Studyguide p 24 ff.
In general the enrichment liability of a party is fixed or calculated with reference to the date on
which the enrichment action was lodged (at litis contestatio).
Exceptions:
1. Actual knowledge .
From the moment the defendant becomes aware that he or she has been unjustifiably enriched
at the expense of another, his or her liability is reduced or extinguished only if he or she can
prove that the diminution or loss of his or her enrichment was not his or her fault.
He or she must therefore prove that the loss or destruction would have taken place in any
event. Where the enriched party is negligent in the cause of the loss or destruction, he or she
remains liable for the original amount with which he or she was enriched at the time he or she
became aware of such enrichment.
2. Implied knowledge
If the defendant should have realised that the benefit he or she received might later prove to
constitute an unjustified enrichment, his or her liability is once again reduced or extinguished
only if he or she can prove that the diminution or loss of his or her enrichment was not his or her
fault.
If there is reasonable suspicion in the mind of the enriched party that the performance received
might not be owing, namely that he or she has been enriched unjustifiably, there is an onus on
the party to preserve the enrichment. His enrichment is again pegged to the date on which he or
she should have become aware of the enrichment.
3. Mora debitoris .
From the moment that the defendant falls into mora debitoris his or her liability is reduced or
extinguished only if he or she can prove that the event which diminished or extinguished his or
her enrichment would also have operated against the plaintiff if performance had been made
timeously.
4. Mala fide conduct
If the enriched party acted in bad faith (mala fide) in relinquishing or reducing the enrichment.
This particular instance can probably be subsumed under the first or the second exception.
Exception: The qualifications just set out do not apply in the case of a minor who has been
enriched by performance to him in terms of an unauthorised contract. The liability of such minor
remains restricted to the amount of his or her or her enrichment at the time of litis contestatio
Question 4
Write a critical discussion on the proximate cause test used by the courts to determine
causality.
(10)
Causation is one of the requirements for a valid reliance on estoppel.
Factual and legal causation
To be able to use estoppel = a causal link is required between the misrepresentation by the
estoppel-denier and the eventual act to his or her own prejudice by the estoppel-asserter.
The “Proximate Cause” Test:
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Factual and legal causation are combined – to see if there is a nexus between the
misrepresentation that was made and the prejudice that was suffered
AD has decided that the test is whether the misrepresentation was the proximate or real and
direct cause of the misled party’s acting to his prejudice.
These tests laid down in Union Government and Grosvenor as the real and direct cause and
the proximate cause.
Union Government: A postal agent and part-time government employee, P, permitted S, whom
he had known for many years and whom he had no reason to distrust, to work in his office – a
room on P’s own premises which had been set aside as a post office – on four or five Sundays,
S having told him that he wanted a quiet place in which to work. While he was in P’s office, S
used the post office’s official date stamp, which P had neglected to keep under lock and key, to
stamp a number of unused blank postal order forms, which had been stolen from a post office in
another town about three years before. Having given the order forms the appearance of validity
by stamping them, S disposed of them to various persons. Some deposited the orders they had
acquired with the bank. The bank presented the orders to the post office and was paid their face
value. The government on discovering that the orders were not genuine, sought to recover
under a condictio indebiti the amount the post office had paid to the bank. The bank set up a
defence of “estoppel by negligence”, alleging that P had been negligent in not keeping the date
stamp under lock and key and in allowing S access to the room in which the stamp was kept.
The AD held that the government was not estopped from claiming the money the post office had
paid to the bank.
Innes CJ decided the case on the basis that P wasn’t negligent and the government was
accordingly not estopped from enforcing the invalidity of the postal orders = his negligence
wasn’t the proximate cause of the bank being misled into believing that the postal orders were
genuine.
In casu lack of negligence and proximate cause tests not having been satisfied for estoppel to
succeed.
This question alludes to the problematic aspect of intentional (fraudulent) conduct by a third
party. the position in this regard is not entirely certain.
LAWSA it was stated that problems may arise as to whether the fraud of the intervening party,
or the conduct of the owner of the property which permitted, or facilitated, the fraud is to be
considered to be the proximate, or real and direct, cause of the representee's acting to his
prejudice. It has been said that in cases of this kind the negligent conduct of the person against
whom the estoppel is raised can never be the proximate cause of the representee's having
acted to his detriment because there is always interposed the misrepresentation of some third
person. The application of the test has not always resulted in a finding that the fraud of the
intermediary was the proximate cause of the innocent representee having acted to his loss.
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Question 5
Discuss the question whether a person can rely on estoppel against the claim of an
owner who has entrusted the physical possession of his property to a third party who
fraudulently sells the property without being entitled to do so. (10)
Memorandum:
See Studyguide p 21 ff
Question 6
Write brief notes on the rule that estoppel cannot be used in cases where the status or
legal capacity of a person is at stake. Provide your own example to explain the rule.
(5)
Memorandum:
See Studyguide p 56 ff
Status and legal capacity:

Estoppel can’t be used in such a way as to give effect to what isn’t permitted by law
• Where a married woman does not have the necessary capacity to enter into a contract,
estoppel cannot operate to remedy such a lack of capacity.
• In the case of a minor who falsely represents that he has contractual capacity, he cannot
be held liable on such contract by means of estoppel – except in so far as he has
already performed, since he cannot recover such performance – but that he is delictually
liable to compensate any actual damage suffered by the other party (Louw).
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MAY/JUNE 2010
SECTION A : MULTIPLE CHOICE QUESTIONS
The following facts are relevant to Q1-4

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
R10,000 for a luxury weekend after realising that his account was in credit.
Question 1
Which statement best explains the nature of the claim against A?

3. B has an enrichment claim against A based on the condictio causa data causa non secuta.
v4. B has an enrichment claim against A based on the condictio indebiti.
utilis.
Question 2
Assume the same facts as in question (1). Which statement regarding the requirements
for an enrichment action is correct?
v1. A has been enriched at the expense of B.

4. A's enrichment is unlawful because he made a demand for payment at a time that it was not
due.
5. B has been impoverished at the expense of the bank.
Question 3
Assume the same facts as in question (1). Which statement best explains the calculation
of the enrichment claim?
1. B can only claim R20,000 from A because his account was overdrawn and the bank received
the benefit of the other R30,000.
3. B can claim only R25,000 because the rest of the enrichment amount has been spent on the
wages and A's holiday.
v4. B can claim only R40,000 because the rest of the enrichment amount has been lost
on the luxury holiday.
5. B can claim only R35,000 because the rest of the enrichment has been lost on the wages
paid.
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Question 4
In order to be successful with a claim based on the condictio indebiti, the plaintiff must
prove the following fact(s) or requirement(s).
Question 5
In which one of the following circumstances can the condictio indebiti be used?

v2. Where a party knowingly makes a payment that is not due, but under duress and
protest.
payment later falls away.
Question 6
X has concluded a contract with Y to build a tennis court at a cost of R40,000 on the
property it is renting from Z. It can be shown that the value of the property has increased
by R20,000 due to the improvement. X has disappeared before paying Y for the work
done. Y now wants to lodge a claim against Z, the owner of the property.
Which statement best explains the ground on which and amount that Y can claim
(Read question (7) before you answer this question).

v3. Y has a contractual claim against X for R40,000.
Question 7
Assume the same facts as in question (6). Which statement best explains the authority
for the answer to question 6?
v1. 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.
v Knoetze & Sons 1970 3 SA 264 (A).
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Question 8
G has noticed that his neighbour's (H) stud bull is seriously ill. The neighbour is
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?
1. G has no claim against H because the bull has died and the expenses have been wasted.
v3. G has a claim against H in terms of the actio negotiorum gestorum contraria for
R12,000.
R12,000.
5. G has a claim against H as the agent of H.
Question 9
H?
v1. G has no claim against H because the bull has died and the expenses have been
wasted.
R12,000.
R12,000.
5. G's claim against H in terms of the actio negotiorum gestorum contraria will fail because the
bull died.
Question 10
Which statement correctly explains the possession or occupation of another's property?
1. A bona fide occupier is someone who lawfully occupies the immovable property of another
person.
3. A bona fide possessor is someone who lawfully occupies the property of another person as if
he is the owner thereof.
v4. A bona fide possessor is someone who unlawfully occupies the property of another
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.
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Question 11
Which statement best explains the legal position on the recognition of a general
1. In Nortje v Pool 1966 3 SA 96 (A) the Appellate Division recognised the existence of a
general enrichment action in South Africa without any qualifications.
general enrichment action in South Africa, but with certain qualifications.
Appellate Division recognised the existence of a general enrichment action in
South Africa.
v4. In Kommissaris van Binnelandse Inkomste v Willers 1994 3 SA 283 (A) the
Appellate Division rejected the existence of a general enrichment action in South
Africa but recognised that courts can extend enrichment liability to circumstances where
it is deemed necessary.
Africa.
Question 12
A, an American tourist, has leased a vehicle from B. While travelling in the Northern
Cape, the vehicle breaks down. A contracts with C, a garage in Springbok, to repair the
vehicle at a cost of R12,000. After two days A leases another vehicle from X and
completes his trip. A departs for America. C wants to claim the R12,000 from B.
Which statement best explains whether C has a claim against B and the authority on
which it is based?
at C's expense.
impoverishment.
v3 In terms of the decision in ABSA Bank t/a Bankfin v Stander t/a CAW
4. In terms of the decision in ABSA Bank t/a Bankfin v Stander t/a CAW Paneelkloppers 1998 1
SA 939 (C) C has a claim against B based on the condictio causa data causa non secuta.
Question 13
Assume the same facts as in question (12). Which statement best explains whether
C has a right of retention and the authority on which it is based?
v2. In terms of the decision in Brooklyn House Furnishers Ltd v Knoetze & Sons
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4. In terms of the decision in Gouws v Jester Pools (Pty) Ltd 1968 3 SA 63 (T) C has a right of
retention against B in respect of the vehicle.
5. In terms of the decision in Gouws v Jester Pools (Pty) Ltd 1968 3 SA 63 (T) C has a right of
retention against A in respect of the vehicle.
Question 14
Which statement(s) provide(s) the most correct explanation of the current legal position?

3. Estoppel cannot apply to waiver because waiver relates to an existing right while estoppel is
merely a defence.
v4. A party may be estopped from denying waiver in certain circumstances.
5. 2 and 3.
Question 15
Which statement is the most correct?

v4. Estoppel is often seen as a doctrine of the law of evidence.
5. The basis of estoppel is the maxim nemo contra suum factum venire debet
Question 16
A local authority mistakenly and in conflict with its own policy granted a trade licence in
respect of certain areas to X. When, thereafter, it attempted to cancel the licence, X
raised estoppel to prevent it from doing so. Which statement most correctly reflects the
position in regard to X's reliance on estoppel?
1. X will not be successful with its reliance on estoppel because estoppel is not allowed by law
in instances where a local authority must carry out a statutory duty.
2. X will not be successful with its reliance on estoppel because X did not act to its detriment.
v3. X will probably be successful with its reliance on estoppel.
4. X will not be successful with its reliance on estoppel because the city council did not make a
misrepresentation.
5. Estoppel will always succeed where a statutory body attempts to revoke its own decision.
Question 17
Which element of estoppel do the facts in question (16) specifically relate to?
2. Fault.
3. Prejudice.
4. Causation.
v5 Permissible in law.
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Question 18
Choose the most correct statement.
1. In Van Ryn Wine and Spirit Co v Chandos Bar 1928 TPD 417 estoppel succeeded.
2. In Van Ryn Wine and Spirit Co v Chandos Bar 1928 TPD 417 estoppel did not succeed.
3. In Van Ryn Wine and Spirit Co v Chandos Bar 1928 TPD 417 one of the parties was not
prevented from proving dissensus because his conduct had been reasonable and without fault.
4. 1 and 3.
v5. 2 and 3.
Question 19
Estoppel is most similar to which theory?

2. The will theory.
v3. The reliance theory.
Question 20
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 of R200 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. Which
1. A has committed a misrepresentation to C by giving the misleading letter to B while he

should have realised that B could abuse the letter according to the decision in Grosvenor
Motors (Potchefstroom) Ltd v Douglas 1956 3 SA 420 (A).
v3. A has committed a misrepresentation to C by giving the letter to B and failing to
Question 21
Assume the same facts as in question (20). Indicate which statement most correctly
states the position in regard to the fault requirement?
v1. The person relying on estoppel must at least allege and prove negligence in cases
2. The person relying on estoppel must at least allege and prove intent in cases where a loss of
ownership is involved.
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Question 22
states the position in regard to the causality requirement.
1. The misrepresentation by the person denying estoppel must have been the only cause of the
2. In terms of the "proximate cause" as applied by the courts, the misrepresentation by the
person denying estoppel must have been the only cause of the detrimental conduct of the
v3. In terms of the "proximate cause" as applied by the courts, it is sufficient that the
4. The "proximate cause" as applied by the courts, includes only factual causality and not legal
causality.
Question 23
states the position in regard to the detriment requirement.
v1. It is sufficient to prove that the person relying on estoppel has changed his position
to his detriment even if he cannot prove concrete damage suffered.
2. It is not sufficient to prove that the person relying on estoppel has changed his position to his
detriment if he cannot prove concrete damage suffered.
3. The person relying on estoppel must prove that he has already suffered damage as a result
of the misrepresentation in all instances.
4. The person relying on estoppel must prove that he has suffered either patrimonial damage or
personal damage.
5 None of the above.
Question 24
Assume the same facts as in question (20). Which statement most correctly indicates
whether C's reliance on estoppel will be successful?
v1. C has acted to his detriment because he has concluded the contract with B, made
payment and now possibly stands to lose the TV set.
2. C has not acted to his detriment because he has not suffered any patrimonial damage.
3. C has not acted to his detriment by concluding the contract with B, because he still has a
claim for breach of contract against B.
Question 25
Choose the correct statement.

v2 In Grosvenor Motors (Potchefstroom) Ltd v Douglas 1956 3 SA 420 (A) a plea of
3 In Johaadien v Stanley Porter (Paarl) (Pty) Ltd 1970 1 SA 394 (A) a plea of estoppel
succeeded.
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Section B
Question 1
A owns a factory manufacturing steel in a continuous process. His monthly electricity bill
averages R100 000. He just received a letter from the Johannesburg Municipality in which
they threaten to cut his electricity if he doesn’t immediately pay his “arrear account of
R300 000”. A knows that there must be a mistake, because his account is paid in full, but
also knows that if there is a disruption in his electricity supply he will suffer severe
losses. He pays the amount immediately and sends a letter of complaint with. Advise A
whether he will be able to reclaim the R300 000 he paid, and with which remedy? In your
answer discuss the requirements for this remedy. (10)
(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. (5)
(c) Apply the requirements of the claim to the facts provided. (2)
(d) Make a definite conclusion on the question asked. (1)
The correct action to be instituted by A is the condictio indebiti. (1) This action is available in
instances where a debt not owing was paid. (1)
State each of the requirements:
(i) Transfer of ownership in the form of payment of money or delivery of a specific object (1)
(ii) Payment has to take place under the mistaken belief that the performance was owing. (1)
(iii) The mistake, either a legal or factual mistake, must have been reasonable in the
circumstances (iustus error). (1)
In general a party cannot reclaim performance with the condictio indebiti if he was aware that
the performance wasn’t owing. (1) Such conduct will be regarded as a donation, (1) unless it
was made under threat or protest. (1) CIR v First National Industrial Bank Ltd 1990 3 SA 641
(A). (1)
A made a payment knowingly that the debt wasn’t owing. For A to succeed with the
condictio indebiti against the Johannesburg Municipality in these circumstances he, firstly, had
to prove that he didn’t owe the Municipality the R300 000. (1) Secondly, that the payment was
made involuntarily under the threat that the electricity supply will be suspended if payment
wasn’t made. (1) Thirdly, that A protested against the amount to be paid at the time of payment
by sending a letter of complaint with. (1)
A will be able to prove all three requirements under this exception and will therefore be
successful with this enrichment action against the Johannesburg Municipality. (1)
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Question 2
completes his trip. A departs for America. C wants to claim the R12,000 from B. Explain
which remedy will be most suitable for C to claim from B, what the requirements are for
this remedy and what amount he will be able to successfully claim. Refer in your answer
to case law. (15)
The student must distinguish between the various enrichment actions. The two pertinent action
here are the true management of affairs action (actio negotiorum gestorum contraria) and the
extended management of affairs action (actio negotiorum gestorum utilis) (2)
Discussion of the requirements for the actio negotiorum gestorum SG 1 page 83-84 (3)
Discussion of the requirements for the extended management of affairs action (actio
negotiorum gestorum utilis) SG 1 p 85-86 (4)
This is an instance where a party is acting in his own interest in the belief that he is acting in the
interest of the other party (2)
Discussion of Gouws v Jester Pools and Absa Bank v Stander SG 1 p 92-93 (4)
Van Zyl’s view point discussed (2)
Discussion of what can be claimed – the lesser of the enrichment or the impoverishment. In this
case B is enriched with the value of the repairs whereas C is impoverished with the value of its
expenses. Discussion on whether C can claim the value of its own work – generally not. (3)
Discussion of C’s right of retention is optional, not actually asked but relevant. (3)
[max 15]
Question 3
of these persons deposited the orders they had acquired with a bank.
The bank presented the orders to the post office and was paid their face value. The
government, on discovering that the orders were not genuine, sought to recover the
amount the post office had paid to the bank. The bank set up a defence of "estoppel by
negligence", alleging that P had been negligent in not keeping the date stamp under lock
and key and in allowing S access to the room in which the stamp was kept.
Discuss whether the defence of estoppel will be succesful with reference to appropriate
case law.
(10)
Discussion of the element of causation within the context of estoppel (1). Discussion of factual
and legal causation in general or with reference to law of delict (2). Discussion of ‘proximate
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cause test’ as combined test in estoppel for factual and legal causation should form focus of
answer:
Proximate cause or real and direct cause one test generally encompassing both factual and
legal causation (1)
Discussion of Union Government v National Bank of SA Ltd 1921 AD 121 (1) and its outcome)
dealing with - facts, discussion of problem of fraud of third party causing fraud upon the
representee. In casu lack of negligence and proximate cause tests not having been satisfied for
estoppel to succeed (3-4).
Discussion of LAWSA para 665 that some cases indicate a different approach (2-3)
Discussion of approach in Kajee v HM Gough (Edms Bpk) 1971 3 SA 99 (N) (2-3).
(See SG 2 47-50) [max 10]
Re requirements for Estoppel:
1. Misrepresentation – creation of false belief by estoppel denier. (1)

2. Fault (intent or negligence) on part of estoppel denier. (1)
3. Prejudice on part of estoppel assertor. (1)
4. Causation – the estoppel assertor must have acted to his detriment as a result of the
misrepresentation of the estoppel denier. (1)
5. The raising of estoppel must be permissible in law in the circumstances. (1)
CAUSATION:

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paid to the bank.
Inns CJ decided the case on the basis that P wasn’t negligent and the government was
genuine.
succeed.
Thus in Kajee v H M Gough, for example, it was held that estoppel can be raised against X
where he enables Y to commit fraud for instance by negligently delivering documents regarding
a car to Y. Here X should reasonably have foreseen Y's subsequent conduct.
Question 4
4.1 A takes his car to B, who sells second-hand cars, to have his car valued. The car is
cash. A now claims the vehicle from C with a rei vindicatio. Advise C with reference to
relevant case law. (10)

disponendi)? (1)
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SA law (1)
[Max 10 marks]
4.2 Write brief notes on the requirement that the estoppel-assertor must have suffered
prejudice for a successful reliance on estoppel. Refer in your answer to the two
approaches to prejudice. (5)
Prejudice must be patrimonial in nature (1)

Two approaches:
1) Compare the patrimonial position in which the estoppel-assertor finds himself at litis
contestatio (1) with the hypothetical patrimonial position in which he would have been had no
false belief been created. (1)
Not necessary to prove that he has already suffered patrimonial loss, as long as he will suffer in
future if estoppel is not successful (1)
2) If estoppel-assertor has changed his legal position it is regarded as prejudice (1)
eg incurring a debt or losing a right or claim even if it has no immediate financial implications (1)
[max 5 marks]
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OCT/NOV 2010
SECTION A
CHOOSE THE MOST CORRECT OPTION IN EVERY INSTANCE.

Question 1
Which statement(s) most accurately describes the place of the law of unjustified
enrichment law in the South African private law?
1 Unjustified enrichment law is a sub-division of the law of contract.
2. Unjustified enrichment law is a sub-division of the law of obligations.
3. Unjustified enrichment law is a sub-division of the law of equity.
4. Unjustified enrichment law is a sub-division of the law of delict.
5. 2 and 3. (2)
Question 2
Which statement(s) most accurately describes the historical source(s) of the law of
unjustified enrichment?
1. Unjustified enrichment law developed action by action as a new part of the 18th century
Roman-Dutch law.
2. Unjustified enrichment law has its origins in the English law of equity.
3. Unjustified enrichment law was developed action by action as part of Roman law.
4. Unjustified enrichment law has been extensively transformed by legislation during the 20th
century.
5. 3 and 4. (2)
Question 3
Which definition most accurately describes enrichment?
1. Enrichment describes the situation where one person’s estate is increased
unjustifiably at the expense of another.
2. Enrichment describes the situation where one person’s estate is increased unjustly at the
expense of another.
3. Enrichment describes the situation where one person’s estate is increased unfairly at the
expense of another.
4. Enrichment describes the situation where one person has made a profit at the expense of
another person.
5. 3 and 4. (2)
Question 4
Which statement most accurately reflects the state of modern South African enrichment
law as set out in McCarthy Retail Shortdistance Carriers CC year? (3) SA 482 (SCA)?
1. Roman-Dutch law transformed the patchwork of individual actions found in Roman law to
a coherent source of obligations subject to clear general requirements.
2. The South African courts have transformed the patchwork of individual actions found in
Roman law to a coherent source of obligations subject to clear general requirements and a
general enrichment action.
3. The South African courts have rejected the need for a general enrichment action outright.
4. The South African courts have developed general requirements for enrichment
which could form the basis for the future recognition of a general enrichment action.
5. 1 and 4. (2)
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Question 5
Which statement best describes the moment in time when the extent of a party’s
enrichment claim must be calculated?
1. The extent of a party’s enrichment is always determined as it was at the time when the
action is lodged (litis contestatio).
2. Enrichment is usually determined at the time when the action is lodged (litis contestatio)
subject to certain exceptions.
3. The extent of a party’s enrichment may be determined at the time when the enriched party
becomes aware of the enrichment.
4. The extent of a party’s enrichment is determined as it was at the time that the court hands
down judgment.
5. 2 and 3. (2)
Question 6
Which statement best describes the manner in which the extent (quantum) of the
enrichment is calculated?
1. The impoverished party is entitled to claim the full extent of its impoverishment.
2. The impoverished party is entitled to claim the full extent of the other party’s enrichment.
3. The impoverished party is entitled to claim the lesser of its own expenses and the
extent of the value remaining in the hands of the enriched party.
4. The impoverished party is entitled to claim benefits that the enriched party could have
derived from the enrichment, but negligently failed to do so.
5. 2 and 4. (2)
Question 7
A concluded a sale with B for the purchase of 100,000 litres of crude oil in transit on the
ship Miss Fortuna. A paid a deposit of R1 million. A had to make use of an overdraft facility
to pay the deposit. A and B were both unaware that the ship had already sunk and lost its
full cargo at the time of the conclusion of the contract. B used the deposit money to pay
off its overdraft of R500,000 which was subject to the payment of interest of 12% per year.
The rest of the money was left in its current account where it earned no interest.
Which statement best describes the extent of A’s claim against B, if A should have a claim
against B?
1. A has a claim for R1 million rand only.
2. A has a claim for R1 million rand plus the interest saved by B on its overdraft.
3. A has a claim for R 1 million rand plus the interest it has been paying on its (A’s) own
overdraft.
4. A has a claim for the R1 million rand plus the interest B could have earned on the money if
it had invested it.
5. A has a claim for the lesser of R1 million rand plus the interest saved by B on its overdraft,
and R 1 million rand plus the interest it has been paying on its (A’s) own overdraft. (2)
Question 8
Assume the same facts as in Question 7. Indicate which enrichment action underlies the
claim that A may have against B.
1. A has no claim against B because the risk in the goods passed at the time that the contract
was concluded.
2. A has a claim based on the condictio indebiti because the contract was void from
the beginning due to impossibility.
3. A has a claim based on the condictio causa data causa non secuta because there was a
valid contract at the time of the payment, but the contract became void when the parties
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found out that the ship had perished.

4. A has a claim based on the condictio sine causa specialis because this claim does not fit
under any of the other enrichment actions.
5. A has a claim against B for breach of contract because B is unable to fulfil its obligations
under the contract. (2)
Question 9
X has stolen O’s laptop computer from his office. The laptop is worth R15,000. X has sold
the laptop to B for R3,000. Which statement best describes the remedies at O’s disposal?
1. O has a claim for the laptop itself from B with the actio rei vindicatio because he has
remained owner of the laptop.
2. O has no claim against B, because B paid for the laptop.
3. O has an enrichment claim for R3,000 against X, because that is all that remains in his
estate.
4. O has a delictual claim against X for R15,000 because X stole the computer.
5. 1 or 4. (2)
Question 10
X has stolen O’s laptop computer from his office. The laptop is worth R15,000. X has sold
the laptop to B for R3,000. B has sold the computer to C for R6,000. The current
whereabouts of C is unknown. Which statement best describes the remedies at O’s
disposal?
3. O has an enrichment claim for R3,000 against B based on the condictio sine causa
specialis.
4. O has an enrichment claim for R3,000 against B based on the condictio causa data causa
non secuta.
5. O has an enrichment claim for R3,000 against B based on the condictio ob turpem vel
iniustam causam. (2)
Question 11
A has paid an amount of R300,000 to B by mistake. B has used the money to pay his
monthly rental (R10,000), the interest on his overdraft (R5,000) and to buy a new car for
R285,000. A only discovered the mistake 6 months later. At this time the car is only worth
R100,000 because it had been in an accident. Which statement best describes the extent
of the claim A may have against B?
1. A has a claim for the full R300,000 because that is the amount with which B was enriched.
2. A has a claim for the car itself as the car was bought with A’s money.
3. A has a claim for R100,000 only because that is the value that remains in B’s estate.
4. A has a claim for R115,000 because that is the extent of B’s enrichment at the time
of the lodging of the claim.
5. A has a claim for R300,000 because that is the extent of its impoverishment and the extent
of B’s enrichment. (2)
Question 12
A and B has concluded an agreement for the sale of A’s house. The purchase price is R1
million. B has paid a deposit of R100,000 to A and has already taken occupation of the
house. After B had occupied the house for 3 months, the parties became aware that their
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agreement is void because A had never signed B’s written offer. Which statement best
describes any claim that B may have against A?
1. B has a claim against A for the payment of the R100,000 based on section 28 of the
Alienation of Land Act 68 of 1981.
2. B has a claim against A for the payment of the R100,000 based on the condictio ob turpem
vel iniustam causam.
3. B has a claim against A for the payment of the R100,000 based on the condictio indebiti.
4. B has a claim for the transfer of the property in terms of section 28 of the Alienation of Land
Act 68 of 1981 because he has performed his part of the agreement.
5. B has a claim against A for the payment of the R100,000 based on the condictio causa data
causa non secuta. (2)
Question 13
Assume the same facts as in question 12. Which statement best describes the claims that
the parties may have against each other?
1. B has a claim against A for the payment of interest at the prescribed rate on the R100,000
from the time of payment based on section 28 of the Alienation of Land Act 68 of 1981.
2. B has a claim against A for the payment of interest at the prescribed rate on the R100,000
from the date that B claimed the money from A based on the condictio indebiti.
3. A has a claim for reasonable compensation for the occupation of the property by B.
4. 1 and 2.
5. 1 and 3. (2)
Question 14
Which statement(s) is (are) the most correct?
1. Estoppel can be applied to a representation of intention.
2. Estoppel can be applied to the expression of an opinion.
3. Estoppel cannot be applied to a representation as to a person’s state of mind.
4. Estoppel cannot be applied to a representation of law.
5. 2 and 3. (2)
Question 15
Which case confirms that the mere entrusting of one’s property to another person does
not amount to a representation that the possessor is the owner or entitled to dispose of
the property?
1. Baumann v Thomas 1920 AD 428.
2. Van Ryn Wine & Spirit Co v Chandos Bar 1928 TPD 417.
3. Bacon v SAR & H 1925 TPD 261.
4. Electrolux (Pty) Ltd v Khota and Another 1961 (4) SA 244 (W).
5. Union Government v National Bank of SA Ltd 1921 AD 121. (2)
Question 16
A leaves his piano with B, a dealer in second hand musical instruments, with the
understanding that B will find a buyer for the piano. A instructs B not to sell the piano
himself but to refer all offers to A for consideration. B disregards these instructions and
sells and delivers the piano to C, an unsuspecting member of the public. B does not pay
the purchase price over to A and B is sequestrated. A claims the piano from C, who raises
estoppel. In these circumstances the courts have been prepared to find that (choose the
most correct option):
1. estoppel cannot succeed because of the express instructions of A to B not to sell the article.
2. estoppel can succeed despite the express instructions of A to B not to sell the article.
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3. estoppel cannot succeed because of the deliberate conduct of B.

4. estoppel can succeed despite the deliberate conduct of B.
5. 2 and 4. (2)
Question 17
Refer to the facts of question 16. Which element that is normally required to successfully
raise estoppel in such circumstances have the courts been prepared to disregard?
2. Fault.
3. Prejudice.
4. Causation.
5. Estoppel must be permissible in law. (2)
Question 18
Which case applies to the facts of question 16?
2. Union Government v National Bank of SA Ltd 1921 AD 121.
3. Akojee v Sibanyoni 1976 (3) SA 440 (W).
5. Van Ryn Wine & Spirit Co v Chandos Bar 1928 TPD 417. (2)
Question 19
A sells liquor to liquor retailers and X is his representative. X obtains orders for liquor from
B, a liquor retailer, and fraudulently represents to B that he would receive a discount if he
paid cash to X for the orders. X also tells B to ignore the invoices provided by A which
indicate a higher price. B agrees, and although he receives invoices stating the price of
the liquor with every consignment, which differ from the price he paid to X, he ignores
them. X does not pay A. A then sues B for payment of the prices as stated on the invoices.
B denies that he had agreed to those prices, but A avers that B is estopped from denying
the existence of consent, since by receiving the invoices without comment, he gave A the
impression that he was contracting at the prices reflected in the invoices. What type of
minimum prejudice will suffice for estoppel to succeed in the circumstances? Choose the
most correct option.
1. The entering into of an apparent contract.
2. Actual patrimonial loss.
3. Future patrimonial loss.
4. The loss of a right.
5. Loss of profit. (2)
Question 20
Question 21
What was the reason for the decision in the case which applies to the facts of question 19?
Choose the most correct option.
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1. Estoppel cannot be applied to the question of mistake.

2. A failed to prove the minimum prejudice required for estoppel.
3. B acted reasonably and without fault in ignoring the invoices.
4. A failed to prove fraud on the part of X.
5. B succeeded with estoppel in the circumstances. (2)
Question 22
A rents a flat to B at R2 000 per month. The written contract provides that if B is behind in
his rent payments, A can have him summarily evicted. B has fallen on hard times and he
only manages to pay A R1 000 per month, which A accepts without protest. After three
months A sues B for R3 000 rent in arrear and apply for an order ejecting B from the flat.
B raises estoppel. Choose the most correct option.
1. Estoppel cannot be applied where the obligations of the parties are contained in a written
agreement.
2. A may be estopped from strictly enforcing the contract.
3. Waiver of a contractual right and estoppel are one and the same.
4. Estoppel will fail because B will not be able to prove fault on the part of A.
5. A cannot be estopped from strictly enforcing the contract because estoppel may not give
rise to a result which is impermissible in law. (2)
Question 23
Which statement is most correct in regard to the basis of estoppel?
1. In Oakland Nominees (Pty) Ltd v Gelria Mining and Investment Co 1976 (1) SA 441
(A) the court regarded the exceptio doli as the basis of estoppel, which today would
be regarded as problematic.
2. In Smit v Smit’s Executor 14 SC the court held that the principles of estoppel are not
embodied in the maxim nemo contra suum factum venire debet (“no one may go against
his own act”), which today would be regarded as problematic.
3. In Bayer SA (Pty) Ltd v Frost 1991 (4) SA 559 (A) the court equated estoppel to the delict
negligent misrepresentation, which today would be regarded as problematic.
4. In Van Ryn Wine & Spirit Co v Chandos Bar 1928 TPD 417 the court found that estoppel
and the reliance theory of contract are one and the same, which today would be regarded
as problematic.
5. In Grosvenor Motors v Douglas 1956 (3) SA 420 (A) the court concluded that estoppel is a
rule of evidence, which today would be regarded as problematic. (2)
Question 24
A, a firm of attorneys, invites tenders for the construction of a new office block for their
partnership. The partners must however by majority decide who is to be appointed. B
sends his tender to X, the senior partner of A and the person who deals with private
contractors on behalf of the firm in such matters. The partners pass a unanimous
resolution that the contract be awarded to C, but X mistakenly sends a letter of
appointment to B. A denies that the contract has been awarded to B, to which B raises
estoppel. Choose the most correct option.
1. Estoppel cannot be applied because the mistake of X cannot be attributed to A.
2. Estoppel can be applied because X had ostensible authority to award the contract.
3. Estoppel cannot be applied because the internal formalities of A for the awarding of such a
contract had not been complied with.
4. Estoppel can be applied irrespective of whether X usually dealt with private contractors or
not on the basis of the principle of fairness that underlies estoppel.
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5. Estoppel cannot be applied to partnerships. (2)
Question 25
Choose the most correct statement in regard to the test applied to establish causation.
1. The proximate cause test relates to factual causation.
2. The proximate cause test relates to legal causation.
3. The proximate cause test tends to combine factual causation with the element of fault.
4. The proximate cause test tends to combine factual causation with the element of
reasonable foreseeability.
5. The proximate cause test actually does not relate to causation. (2)
Section B
Question 1
A has died leaving an estate worth R2 million after payment of all her debts. In her will she
has left all her assets to B and C in equal parts. After the winding up of the estate the
executor M pays B and C their inheritances of R 1 million each. It now comes to light that
X, a creditor of A, had failed to make a claim against the deceased estate for R3 million.
Creditors D (R500,000), E (R200,000) and (R400,000) were paid in full. Advise X whether it
has any claim against B, C, D, E or M. In you answer you must discuss fully the nature and
basis of any such claim as well as the extent of the liability, if any of each of the parties.
(15)
(Note to markers: this question can be marked fairly lightly)
ANSWER
See Study Guide 1 p 45-48.
The enrichment action here is the condictio indebiti. (1)
General requirements for the condictio indebiti (Study Guide 1 p32) (3)
One must distinguish between the situation where the executor is still in office and where not. (1)
Executor still in office:
• Because the claim was late, the executor did not act improperly. Creditors can claim from
the executor in his official but not his personal capacity (3)
• The executor can in turn claim from the beneficiaries. This claim is pro rata. There is no
claim against other creditors who have been paid in full. (3)
• The claim is based on s 31 of the Administration of Estates Act but can also be seen as a
claim under the condictio indebiti (2)
Executor discharged:
• No claim against the executor (1)
• No claim against other creditors s 31(b) (1)
• Pro rata claim against beneficiaries who have been paid (1)
Discussion of the nature of the claim. See page 47 (5)
X has no claim against the other creditors. It has a claim for R1 m each against the heirs. (2)
The correct action to be instituted by X is the condictio indebiti which is available in
instances where a debt not owing was paid.
Requirements for condictio
1. Transfer of ownership in the form of payment of money or delivery of a specific object
2. Payment has to take place under the mistaken belief that the performance (corporeal or
incorporeal) was due.
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3. The mistake, either a legal or factual mistake, must have been reasonable in the
circumstances (iustus error).
18
In Willis Faber Enthoven (Pty) Ltd v Receiver of Revenue the Appellate Division abolished the
distinction between an error of fact and an error of law and accepted that such error, must be
reasonable.
Executor discharged from office:
Once discharged he can no longer institute action or be liable for anything done during his
period of office unless he acted mala fide.
Unpaid creditors who lodged late claims:
X Can institute the condictio indebiti against beneficiaries (B and C) who received too much
because plaintiff had not yet been paid and against those who received payment but weren’t
entitled to payment – but they cannot act against those creditors who have already been paid.
Prescription
The condictio indebiti of the creditors or beneficiaries of a deceased estate prescribes within
three years from the date on which it could have been instituted. It will prescribe before this date
either if the action that the executor himself could have instituted against the beneficiaries, paid
creditors and those not entitled to payment has already prescribed, or if the original claim
against the estate has already prescribed.
Van der Walt offers the following criticism for the granting of a condictio indebiti to
creditors (against beneficiaries) who have not lodged their claims in time.
1. De Vos view as the authority relied upon does not support the view of the courts.
2. This is not an instance of an undue payment, but another form of impoverishment.
3. the enrichment is not sine causa if the executor has complied with the provisions of the Act.
(De Vos does not agree, because in his view the Act merely prescribes a procedure which the
executor must follow and it does not extinguish rights to performance — delay in lodging a claim
is not a sufficient causa for enrichment, and only the completion of the prescription period can
provide such causa.)
4. Enrichment of the beneficiaries is not at the expense of the creditors (De Vos does not agree
and states that if one follows this line of reasoning then the discharge of the executor is the
cause of the impoverishment, because before that the creditors can hold him liable and he in
turn can claim from the beneficiaries.)
5. Where the executor has not distributed the estate according to the provisions of the Act and
all claims have been lodged in time, the enrichment of the beneficiaries is sine causa but in
these circumstances the creditors ought not to have an action against the overpaid beneficiaries
because section 50(a) only allows them to hold the executor liable and section 50(b) allows the
executor himself to claim from the beneficiaries. (De Vos agrees that creditors can only claim
from the executor while he is still in office but argues that this argument falls away once the
executor has been discharged except where he has acted mala fide.)
Statutory changes
Van der Walt ends his criticism with a plea for legislative amendment because the courts are
now bound by past decisions. De Vos is of the opinion that the decisions of our courts are fully
justified and are not in conflict with the rules of the condictio i ndebiti.
Conclusion
The position is thus that where certain beneficiaries or creditors have not received what they are
entitled to, adjustment can easily take place if the executor is still in office. Once the executor
has been discharged from his office the law cannot allow such discharge to bring about an
inequitable result. The solution arrived at is satisfactory and the rules in connection with
prescription ensure that the period of liability of those who must repay is not unreasonable.
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Because X’s claim exceeds the value of the legacies, claims against the heirs will be reduced
to the amount available
Therefore X cannot claim from M because they have they have discharged their duties in a
bona fide manner but can claim from B and C.
X is allowed to claim the amount by which he has been impoverished, or the amount by which
the beneficiaries has been enriched, whichever is the lesser. In this case X can claim 2 million
which is the amount by which the beneficiaries have been enriched.
Question 2
C has paid D R30,000 by cheque. A day later C instructs her bank, E to countermand (stop)
the cheque. Despite the countermand, E bank pays out the cheque to D when he presented
the cheque and debited C’s account. C wants the debit reversed. Advise C and E about the
validity of the debit and whether either of them has an enrichment claim against D.
(10)
ANSWER
Not the condictio indebiti, but the condictio sine causa used in these circumstances (1)
Discussion of the Govender, B&H Engineering cases (6)
Nagel & Roestoff’s discussion (3)
Discussion of Saambou v Essa (2)
Condictio sine causa not alternative to condictio indebiti (2)
Application to the facts. Bank is not entitled to debit C’s account because C had stopped the
cheque. Bank has a claim against D unless D can prove that it was not enriched. (2)
Question 3
Critically discuss the origin and basis of estoppel in South African law with reference to
case law. (10)

Reception of English law (2)
Use of exceptio doli as a similar doctrine (2)
Discussion of Waterfall GM case (2)
Discussion of Baumann v Tomas (2)
Connocks case – passport theory (2)
Criticisms in Trust Bank v Eksteen (3)
Critical discussion of the Eksteen case (3)
Question 4
4.1 The owner of a building finds a purchaser for the building, but the prospective buyer
refuses to buy while the property is being leased. The lessee, thinking that his lease
is due to expire on a particular date, gives notice to the owner of his intention to
vacate on that date. The owner shows the letter to the purchaser, who, on the strength
of the letter, concludes the purchase. The lessee discovers that she has made a
mistake and notifies the new owner. The owner applies for her eviction. Advise the
new owner whether and on what basis he can hold the lessee to the truth of the
notice. (10)
(Note to markers: this is a very wide question and generally requires a student to briefly provide the general
requirements for estoppel and to apply them to the facts; the question can be marked fairly lightly)
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ANSWER
Discussion on whether the elements for a reliance on estoppel have been met:
• Is there a misrepresentation? See Study Guide 2 p 16-20. Any word or conduct.
Representation of a fact. Application to the facts. Lessee wrote a letter indicating her
intention. Misrepresentation of a fact. Mistake about termination of lease not relevant.
(4)
• Fault. Discussion of whether fault is required under these circumstances. See Study
Guide 2 p 27-28. Case law. Fault not usually required under these circumstances. See
Study Guide 2 p 34-36. (4)
• Prejudice. See Study Guide 2 p 41-44. Discussion of different approaches (4)
• Causation. See Study Guide 2 p 47-50. Discussion of the proximate cause test. Case
law (4)
Application to the facts. Estoppel should succeed in the circumstances. (2)
4.2 Discuss the requirement that the reliance on estoppel must be permissible by law
providing your own practical examples.
(5)
ANSWER
See Study Guide 2 p 53-58, 63-64. At least two-three marks for relevant and correct own
examples.
[15]
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MAY/JUNE 2011
CHOOSE THE MOST CORRECT OPTION IN EVERY INSTANCE
The following facts are relevant for questions 1 to 3.

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 into 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.
Question 1
Which statement best explains the nature of B’s claim against A?

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.
→4. B has an enrichment claim against A based on the condictio indebiti. (2)
Question 2
Which statement regarding the requirements for an enrichment action is correct?

→1. A has been enriched at the expense of B.
4. A's enrichment is not unjustified as there was a contract between A and B. (2)
Question 3
Which statement best explains the calculation of the enrichment claim?
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1. B can claim an amount of R50,000 from A with an enrichment action.

→3. B can claim only R40,000 because the rest of the enrichment amount has been
spent on the wages and A's holiday. (2)
Question 4
In order to be successful with a claim based on the condictio indebiti, the plaintiff must
prove the following fact(s) or requirement(s):
→4. 1 and 3 are correct. (2)
Question 5
1. Where a bank has made payment in terms of countermanded cheque.
→2. Where a party knowingly makes a payment that is not due, but under duress and
protest.
4. Where a party has made an undue payment in terms of an illegal contract. (2)
The following facts are relevant for Question 6 and 7.

X has concluded a contract with Y to build a tennis court at a cost of R40,000 on the
property it is renting from Z. It can be shown that the value of the property has increased
by R20,000 due to the improvement. X has disappeared before paying Y for the work done.
Y now wants to lodge a claim against Z, the owner of the property.
Question 6
Which statement best explains the ground on which and the amount that Y can claim?
→2. Y has a contractual claim against X for R40,000.
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4. Y has an enrichment claim against X for R 20,000. (2)
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 Y’s
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 Y’s expense.
Smuts Avenue Investments 1996 4 SA 19 (A). (2)
Question 8
G has noticed that his neighbour's (H’s) 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?
1. G has no claim against H because the bull has died and the expenses have been
wasted.
→2. G has a claim against H in terms of the actio negotiorum gestorum contraria for
R12,000.
R12,000.
because the bull died. (2)
The following facts are relevant for Questions 9-11.

K is the owner of a farm adjacent to that of L. Unbeknown to K and L, K has been occupying
part of L's land due to a fence that was mistakenly put up 10 years ago. K has effected the
following improvements on that part of the farm: (a) built a dam at a cost of R30,000; (b) a
luxury lapa on the edge of the dam at a cost of R100,000; (c) a borehole at a cost of R20,000;
(d) planted fruit trees at a cost of R15,000; and (e) planted mealies which are almost ready
to harvest at a cost of R60,000 (value R120,000). During his tenure of the land he has
harvested mealies worth R300,000 (production cost R250,000) and fruit from the fruit trees
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sold at R55,000. L has now become aware of the true situation and demands that K leaves
the land.
Question 9
Which statement best explains the nature of K's possession or occupation of the land?
1. K is a bona fide occupier of the land.
2. K is a mala fide occupier of the land.
→3. K is a bona fide possessor of the land.
4. K is a lawful occupier of the land. (2)
Question 10
Which statement best explains the nature and extent of K's claim(s), if any?
1. K has an enrichment action for all of the expenses that he has incurred on the
improvement of L's land.
2. K has an enrichment action for the full amount of all the necessary and useful
expenses he has incurred.
→3. K has an enrichment action for the useful and necessary expenses he has incurred
to the extent that those expenses have increased the value of L's land.
4. K has no claim for the mealies which have not been harvested yet as they now
belong to L. (2)
Question 11
Which statement best explains the amounts that may be brought into account against K's
claim, if any?
1. L is not entitled to subtract anything from K's enrichment claim.
2. L is entitled to reduce the enrichment claim against him by subtracting the value of
K's occupation of the land.
the mealies and fruit harvested by K and the value of K's occupation of the land.
→4. L is entitled to reduce the enrichment claim against him by subtracting the value of
the mealies harvested by K minus the production costs. (2)
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Question 12
X and Y have concluded a contract in terms of which Y must perform certain building work
for X against payment of R200,000. The building work is not completed by Y and X has
concluded a contract with Z to complete the work at a cost of R30,000. X now refuses to
pay Y because he had failed to complete his contract. Indicate which one of the following
statements best describe Y's possible claim:
1. Y has no claim because he has committed a breach of contract.
→2. Y has a contractual claim against X for a reduced amount (R170,000) because X
has accepted the building work and has made use of it.
3. Y has an enrichment claim for a reduced amount to be calculated on the basis of
the amount by which the property of X had in fact increased in value.
4. Y is entitled to payment of the full contract price despite the fact that he has not
completed his contract. (2)
Question 13
In which one of the following circumstances can the condictio causa data causa non
secuta be instituted?
1. Where a claim is instituted by an unpaid creditor against the beneficiary of a
deceased estate.
2. Where a contractual warranty has not been honoured.
3. Where performance has been made in terms of an illegal agreement.
→4. Where a resolutive condition has been fulfilled. (2)
Question 14
In which one of the following circumstances can the condictio ob turpem vel iniustam
causam be instituted?
1. Where a claim is instituted by an unpaid creditor against the beneficiary of a
deceased estate.
→3. Where performance has been made in terms of an illegal agreement.
4. Where a resolutive condition has been fulfilled. (2)
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Question 15
In which one of the following circumstances can the condictio indebiti be instituted?
→1. Where a claim is instituted by an unpaid creditor against the beneficiary of a

deceased estate.
3. Where performance has been made in terms of an illegal agreement.
4. Where a resolutive condition has been fulfilled. (2)
Question 16
1. There must have been a material misrepresentation.
2. The misrepresentation must have caused detrimental conduct by the person
relying on the estoppel.
→3. The person denying estoppel must have made the misrepresentation intentionally
to mislead the person relying on the estoppel.
4. The reliance on estoppel must be allowed by law. (2)
The following set of facts is relevant for Questions 17 to 21.

stating the following: “Herewith I, A, confirm that I have sold a Sony TV set No 123321 to
payments to A. A now claims back his TV set from C with a rei vindicatio.
Question 17
Which statement provides the most correct explanation of the current legal position?
1. A has committed a misrepresentation to C by giving the misleading letter to B while
he should have realised that B could abuse the letter according to the decision in
→2. A has committed a misrepresentation to C by giving the letter to B and failing to
inform C at the time when C phoned him, that the TV set had not yet been paid in
full.
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4. A misrepresentation cannot be made by conduct. (2)
Question 18
Indicate which statement most correctly states the position in regard to the fault
requirement.
→1. The person relying on estoppel must at least allege and prove negligence in cases
4. Fault is always required for a successful reliance on estoppel. (2)
Question 19
Indicate which statement most correctly states the position in regard to the causality
requirement.
2. In terms of the "proximate cause" test as applied by the courts, the
misrepresentation by the person denying estoppel must have been the only cause
3. The "proximate cause" test as applied by the courts, includes only factual causality
→4. In terms of the "proximate cause" test as applied by the courts, it is sufficient that
the misrepresentation by the person denying estoppel made a material
contribution to the detrimental conduct of the person relying on estoppel. (2)
Question 20
Indicate which statement most correctly states the position in regard to the detriment
requirement.
→1. It is sufficient to prove that the person relying on estoppel has changed his position
4. The person relying on estoppel must prove that he has suffered either patrimonial
damage or non-patrimonial damage. (2)
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Question 21
Decide which statement most correctly indicates whether C's reliance on estoppel will be
successful.
1. C has not acted to his detriment by concluding the contract with B, because he still
has a claim for breach of contract against B.
damage.
→3. C has acted to his detriment because he has concluded the contract with B, made
payment and now possibly stands to lose the TV set.
4. C cannot rely on estoppel at all in cases where ownership is at stake. (2)
Question 22
Indicate which statement most correctly reflects the position in regard to the use of
estoppel in the conclusion of a contract.
1. In accordance with the case law estoppel cannot be utilised to keep a party bound
to the misrepresentation he has made in respect of his intention to contract.
→2. It is undesirable to use estoppel in cases of mistake to bring a contract into
existence because it creates a fiction or an appearance which only applies
between the parties.
3. In Sonap Petroleum (SA) Pty Ltd v Papadogianus 1992 3 SA 234 (A) the court
accepted that it may sometimes be necessary to use estoppel in the case of
mistake.
4. Estoppel has never been used in South African law to keep an apparent contract
intact. (2)
Question 23
correct amount of taxes from XYZ (Pty) Ltd due to a computer error. The city council has
now discovered the mistake and claims immediate payment of an amount of R500,000 from
XYZ. XYZ has raised a defence of estoppel against the claim. They maintain that they have
paid more dividends to their shareholders in the past two years than they would have done
if the city council had claimed the correct amount of rates and taxes.
on estoppel:
→1. XYZ will not be successful with its reliance on estoppel because estoppel is not
allowed by law in instances where the city council must carry out a statutory duty.
2. XYZ will not be successful with its reliance on estoppel because XYZ did not act
to its detriment.
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3. XYZ will not be successful with its reliance on estoppel because the city council
did not make a misrepresentation.
4. XYZ will probably be successful with its reliance on estoppel. (2)
Question 24
The city council of Pofadder mistakenly grants a tender to X, whereas it intended to grant
it to Y. X has incurred expenses to perform in terms of the tender and raises estoppel
against the council’s action to have the contract declared void. Indicate which statement
most correctly reflects the position in regard to X's reliance on estoppel:
allowed by law in instances where the city council must carry out a statutory duty.
detriment.
→4. X will probably be successful with its reliance on estoppel. (2)
Question 25
X instructs Y, a trader in second hand goods, to sell his (X’s) boat. X tells Y to inform him
of any offers for the boat, which X can then consider before accepting. Y ignores X’s
instruction and sells the boat very cheaply to Z. X attempts to reclaim the boat on the basis
that Y exceeded his authority, to which Z raises estoppel. Indicate which statement most
correctly reflects the position in regard to Z's reliance on estoppel:
1. Z will not be successful with his reliance on estoppel because Y did not have the
authority to sell the boat without first consulting X.
2. Z will not be successful with his reliance on estoppel because he did not act to his
detriment.
→3. Z will be successful with his reliance on estoppel because the private instructions
of a principal (X) to his representative (Y) cannot effect third parties (Z) who
contract with the representative.
4. Z will be successful with his reliance on estoppel because in the circumstances X
has waived his right to lay claim to his boat with the rei vindicatio. (2)
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SECTION B
STUDY GUIDE 1: ENRICHMENT LIABILITY
QUESTION 1
Write a critical discussion on the existence of a general enrichment action in South

African law. (10)
Answer (mark fairly strictly)

Study Unit 15:
1. Introduction [1]
2. Common Law [4]
• De Vos
• Scholtens
• Roman-Dutch practices
• Obs Tum
3. Nortje v Pool [5]
• Discussion
• Majority decision
• Minority decision
• No general action
• Possible developments
4. Effects of Nortje v Pool [4]
5. Wilkens case [3]
6. Blesbok case [3]
Introduction [1]
Case law is not clear on whether enrichment is a general source of obligation. In Nortje´ v Pool
the AD recognised neither an all-embracing general enrichment action nor any subsidiary
Common Law [4]

• De Vos
De Vos in his first edition investigated the very broad definitions of enrichment but found that
these were not broad enough to warrant the conclusion that a general enrichment action existed
but changed his view in the second edition because of information regarding developments of
Roman-Dutch practice.
• Scholtens
Scholtens brought to our notice several decisions of the Hooge Raad on unjustified Enrichment
in the Obs Tum (Observationes Tumultuariae Novae) reported by the old Dutch authors.
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Since the Dutch courts did not give reasons for their decisions, the views expressed by the
judges remained secret
Nortje v Pool [5]

• Facts: A and B concluded a written contract where A got sole right to prospect for kaolin on
B’s land. A and B were unaware that their agreement was void due to non-compliance with
the relevant Act. B dies and the executor of his deceased estate refused to agree to the
necessary attestation. A claimed compensation from the estate. He alleged that B had been
enriched in an amount of at least R15 000 by the discovery but that his impoverishment
amounted to only R4 557 and claimed the lesser amount. B’s executor excepted to the claim
alleging that A had no cause of action because:
1. the claim did not fall into any of the recognised enrichment actions;
2. it didn’t appear that the deceased estate had been enriched
3. it didn’t appear that the deceased estate had been enriched unlawfully
The court a quo upheld the exception – holding the facts before it didn’t fall within the
recognised actions and the value of the land had not been increased due to the prospecting
as the kaolin had always been there. A appealed.
• Majority decision : judge concluded it has not reached a stage where a general enrichment
action was recognised.
• Minority decision : the judge was of the view that the condictio indebiti of modern law was
wide enough to cover the facts in casu. He, too, believed that an action should lie even
where the enrichment had come about as it did in this case and rejected the exception.
De Vos agrees as because if A were to have an action it would have to be a general enrichment
action because his claim did not fall within the boundaries of one of the specific enrichment
actions.
So until our AD change this position the decision in Nortje will reflect our law.
Effects of Nortje v Pool :
1. The classical Roman-Dutch actions still apply.
2. Our courts developed ad hoc extensions of enrichment liability and if appropriate, can
recognize further extensions.
3. These ad hoc extensions are developed enrichment actions.
4. These are only available in instances where the old actions are not applicable. If old
actions applicable, use them. If old actions exclude a right to compensation, the
impoverished party can’t succeed with an ad hoc action.
5. A general enrichment action is not recognized as forming part of our law. [4]
Willers case [3]
In appeal – court did not overrule the Nortje case but did hold a court is not stopped from
accepting liability for U.E in a case merely because liability was not previously recognised on
same/similar circumstances.
Blesbok case [3]
Held that in Roman Law there was already a general doctrine against U.E and that the time had
come to recognise a general enrichment action. This decision acknowledges the existence of a
general enrichment action, and is only a Transvaal decision and so does not overrule the Nortje
case which is still the authority on this point.
[10]
QUESTION 2
Company A is under the mistaken impression that it owes R50,000 to Company B
and pays this amount. However, the amount has already been paid to B by A's
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bookkeeper. B, who is unaware that the amount has been paid twice has used the
money to pay one of its own creditors R25,000. It has also paid a bonus of R10,000
to each of its two directors. A now wants to claim the money from B. Advise A on
the relevant action that it should use, the requirements for that action as well as
on any defences that may be raised by B. (10)

Study Unit 3:
• Recognition of issue [2]

• Undue Payment
• Identification of action [1]
• Condictio Indebiti
• Requirements for condiction [5]
• Payment must not be due
• Fault must not be present
• Excusable mistake
• Case law (especially Willis Faber Enthoven)
• Remedies /Defences
• Defence of non-enrichment – enrichment has fallen away [1]
• General rule when non-enrichment applies [2]
• Circumstances where defence of non-enrichment will fail [2]
• Calculation/identifying of what can be claimed
• Payment of debt – yes (expenses saved) [1]
• Bonus of directors – no (expense which would normally not have been incurred)
[1]
[10]
QUESTION 3
X is an employee of Company Y. X is paid a monthly salary of R30,000 which is
payable at the end of the month. During July 2011 X receives a very lucrative offer
from Company Z provided he can start work immediately. X does not return to his
employment with Y after 20 July 2011. Y now refuses to pay X anything for his
employment during July 2011. Briefly advise X whether he has any claim against
Y, and if so discuss the nature of the claim as well as the amount that he can claim.
(5)
Answer (mark fairly lightly – but answer must remain relevant)
Study Unit 13:
1. Identification of problem [1]

2. General requirements [2]
3. Spencer v Gostelow discussion [3]
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4. Pro rata repayment [1]

5. Deserter [1]
6.Criticism [2]
X is bound by a Contract of service (locatio conductio operarum) – the employee is only
entitled to compensation when he has completed the term of employment (2).
X has No claim in terms of the contract of service because the employer would be able to
defend himself with the exceptio non adimpleti contractus, but he can claim based on
enrichment (2)
Requirements (2-3).
3. The enrichment must have been sine causa or without legal cause.
4. Causality — the enrichment must have been at the expense of the impoverished party.

Facts: Employee was summarily dismissed for misconduct before the end of his period of
service. Court held that employer could not enjoy the services of the employee without
compensating him for them. The court based his duty to pay some remuneration on enrichment
liability – that
liability rests upon the doctrine that “no man is allowed to enrich himself at the expense of
another”. The amount a plaintiff can claim is calculated according to contractual remuneration.
The court awarded employee a pro rata portion of his remuneration according to the length
of time actually served. The plaintiff must also prove his impoverishment and this is normally the
remuneration he could have earned during the period he worked for the employer.
This applies:
1. Where the employee does not work the full period as a result of illness or some other factor
which prevents him from working or
2. As a result of a termination of the contract of service for a valid reason like summary
dismissal.
If an employee, however, deserts his employer, he loses his claim of U.E against employer.
Criticism
Taking into account public interest in order to discourage desertion, it is difficult to understand
why it applies only to some employees and not to all of them. The inclusion of the one category
with those allowed a claim justifies the inclusion of the other.
[5]
STUDY GUIDE 2: ESTOPPEL
QUESTION 4
Write a critical discussion on whether patrimonial loss is a requirement in the
South African law of estoppel. In your answer you must refer to relevant case law.
(10)
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Study Unit 5:
1.Prejudice general requirement for estoppel – change of position to detriment by

acting or not acting as a result of the misrepresentation [2]
2.Discussion of two approaches to prejudice:
3.Strict approach – (De Wet) patrimonial prejudice [1]
• Test for patrimonial prejudice – comparing of actual patrimonial position and
hypothetical position misled party would have been in if he’she had not been
misled. [2]
• Jonker case [1]
• Bauman case – criticism [2]
4.Wider test for prejudice – potential loss [2]
• Glisson case [2]
• Autolec [2]
• Change in legal position [1]
• Breet [2]
• Mthanti [2]
5.Other views – Van der Walt, Van der Merwe and Van Huyssteen [2-3]
[10]
Prejudice general requirement for estoppel
The person relying on estoppel must prove that his position changed to his detriment
by acting or not acting as a result of the misrepresentation [2]
Discussion of two approaches to prejudice:
Compare the patrimonial position in which the estoppel-assertor finds himself at litis contestatio
(1) with the hypothetical patrimonial position in which he would have been had no false belief
been created. (1)
If estoppel-assertor has changed his legal position it is regarded as prejudice (1) eg incurring a
debt or losing a right or claim even if it has no immediate financial implications (1)
Strict approach – (De Wet) patrimonial prejudice [1]
De Wet avers that the prejudice which the estoppel-asserter stands to suffer if his or
her reliance on estoppel fails, must be patrimonial prejudice. Prejudice in this sense
equals the concept of ``patrimonial loss'.
Test for patrimonial prejudice
comparing of actual patrimonial position and hypothetical position misled party would
have been in if he’she had not been misled. [2]
Jonker case [1]
court held that the type of prejudice which underlies a successful invocation of estoppel
is patrimonial in nature.
Bauman case – criticism [2]
The requirement is fulfilled if the accepter proves that his legal position has changed =
don’t have to prove financial loss. Prejudice exists where it’s apparent from the
application of the comparative method (narrow)
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Wider test for prejudice – potential loss [2]

Wider – contextual approach: prejudice is present when it is proved that the estoppel asserters
legal position has changed by entering into the contract
You don’t need to prove that he has incurred any expenses, provided he doesn’t find himself in
a better position than he would be had the impression not been created
Q: has there been a diminution of a right?
Van der Walt: the wider approach indicates that the requirement of prejudice isn’t patrimonial
Autolec [2]
It was stated that the change of position must involve the practical or business affairs of
the representee and not merely affect him philosophically or in his religious or other
sentimenal values
Breet [2]
party invoking the principle must prove all the requirements of estoppel in order to
succeed, including the requirement of prejudice. Prejudice in relation to estoppel has
such a wide connotation and the very act of the one contracting party in entering into
the contract in reliance on the other's conduct will be regarded in most bilateral
contracts as a sufficient alteration of his position to his detriment to meet the
requirement of prejudice.
Van der Merwe and Van Huyssteen [2-3]
prejudice required must be a patrimonial loss or prejudice in that it affects the patrimonial
position of the aggrieved (potentially) detrimentally.
In conclusion, doctrine of estoppel is designed to prevent prejudice, estoppel operates only to

the extent to which a person would suffer prejudice.
QUESTION 5
A takes his car to B, who sells second-hand cars, to have his car valued. The car
is parked on B’s showroom floor where it is left for three days. In this period one
of the sales staff, X, who believed the vehicle to be part of the stock, sold the
vehicle to C for cash. A now claims the vehicle from C with a rei vindicatio. Advise
C with reference to relevant case law. (10)
Study Unit 3:
1. Identification of problem – whether estoppel will succeed [1]
2. Khota case [3]
3. Discussion or listing of all elements [2]
4. Discussion on misrepresentation [3]
5. Discussion Grosvenor Motors [3]
6. Fault requirement at rei vindicatio cases [3]
7. Conclusion
• No estoppel
• No misrepresentation [1]
• No fault [1]
[10]
5 requirements –
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1. Misrepresentation made by A (½),

2. negligence on the part of A (½),
3. causal link between misrepresentation and prejudice suffered by C (½),
4. prejudice suffered by C (½) and
5. to succeed with estoppel will be allowed by law (½)

disponendi)?
Electrolux v Khota (1)

Mere entrusting a person with the possession of goods is not sufficient to produce the
representation that the possessor has the ius disponendi (1)
added indicia eg documents of title or authority to dispose of the goods (1)
Possible exception if B was A’s agent for sale, but uncertain whether this still applies in SA law
(1)
QUESTION 6
Answer (mark fairly lightly – but answer must remain relevant)
Study Unit 7:
Write a brief note on the requirement that estoppel must be allowed by law. Provide
some practical examples from case law to illustrate this requirement. (5)
• General principle discussed [2]

• Hire purchase examples and discussion [2]
• Trust Bank v Eksteen [2]
• Own relevant examples [2 marks each]
• Case law examples: Brady, Long, Hoisain, Ebrahim, Fuls, Hauptfleisch, Strydom, Rand
Wholesale
[5]
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May/June 2012
SECTION A
CHOOSE THE MOST CORRECT OPTION IN EVERY INSTANCE.
ALSO CIRCLE YOUR ANSWERS ON THE QUESTION PAPER.
Question 1
Which statement best describes the basis on which unjustified enrichment law is based in
South African law?
1 Unjustified enrichment provides an alternative claim to contractual and delictual

claims in cases where an impoverished party has a contractual or delictual claim.
2 Unjustified enrichment provides a basis for a claim where there has been a transfer
of property or value from the impoverished party to the enriched party in an unlawful
manner.
3 Unjustified enrichment provides a basis for a claim where one party has become the
owner of another’s property through lawful means.
4 Unjustified enrichment provides a basis for a claim where the enriched party obtained
its enrichment through the use of unfair contract terms.
√5 Unjustified enrichment provides a basis for a claim where there has been a transfer
of property or value from the impoverished party to the enriched party without a
sufficient legal ground. (2)
Question 2
Which one of the following statements does not constitute enrichment?
1 An increase in assets which would not have taken place was it not for the enriching
fact.
2 A non-decrease in assets where a decrease would have taken place was it not for the
enriching fact.
3 A decrease in liabilities which would not have taken place was it not for the enriching
fact.
√4 A non-decrease in liabilities which would not have taken place was it not for the
enriching fact.
5 A non-increase in liabilities which would not have taken place was it not for the
enriching fact.
(2)
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Question 3
Which one of the following statements relating to indirect enrichment is incorrect?
1 A claim for indirect enrichment was not allowed in Gouws v Jester Pools (Pty) Ltd 1968
(3) SA 563 (T).
√2 A claim for indirect enrichment was allowed in Brooklyn House Furnishers Ltd v
Knoetze & Sons 1970 (3) SA 264 (A).
3 A claim for indirect enrichment was allowed in ABSA Bank Ltd v Stander 1998 (1) SA
929 (C).
4 A claim for indirect enrichment did not arise in Buzzard Electrical v 158 Jan Smuts
Avenue Investments 1996 (4) SA 19 (A).
5 A claim for indirect enrichment was recognised obiter in Hubby’s Investments (Pty) Ltd
v Lifetime Properties (Pty) Ltd 1998 (1) SA 289 (W). (2)
Question 4
Which enrichment action potentially applies to indirect enrichment situations where

improvements are effected?
1 The condictio sine causa specialis.
2 The condictio causa data causa non secuta.
3 The condictio ob turpem vel iniustam causam.
4 The actio negotiorum gestorum contraria.
√5 The actio negotiorum gestorum utilis. (2)
Question 5
1 Where a person has made a payment in terms of a contract subject to a suspensive

condition, and the contract has now been extinguished due to the condition not being
fulfilled.
2 Where a person has made a payment in terms of a contract subject to a resolutive

condition, and the contract has now been extinguished due to the condition being
fulfilled.
3 Where an undue payment has been made in circumstances where the mistake is not
excusable.
√4 Where an executor, who is functus officio, made payments to heirs which were not due
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because a creditor lodged its claim to late.
5 Where a bank has made payment in terms of a forged cheque. (2)
The following facts apply to questions 6-10:
S sells his horse, White Lightning, to P for stud purposes at a price of R 150 000, subject
to P obtaining a loan for the full purchase price from his bank. S delivers the horse to P,
but it transpires that the bank is prepared to grant P a loan for only half the full purchase
price and that P must contribute the balance himself.
Question 6
This is a case where
1 delivery has been made under a false assumption.
2 delivery is illegal.
√3 a suspensive condition has not been met.
4 a resolutive condition has not been met.
5 there is impossibility of performance. (2)
Question 7
Which action must S institute to reclaim his horse?
√1 The condictio causa data causa non secuta.
3 The condictio indebiti.
5 The condictio ob finitam causam. (2)
Question 8
If P paid cash for the horse but unbeknown to the parties the horse had actually been
stolen prior to conclusion of the contract, it would be a case where
√1 performance has been made under a false belief.
2 a modus has been disregarded.
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3 there is a future supposition which cannot be fulfilled.
5 a suspensive condition has not been met. (2)
Question 9
Assume the same facts as in question 8. Which action would P institute to reclaim his
money?
√3 The condictio indebiti.
Question 10
Assume the same facts as in question 8. If after realising that his own horse had been
stolen S used the purchase price to buy another horse to the value of R100 000 and
gambled away the rest of the money, P would be able to recover
1 the value of the horse that S purchased (R100 000).
2 the horse that S purchased.
3 R50 000.
√4 the horse that S purchased and R50 000.
5 nothing. (2)
Question 11
Which action can be used to claim performance that was originally due but subsequently
the causa for the performance fell away?
2 The condictio sine causa generalis.
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√5 The condictio ob finitam causam. (2)
K occupies a portion of L's farm and has effected the following improvements to that part
of the farm without L’s knowledge: (a) built a luxury lapa at a cost of R100 000; (b) sunk a
borehole at a cost of R20 000; (c) planted fruit trees at a cost of R15 000; and (d) planted
mealies which are almost ready to harvest at a cost of R60 000 (value R120 000).
Question 12
Which statement best explains the nature and extent of K's claim(s) (or rights) against L
for improvements if K had been a lessee?
√1 K only has a right to remove useful and luxurious improvements as long as he does
not leave the property in a worse condition than he received it.
2 K has an enrichment action for the full amount of all the necessary and useful
3 K has an enrichment action for the necessary expenses he has incurred to the extent
that those expenses have increased the value of L's land.
expenses he has incurred and may enforce his claim with a right of retention over the
farm.
5 K has an enrichment action for the useful and necessary expenses he has incurred
to the extent that those expenses have preserved or increased the value of L's land.
(2)
Question 13
for improvements if K had been a bona fide possessor?
1 K has an enrichment action for all of the expenses that he has incurred in the
√4 K has an enrichment action for the useful and necessary expenses he has incurred
5 K has no claim for the mealies which have not been harvested yet as they now belong
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to L. (2)
Question 14
for improvements if K had been a mala fide possessor?
1 K has an enrichment action for all of the expenses that he has incurred in the
4 K has a claim for the mealies which have not been harvested.
√5 K has an enrichment action for the necessary and perhaps useful expenses he has
incurred to the extent that those expenses have preserved or increased the value of
L's land. (2)
Question 15
for improvements if K had been a mala fide occupier?
√2 It is uncertain whether K has an enrichment action for the necessary and useful
expenses he has incurred and K has a right of retention to enforce his action.
4 K has a claim for the mealies which have not been harvested.
5 K has an enrichment action for the necessary and useful expenses he has incurred
(2)
Question 16
Indicate which one of the following is not a strict requirement for a valid reliance on
estoppel:
1 There must have been a material misrepresentation.
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2 The person denying estoppel must have made the misrepresentation negligently to
mislead the person relying on the estoppel (in the rei vindicatio cases).
√3 The misrepresentation must have caused patrimonial loss to the person relying on
estoppel.
4 The misrepresentation must have been causally related to the detrimental conduct by
5 The reliance on estoppel must be allowed by law. (2)
Question 17
Which statement(s) provide(s) the most correct explanation of the current legal
position regarding estoppel and waiver?
1 Estoppel and waiver are one and the same.
2 Estoppel cannot be used to maintain an impression that a right has been waived.
3 Estoppel cannot apply to waiver because waiver relates to an existing right while
√4 A party may be estopped from denying waiver in certain circumstances.
5 2 and 3.
(2)
Question 18
√1 Estoppel is often seen as a doctrine of the law of evidence.
2 The basis of estoppel is the exceptio doli.
3 The basis of estoppel is to be found in a delictual action for misrepresentation.
4 The protection of good faith is the basis of estoppel.
5 The basis of estoppel is the maxim nemo contra suum factum venire debet.
(2)
Question 19
In order for estoppel to succeed a representation must be
1 one of opinion.
2 one of intention.
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√3 one of fact.
4 one of law.
5 one of future conduct.

(2)
Question 20
An owner of a cow, which disappeared five years previously, recognised the cow at an
auction, but did not protest when it was sold. The owner seeks to reclaim his cow from the
purchaser, who invokes estoppel against the owner. Which statement best reflects the
legal position?
1 Estoppel will not succeed because the owner made no misrepresentation.
√2 Estoppel will succeed because the owner made a misrepresentation by omission.
3 Estoppel will not succeed because the owner did not represent that he had waived
his right to institute the rei vindicatio in the circumstances.
4 Estoppel will succeed because the owner’s rei vindicatio has prescribed.
5 Estoppel does not apply to the facts.

(2)
Question 21
Which case relates to the facts of question 20?
1 Electrolux (Pty) Ltd v Khota and Another 1961 (4) SA 244 (W).
2 Van Ryn Wine & Spirit Co v Chandos Bar 1928 TPD 417.
3 Johaadien v Stanley Porter (Paarl) (Pty) Ltd 1970 (1) SA 394 (A).
√4 Maling v Hargreaves 25 SC 123.
5 Union Government v National Bank of SA Ltd 1921 AD 121. (2)
Question 22
months A sues B for R3 000 rent in arrear and applies for an order ejecting B from the flat.
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√1 A may be estopped from strictly enforcing the contract.
2 Estoppel cannot be applied where the obligations of the parties are contained in a
written agreement.
3 A may be estopped from strictly enforcing the contract because waiver of a

contractual right and estoppel are one and the same.
4 Estoppel will fail because B will not be able to prove fault on the part of A.
5 A cannot be estopped from strictly enforcing the contract because estoppel may not
give rise to a result which is impermissible in law. (2)
Question 23
Which element of estoppel does not apply to the facts of question 22?
1 Misrepresentation.
√2 Fault.
3 Prejudice.
4 Causation.
5 Permissible in law. (2)
Question 24
Indicate which statement most correctly states the position in regard to the causality
requirement in regard to estoppel.
1 In terms of the "proximate cause" test as applied by the courts, the misrepresentation
by the person denying estoppel must have been the only cause of the detrimental
conduct of the person relying on estoppel.
2 In terms of the "proximate cause" test as applied by the courts, the misrepresentation
by the person denying estoppel must have been the predominant cause of the
√3 In terms of the "proximate cause" test as applied by the courts, it is sufficient that the
4 In terms of the "proximate cause" test as applied by the courts, it is sufficient that the
misrepresentation by the person denying estoppel was the factual cause of the
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5 In terms of the "proximate cause" test as applied by the courts, it is sufficient that the
misrepresentation by the person denying estoppel was the juridical cause of the
detrimental conduct of the person relying on estoppel. (2)
Question 25
succeeded.

(2)
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SECTION B
ALWAYS REFER TO RELEVANT CASE LAW
QUESTION 1
C steals a cheque from D and forges it with E as the payee. C agrees with E that E will
deliver R100 000 worth of goods to C as soon as the amount has been deposited into his
bank account. C deposits the cheque with F, E’s bank in favour of E. The cheque is
honoured and the money paid from D's account. F credits E’s account with the amount. By
the time that D finds out that the cheque has been stolen, E has already released the goods
to C and has also spent R50 000 of the money. Advise D whether he has an enrichment
claim against either E or F, and if so the nature and requirements for that action. Advise D
also regarding the extent of the claim. (15)
This question should be marked leniently. There are two possible actions that may be discussed
and the student should receive credit for either, or both.
1 Identification
This question deals with enrichment and the law of bills of exchange (1) The general rule is that
if a bank pays out on a cheque that has been stolen and forged, or a cheque that has been
countermanded, there is no valid instruction to the bank to pay out the value of the cheque. In the
result the account of the drawer of the cheque (client of the bank) cannot be debited with the
amount and the bank has in fact paid out its own money. Thus D is not impoverished, the bank is
(2).
2 The law
The possible remedies in enrichment that the bank may have in these circumstances are the
conditio sine causa specialis and the condictio indebiti. There requirements are as follows:
Condictio sine causa specialis (1) (Study Guide 1 72)
Its exact parametres are uncertain and under common law it was said that this action was a catch
all for all situations that did not fit under one of the other actions but required a remedy (1). It thus
developed casuistically and potentially may be applied in the following situations:
• Where a causa for a performance exists, but later falls away (1). Also known here as the
conditio ob causam finitam (1);
• Where the plaintiff’s property was alienated or consumed by somebody else; (1)
• Where a bank has made payment under a countermanded or forged cheque; and (1)
• Where transfer of property has occurred sine causa but non of the other condictiones sine
causa apply, but its scope here is uncertain. (1)
Condictio indebiti (Study Guide 1 32)
• Something given or transferred in ownership to another (1). Can consist of corporeal things
or incorporeal things, such as rights (1);
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• Transfer must have taken place as a result of mistake on the part of the transferor – he or
she must have believed that performance was due; and (1)
• The mistake may be one of law or fact (1), but must have been reasonable (iustus error) in
the circumstances. (1)
3 Case law (Study Guide 1 74-76)
There three cases dealing with the paying out of countermanded cheques which could provide
direction in the present circumstances as well:
Govender v Standard Bank of SA Ltd 1984 (4) SA 392 (C) (1)
• Facts indicate a typical case of paying countermanded cheque where there is an underlying
debt between the drawer of the cheque and beneficiary (1). (Note: student may give facts
in great detail, but only 1 mark may be awarded).
• Court stated that condictio sine causa appropriate action and not the condictio indebiti
because elements of payment made under mistaken belief not present. (1)
• Court found that the action must fail because payment of cheque not sine causa (underlying
debt present) and recipient not unjustifiably enriched because he was willling to perform
in terms of the underlying contract. (2)
First National Bank of SA Ltd v B & H Engineering 1993 (2) SA 41 (T) (1)
• On similar facts to Govender court granted the conditio sine causa. (1)
B & H Engineering v First National Bank of SA Ltd 1995 (2) SA 279 (A) (1)
• Decision of court a quo overturned on appeal and approach in Govender followed. (1)
• Where parties agree to pay a debt by cheque, the debt is extinguished once the cheque is
paid out whether or not authorised at that stage. (1) Recipient also not enriched by
payment because receipt of the amount was balanced by the loss of its calim against the
drawer of the cheque.
4 Commentary
• Pretorius suggests that bank should have a claim and the parties left to sort out their
contractual dispute.
5 Application
• In case scenario of forged and stolen cheque similar situation exists because bank pays
out without a valid instruction and the recipient of the money (E) has performed in terms
of a valid underlying debt (to C) and is not enriched. Consequently a claim based either
on the conditio indebiti or the condictio sine causa could fail in circumstances. (2) But
where there is no underlying debt for the payment perhaps a claim may succeed. (1)
6 Quantum of possible claim (Study Guide 1 24-25)
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• If claim allowed the impoversiehd party may only claim amount by which he is impoverished
or the defendant is enriched, whichever is the lesser (1). Quantum of claim determined at
litis contestatio (1). If some of the money has been used on an expense that would
otherwise not have been incurred, enrichment may be accordingly diminished (1), unless
enriched party was aware of enrichment or reasonably could have been aware of
enrichment. (1)
[15]
QUESTION 2
A buys B’s townhouse for an amount of R1000 000. The parties are in full agreement as to
all the aspects of the contract, but A forgets to sign the contractual documents. A pays B
a deposit of R100 000 and moves into the townhouse. He also pays B an amount of R5 000
per month as occupational rent pending transfer of the property into his name, as per their
agreement. A’s children cause damage in the amount of R10 000 to the townhouse while
having a party one night. After three months A realises that he will not be able to afford
the bond on the property because of rising interest rates and he approaches you for legal
advice. The property has not yet been registered in A’s name. Advise A on the rights and
duties of the parties arising in the circumstances. (10)
This question should be marked leniently.
1 Identification
This question deals with s 28 of the Alienation of Land Act 68 of 1981 which makes provision for
a statutory enrichment action where a deed of alienation does not comply with the formal
requirements of the Act and is consequently void. (2) (Study Guide 1 44-45)
2 The law
Section 28 provides as follows:
Consequences of deeds of alienation which are void or are terminated.
(1) Subject to the provisions of sub-section (2), any person who has performed partially or in full
in terms of an alienation of land which is of no force or effect in terms of section 2(1), or a
contract which has been declared void in terms of the provisions of section 24(1)(c), or has
been cancelled under this Act, is entitled to recover from the other party that which he has
performed under the alienation or contract, and — (2)
(a) the alienee may in addition recover from the alienator —
i(i) interest at the prescribed rate on any payment that he made in terms of the deed of
alienation or contract from the date of the payment to the date of recovery; (2)
(ii) a reasonable compensation for –-

(aa) necessary expenditure he has incurred, with or without the authority of the owner or
alienator of the land, in regard to the preservation of the land or any improvement thereon; or (2)
(bb) any improvement which enhances the market value of the land and was effected by him on
the land with the express or implied consent of the said owner or alienator; and (2)
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(b) the alienator may in addition recover from the alienee —
i(i) a reasonable compensation for the occupation, use or enjoyment the alienee may have had
of the land; (2)
(ii) compensation for any damage caused intentionally or negligently to the land by the alienee
or any person for the actions of whom the alienee may be liable. (2)
(2) Any alienation which does not comply with the provisions of section 2(1) shall in all respects
be valid ab initio if the alienee had performed in full in terms of the deed of alienation or contract
and the land in question has been transferred to the alienee. (2)
This section creates a statutory enrichment action similar to the condictio indebiti in subsection
(1) The statutory enrichment action created in section 28 of the Act is a fully developed
enrichment action because it takes adequate account of all factors increasing or decreasing the
enrichment and impoverishment. (1) The provision in section 28(2) gives rise to a fully valid
contract which will also also contain the residual rules of the law of sale in so far as the parties
have not excluded them. (1)
3 Application
The contract between A and B is void due to noncompliance with the Act. S 28 (2) does not aply
in the circumstances. A must vacate the townhouse and B must pay A his deposit back with
interest. A has already paid B occupational interest for occupation of the premises. A must
compensate B for the damage caused to the property. (2)
[10]
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 defences against this claim, and if so, what the requirements would be. (15)
This is a fairly wide question dealing with estoppel and its requirements, the most pertinent of
which here would be the questions of misrepresentation and negligence on the part of the owner.
Where case law is discussed use own discretion to award marks within the permitted mark
allocation.
1 Identification
This question deals with estoppel as a defence to the owner’s rei vindicatio. The
elements of misrepresentation and negligence on the part of the owner are of specific
relevance here. (2)
2 The law
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Re requirements for estoppel: (Study Guide 2 16)
• Misrepresentation – creation of false belief by estoppel denier. (1)

• Fault (intention or negligence) on part of estoppel denier. (1)
• Prejudice on part of estoppel assertor. (1)
• Causation – the estoppel assertor must have acted to his detriment as a result of
the misrepresentation of the estoppel denier. (1)
• The raising of estoppel must be permissible in law in the circumstances. (1)
3 Misrepresentation (Study Guide 2 16-21)
• Misrepresentation is any word or conduct that communicates an untruth. Generally

it must be a misrepresentation of fact and may consist in a positive
misrepresentation or by omission where there is a legal duty to speak or
otherwise act positively. (2)
• Misrepresentation where owner leaves his property in possession of another.

General rule: mere leaving of one’s property in possession of another does not
create the impression that the latter has the right to sell the property (1 mark).
(Study Guide 2 21-23)
• Examples from case law
• Adams v Mocke 23 SC 722: A, a postal transport contractor, authorised his driver to hire
post horses and mules in case his horses should become disabled on the road - which in
fact happened. The driver hired a mule from E and left the lame horse with E on the
understanding that E would look after and, if need be, use the horse until the hired mule
could be returned. E, however, sold and delivered the horse entrusted to him to a certain
Mocke. In the ensuing action A claimed the horse from Mocke and succeeded in his
claim. Lord de Villiers observed that
...’an owner does not lose his right of vindication unless he had so entrusted his goods
under circumstances which might fairly and reasonably induce third parties to believe that the
ostensible owner was the true owner or had authority from the true owner to dispose of the
goods. In the present case no such circumstances have been proved to exist. The fact that the
plaintiff entrusted the postcart horses to his driver could lead no one reasonably to believe that
he had the right to sell or exchange horses.’ (3)
• In Morum Bros Ltd v Nepgen 1916 CPD 392, the facts were the following: A sold two
horses to S, a speculator in horses, a postal contractor and also a vendor of fish and
vegetables. The sale was subject to a suspensive condition that, despite delivery of the
horses, ownership of them would not pass before the purchase price had been paid.
After the horses had been delivered to him but before he had paid the purchase price, S
sold them to a bona fide purchaser. A thereupon instituted the rei vindicatio against the
second purchaser, who invoked the doctrine of estoppel, contending that A, the owner,
had placed S in a position to represent himself as the owner of the horses. The court
rejected this contention and ordered the defendant to return the horses to A. (3)
• Exception
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However, if the owner goes further and not only tolerates the possession of his or her
property by another, but also gives him or her the title documents or blank transfer form or
something similar, his or her representation may in fact amount to a misrepresentation, since his
or her conduct may be reasonably conducive to the false conclusion that the possessor is the
owner (and may dispose of the thing). (2)
Example
• The case of Fawdon v Lelyfeld 1937 TPD 339 can serve as illustration. The owner of a
racehorse hired it out to B and L. To evade the jockey club regulations the lease was
drawn up in the guise of a contract of sale. B and L received a false receipt for the
fictitious sum of R200 to enable them to act as owners in their dealings with the jockey
club. B and L subsequently sold the horse to Mrs Lelyfeld. The defendant, Mrs Lelyfeld,
pleaded estoppel against the rei vindicatio of the owner and succeeded in her plea. In
this case the owner of the horse had placed B and L in a position to represent
themselves to Mrs Lelyfeld as the owners of the horse. It was not the mere possession
of the horse by B and L, but the possession together with the fictitious receipt, that had
created an impression of such a nature that it could reasonably mislead third parties. (3)
• In Electrolux v Khota 1961 4 SA 244 (W) court held as follows:
‘I think that generally and logically the first enquiry should be into what was the specific
conduct of the owner that the respondent relies upon for the estoppel. If that conduct is not such
as would in the eyes of a reasonable person, in the same position as the respondent, constitute
a representation that the swindler was the owner of, or entitled to dispose of, the articles, then
cadit quaestio - no estoppel could then arise. But if such conduct does beget that
representation, then the next enquiry would Logically be whether the respondent relied upon, or
was misled by, that representation in buying the articles.
[T]he owner's mere entrusting a person (not being a factor, broker, or agent for selling)
with the possession of its articles is not sufficient to produce the representation that the
dominium or ius disponendi was vested in the possessor. The respondent would not be entitled
to assume from such mere possession that the possessor was authorised to dispose of the
articles. If he made such an assumption he would only have himself to blame for his gullibility.
To give rise to the representation of dominium or ius disponendi, the owner's conduct must be
not only the entrusting of possession to the possessor but also the entrusting of it with the
indicia of the dominium or ius disponendi.’ (3)
• Examples of indicia
Such indicia may be the documents of title and/or of authority to dispose of the articles, as
for example the share certificate with a blank transfer form annexed, as in West v De Villiers
1938 CPD 96; or such indicia may be the actual manner or circumstances in which the owner
allows the possessor to possess the articles, as for example the owner-wholesaler allowing the
retailer to exhibit the articles in question for sale with his other stock in trade. (3)
4 Fault (negligence) (Study Guide 2
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• Case law
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jus disponendi.
detriment.
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5 Application
• A created the impression (misrepresentation) in the mind of C, both in writing and

telephonically, that B was the owner of the television set (or at least could dispose
of it). He was also clearly negligent in acting in this way and hence estoppel
should succeed against his rei vindicatio. (2)
[15]
QUESTION 4
Write brief notes on the following:
4.1 Estoppel and representation in terms of mandate. (5)
Study Guide 2 70-71
• In the contract of mandate the doctrine of estoppel is applied mainly in two instances. In
the first place there may be a situation where no real authority flows from a contract of
mandate, but where an appearance of authority has been created by the contract. (1)
The possibility thus arises that third parties may be misled by the fact that a mandatory's
conduct falls within this ostensible authority. (1) Secondly, an actual existing authority
may be more restricted in its extent than it appears to third parties. In this case, third
parties may be misled by an act of the mandatory (representative) which appears to fall
within the bounds of this actual existing authority. (1) In other words, a false impression
may be created in respect of the existence of the authority or/and the extent of the
authority (1)
When viewed scientifically, the application of the principles of estoppel in cases where an
ostensible authority exists or where an act appears to fall within an actual existing authority,
should pose no particular problems. In each case one should simply determine whether all the
requirements for a successful plea of estoppel are present. (2) The following principles may also
be deduced from the application of estoppel in this regard:
Private instructions from the principal to his or her representative (the mandatory) cannot affect
third parties who enter into juristic acts with the representative. (2) Where the authority of a
representative has been terminated by his or her principal, the latter is still liable to third parties
with whom the representative has entered into juristic acts, if such third parties were ignorant (or
could not reasonably be expected to have known) of the termination of his of her authority. (2)
4.2 Estoppel and the conclusion of a contract. (5)
Theories of contractual liability:

• According to the consent theory, the basis of the contract is the consent or agreement
betweenthe parties. (1) According to the declaration theory, the basis of a contract
consists of corresponding statements or expressions of intent, and not necessarily the
presence of actual consent. (1) According to the reliance theory, the basis and contents
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of a contract are constituted by the reasonable reliance, that is the impression or

understanding of the one party's intention, which is formed by the other party. (1)
In a few cases the court was inclined, in principle, to accept estoppel as a means to hold parties
to a ``contract'' in the absence of real consensus. (1)
• In Van Ryn Wine and Spirit Co v Chandos Bar 1928 TPD 417, X, the representative
of R, obtained orders for liquor from C and fraudulently represented to C that C would receive a
discount if he paid cash to X. C did this, and although he received invoices stating the price of
the liquor with every consignment, which differed from the price paid to X, he ignored them. R
then sued C for payment of the prices as stated on the invoices. C denied that he had
contracted at those prices. R averred that C was estopped from denying the existence of
consent, since by receiving the invoices without comment, he had given the impression that he
was contracting at the prices reflected in the invoices. R thus attempted to bind C, not in terms
of the contract, but in terms of estoppel; C had created the impression that a contract did in fact
exist and was now estopped from denying the existence of the contract, therefore he was bound
as if there were a contract. (Note that there was no contract.) The court held that C was not
estopped from proving dissensus, since his conduct had been reasonable and without culpa. (3)
• In Peri-Urban Areas Health Board v Breet NO and Another 1958 (3) SA 783 (T), the court
also accepted in principle that a party could be bound to a ``contract'' on the ground of
estoppel where consent was absent. (2)
Criticism against use of estoppel in this context:
Firstly, the general requirements for estoppel are intermingled with the requirements for
contractual liability and can place quite a heavy onus on estoppel raiser. Especially requirement
of prejudice (and perhaps fault) could be problematic. (2) Secondly, estoppel only gives rise to
the fiction of a contract and not an actual one. So the ensuing ‘contract’ only applies inter partes
and no contractual rights can be ceded to a third party. (2)
• Although, initially, the Appellate Division expressly indicated that estoppel may be
applied in cases of dissensus (Saambou-Nasionale Bouvereniging v Friedman 1979 (3)
SA 978 (A)), in Sonap Petroleum (SA) (Pty) Ltd v Pappadogianis 1992 (3) SA 234 (A) at
240 it rejected estoppel as a solution in such instances, albeit obiter. There seems to be
little need for estoppel in this context where the reliance theory can be applied more
easily and with better results. (3)
[10]
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May/June 2013
Section A
Question 1
South African law?
of property or value from the impoverished party to the enriched party in an unlawful
manner.

claims in cases where an impoverished party has a contractual or delictual claim.
sufficient legal ground.
of property or value from the impoverished party to the enriched party on the basis of
unauthorised management of affairs (2)
Question 2

√3 The actio negotiorum gestorum utilis.
5 The condictio ob turpem vel iniustam causam. (2)
Question 3
Which action may be used when someone renders an undue performance under protest?

3 the condictio ob finitam causam
4 the condictio in debiti
5 The condictio ob turpem vel iniustam causam. (2)
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Question 4
Which is the appropriate action for reclaiming performance where the causa for the
performance has fallen away
2 The actio negotiorum gestorum utilis
5The condictio ob turpem vel iniustam causam. (2)
Question 5
Which is the appropriate action for reclaiming performance made in terms of a contract
subject to a suspensive condition that has not been fulfilled

2 The actio negotiorum gestorum specialis
The following facts are relevant for questions 6-8
L is renting a farm from O for an amount of R 10,000 per month. Without notifying O, L
concludes a contract with R to build a new storeroom at a cost of R 100,000 and to make
repairs to the roof of the house on the farm at a cost of R 15,000 because the roof is
leaking and causing damage to the interior of the house.
Question 6
Indicate which statement best explains L’s presence on O’s land
1. L is a bona fide occupier of the farm.
2. L is a lawful occupier of the farm.
3. L is a bona fide possessor of the farm.
4. L is a mala fide occupier of the farm because he did not have the permission of O to
effect the improvements and repairs.
5. 1 and 2 are both correct
Question 7
Indicate which statement best explains the L’s possible claim.
1. L as lawful occupier has an enrichment action against O for the value of all of the
improvements effected to the farm.
2. L as bona fide occupier has an enrichment action against O to the extent that the
improvements increased the value of the farm.
3. L as lawful occupier has an enrichment action against O for only the value of all of the
necessary improvements effected to the farm, i.e. the repairs to the roof.
4. L as lessee of rural land, has no claim against O in terms of the Roman-Dutch
Placaaten that still applies in South African law.
5. L as lessee of rural land, has a claim against O for necessary expenses in terms of the
Roman-Dutch Placaaten that still applies in South African law.
Question 8
Assume further that L has absconded after the improvements were effected and cannot
be found as he has apparently emigrated.
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Indicate which statement best explains the case law on whether R will have a claim
against O under these circumstances.
1. In Buzzard Electrical v 158 Jan Smuts Avenue Investments 1996 (4) SA 19 (A) it was
held that under these circumstances R has a claim against O for the value of the improvements
made to the farm.
2. In Buzzard Electrical v 158 Jan Smuts Avenue Investments 1996 (4) SA 19 (A) the
question on whether R has a claim against O for the value of the improvements made to the
farm under these circumstances, was left undecided.
circumstances R has a claim against O for the value of the improvements made to the farm.
circumstances R has a no claim against O for the value of the improvements made to the farm.
The following facts are relevant for Q9-12

B has bought an operating business from S for R 1.5 million. After B had taken over the
running of the business, X, a major supplier to the business, refuses to supply B with
any product until S has settled a debt owed to X for goods delivered in an amount of R
50,000. B pays S’s debt with X because he cannot operate the business without the
product supplied by X. S refuses to repay the amount to B.
Question 9
Indicate which statement best explains which enrichment action, if any, is available to B
against X.
1. B has no claim against X in terms of any enrichment action.
2. B has a claim against X based on the condictio indebiti.
3. B has a claim against X based on the condictio sine causa specialis.
4. B has a claim against X based on the actio negiotiorum gestorum utilis (extended
5. B has a claim against X based on the actio negiotiorum gestorum contraria (true
Question 10
Assume the same facts as in question 9. Indicate which statement best explains which
enrichment action, if any, is available to B against S.
1. B has a claim against S based on the condictio indebiti.
2. B has a claim against S based on the condictio sine causa specialis.
3. B has a claim against S based on the actio negiotiorum gestorum utilis (true
4. B has a claim against S based on the actio negiotiorum gestorum contraria
(extended management of affairs action)
Question 11
On what authority would you base your answer to question 0
1.. Shaw v Kirby 1924 GWL33

2.. Van Staaden v Pretorius 1965 1 SA 852 Transvaaal
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3.. Harman’s estate v Batholomew 1955 2 SA 302 natal

4.. Ordendaal v Van Oudtshoom 1968 3 SA 433 Transvaal
5.. Herbert Erking Pty Ltd v Nolan 1965 2 PH 38 Transvaal
Question 12
Assume the same facts as in Question 9. Further assume that the reason why S refused
to pay X was because the goods delivered were defective. S had a valid claim for the
reduction of the purchase price of those goods in an amount of R 13,000.
Indicate which statement best explains the quantum of B’s claim, if any.
1. B has a claim against S for the full amount of R 50,000.

2. B has a claim against S for only R 37,000.
3. B has a claim against X for the full amount of R 50,000.

A runs a successful swimming pool business. He uses pool pumps supplied by B at a
price of R5000-00 per pump. A installs a pool for C at a price of R50 000. B supplies A
with a defective pump which A uses on C’s pool. C refuses to pay A the price for the pool
due to the defective pump. A in turn cancels his contract with B and refuses to pay B for
the defective pump
Question 13
Indicate the statement which best explains the nature of the claim if any that A has
against C
1..A has no claim against C because C has successfully invoked the exeptio non adempleti
contractus
2..A has an enrichment claim against C for R45 000
3..A has a claim against C for R45 000 based on the action negotiorum gestiorum utilis
4..A has a claim against C for reduced contract price depending on the amount
necessary to remey the defective pump
5..A has an enrichment claim against C based on the usual enrichment principles
Question 14
Indicate the statement which best explains the nature of the claim if any that B has
against A
1..B has no claim against A because A has successfully invoked the exeptio non adempleti
contractus
2..B has an enrichment claim against A for R5 000
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3..B has a claim against A for R5 000 based on the action negotiorum gestiorum utilis
4..B has a claim against A for reduced contract price depending on the amount necessary to
remey the defective pump
5..B has an enrichment claim against A based on the usual enrichment principles
Question 15
On what authority would you base your answers to Q13&14
1..Gouws v Gester Pools pty Ltd 1968 3 SA 653 Transvaal
2..Absa bank Ltd v Stander 1998 1 SA 929 CC
3..BK Tooling (Edms) BPK v Scope Precision Engineering (Edms) BPK 1979 SA 391 A
4..Hawman v Nortje 1914 AD 293
5..Buzzard Electrical v 158 Jan Smuts Avenue Investments 1996 4 SA 19 A
Question 16
estoppel:
mislead the person relying on the estoppel
2 causation: the person relying on the estoppel must have acted on the basis of the
representation of the other party
√4 The misrepresentation must have caused patrimonial loss to the person relying on
estoppel.
5 The reliance on estoppel must be allowed by law. (2)
Question 17
Choose the correct statement

succeeded.

estoppel did not succeed. (2)
Question 18
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his rent payments, A can have him summarily evicted. The contract also has a clause
providing that no amendments to the contract including the particular clause will be valid
and enforceable unless reduced to writing and signed by both parties. B has fallen on hard
times and he only manages to pay A R1 000 per month, which A accepts without protest.
After three months A sues B for R3 000 rent in arrear and apply for an order ejecting B
from the flat. B raises estoppel. Choose the most correct option.
agreement.
3. Waiver of a contractual right and estoppel are one and the same.
5. A cannot be estopped from strictly enforcing the contract because estoppel may not give
rise to non-compliance with contractual formalities. (2)
Question 19
Which requirement for estoppel relates directly to question 18
1 Misrepresentation
2 Fault
3 Causation
4 Prejudice
5 Permissible in law
Question 20
A, a minor represents to be that he, A, is a major and purchases a 2nd hand motor vehicle
from B. a pays a deposit and promises the balance of the price in cash upon delivery. B
delivers the vehicle to A but A fails to pay the balance as promised. A sells the vehicle
and spends all the money on a holiday. What would B’s remedy against A be in these
circumstances
1.. he can enforce the contract and claim the outstanding balance on the purchase price
2..he can raise estoppel to hold A to the contract because A misrepresented his age to B and B
acted to his prejudice as a result thereof
3..he can claim from A with an enrichment action but his claim is limited to the actual enrichment
of A at litis contestacio
4..he can cancel the contract and claim damages from A
5..he has a claim against A on the basis of true admin of affairs
Question 21
Which statement regarding the basis of estoppel is the most correct?
1. Estoppel is a doctrine of the law of evidence.

2. Estoppel is a sui generis remedy
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The following facts are relevant to Question 22-24

X, the representative of R obtained orders for liquor from C, and fraudulently represented
to C that he would receive a discount if he paid cash to X for the liquor. C did this and
although he received invoices stating the price of the liquor with every consignment,
which differed from the price he paid to X, he ignored them. R then sued C for payment of
the prices as stated on the invoices. C denied that he had contracted at those prices. R
averred that C was estopped from denying the existence of consent, since by receiving
the invoices without comment, he had given the impression that he was contracting at
the prices reflected in the invoices.
Question 22
On which case are these facts based?
1. Van Ryn Wine and Spirit Co v Chandos Bar 1928 TPA 417
2. Hogson bros v SAR 1928 CPD 257
3. Pieters & Co v Solomon 1911 AD 121
4. Sonap Petroleum (SA) Pty Ltd v Papadogianus 1992 3 SA 234 (A)
5. Steyn v LSA Motors Ltd 1994 (1) SA 49 (A). (2)
Question 23
The outcome of the relevant case was that
1. C was estopped from proving dissensus, since his conduct had been unreasonable and
negligent
2. There was a contract on the terms alleged by R
3. C was not estopped from proving dissensus, since his conduct had been
reasonable and without fault
4. There was a contract on the terms alleged by C
5. R was estopped from raising a different agreement because it was his representative (X)
who had made a fraudulent misrepresentation to C that C would receive a discount if he paid
cash
Question 24
estoppel in such circumstances
1. In Sonap Petroleum (SA) Pty Ltd v Papadogianus 1992 3 SA 234 (A) the court accepted
that it may sometimes be necessary to use estoppel in the case of mistake.
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2. Only the reliance theory can be used to hold a party contractually bound in the absence
of true agreement
3. It is undesirable to use estoppel in cases of mistake because it creates a fiction or an
appearance of a contract which only applies between the parties.
4. In accordance with the case law estoppel cannot be utilised to keep a party bound to the
misrepresentation he has made in respect of his intention to contract.
5. Estoppel has been replaced by the reliance theory and thus cannot apply to such
instances.
Question 25
Indicate which statement most correctly reflects the position in regard to a successful
plea of estoppel against the rei vindicatio
1..Ownership will be transferred by estoppel
2..In Oriental products (pty) ltd v Pegma 178 Investments Trading CC and Others 2011, Harms
DP indicated that ownership could be transferred by estoppel
3..The owner is merely prevented from claiming his property
4.. In Oriental products (pty) ltd v Pegma 178 Investments Trading CC and Others 2011, Harms
DP indicated obiter that ownership possibly could be transferred by estoppel
5..3&4
SECTION B
ALWAYS REFER TO RELEVANT CASE LAW
QUESTION 1
of these persons deposited the orders they had acquired with a bank. The bank
presented the orders to the post office and was paid their face value. The government, on
discovering that the orders were not genuine, sought to recover the amount the post
office had paid to the bank. The bank set up a defence of "estoppel by negligence",
alleging that P had been negligent in not keeping the date stamp under lock and key and
in allowing S access to the room in which the stamp was kept.
1.1 What action should the government institute to claim the money paid by the post
office to the bank and what are its requirements and field of application? Discuss. (10)
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The facts pertain to the case of Union Government v National Bank of SA Ltd 1921 AD 121 (1).
The action instituted by the government was the conditio indebiti (1); the requirements for which
are:
Transfer of thing (which can be corporeal or incorporeal) in ownership to another;

due to a mistake (of law or fact); and
which must be reasonable under the circumstances.
(3-5 marks depending on depth of discussion. See SG 2 48 and SG 1 32).
1.2 What is the nature of the defense raised by the bank, what are its requirements and
discuss whether the defence will be successful with reference to appropriate case law.
(10)
Re requirements for Estoppel:
1. Misrepresentation – creation of false belief by estoppel denier. (1)

2. Fault (intent or negligence) on part of estoppel denier. (1)
3. Prejudice on part of estoppel assertor. (1)
4. Causation – the estoppel assertor must have acted to his detriment as a result of the
misrepresentation of the estoppel denier. (1)
5. The raising of estoppel must be permissible in law in the circumstances. (1)
CAUSATION:

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paid to the bank.
Inns CJ decided the case on the basis that P wasn’t negligent and the government was
genuine.
succeed.
Thus in Kajee v H M Gough, for example, it was held that estoppel can be raised against X
where he enables Y to commit fraud for instance by negligently delivering documents regarding
a car to Y. Here X should reasonably have foreseen Y's subsequent conduct.
Question 2
Discuss the nature and extent of enrichment claims, including factors that could
influence the amount of a claim. (10)
In principle the plaintiff is allowed to claim the amount he has been impoverished, or the amount
the defendant has been enriched, whichever is the lesser. (1) See Study Guide 1, par 1.1.4 and
2.3. The quantum of the enrichment claim is calculated at the time the claim is instituted. (1)
That means that the defendant is not liable for benefits that he due to his enrichment could have
gained, but didn’t. (1) If the defendant’s enrichment has been reduced or extinguished before
the claim has been instituted, his liability will also be reduced or extinguished. (1) The onus to
prove non-enrichment lies with the defendant. (1) In four instances the quantum will be
calculated sooner, meaning before the date of institution of the action: (a) at the moment the
defendant becomes aware of enrichment (1); (b) at an earlier stage if the defendant should have
known that the benefit wasn’t justified (1); (c) when the defendant fell into mora (1); and an
earlier date if the defendant acted mala fide (1). These exceptions do not apply in the case of
minors. (1)
In quantifying the claim all positive and negative side-effects should be taken into account. (1)
Interest earned on money in the hands of the defendant before litis contestatio cannot be
claimed by the plaintiff, (1) but after mora the plaintiff can claim mora interest. (1) See Study
Guide 1, par 3.4. If the defendant spent the money on something he would not have done if it
wasn’t for the enrichment, he can raise the defence of non-enrichment. (1) However, if all or part
of what he spent the money on (eg goods) is still of value and in his hands, he must offer the
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goods or the value of the goods to the plaintiff. (1) If the goods are more valuable than the
impoverishment, the difference should be paid to the defendant. (1)
Question 3
Write a critical discussion on whether the entrusting of property to another creates the
impression that the receiver is entitled to dispose of it. In your answer you must refer to
The question whether there could reasonably be misrepresentation often arises where an owner
entrusts his or her property to the possession of another.
Since the separation of ownership from possession occurs so frequently, it would be
unreasonable and contrary to the legal views of the community, as interpreted by the courts, to
accept without further investigation that the possessor of property is its owner.
The representation is a misrepresentation if the message it gives a reasonable person is false.
However, if the owner goes further and not only tolerates the possession of his or her property
by another, but also gives him or her the title documents or a blank transfer form or something
similar, his or her representation may in fact amount to a misrepresentation, since his or her
conduct may be reasonably conducive to the false conclusion that the possessor is the owner.
In Electrolux (Pty) Ltd v Khota 1961 (4) SA 244 (W) this matter is explained as follows:
The first enquiry should be into what was the specific conduct of the owner that the
respondent relies upon for the estoppel. If that conduct is not such as would in the eyes
of a reasonable person, in the same position as the respondent, constitute a
representation that the swindler was the owner of, or entitled to dispose of, the articles,
then cadit quaestio - no estoppel could then arise. But if such conduct does beget that
representation, then the next enquiry would logically be whether the respondent relied
upon, or was misled by, that representation in buying the articles.
The owner's mere entrusting a person with the possession of its articles is not sufficient
to produce the representation that the dominium or ius disponendi was vested in the
possessor. The respondent would not be entitled to assume from such mere possession
that the possessor was authorised to dispose of the articles. If he made such an
assumption he would only have himself to blame for his gullibility. To give rise to the
representation of dominium or ius disponendi, the owner's conduct must be not only the
entrusting of possession to the possessor but also the entrusting of it with the indicia of
the dominium or ius disponendi.
Question 4
4.1 A leaves R1 million in his will to a church to build a new church building, but the
church uses the money to build the pastor a new house. Discuss briefly which action can
be used to reclaim the money and its field of application (5)
This is a modus. A modus is an obligation which is usually created either in contracts of
donation or in testamentary dispositions. In Roman and Roman-Dutch law modi gave rise to a
claim with the condictio causa data causa non secuta where the modus remained unfulfilled. In
modern South African law its application is restricted to testamentary dispositions as contractual
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modi are now dealt with as a form of breach of contract — see Benoni Town Council v Minister
of Agricultural Credit and Land Tenure 1978.
Where a testamentary disposition is made subject to a modus there is an obligation on the

legatee or heir to comply with the provisions of the modus. However, it is not quite certain who
would be able to enforce compliance with the modus, although it is assumed that the executor
or heirs would be entitled to do so. Where the disposition is revoked owing to noncompliance,
the disposition can be reclaimed with the condictio indebiti.
4.2 The city council of Cape Town has a statutory duty to collect property rates and taxes
at certain rates. During the past two years the city council has only collected half of the
city council had claimed the correct amount of rates and taxes. Briefly discuss whether
the defence of estoppel will succeed (5)
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OCT/NOV 2013
SECTION A
Unjustified enrichment
The following facts are relevant to questions 1-4
B has checked its records and has paid the amount in the bona fide belief that the
R10,000 for a luxury weekend after realising that his account was in credit.
Question 1
Which statement best explains the nature of B’s claim against A?
1..B has a contractual claim against A based on the condictio ob turpem vel iniustam causam
3. B has an enrichment claim against A based on the condictio causa data causa non
secuta.
4. B has an enrichment claim against A based on the actio negotiorum gestorum contraria
5.. B has an enrichment claim against A based on the actio negotiorum gestorum utilis.
(2)
Question 2
Which statement is incorrect?
1. A has not been enriched at the expense of C, who made the payment
2. A's enrichment is not unjustified as B made a donation to A
3. A’s enrichment is unjustified even though there was a contract between A & B
4. A has not been impoverished when the bank debited an amount of R30 000 from his
account
5. B has not been impoverished by the conduct of the bank. (2)
Question 3
1. B can only claim R20,000 from A because his account was overdrawn and the bank
received the benefit of the other R30,000.
2. B can claim nothing from A as all the money has been used
3. B can claim only R30,000 because the rest of the enrichment amount has been spent on
car service & gambling.
4. B can claim only R30,000 because the rest of the enrichment amount has been lost on a
car service.
5. B can claim only R40,000 because the rest of the enrichment amount has been lost on
gambling.
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(2)
Question 4
Which statement best explains the calculation of the enrichment claim if A had been
unjustifiably enriched at the expense of B and had known it all along?
1. B can claim nothing from A as all the money has been used
2. B can only claim R20,000 from A because his account was overdrawn and the bank
received the benefit of the other R30,000.
3. B can claim only R30,000 because the rest of the enrichment amount has been spent on
car service & gambling.
4. B can claim only R40,000 because the rest of the enrichment amount has been lost on a
car service.
5. B can claim only R50,000 even though some of the enrichment amount has been lost on
gambling. (2)

(tip: read Q5-8 before you start answering them)
A buys B’s Mercedes Benz for R200 000-00. B tells A during the negotiations that the car
is in an excellent condition and that it has been serviced. A pays B for the car with a
cheque drawn on A’s bank- C Bank. B also banks with C bank, a day after taking delivery
of the car, A finds that the gearbox is faulty. To repair the gearbox will cost R30 000-00. B
refuses to pay for the repairs and states that A damaged the gearbox by towing a too
heavy load with the car. A is unhappy and immediately instructs C-bank not to pay the
proceeds of the cheque out to B. Due to a clerical error C Bank nevertheless pays the
R200 000 out to B
Question 5
Which statement regarding impoverishment and enrichment is most correct?
1. A has been impoverished and B has been enriched

2. B has been impoverished and A has been enriched
3. C has been impoverished and A has been enriched
4. C has been impoverished and B has been enriched
5. C has been impoverished but neither A nor B has been enriched (2)
Question 6
Assuming that there was impoverishment and enrichment in the circumstances, which
would be the appropriate enrichment action to use in terms of case law?
1 The condictio sine causa

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Question 7
Which statement regarding the outcome of a claim for enrichment is most accurate?
1 A will be successful with an enrichment claim against B because B has been enriched at
A’s expense
2 B will be successful with an enrichment claim against A because A has been enriched at
B’s expense.
3 C will not be successful with an enrichment claim against B because B has not been
enriched he has lost his contractual claim against A.
4 A will be successful with an enrichment claim against C because C has paid B contrary to
A’s instruction.
5 None of the above.
Question 8
Which case would you refer to in substantiating your answer to question 7?
1 First National Bank of SA Ltd v B & H Engineering 1993 (2) SA 41 (T)

2 B & H Engineering v First National Bank of SA Ltd 1995 (2) SA 279 (A)
3 Kommissaris van Binnelandse Inkomste v Willers 1994 3 SA 283 (A)
4 Willis Faber Enthoven (Pty) Ltd v Receiver of Revenue 1992 (4) SA 202 (A) .
5 Leew v First National Bank of SA Ltd 2010 (3) SA 410 (SCA)
Question 9
When a collecting bank pays out the proceeds of a cheque which has been dishonoured
to its customer, what would be the appropriate enrichment action to claim return of the
money from the customer?

5 The actio negotiorum gestorum contraria
Question 10
Which case would you refer to in substantiating your answer to question 9?
Question 11
Which of the following are the requirements for the true management of affairs action
(actio negotiorum gestorum contraria)?
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(a) The gestor must act without instruction from the owner
(b) The actions of the gestor must be successful.
(c) The gestor must have intended to act in the interests of the owner.
(d) The gestor must not act against the express prohibition of the owner.
(e) The gestor must have intended to act free of charge
1 a, b & e
2 b, d & e
3 a, c & e
4 a, c & d
5 a, b, c, & e
Question 12
A sells and transfers his house to his church for a very low price. The contract states
that the church may only use the house for religious purposes. The church lets the
house to a 3rd party to run a business. Which remedy would A use to reclaim the house
from the church?
2 The rei vindicatio.
3 an action for breach of contract
4 A delictual claim
Question 13
What is the term limiting the way in which the church may use the house called?
1 a suspensive condition
2 a resolutive condition.
3 an assumption
4 A modus
5 a stipulation for the benefit of a 3rd party
The following facts are relevant for Questions 14-15

A steals and forges a cheque in the amount of R10 000 from his employer B and pays it
into his account with his bank, C. a’s account with C is overdrawn in the amount of R8000
and, C, unaware of the theft, immediately debits A’s account to discharge A’s debt to it ©.
A credit balance of R2000, remains on A’s account.
Question 14
What would B be able to claim from the bank (C) with an enrichment action?
1 B would be able to claim the full amount R10 000 from C because A could not have
transferred ownership in the stolen funds to C, or anybody else for that matter
2 B would be able to claim only the credit balance of R2 000 on A’s account because the
debt of R8 000 that A had toward C was validly discharged
3 B would be able to claim the R8 000 used to discharge A’s debt to C (the remaining amount
R2000, stands to the credit of A and B must claim this money directly from A)
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4 B would be able to claim nothing because bank C had no knowledge of the theft
5 None of the above
Question 15
What is the appropriate enrichment action that B must institute against the bank C
according to case law?

2 The condictio indebiti
Question 16
1. There must have been misrepresentation of intention.

2. Prejudice on the part of the person relying on the estoppel.
3. The person denying estoppel must have made the misrepresentation culpably in the
case of vindication
4. Causation the prejudice must have been the result of the misrepresentation.
5. The reliance on estoppel must be allowed by the law
Question 17
Which case demonstrates that in certain circumstances, the entrusting of one’s property
to another person amounts to a representation that the possessor is the owner or entitled
to dispose of the property?

2 Fawden v Lelyfeld 1937 TPD 339
3 Hauman v Nortje 1914 AD 293
A has sold his painting by artist X to B for R20,000. The contract stipulates that
ownership will only pass to B after the last instalment of R2000 has been paid. A has
given a letter to B stating the following: “Herewith I, A, confirm that I have sold a painting
by artist X to B.” After a period of six months and payment of R12 000, B gives the
painting to C, a dealer in art. B wants to sell the painting when he has paid for it. He
requests C to obtain possible offers for the painting from the public which must be
referred to B for consideration. B also shows C the letter from A. C sells the painting to D
without b’s consent for R15 000 after telling D that he (C) is the owner. Thereafter B fails
to make any further payments to A and C is sequestrated. A wants to claim the painting
from D.
Question 18
Is A wants to claim the painting from D which one of the following is the appropriate
action for A to use
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2 The condictio indebiti
3 The rei vindicatio
4 The condictio ob turpem vel iniustam causam
5 A delictual action for fraud
Question 19
Which statement(s) is/are correct?
(a) A has commited a misrepresentation to C by giving the letter to B, which A should have
realised that B could abuse
(b) B has committed a misrepresenttion to C by giving the letter to C and failing to inform C that
he (B) was not entitled to sell the painting until he had fully paid for it
(c) C has committed a misrepresentation to D by failing to disclose to D that he (C) does not
have authority to sell the painting
(d) D has been deceived as to the ownership of the painting
(e) All of the above
1 a and c
2 b and c
3 a, b and c
4 d
5 e
Question 20
Which statement(s) reflect(s) the position in regard to fault and estoppel?
(a) D must allege and prove negligence on the part of A when A claims the painting
(b) Negligence on the part of A is irrelevant because B was negligent in leaving the painting with
C
(c) Negligence on the part of A is irrelevant because C acted intentionally when he sold the
painting to D
(d) Fault is usually required for a successful reliance on estoppel in such circumstances
(e) Negligence on the part of A is irrelevant because D was intentionally misled by C
1 a
2 b and c
3 a and d
4 b, c and e
5 e
Question 21
Indicate which statement is relevant in regard to detriment and estoppel
1 A suffers prejudice because he is without the painting and he has not been fully paid by B
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2 B suffers prejudice because C has defrauded him

3 C suffers prejudice in that he received less for the painting than what it was worth
4 D suffers prejudice in that he has paid for a painting tainted by fraud
5 All of the above
Question 22
Which statement most correctly indicates the outcome of the matter?
1 D will successfully plead estoppel against A because A was negligent

2 D will not successfully plead estoppel against A because D himself acted intentionally
3 D will successfully plead estoppel against A because A’s misrepresentation was the proximate
cause of D’s prejudice
4 D will not successfully plead estoppel against A because A’s misrepresentation was not the
proximate cause of D’s prejudice, but rather the fraud of C
5 1 and 3
Question 23
Which statement regarding the basis of estoppel is incorrect?
1. Estoppel has been regarded as a doctrine of the law of evidence.

2. Estoppel has been regarded as a sui generis remedy
3. The basis of estoppel has been regarded as the exceptio doli.
4. The protection of good faith has been regarded as the basis of estoppel.
5. The law of quasi-contract has been regarded as the basis of estoppel.
Question 24
Choose the incorrect statement
1 In Fawden v Lelyfeld 1937 TPD a plea of estoppel succeeded.

2 In Grosvenor Motors (Potchefstroom) Ltd v Douglas 1956 3 SA 420 (A) a plea of
succeeded.
4 In Morum Bros v Nepgen 1916 CPD a plea of estoppel did not succeed.
5 In Adams v Mocke 23 SC 722 a plea of estoppel did not succeed
Question 25
1 The declaration theory
2 The will theory
3 The information theory
4 The reception theory
5 None of the above
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SECTION B
Question 1
Discuss the requirement that the defendant must have been enriched (10)
The defendant was enriched:
- There must be an increase in assets

- There was no decrease when one would have occurred
- There was a decrease in liability which would not have occurred
Compare the financial position at the time to the financial position he would have been in had
the enrichment not occurred.
- Nortjiee: plaintiff found clay on thedefendant’s farm – Q: did the clay enhance the value?
Judge said that it was the preence of the clay which determined the value of the property = NO
ENRICHMENT – BUT could be argued that knowledge of the clay is what enhanced its value in
this case.
- Foggit: typing lessons = moral enrichment. UNISA: enrichment means an increase of your
estate and moral benefits should not be included.
Question 2
In McCarthy Retail Shortdistance Carriers CC year? (3) SA 482 (SCA para [9] the court said
“We 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 the 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
(10)
Question 3
X is an employee of Company Y. X is paid a monthly salary of R30,000 which is payable
at the end of the month. During July 2013 X receives a very lucrative offer from Company
Z provided he can start work immediately. X does not return to his employment with Y
after 20 July 2013. Y now refuses to pay X anything for his employment during July 2013.
Advise X whether he has any claim against Y, and if so discuss the nature of the claim as
well as the amount that he can claim. (10)
Contract of service or employment (locatio conductio operarum) – employee only entitled to

compensation when completed term of employment (2).
No claim in contract because of exceptio non adimpleti contractus, but claim based in
enrichment (2)
Requirements (2-3).
Pro rata payment (3)
Case of deserter and criticism (3)h5
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See SG 1 138-139.
Question 4
Write a critical discussion on negative misrepresentation (misrepresentation by omission)
within the context of estoppel. Refer to relevant case law
It is not only an express statement or positive act creating a false impression which can give rise
to estoppel; a silence or omission (omissio) can also constitute a misrepresentation. An
omission constitutes a misrepresentation only if a legal duty rests on the estoppel-denier to act
positively; an omission in the form of the nonfulfilment of a legal duty to act (or to speak) is
therefore a misrepresentation which can give rise to a successful plea of estoppel.
In English law the duty to act positively is referred to as the ``duty to act or speak''. There is no
unanimity in our law about the question whether the existence of such a duty is a requirement
for the existence of a misrepresentation by omissio and therefore for a plea of estoppel. De Wet
holds the view that (except in the form of a ``duty to take care'', which is a criterion for fault in
the form of negligence) it plays no part in the creation of or failure to rectify a misconception.
De Wet says that the existence or non-existence of a duty has no effect on the ``factual course
of events''. One can in fact create or fail to rectify a mistaken impression without the existence of
such a duty. However, the question remains whether the impression has been created by a
misrepresentation contrary to a legal duty, that is which is objectively unreasonable and thus
wrongful.
To establish this (and not to determine the factual course of events) it is necessary to make use
of the concept of the duty to speak. If the impression is created by a representation in the form
of an omission, the omission will be wrongful if there is a legal duty to act positively, in other
words, if the impression was created contrary to a legal duty. Only when it has been established
that the existing impression which has been created was brought about by means of a
misrepresentation (per omissionem), can estoppel possibly enter into the picture. In broad
outline this is also Van der Merwe's viewpoint.
When is there a duty to speak? It is clear that a person does not have a general duty to rectify
existing misconceptions. A person may have a legal duty in specific circumstances. This will
happen when the boni mores, the legal views of the community as a whole, require that such a
duty to act positively should exist. In accordance with the abovementioned criterion, such a duty
will exist in certain circumstances where the estoppel-denier can reasonably be expected to act
positively.
For example, in Maling v Hargreaves, the owner of a cow which had disappeared five years
before, recognised the cow at an auction, but allowed it to be sold (an omissio, therefore). The
defendant successfully raised a plea of estoppel against his rei vindication.
Question 5
A takes his car to B, who sells second-hand cars, to have his car valued. The car is parked
on B’s showroom floor where it is left for three days. In this period one of the sales staff,
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X, who believed the vehicle to be part of the stock, sold the vehicle to C for cash. A now
claims the vehicle from C with a rei vindicatio. Advise C with reference to case law. (10)
disponendi)? (1)
SA law (1)
misrepresentation towards C. (1Question 6
Briefly discuss the origin and history of the law of esoppel in South African Law. (5)
Reception of English law (2)
Use of exceptio doli as a similar doctrine (2)
Discussion of Waterfall GM case (2)
Discussion of Baumann v Tomas (2)
Connocks case – passport theory (2)
Criticisms in Trust Bank v Eksteen (3)
Critical discussion of the Eksteen case
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MAY/JUNE 2014
SECTION A
Question 1
general enrichment action without any qualifications.
general enrichment action, but with certain qualifications.
3. In Kommissaris van Binnelandse Inkomste v Willers 1994 3 SA 283 (A) the Appellate
Division recognised the existence of a general enrichment action in South Africa.
Division recognised the existence of a general enrichment action, but with certain qualifications
Division rejected the existence of a general enrichment action but recognized that courts can
extend enrichment liability in circumstances where it is deemed necessary
Question 2
South African law?

claims in cases where a party simultaneously has a contractual or delictual claim.
2 Unjustified enrichment provides a basis for a claim where the enrichment of the
enriched person has been obtained in an unlawful manner.
of property or value from the impoverished party to the enriched party without an
obligation existing between them.
√5 Unjustified enrichment provides a basis for a claim where there has been a transfer of
property or value from the impoverished party to the enriched party without a sufficient legal
ground.
Question 3
Which of the following does not amount to enrichment in terms of the positive law? (you
may assume that there is no contract between the parties
1 A discovers valuable minerals on B’s property

2 A stores B’s car
3 A pays money to B
4 A pays B’s debt
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5 A repairs B’s car
Question 4
Which case would you use to substantiate your answer to question 3?
1 Buzzard Electrical v 158 Jan Smuts Avenue Investments 1996 4 SA 19 (A).
2 Brooklyn House Furnishers Ltd v Knoetze & Sons 1970 3 SA 264 (A).
3 ABSA Bank t/a Bankfin v Stander t/a CAW Paneelkloppers 1998 1 SA 939 (C)
4 Nortje v Pool 1966 (3) SA 96 (A)
Question 5
In which decision was an enrichment lien granted in an “indirect enrichment” situation
1 Gouws v Jester Pools 1968

2 Buzzard electrical v 158 Jan Smuts Avenue Investments 1996
3 Brooklyn house furnishers Ltd v Knoetze & Sons 1970
4 Hubby’s Investments (Pty) Ltd v Lifetime Properties (Pty) Ltd 1998
5 CIR v Visser 1959
Question 6
Which element of enrichment liability did the court in B & H Engineering v First National
Bank of SA Ltd 1995 (2) SA 279 (A) find was lacking when a bank inadvertently paid out
the value of a countermanded cheque?
1 Impoverishment
2 Enrichment
3 The sine causa requirement
4 The ‘at the expense of’ requirement
5 An appropriate action
Question 7
The element referred to in question 6 was absent because
1 an underlying debt had been extinguished

2 there is no enrichment action that can be applied in such circumstances
3 there was a contract between the parties
4 the bank was to blame for its own mistake
5 there was no causal connection between the payment of the money by the bank and its receipt
by the beneficiary
The following facts are relevant for Questions 8-10

A sells his car to B for R200 000 and B pays A with a cheque. A pays the cheque into his
account with C Bank. After a week C Bank allows A to draw R100 000 of this money. A uses
the money to pay off the balance on his home loan with bank D. Thereafter, it transpires
that B had stolen the cheque from E and forged E’s signature on the cheque. C Bank wants
to claim the R100 000 that it paid out.
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Question 8
What would the appropriate enrichment action be for the bank (C) to use in terms of case
law?
1 the condictio sine causa

2 the condictio indebiti
3 the condictio causa data causa non secuta
4 the condictio ob turpem vel iniustam causam
5 the actio negotiorum gestorum utilis
Question 9
On which case are these facts based?
1 CIR v Visser 1969

2 B & H Engineering v First National bank of SA Ltd 1995
3 Kommissans van Binnelandse Inkomste v Willers 1994
4 Leeuw v First National Bank Ltd 2010
5 Willis faber Enthoven pty Ltd v Receiver of Revenue 1992
Question 10
Which statement regarding the outcome of the bank’s (C’s) claim for enrichment is most
correct?
1 C will be successful with an enrichment claim against A, because A has been enriched at C’s
expense
2 C will be successful with an enrichment claim against B, because B has been enriched at C’s
expense
3 C will be successful with an enrichment claim against D, because D has been enriched at C’s
expense
4 C will be successful with an enrichment claim against E, because A has been enriched at E’s
expense
5 None of the above
Question 11
Assume further that the amount of the forged cheque (R200 000) is paid by E’s bank (F)
into A’s account with C Bank, and that C holds the money on behalf of A. If E wants to
claim the money from C Bank, what would the appropriate enrichment action be in terms
of case law?
1 the condictio sine causa

2 the condictio indebiti
4 the condictio ob turpem vel iniustam causam
5 the actio negotiorum gestorum utilis
Question 12
Which case would you use to substantiate the answer to question 11?
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1 CIR v Visser 1969

2 Odendaal v Van Oudtshoorn 1968
3 Buzzard Electrical v 158 Jan Smuts Avenue Investments 1996 4 SA 19 (A).
4 Leeuw v First National Bank Ltd 2010
5 First National Bant of SA v Perry 2001
Question 13
In which of the following instances can the condictio causa data causa non secuta not be
instituted?
1 A suspensive condition which is not fulfilled

2 A resolutive condition which is fulfilled
3 A modus which is disregarded
4 An assumption which is false
5 breach of contract
Question 14
Which of the following is not a requirement for the true management of affairs action
(actio negotiorum gestorum contraria)?
1 The gestor must perform the service without instruction
2 The gestor must act reasobaly
3 The gestor must intend to act in the interests of the dominus.
4 The gestor must have intended to act free of charge
5 The gestor may not act contrary to the express prohibition of the dominus
Question 15
Which of the following rights does the mala fide possessor definitely not have?
1 A claim for necessary expenses
2 A claim for useful expenses
3 A right of retention
4 A ius tollendi
5 A right to fruit gathered
Question 16
estoppel:
1 There must have been a misrepresentation of fact.

2 Patrimonial prejudice on the part of the person relying on the estoppel
3 The person denying estoppel must have made the misrepresentation culpably in the
case of vindication
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4 Causation the prejudice must have been the result of the misrepresentation.
5 The reliance on estoppel must be allowed by law.

A takes his car to B, who sells second-hand cars, to have his car valued and to see if
anyone is interested in purchasing it. A specifically instructs B to refer any offers to him
for considerations. The car is parked on B’s showroom floor where it is left for three
days. In this period one of the sales staff, X, who believed the vehicle to be part of the
stock, sold the vehicle to C for cash. Thereafter B is sequestrated.
Question 17
Which action will A use to claim his car from C?
1 The conductio indebiti
2 a delictual action
3 a contractual action
4 the rei vindicatio
Question 18
If C raises estoppel against A’s action, which element(s) of estoppel could be difficult to
prove in the circumstances? Choose the best option from 1-5
(a) Misrepresentation
(b) Prejudice
(c) Fault
(d) Causation
(e) Legally permissible
(f) (b)
1b
2 b, c and d
3a
4 a and c
5e
Question 19
Which element of estoppel have the courts been prepared to disregard in some
instances?
1 misrepresentation
2 prejudice
3 fault
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4 causation
5 legally permissible
Question 20
Which case applies to these circumstances?
1 Akojee v sibanyoni 1976

2 Union Government v National bank of Sa Ltd 1921
3 Rubin v Botha 1911
4 Baumann v Thomas 1920
5 Van Ryn wine & Spirit Co v Chandos Bar 1928
Question 21
In which of the following fields does estoppel not add to the common law position?

2 representation in terms of mandate
3 partnership
4 the conclusion of a contract
5 waiver of rights
Question 22
In which of the following fields has esstoppel virtually become superfluous due to
acceptance of the reliance theory?

2 representation in terms of mandate
3 partnership
4 the conclusion of a contract
5 waiver of rights
Question 23
What statement is the most correct?
1 estoppel and waiver are one and the same

2 estoppel cannot be used to maintain an impression that a right has been waived
3 estoppel cannot apply to waiver because waiver relates to an existing right while astoppel is
merely a defence
4 a party may not waive a right to rely on estoppel
5 none of the above
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Question 24
city council had claimed the correct amount of rates and taxes.
on estoppel:
1. XYZ will not be successful with its reliance on estoppel because XYZ did not act to its
detriment.
2. XYZ will not be successful with its reliance on estoppel because estoppel is not allowed
by law in instances where the city council must carry out a statutory duty.
3. XYZ will not be successful with its reliance on estoppel because the city council did not
make a misrepresentation.
4. XYZ will probably be successful with its reliance on estoppel.
5. XYZ will not be successful with its reliance on estoppel because the city council did not act
negligently.
Question 25
In which instance has an exception to the rule applicable to question 24 been recognised?
1 an invalid mandate
2 ostensible authority
3 fictitious hire purchase agreemnts
4 waiver
5 tender agreements
SECTION B
Question 1
Discuss the requirement that the defendant’s enrichment must have been at the expense
of the plaintiff (10)
Must be a causal link between the enrichment and the impoverishment. The enrichment must
be at the expense of the plaintiff.
Indirect Enrichment
A and B enter into a contract. A renders performance to B, but benefit of the performance
accrues to C.
Example:
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A contracts with B to build swimming pool for B. A builds pool on C’s property believing it to be
that of B’s.
De Vos:
B renders performance to A and B pays A for work. C is enriched at B’s expense (not A).
If B has not yet paid A (and he is in a position to pay) – A can enforce contractual action.
If B is insolvent or disappears - A cannot bring enrichment action against C because C is
enriched at B’s expense – NOT A.
This view was endorsed in Gouws v Jester Pools
Problem addressed in:
Buzzard Electrical v 158 Jan Smuts Avenue Investments
Cannot be used to confirm or reject Gouws decision – deals with subcontractor cases.
Enrichment lien – right of retention – operates against anyone, including the owner. Retain
possession until compensated. Same requirements satisfied as for enrichment action.
See; Brooklyn House Furnishers v Knoetze
Question 2
K rents a farm from L. K effected the following improvements on the farm without L’s
knowledge:
(a) Built a dam at a cost of R30 000
(b) Built a luxury lapa on the edge of the dam at a cost of R100 000 and
(c) Sank a borehole at a cost of R20 000.
K also repaired the roof of the farm house which had started to leak at a cost of R10 000.
Discuss fully the legal position with regard to these improvements when the lease expires.
Also briefly discuss whether the position would have been different if the lease agreement
between K & L had been invalid. (15)
May/June 2009 Q2 pg25 and apply to present facts
Question 3
Fully discuss the requirement of prejudice in relation to estoppel. Refer to examples in
your answer (10)
Prejudice must be patrimonial in nature (1)
Two approaches:
1) Compare the patrimonial position in which the estoppel-assertor finds himself at litis
contestatio (1) with the hypothetical patrimonial position in which he would have been had no
false belief been created. (1)
2) If estoppel-assertor has changed his legal position it is regarded as prejudice (1)
eg incurring a debt or losing a right or claim even if it has no immediate financial implications (1)

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been created. (1)
Jonker case [1]
Autolec [2]
sentimenal values
Breet [2]

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Question 4
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OCT/NOV 2014
SECTION 1
Question 1
Which statement most accurately describes the place of unjustified enrichment in the
South African Law?
1 unjustified enrichment law is a subdivision of the law of contract

2 unjustified enrichment law is a subdivision of the law of obligations
3 unjustified enrichment law is a subdivision of the law of equity
4 unjustified enrichment law is a subdivision of the law of delict
5 unjustified enrichment law is a subdivision of the law of property
Question 2
Which statement most accurately describes the place of negotiorum gestio in SA law?
1 negotiorum gestio is a subdivision of the law of contract

2 negotiorum gestio is a subdivision of the law of obligations
3 negotiorum gestio is a subdivision of the law of equity
4 negotiorum gestio is a subdivision of the law of delict
5 negotiorum gestio is a subdivision of the law of property
Question 3
Which statement most accurately describes the historical source of the law of unjustified
enrichment?
1. Unjustified enrichment law developed action by action as a new part of the 18th century
Roman-Dutch law.
2. Unjustified enrichment law has its origins in the English law of equity.
3. Unjustified enrichment law was fully developed in Roman law.
4. Unjustified enrichment law has been extensively transformed by legislation during the 20th
century.
5. none of the above
The following facts are relevant for questions 4-7.

A orders goods from B and pays for the goods with a cheque. B delivers the goods, but A
alleges that they are defective and A immediately instructs his bank, C, not to pay the value
of the cheque out to B. B denies that the goods are defective. A clerk of C Bank forgets to
process A’s instruction to cancel payment and pays out the value of the cheque to B
Question 4
Who has been impoverished and who has been enriched in the circumstances?
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1 A has been enriched and B has been impoverished

2 A has been enriched and C has been impoverished
3 B has been enriched and A has been impoverished
4 B has been enriched and C has been impoverished
5 None of the above
Question 5
According to case law, which element for enrichment liability is absent in this set of facts?
1 Enrichment
2 Impoverishment
3 Causality
4 Sine causa
5 None of the above
Question 6
Which case would you refer to in substantiating your answer to Q5?

Question 7
According to the decision in Govender v Standard Bank of SA 1984 which element of
enrichment action potentially applies to this set of facts?

3 The condictio sine causa specialis
4 The actio negotiorum gestorum utilis
Question 8
Which requirement for enrichment liability does the issue of “indirect enrichment”
primarily relate to?
1 enrichment
2 impoverishment
3 causation
4 sine causa requirement
5 none of the above
Question 8
Which statement best describes the moment in time when the extent of a party’s
enrichment claim must be calculated?
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1. The extent of a party’s enrichment is always determined as it was at the time when the
action is lodged (litis contestatio).
2. Enrichment is usually determined at the time when the action is lodged (litis contestatio)
subject to certain exceptions.
3. The extent of a party’s enrichment may not be determined at the time when the enriched
party becomes aware of the enrichment.
4. The extent of a party’s enrichment is determined as it was at the time that the court hands
down judgment.
5. 2 and 3.
Question 10
Which statement most accurately reflects the state of modern South African enrichment
law as set out in McCarthy Retail Shortdistance Carriers CC year? (3) SA 482 (SCA)?
1. Roman-Dutch law transformed the patchwork of individual actions found in Roman law to
a coherent source of obligations subject to clear general requirements.
2. The South African courts have transformed the patchwork of individual actions found in
Roman law to a coherent source of obligations subject to clear general requirements
3. The South African courts have rejected the need for a general enrichment action outright.
4. The South African courts have developed general requirements for enrichment which form
the basis of a general enrichment action.
5. 1 and 4.
The following facts are relevant for questions 11-13
A concluded a sale with B for the purchase of 100,000 litres of crude oil in transit on the
ship Miss Fortuna. A paid a deposit of R1 million. A had to make use of an overdraft facility
to pay the deposit, which was subject to the payment of interest at 13% per year. A and B
were both unaware that the ship had already sunk and lost its full cargo at the time of the
conclusion of the contract. B invested the money at a return of 8% interest per year
although he could have earned more interest elsewhere.
Question 11
Which statement best describes the extent of A’s claim against B, assuming A does have
a claim against B?
1. A has a claim for R1 million rand only.

2. A has a claim for R1 million rand plus the interest made by B on his investment.
3. A has a claim for R 1 million rand plus the interest he has been paying on his (A’s) own
overdraft.
4. A has a claim for the R1 million rand plus the interest plus the interest B would have earned
at a market related rate
5. A has a claim for the lesser of R1 million rand plus the interest made by B on his investment,
or R 1 million rand plus the interest he has been paying on his (A’s) own overdraft. (2)
Question 8
Assume the same facts as in Question 7. Indicate which enrichment action underlies the
claim that A may have against B.
was concluded.
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2. A has a claim based on the condictio indebiti because the contract was void from the
beginning due to impossibility.
under the contract.
Question 12
Which statement substantiates your answer to Q11?
1 A may only claim the lesser of B’s enrichment and his (A’s) impoverishment
2 A may claim R1 million plus the interest made by b on his investment or what he could have
earned (whichever is greater) because that is B’s total enrichment
3 A may claim R1 million plus the interest he has been paying on his (A’s) own overdraft
because that is his total impoverishment
4 Interest made on money may not be claimed with the relevant action
5 1 and 4
Question 13
Indicate which action underlies the claim that A may have against B
was concluded.
2. A has a claim based on the condictio indebiti because the contract was void from the
beginning due to impossibility.
under the contract.
Question 14
X has stolen O’s laptop computer from his office. The laptop is worth R15 000. X has sold
the laptop to B for R3 000 who is unaware of the theft. Which statement best describes the
remedy(ies) at O’s disposal?
3. O has an enrichment claim for R3 000 against X, because that is all that remains in his
estate.
4. O has a delictual claim against X for R15 000 because X stole the computer.
5. 1 or 4.
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Question 15
X has stolen O’s laptop computer from his office. The laptop is worth R15 000. X has sold
the laptop to B for R3 000 who is unaware of the theft. B has sold the computer to C for R6
000. The current whereabouts of C is unknown. Which statement best describes the
remedies) at O’s disposal?
3. O has an enrichment claim for R3 000 against B based on the condictio ob finitam causam
4. O has an enrichment claim for R3 000 against B based on the condictio causa data causa
non secuta.
5. O has an enrichment claim for R3 000 against B based on the condictio sine causa specialis
Question 16
Which statement is most correct?
1. Estoppel can be applied to a representation of intention.

2. Estoppel can be applied to the expression of an opinion.
3. Estoppel cannot be applied to a representation as to a person’s state of mind.
4. Estoppel cannot be applied to a representation of law.
5. 2 and 3.
Question 17
the property?

Question 18
1 a misrepresentation by omission will always suffice for estoppel to succeed

2 A misrepresentation by omission is always insufficient for estoppel to succeed
3 A misrepresentation by omission will suffice for estoppel to succeed if there is a legal duty to
act positively on the part of the estoppel denier
4 A misrepresentation by omission will suffice for estoppel to succeed if there is a legal duty to
act positively on the part of the estoppel enforcer
Question 19
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1 Negligence on the part of the estoppel assertor is irrelevant

2 Negligence on the part of the estoppel assertor cannot negate negligence on the part of the
estoppel denier
3 Negligence on the part of the estoppel assertor cannot negate intent on the part of the
estoppel denier
4 Negligence on the part of the estoppel assertor is always relevant, but its effect will depend on
the circumstances
5 None of the above
Question 20
1 The loss of a contingency right to reimbursement by an insurance company has been held
to be sufficient to constitute prejudice for the purposes of estoppel
2 The loss of a contingency right to insurance by an insurance company is not sufficient to
constitute prejudice for the purposes of estopppel
3 Sentimental loss has been held to be sufficient to constitute prejudice for the purposes of
estoppel
4 Sentimental loss has been held to be sufficient to constitute prejudice for the purposes of
estoppel
5 1 and 4
Question 21
1 The courts tend to combine factual and legal causation in the proximate cause test in the case
of estoppel
2 The courts test separately for factual causation with the sine qua non test and legal causation
with the proximate cause test in the case of estoppel
3 The direct cause test focuses on factual causation in the case of estoppel
4 causation is usually presumed in the case of estoppel
5 In Saambou-Nasionale Bouvereniging v Friedman 1979 the court held that the causation
theory applicable to estoppel has been settled
Question 22
Which statement is false?
1 estoppel cannot be used to uphold invalid acts

2 estoppel cannot be used to maintain a result contrary to statute
3 estoppel cannot be used to bind a statutory body that has not complied with its internal
formalities
4 estoppel cannot be used against a statutory body that has acted ultra vires
5 estoppel cannot be used to confer a status on a person
Question 23
Which statement is false?
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1 In Johaadien v Stanley Porter (Paarl) (Pty) Ltd 1970 1 SA 394 (A) a plea of estoppel did
not succeed.
2 In Grosvenor Motors (Potchefstroom) Ltd v Douglas 1956 3 SA 420 (A) a plea of
estoppel succeeded.
3 In Morum Bros v Nepgen 1916 CPD a plea of estoppel did not succeed.
4 In Adams v Mocke 23 SC 722 a plea of estoppel did not succeed.
5 In Fawden v Lelyfeld 1937 TPD a plea of estoppel succeeded.
Question 24
months A sues B for R3 000 rent in arrear and apply for an order ejecting B from the flat.

agreement.
3. A may be prevented from strictly enforcing the contract due to the tacit waiver of a
contractual competency
5. 1 and 3
Question 25
What element of estoppel does not apply to the facts of question 25
1 misrepresentation
2 fault
3 prejudice
4 causation
5 permissible in law
SECTION B
Question 1
Discuss the nature and extent of enrichment claims without referring to any specific
action (10)
calculated sooner, meaning before the date of institution of the action: (a) at the moment the
defendant becomes aware of enrichment (1); (b) at an earlier stage if the defendant should have
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known that the benefit wasn’t justified (1); (c) when the defendant fell into mora (1); and an
earlier date if the defendant acted mala fide (1). These exceptions do not apply in the case of
minors. (1)
Question 2
A buys B’s townhouse for an amount of R1000 000. The parties are in full agreement as to
all the aspects of the contract, but A forgets to sign the contractual documents. A pays B
a deposit of R100 000 and moves into the townhouse. He also pays B an amount of R5 000
per month as occupational rent pending transfer of the property into his name, as per their
agreement. A’s children cause damage in the amount of R10 000 to the townhouse while
having a party one night. After three months A realises that he will not be able to afford
the bond on the property because of rising interest rates and he approaches you for legal
advice. The property has not yet been registered in A’s name. Advise A on the rights and
duties of the parties arising in the circumstances. (15)
This question should be marked leniently.
1 Identification
This question deals with s 28 of the Alienation of Land Act 68 of 1981 which makes provision for
a statutory enrichment action where a deed of alienation does not comply with the formal
requirements of the Act and is consequently void. (2) (Study Guide 1 44-45)
2 The law
Section 28 provides as follows:
Consequences of deeds of alienation which are void or are terminated.
(1) Subject to the provisions of sub-section (2), any person who has performed partially or in full
in terms of an alienation of land which is of no force or effect in terms of section 2(1), or a
contract which has been declared void in terms of the provisions of section 24(1)(c), or has
been cancelled under this Act, is entitled to recover from the other party that which he has
performed under the alienation or contract, and — (2)
(a) the alienee may in addition recover from the alienator —
i(i) interest at the prescribed rate on any payment that he made in terms of the deed of
alienation or contract from the date of the payment to the date of recovery; (2)
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(ii) a reasonable compensation for –-

(aa) necessary expenditure he has incurred, with or without the authority of the owner or
alienator of the land, in regard to the preservation of the land or any improvement thereon; or (2)
(bb) any improvement which enhances the market value of the land and was effected by him on
the land with the express or implied consent of the said owner or alienator; and (2)
(b) the alienator may in addition recover from the alienee —
i(i) a reasonable compensation for the occupation, use or enjoyment the alienee may have had
of the land; (2)
(ii) compensation for any damage caused intentionally or negligently to the land by the alienee
or any person for the actions of whom the alienee may be liable. (2)
(2) Any alienation which does not comply with the provisions of section 2(1) shall in all respects
be valid ab initio if the alienee had performed in full in terms of the deed of alienation or contract
and the land in question has been transferred to the alienee. (2)
This section creates a statutory enrichment action similar to the condictio indebiti in subsection
(1) The statutory enrichment action created in section 28 of the Act is a fully developed
enrichment action because it takes adequate account of all factors increasing or decreasing the
enrichment and impoverishment. (1) The provision in section 28(2) gives rise to a fully valid
contract which will also also contain the residual rules of the law of sale in so far as the parties
have not excluded them. (1)
3 Application
The contract between A and B is void due to noncompliance with the Act. S 28 (2) does nt aply
in the circumstances. A must vacate the townhouse and B must pay A his deposit back with
interest. A has already paid B occupational interest for occupation of the premises. A must
compensate B for the damage caused to the property. (2)
Question 3
Fully discuss estoppel and the conclusion of a contract. Refer to examples in your answer.
(10)
Theories of contractual liability:

• According to the consent theory, the basis of the contract is the consent or agreement
between the parties. (1)
• According to the declaration theory, the basis of a contract consists of corresponding
statements or expressions of intent, and not necessarily the presence of actual consent.
(1)
• According to the reliance theory, the basis and contents of a contract are constituted by
the reasonable reliance that is the impression or understanding of the one party's
intention, which is formed by the other party. (1)
In a few cases the court was inclined, in principle, to accept estoppel as a means to hold parties
to a ``contract'' in the absence of real consensus. (1)
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• In Van Ryn Wine and Spirit Co v Chandos Bar, X, the representative of R, obtained
orders for liquor from C and fraudulently represented to C that C would receive a discount if he
paid cash to X. C did this, and although he received invoices stating the price of the liquor with
every consignment, which differed from the price paid to X, he ignored them. R then sued C for
payment of the prices as stated on the invoices. C denied that he had contracted at those
prices. R averred that C was estopped from denying the existence of consent, since by
receiving the invoices without comment, he had given the impression that he was contracting at
the prices reflected in the invoices. R thus attempted to bind C, not in terms of the contract, but
in terms of estoppel; C had created the impression that a contract did in fact exist and was now
estopped from denying the existence of the contract, therefore he was bound as if there were a
contract. The court held that C was not estopped from proving dissensus, since his conduct had
been reasonable and without culpa. (3)
• In Peri-Urban Areas Health Board v Breet NO and Another 1958 (3) SA 783 (T), the
court also accepted in principle that a party could be bound to a ``contract'' on the
ground of estoppel where consent was absent. (2)
Criticism against use of estoppel in this context:
Firstly, the general requirements for estoppel are intermingled with the requirements for
contractual liability and can place quite a heavy onus on estoppel raiser. Especially requirement
of prejudice (and perhaps fault) could be problematic. (2)
Secondly, estoppel only gives rise to the fiction of a contract and not an actual one. So the
ensuing ‘contract’ only applies inter partes and no contractual rights can be ceded to a third
party. (2)
Although, initially, the Appellate Division expressly indicated that estoppel may be applied in
cases of dissensus - Saambou-Nasionale Bouvereniging v Friedman, in Sonap Petroleum (SA)
(Pty) Ltd v Pappadogianis it rejected estoppel as a solution in such instances, albeit obiter. There
seems to be little need for estoppel in this context where the reliance theory can be applied more
easily and with better results. (3)
Question 4
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 defences against this claim and if so what the requirements for those defences
may be. (15)
See Oct/Nov 2005 Q6
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MAY/JUNE 2015
SECTION A
Question 1
South African law?

claims in cases where a party simultaneously has a contractual or delictual claim.
2 Unjustified enrichment provides a basis for a claim where the enrichment of the
enriched person has been obtained in an unlawful manner.
sufficient legal ground.
QUESTION 2
Which one of the following statements cannot be regarded as a general requirement for
enrichment liability?

3. The enrichment must have taken place without a justifiable cause.
√4. The enrichment must have taken place unlawfully.
5. The plaintiff is only entitled to the lesser of his impoverishment and the enrichment of the
defendant.
Question 3
Which one of the following statements is correct?
1.. The general requirements for enrichment liability constitute a general enrichment action.
2.. There is a general enrichment action in South African law
3.. There is a subsidiary enrichment action alongside the traditional enrichment actions in
South African law.
4.. There are ad hoc extensions for enrichment liability alongside the traditional enrichment
actions in South African law.
5.. The condictio sine causa may be regarded as a general enrichment action
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The following facts are relevant for questions 4 to 7.

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.
Question 4:
Which statement best explains the nature of the claim against A?

3. B has contractual claim against A based on their contract.
4. B has an enrichment claim against A based on the condictio causa data causa non secuta.
5. B has a claim against A based on the actio negotiorum gestorum utilis
Answer: This question deal with the condictio indebti 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 with which extinguished the duty to pay
in terms of the contract. Next evalute the answers against the requirements of the condictio
indebti. Here the one party made a bona fide payment that was not owning and under
circumstances that were excuasble, partly because the mistake was induced by A’s
misrepresentation.
Question 5
Which statement regarding the requirements for an enrichment action is correct?

4. B is the cause of his own impoverishment
Answer: A's enrichment took place at the expense of B because B was the person who in law is
regarded as the one who made the payment, even if C physically made the payment. At the time
of the payment, the duty to pay had already been extinguished – the payment therefore cannot
be in terms of the agreement, even if B thought so. The enrichment is not unlawful because A's
conduct was not delictual in nature. The bank made payment in terms of its agreement with B and
is therefore entitled to debit B's account. Accordingly, the bank was not impoverished. Consider
whether all of the other requirements for enrichment liability and the condictio indebiti have been
complied with.
Question 6
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1. B can claim an amount of R50,000 from A with an enrichment action.

2. B can only claim R20,000 from A because his account was overdrawn and the bank received
the benefit of the other R30,000.
√3. B can claim only R40,000 because the rest of the enrichment amount has been lost on the
luxury holiday.
4. B can claim only R30,000 because the rest of the enrichment amount has been spent on the
wages and A's holiday.
5. B can only claim the R10 000 spent on A’s holiday
Answer: A was initially enriched by an amount of R50,000 on receipt of the money. The fact that
his overdraft was extinguished does not diminish his enrichment as his debts have decreased by
R20,000. The payment of the wages also does not cause his enrichment to diminish as those are
expense he would have had in any event. The cost of the luxury holiday, however, does constitute
an extinction of his enrichment, as he would probably not have made these expenses if his
account had not been in credit. There is no indication on the facts provided that A should have
realised that he was enriched.
Question 7
Which statement best explains the date on which the possible enrichment liability of A is
calculated?
1. The date on which C paid the money into A’s account

2. The date on which B’s bank account was debited
3. The date on which A used the last of the money
4. The date on which B informs A that A has been overpaid in the amount of R50 000
5. The date on which B lodges an enrichment action
Question 8
Under which one of the following circumstances will the enrichment liability of a party
NOT be determined at an earlier date than usual?
1. Where the defendant becomes aware that he or she has been unjustifiably enriched at the
expense of another
2. Where the defendant is a minor who has been enriched by performance in terms of an
unauthorized contract
3. Where the defendant should have realized that the benefit he or she received might later
prove to constitute unjustified enrichment
4. Where the enriched party acts in bad faith in relinquishing or reducing the enrichment
5. Where the defendant falls into mora debitoris
Question 9
If an agent makes an ultra vires payment in the belief that he actually had the authority to
make such a payment, his principal may claim the money paid with which action?
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1. The condictio causa data causa non secuta.

2. The condictio sine causa specialis.
3. The condictio in debiti
4. The condictio ob turpem vel iniustam causam
5. the condictio ob finitam causam
Question 10
A leaves R1 million in his will to a church to build a new church building, but the church
uses the money to build the pastor a new house. Which action can be used to reclaim the
money?
Question 11
Which action may be instituted where the plaintiff’s property was alienated or consumed
by somebody else?

Question 12
Which action can possibly be used to claim performance made in terms of a contract
prohibited by statute?


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the land.
Question 13
4. K is a mala fide possessor of the land
Question 14
3. K has an enrichment action for the necessary expenses he has incurred to the
extent that those expenses have increased the value of L's land.
belong to L.
5. K has an enrichment action for the useful and necessary expenses he has incurred
to the extent that those expenses have preserved or increased the value of L's
land
Question 15
claim, if any?

→4. L is entitled to reduce the enrichment claim against him by subtracting the value of the
mealies harvested by K minus the production costs.
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5.. L is entitled to reduce the enrichment claim against him by subtracting the value of the
mealies harvested by K
Question 16
Indicate which one of the following is NOT requirement for a valid reliance on estoppel:
2 The person denying estoppel must have made the misrepresentation intentionally to mislead
the person relying on the estoppel
4 The misrepresentation must have caused detrimental conduct by the person relying
on estoppel.
Question 17
the property?
estoppel.
Question 18
In these circumstances the courts have been prepared to find that (choose the most
correct option):
5. 2 and 4. (2)
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Question 19
Which element that is normally required to successfully raise estoppel in such
circumstances have the courts been prepared to disregard?
2. Fault.
3. Prejudice.
4. Causation.
5. Estoppel must be permissible in law. (2)
Question 20
Question 21
Indicate which statement most correctly states the position in regard to the detriment
requirement.
→1. It is sufficient to prove that the person relying on estoppel has changed his position
4. Prejudice is no longer required for reliance on estoppel
5.. The person relying on estoppel must prove that he has suffered either patrimonial damage or
non-patrimonial damage.
Question 22
A, a firm of attorneys, invites tenders for the construction of a new office block for their
partnership. The partners must however by majority decide who is to be appointed. B
sends his tender to X, the senior partner of A and the person who deals with private
contractors on behalf of the firm in such matters. The partners pass a unanimous
resolution that the contract be awarded to C, but X mistakenly sends a letter of
appointment to B. A denies that the contract has been awarded to B, to which B raises
estoppel. Choose the most correct option.
1. Estoppel cannot be applied because the mistake of X cannot be attributed to A.

2. Estoppel can be applied because X had ostensible authority to award the contract.
3. Estoppel cannot be applied because the internal formalities of A for the awarding of such a
contract had not been complied with.
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4. Estoppel can be applied irrespective of whether X usually dealt with private contractors or
not on the basis of the principle of fairness that underlies estoppel.
5. Estoppel cannot be applied to partnerships.
Question 23
estoppel in the conclusion of a contract.
1. In accordance with the case law estoppel cannot be utilised to keep a party bound
to the misrepresentation he has made in respect of his intention to contract.
2. Only the reliance theory can be used to hold a party contractually bound in the
absence of true agreement
→3. It is undesirable to use estoppel in cases of mistake to bring a contract into
existence because it creates a fiction or an appearance which only applies
between the parties.
4. In Sonap Petroleum (SA) Pty Ltd v Papadogianus 1992 3 SA 234 (A) the court
accepted that it may sometimes be necessary to use estoppel in the case of
mistake.
5. Estoppel has never been used in South African law to keep an apparent contract intact.
Question 24
A’s car is stolen. Later, at an auction where A is present he recognises his car which has
been put up for sale, but he remains silent. B buys the car for R 50,000. A now claims the
car from B with the actio rei vindicatio. Choose the statement that best explains whether
estoppel will succeed in these circumstances.
1. B has no defence against A’s claim as A is the rightful owner of the car.
2. A’s silence at the auction can be viewed as a misrepresentation which should be
sufficient for purposes of relying on estoppel as a defence.
3. Silence or an omission can never be sufficient to constitute a misrepresentation when
relying on estoppel.
4. B can resist A’s claim with the defence that she was an innocent purchaser because she
did not know that the vehicle was stolen.
Question 25
causality requirement.
1. The misrepresentation by the person denying estoppel must have been the only cause
2. In terms of the "proximate cause" test as applied by the courts, the misrepresentation by
the person denying estoppel must have been the only cause of the detrimental conduct of the
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3. The "proximate cause" test as applied by the courts, includes only factual causality and
not legal causality.
4. In terms of the "proximate cause" test as applied by the courts, it is sufficient that the
Section B
Question 1
Discuss with reference to case law whether a general enrichment action exists in South
Africa. (15)
Study Unit 15:
7. Introduction [1]
8. Common Law [4]
• De Vos
• Scholtens
• Obs Tum
• Discussion
• Majority decision
• Minority decision
• No general action
• Possible developments
10. Effects of Nortje v Pool [4]
11. Wilkens case [3]
12. Blesbok case [3]
13. Introduction [1]

Case law is not clear on whether enrichment is a general source of obligation. In Nortje´ v Pool
the AD recognised neither an all-embracing general enrichment action nor any subsidiary
14. Common Law [4]

• De Vos
De Vos in his first edition investigated the very broad definitions of enrichment but found that
these were not broad enough to warrant the conclusion that a general enrichment action existed
but changed his view in the second edition because of information regarding developments of
Roman-Dutch practice.
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• Scholtens
Scholtens brought to our notice several decisions of the Hooge Raad on unjustified Enrichment
in the Obs Tum (Observationes Tumultuariae Novae) reported by the old Dutch authors.
Since the Dutch courts did not give reasons for their decisions, the views expressed by the
judges remained secret

• Facts: A and B concluded a written contract where A got sole right to prospect for kaolin on
B’s land. A and B were unaware that their agreement was void due to non-compliance with
the relevant Act. B dies and the executor of his deceased estate refused to agree to the
necessary attestation. A claimed compensation from the estate. He alleged that B had been
enriched in an amount of at least R15 000 by the discovery but that his impoverishment
amounted to only R4 557 and claimed the lesser amount. B’s executor excepted to the claim
alleging that A had no cause of action because:
1. the claim did not fall into any of the recognised enrichment actions;
2. it didn’t appear that the deceased estate had been enriched
3. it didn’t appear that the deceased estate had been enriched unlawfully
The court a quo upheld the exception – holding the facts before it didn’t fall within the
recognised actions and the value of the land had not been increased due to the prospecting
as the kaolin had always been there. A appealed.
• Majority decision : judge concluded it has not reached a stage where a general enrichment
action was recognised.
• Minority decision : the judge was of the view that the condictio indebiti of modern law was
wide enough to cover the facts in casu. He, too, believed that an action should lie even
where the enrichment had come about as it did in this case and rejected the exception.
De Vos agrees as because if A were to have an action it would have to be a general enrichment
action because his claim did not fall within the boundaries of one of the specific enrichment
actions.
So until our AD change this position the decision in Nortje will reflect our law.
Effects of Nortje v Pool :
6. The classical Roman-Dutch actions still apply.
7. Our courts developed ad hoc extensions of enrichment liability and if appropriate, can
recognize further extensions.
8. These ad hoc extensions are developed enrichment actions.
9. These are only available in instances where the old actions are not applicable. If old
actions applicable, use them. If old actions exclude a right to compensation, the
impoverished party can’t succeed with an ad hoc action.
10. A general enrichment action is not recognized as forming part of our law. [4]
Willers case [3]
In appeal – court did not overrule the Nortje case but did hold a court is not stopped from
accepting liability for U.E in a case merely because liability was not previously recognised on
same/similar circumstances.
Blesbok case [3]
Held that in Roman Law there was already a general doctrine against U.E and that the time had
come to recognise a general enrichment action. This decision acknowledges the existence of a
general enrichment action, and is only a Transvaal decision and so does not overrule the Nortje
case which is still the authority on this point.
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Question 2
validity of the debit and whether either of them has an enrichment claim against D. Refer
to relevant case law. (10)
ANSWER
Question 3
South African law of estoppel with reference to relevant case law. (10)
Study Unit 5:
misled. [2]
• Jonker case [1]
• Autolec [2]
• Breet [2]
• Mthanti [2]
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been created. (1)
Jonker case [1]
Autolec [2]
sentimenal values
Breet [2]

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Question 4
A takes his car to B, who sells second-hand cars, to have his car valued. The car is
cash. A now claims the vehicle from C with a rei vindicatio. Advise C. (15)
disponendi)? (1)
SA law (1)
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Oct/Nov 2015
Section A
Question 1
In which one of the following case did the court support the view that moral benefit could
not constitute enrichment?
1. Edelstein v Edelstein 1952 (3) SA 1 (A)
2. Kruger v Navrati 1952 (4) SA 405 (SWA)
3. Lodge v Modern Motors Ltd 1957 4 SA 103
4. Hubby’s Investments (Pty) Ltd v Lifetime Properties (Pty) Ltd 1998 (1) SA 289 (W).
5. ABSA Bank t/a Bankfin v Stander t/a CAW Paneelkloppers 1998 1 SA 929 (C)
Question 2
Which of the following is or are not required for the condictio indebiti for payments made
under duress?
1. There must have been a transfer of money under a countermanded cheque
2. The transfer must have taken place as a result of an inexcusable mistake on the part of the
transferor
3. The payment must be unowed
4. The transfer must not have been made voluntarily
5. 1 and 2
Question 3
completes his trip. A departs for America. C wants to claim the R12,000 from B. Which
statement best explains whether C has a claim against B and the authority on which it is
based?
at C's expense.
impoverishment.
causa non secuta.
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(2)
Question 4
Assume the same facts as in question (12). Which statement best explains whether C has
a right of retention and the authority on which it is based?
has a right of retention against A in respect of the vehicle.
Question 5
Which of the following statement/s is or are correct when a party relies on the actio
negotiorum gestorum contraria?
1. The person who acts to another’s advantage (gestor) must not have been asked to do so by
the dominus
2. The gestor must have the intention of acting in the interests of another
3. The gestor must have acted with an expectation of being compensated
4. The gestor may not act aginst the express prohibition of the dominus
5. All of the above
Question 6
On which of the following remedies will a party rely to claim performance that has been
rendered based on an unfulfilled assumption?
1. The condictio indebiti
4. The actio negotiorum gestio .
5. General enrichment action
Question 7
G, a zoo keeper has noticed that his neighbor H’s bull is seriously ill. The neighbour is
currently on a hiking trip in Nepal and cannot be contacted. G, out of his love for animals
and with the hope that H will give him the bull as a token of appreciation, has called a
veterinary doctor to attend to the bull and has paid all his bills including medication. The
total costs were R12,000. Despite the treatment the bull has died. H approaches you for
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advice as to whether G has any ground to claim the medical costs from him as he is the
owner of the bull
1. G will not have a claim against H because the bull died and the expenses have been
wasted.
3. G has a claim against H in terms of the actio negotiorum gestorum contraria for R12,000
because G did not act in the interest of H
4. G has a claim against H in terms of the actio negotiorum gestorum contraria for R12,000.
5. G will not have any claim against H under the action negotiorum gestorum utilis because the
bull has died.
Question 8
What if, in the above scenario in question 7, h had warned his neighbor (G) not to do
anything on his farm under any circumstances if he is away.
1. G will have no claim because the bull has died

2. G will have no claim in terms of the actio negotiorum contraria because he acted against the
express prohibition of H
3. G will still have a claim against H in terms of the actio negotiorum gestorum contraria because
the bull belonged to H
4. G has an enrichment claim against H for his expenses as necessary expenses
5. G has no claim against H in terms of the actio negotiorum contraria for R12 000 because G
did not act in the interest of H
Question 9

2. Where a contract is rescinded due to a breach of contract
3. Where a party has made an undue payment in terms of an illegal contract
4. Where a party knowingly makes a payment that is not due, but under duress and
protest.
5. Where a party has made payment which is due but where the cause for the payment later
falls away.
Question 10
person.
2. A bona fide occupier is someone who unlawfully occupies the immovable property of
3. A bona fide possessor is someone who lawfully occupies the property of another person as
if he is the owner thereof.
4. A bona fide possessor is someone who unlawfully occupies the property of another
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5. A mala fide possessor is someone who lawfully occupies the property of another person
temporarily as if he is entitled to occupy the property as a lessee.
Question 11
Which action may be instituted where the plaintiff’s property was alienated or consumed
by somebody else?

Question 12
Which action can possibly be used to claim performance made in terms of a contract
prohibited by statute?


the land.
Question 13
4. K is a mala fide possessor of the land
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Question 14
3. K has an enrichment action for the necessary expenses he has incurred to the
extent that those expenses have increased the value of L's land.
belong to L.
5. K has an enrichment action for the useful and necessary expenses he has incurred
to the extent that those expenses have preserved or increased the value of L's
land
Question 15
claim, if any?

→4. L is entitled to reduce the enrichment claim against him by subtracting the value of the
mealies harvested by K minus the production costs.
5.. L is entitled to reduce the enrichment claim against him by subtracting the value of the
mealies harvested by K
Question 16
Indicate which one of the following is NOT requirement for a valid reliance on estoppel:
2 The person denying estoppel must have made the misrepresentation intentionally to mislead
the person relying on the estoppel
4 The misrepresentation must have caused detrimental conduct by the person relying
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on estoppel.

raised estoppel to prevent it from doing so.
Question 17
Which specific element of estoppel do the facts in question above relate to?
2. Fault.
3. Prejudice.
4. Causation.
Question 18
Which statement most correctly reflects the position in regard to X's reliance on
estoppel?
detriment.
decision.
The following facts are relevant to Q19-21

estoppel.
Question 19
In these circumstances, the courts have been prepared to find that (choose the most
correct option)
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5. 2 and 4.
Question 20
Which element that is normally required for estoppel have the courts been prepared to
disregard in such instances?
2. Fault.
3. Prejudice.
4. Causation.
5. Estoppel must be permissible in law.
Question 21
Question 22
Chose the most correct statement.
1. In Van Ryn Wine and Spirit Co v Chandos Bar 1928 TPD 417 estoppel succeeded.
2. In Van Ryn Wine and Spirit Co v Chandos Bar 1928 TPD 417 estoppel did not succeed.
3. In Van Ryn Wine and Spirit Co v Chandos Bar 1928 TPD 417 one of the parties was not
prevented from proving dissensus because his conduct had been reasonable and without
fault.
4. 1 and 3.
√5. 2&3
Question 23

estoppel succeeded.
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Question 24

√3. A has committed a misrepresentation to C by giving the letter to B and
failing to inform C at the time when C phoned him, that the TV set had not yet been paid
in full.
(2)
Question 25
√1. The person relying on estoppel must at least allege and prove negligence
in cases where a loss of ownership is involved.
Section B
Question 1
In McCarthy Retail Shortdistance Carriers CC year? (3) SA 482 (SCA para [9] the court said
“We 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 the 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
(10)
See May/June 2011 Q1 and also see Pg116
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Question 2
validity of the debit and whether either of them has an enrichment claim against D. Refer
to relevant case law. (10)
ANSWER
As to the position of a drawee bank which erroneously pays out a cheque whose payment has been
countermanded by the drawer, three cases are of importance: Govender v Standard Bank of SA
Ltd 1984 (4) SA 392 (C), First National Bank of SA Ltd v B & H Engineering 1993 (2) SA 41 (T)
and B & H Engineering v First National Bank of SA Ltd 1995 (2) SA 279 (A) (Pretorius 1995
THRHR 733–744; Nagel & Roestoff 1993 THRHR 486–494; Malan 1995 TSAR 782–785).
Although some authors (eg Eiselen and Pienaar) argue that this is also a case where the
condictio indebiti should be employed, the position that the condictio sine causa specialis is the
appropriate action in the case of cheque payments is now firmly entrenched in our case law.
3 party relationship: Drawer – Bank – Holder
Bank pays in terms of contractual obligation as against drawer.
Drawer may countermand cheque – bank no obligation or authority to pay
If bank pays under mistaken belief that it was obliged to whereas it is not – seems condictio
indebiti should be used to reclaim, but it was confirmed in B & H Engineering v First National
Bank it is not – appropriate action is condictio sine cause specialis.
In Govender v Standard Bank the distinctions between the condictio indebiti and the condictio
sine causa specialis:
The claim of the plaintiff bank for repayment from the payee of a cheque, payment of which had
been countermanded, but which was nevertheless paid, does not fit comfortably within the case
which a condictio indebiti is designed to meet. Such condictio lies to recover a payment made in
the mistaken belief that there was a debt owing and to be paid, but a bank paying a cheque
owes no debt to the payee and knows that it is not indebted to the payee ... The indebtedness
on a cheque, or on the underlying cause of a cheque, is that of the drawer, not the bank upon
whom the cheque is drawn ... the cardinal ground for relief by way of such condictio appears to
be lacking in this case.
And further
The claim seems more readily to fit the scope of a condictio sine causa. Plaintiff is in fact saying
that it has paid the cheque to the payee from the bank’s own funds, which is the true position,
and has done so for no justifiable cause, since the cheque was s topped and there was no order
on the bank and no authority to make the payment, and, as already pointed out, there was no
debt, promise or obligation upon the bank to pay the money to the payee, so that the payment
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was without cause ... The condictio sine causa is brought where plaintiff’s money is in
defendant’s hands without cause; there need be no erroneous belief that the money was owing
to the defendant, as is the case under the condictio indebiti.
The decision in the Govender case was rejected by Preiss J in First National Bank v B & H
Engineering 1993 (2) SA 44 (T). The facts of the B & H case were similar to the facts of the Govender
case. In this case, Sapco (a client of FNB’s) drew a cheque in favour of B & H as payment for certain
goods which it had ordered from B & H. After delivery of the cheque to B & H, Sapco countermanded
payment of the cheque at its bank. Owing to a mistake made by an employee of the bank, the cheque was
paid out by the bank, upon which the bank sued B & H for repayment of the amount on the cheque.
Contrary to what was decided in the Govender case, Preiss J allowed the claim and held that the plaintiff
(FNB) had met all the requirements for the condictio sine causa and specifically that the defendant (B
& H) had been unjustifiably enriched at the expense of the bank (at 48F).
According to Nagel and Roestoff (1993 THRHR 492), the following principles may be derived from the
B & H case: A bank which pays a cheque in spite of a countermanding notice may in principle institute
the condictio sine causa to reclaim the paid amount from the receiver. Such a bank is solvens in its
own name and is not acting as an agent for its client (the drawer). The payment by the bank is, therefore,
sine causa. Keeping this in mind, the payment by the bank has no bearing on the underlying relationship
between the drawer and the receiver; in other words, the obligation to perform by the drawer is not
abolished and neither is the right to performance by the beneficiary. Any performance by the beneficiary
in terms of the underlying agreement is not legally relevant to the receipt of payment by the bank — it
cannot therefore be seen as a negative side effect of any enrichment at the expense of the bank that must
be accounted for against the enrichment. The logical consequence of the above is that the beneficiary,
who must compensate the bank, merely acts on the merits in respect of payment to the drawer in terms of
the underlying agreement.
Question 3
Discuss with reference to case law the actio negotiorum gestorum utilis. (10)
Extended management of affairs action – actio negotiorum gestorum utilis:
1. The liability of a minor: If gestor managed affairs of minor, the minor is liable only to the
extent of his enrichment.
2. The gestor acts against the prohibition of the dominus: Odendaal v Van Oudtshoorn:
There is doubt whether a court would grant an action to a gestor who had acted contrary to an
express prohibition of the domi nus.
Facts:
A took over a business enterprise from B, ordered goods from C. C refused to carry out the
order before B’s personal debt towards C was paid. A paid B’s debt without B’s knowledge or
instructions. In paying A’s aim was to further his own interests. A recla imed the amount paid to
C from B. If A had paid under instructions from B, he would have been able to claim the amount
on the ground of mandatum. If he had paid with the aim of promoting B’s interests but without
B’s knowledge, A would have been able to reclaim the expenses with the NG. But what if A
pays B’s debts without instructions to do so and to further his own interests? The court, rejecting
Shaw and Van Staden, held that A can in fact claim from B on the ground of undue enrichment.
Standard Bank v Taylam:
The court came to the conclusion that the fact that the gestor acted contrary to the wishes of the
dominus did not, under all circumstances, stop an enrichment action. The gestor who acted
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against the wishes of a dominus will have to show some just cause for disregarding those
wishes. Odendall was obiter and UNISA follows Taylam.
3. The gestor who bona fide administers the affairs of another, thinking he is acting in his own
interest:
Our law would permit a gestor in these circumstances to recover on the basis that the dominus
has been unjustly enriched at his expense
4. The gestor who mala fide acts in his own interest:
Shaw v Kirby:
Facts: Plaintiff, without instruction, and with the intention of benefiting himself, discharged
certain of a debtor’s debts. Later, he claimed these expenses from the debtor. The court, using
English Law, dismissed the claim on the ground of the absence of any agreement between the
plaintiff and the debtor that the plaintiff would discharge the debts and the debtor will
compensate him later. The court thus accepted that in the absence of agreement no possible
ground of recovery like unjust enrichment could exist.
Van Staden v Pretorius:
Facts: X bought a plot from Y and paid the purchase price but land not yet registered in X’s
name. Y’s creditors threatened to have the land sold in execution of Y’s debts. X, fearing that
the land would be sold, paid Y’s creditors. Then he claimed from Y. The court decided that X
could not succeed in his claim because there was no mandate in terms of which he had paid
and he was not a gestor – he acted in his own interest. Y’s enrichment as a result of the
discharge of his obligations was, in itself, no ground for a claim. Judge used Kirby to support
his judgement.
Criticism of Shaw, Bartholomew and Van Staden:
The argument seems to put the cart before the horse – what it amounts to is that if an
enrichment action against an enriched person is granted, he is no longer enriched and if a
person is not enriched he cannot be held liable on the ground of undue enrichment. In the
example given by the judge in the Bartholomew case it is clear that A has been enriched by B’s
actions (A’s obligation to C has been discharged), that B has been impoverished and that the
enrichment and impoverishment are unjustified. B should be able to succeed in an action
against A.
Improper motive: if the plaintiff paid the defendant’s debt with the motive of making the
defendant his debtor, and making his life miserable. This plaintiff, with an improper motive,
should have no action.
Question 4
South African law of estoppel with reference to relevant case law. (10)
Study Unit 5:

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misled. [2]
• Jonker case [1]
• Autolec [2]
• Breet [2]
• Mthanti [2]
Question 5
Discuss the negligence requirement for a successful plea of estoppel in South African
case law. (10)
Fault (negligence) (Study Guide 2
• Case law
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jus disponendi.
detriment.
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May/June 2016
SECTION A
Choose the most correct option in every instance.
(1) 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
R10,000 for a luxury weekend after realising that his account was in credit. Which
statement best explains the nature of the claim against A?

3. B has an enrichment claim against A based on the condictio causa data causa
non secuta.
utilis. (2)
(2) Assume the same facts as in question (1). Which statement regarding the
requirements for an enrichment action is correct?

4. A's enrichment is unlawful because he made a demand for payment at a time
that it was not due.
5. B has been impoverished at the expense of the bank. (2)
calculation of the enrichment claim?
spent on the wages and A's holiday.
√4. B can claim only R40,000 because the rest of the enrichment amount has been
5. B can claim only R35,000 because the rest of the enrichment has been lost on
the wages paid. (2)
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(4) In order to be successful with a claim based on the condictio indebiti, the plaintiff
must prove the following fact(s) or requirement(s).
√5. 1 and 3 are correct. (2)
(5) In which one of the following circumstances can the condictio indebiti be used?

√2. Where a party knowingly makes a payment that is not due, but under duress and
protest.
payment later falls away. (2)
(6) X has concluded a contract with Y to build a tennis court at a cost of R40,000 on
the property it is renting from Z. It can be shown that the value of the property has
increased by R20,000 due to the improvement. X has disappeared before paying Y for the
work done. Y now wants to lodge a claim against Z, the owner of the property. Which
statement best explains the ground on which and amount that Y can claim (Read
question (7) before you answer this question).

√3. Y has an enrichment claim against X for R40,000.
4. X has a contractual claim against Z for R40,000.
(2)
authority for the answer to 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.
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v Knoetze & Sons 1970 3 SA 264 (A).
Question 8

√5 The condictio ob finitam causam
Question 9
H?
√1. G has no claim against H because the bull has died and the expenses have
been wasted.
R12,000.
R12,000.
because the bull died.
Question 10
of another person.
of another person as if he is the owner thereof.
3. A bona fide possessor is someone who lawfully occupies the property of another
√4. A bona fide possessor is someone who unlawfully occupies the property of
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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.
(2)
Question 11

existence of a general enrichment action in South Africa without any qualifications.
existence of a general enrichment action in South Africa, but with certain qualifications.
Appellate Division recognised the existence of a general enrichment action in South Africa.
√4. In Kommissaris van Binnelandse Inkomste v Willers 1994 3 SA 283 (A) the
Appellate Division rejected the existence of a general enrichment action in South Africa but
recognised that courts can extend enrichment liability to circumstances where it is deemed
necessary.
Africa. (2)
Question 12
statement best explains whether C has a claim against B and the authority on which it is
based?
at C's expense.
impoverishment.
causa non secuta.
(2)
Question 13
Assume the same facts as in question (12). Which statement best explains whether C has
a right of retention and the authority on which it is based?
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has a right of retention against A in respect of the vehicle. (2)
Question 14
Which statement(s) provide(s) the most correct explanation of the current legal position?

3. Estoppel cannot apply to waiver because waiver relates to an existing right while
√4. A party may be estopped from denying waiver in certain circumstances.
5. 2 and 3. (2)
Question 15


(2)
Question 16
detriment.
decision. (2)
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Question 17
2. Fault.
3. Prejudice.
4. Causation.
(2)
Question 18
Choose the most correct statement.
succeeded.
succeed.
without fault.
4. 1 and 3.
√5. 2&3 (2)
Question 19

2. The will theory.
Question 20

√3. A has committed a misrepresentation to C by giving the letter to B and failing to
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(2)
Question 21
√1. The person relying on estoppel must at least allege and prove negligence in
cases where a loss of ownership is involved.
(2)
Question 22
√3. In terms of the "proximate cause" as applied by the courts, it is sufficient that the
(2)
Question 23
Question 24
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damage.
(2)
Question 25

estoppel succeeded.
Section B
Question 1
A has concluded a contract with B in terms of which B must paint the exterior of the
house that A occupies. A is in fact looking after the house for C, who is overseas for an
extended period. A promises to pay B R20 000 when the work is complete. B completes
the work thinking that the house belongs to A, but A absconds without paying the
contract price to B. Discuss the following
1.1 Can B claim anything from A or C? Explain in full (10)

See this semester assignment 1 and apply to present facts
1.2 If it is assumed that B has a claim against C, explain in full which action would be
used, how the claim should be quantified and any defences that C may raise against the
claim by B (10)
➢ Question of indirect enrichment

➢ Relevant action: actio negotiorum gestorum utilis (extended management of
affairs action)
➢ See discussion page 90-94 of SG
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Question 2
Briefly discuss the field of application of the condictio sine causa specialis (5)
• Only applied where no other condictiones can find application

• Roman law distinguished between condictio sine causa specialis and condictio sine causa
generalis.
• The general condictio is an alternative to any of the three previous condictiones and could be
used in the place of any of the three as long as one of them could have been instituted. The
formula was less complicated.
In SA Law it is used under the following circumstances
Where party performs – performance was due – but causa for performance has fallen away
(condictio ob causam finitam)
Plaintiff’s property consumed/alienated by someone else
Bank made payment under countermanded/forged cheque
Ownership transferred sine causa – where none of the other condictiones would lie.
Where possessor receives thing ex causa onerosa (for value) their enrichment is constituted by
the profit of the thing
Question 3
Write a critical discussion on prejudice as a requirement in the South African law of
estoppel. In your answer you must refer to relevant case law. (10)
been created. (1)
Jonker case [1]
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Autolec [2]
sentimenal values
Breet [2]

Question 4
A takes his car to B, who sells second-hand cars, to have his car valued. While in B’s
possession his car is stolen through no fault of B. A short while later A attends a public
auction of cars and recognises his stolen vehicle. The car is sold to C at the auction and
C pays cash for it. A now claims the vehicle from C with a rei vindicatio. Advise C with
reference to relevant case law. (10)
See MAY/JUNE 2010 Q4
For example, in Maling v Hargreaves, the owner of a cow which had disappeared five years
before, recognised the cow at an auction, but allowed it to be sold (an omissio, therefore).
The defendant successfully raised a plea of estoppel against his rei vindication.
Question 5
Question missing
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Oct/Nov 2016
Section A
Question 1
Which is the appropriate action for reclaiming performance made in terms of a contract
subject to a suspensive condition that has not been fulfilled

2 The actio negotiorum gestorum specialis
Question 2
Which one of the following statements does not constitute enrichment?
1 An increase in assets which would not have taken place was it not for the enriching
fact.
2 A non-decrease in assets where a decrease would have taken place was it not for the
enriching fact.
3 A decrease in liabilities which would not have taken place was it not for the enriching
fact.
√4 A non-decrease in liabilities which would not have taken place was it not for the
enriching fact.
6 A non-increase in liabilities which would not have taken place was it not for the
enriching fact.
Question 3
Which one of the following statements relating to indirect enrichment is incorrect?
1 A claim for indirect enrichment was not allowed in Gouws v Jester Pools (Pty) Ltd 1968
(3) SA 563 (T).
√2 A claim for indirect enrichment was allowed in Brooklyn House Furnishers Ltd
v Knoetze & Sons 1970 (3) SA 264 (A).
3 A claim for indirect enrichment was allowed in ABSA Bank Ltd v Stander 1998 (1) SA
929 (C).
4 A claim for indirect enrichment did not arise in Buzzard Electrical v 158 Jan Smuts
Avenue Investments 1996 (4) SA 19 (A).
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5 A claim for indirect enrichment was recognised obiter in Hubby’s Investments (Pty) Ltd
v Lifetime Properties (Pty) Ltd 1998 (1) SA 289 (W). (2)
Question 4

√5 The actio negotiorum gestorum utilis.
Question 5
1 Where a person has made a payment in terms of a contract subject to a suspensive

condition, and the contract has now been extinguished due to the condition not being
fulfilled.
2 Where a person has made a payment in terms of a contract subject to a resolutive

condition, and the contract has now been extinguished due to the condition being
fulfilled.
3 Where an undue payment has been made in circumstances where the mistake is not
excusable.
√4 Where an executor, who is functus officio, made payments to heirs which were
not due because a creditor lodged its claim to late.
5 Where a bank has made payment in terms of a forged cheque.
S sells his horse, White Lightning, to P for stud purposes at a price of R 150 000, subject
to P obtaining a loan for the full purchase price from his bank. S delivers the horse to P,
but it transpires that the bank is prepared to grant P a loan for only half the full purchase
price and that P must contribute the balance himself.
Question 6
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This is a case where
1 delivery has been made under a false assumption.
2 delivery is illegal.
√3 a suspensive condition has not been met.
5 there is impossibility of performance. (2)
Question 7
Which action must S institute to reclaim his horse?
√1 The condictio causa data causa non secuta.
Question 8
If P paid cash for the horse but unbeknown to the parties the horse had actually been
stolen prior to conclusion of the contract, it would be a case where
√1 performance has been made under a false belief.
2 a modus has been disregarded.
3 there is a future supposition which cannot be fulfilled.
5 a suspensive condition has not been met. (2)
Question 9
Assume the same facts as in question 8. Which action would P institute to reclaim his
money?
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√3 The condictio indebiti.
Question 10
Assume the same facts as in question 8. If after realising that his own horse had been
stolen S used the purchase price to buy another horse to the value of R100 000 and
gambled away the rest of the money, P would be able to recover
1 the value of the horse that S purchased (R100 000).
2 the horse that S purchased.
3 R50 000.
√4 the horse that S purchased and R50 000.
5 nothing.
Question 11
general enrichment action without any qualifications.
general enrichment action, but with certain qualifications.
Division recognised the existence of a general enrichment action in South Africa.
Division recognised the existence of a general enrichment action, but with certain qualifications
Appellate Division rejected the existence of a general enrichment action but recognized
that courts can extend enrichment liability in circumstances where it is deemed
necessary
Question 12
statement best explains whether C has a right of retention and the authority on which it
is based?
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1. In terms of the decision in Brooklyn House Furnishers Ltd v Knoetze & Sons 1970 3 SA
264 (A) C has no right of retention in respect of the vehicle.
√2. In terms of the decision in Brooklyn House Furnishers Ltd v Knoetze &
Sons 1970 3 SA 264 (A) C has a right of retention against B in respect of the vehicle.
has a right of retention against A in respect of the vehicle.
Question 13
√5 The condictio ob finitam causam.
Question 14
Which statement(s) provide(s) the most correct explanation of the current legal
position regarding estoppel and waiver?
1 Estoppel and waiver are one and the same.
2 Estoppel cannot be used to maintain an impression that a right has been waived.
3 Estoppel cannot apply to waiver because waiver relates to an existing right while
√4 A party may be estopped from denying waiver in certain circumstances.
5 2 and 3
Question 15
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Question 16
detriment.
decision.
Question 17
2. Fault.
3. Prejudice.
4. Causation.
Question 18
Chose the most correct statement.
succeeded.
succeed.
without fault.
4. 1 and 3.
√5. 2&3
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Question 19

2. The will theory.
Question 20

√3. A has committed a misrepresentation to C by giving the letter to B and
failing to inform C at the time when C phoned him, that the TV set had not yet been paid
in full.
(2)
Question 21
√1. The person relying on estoppel must at least allege and prove negligence
in cases where a loss of ownership is involved.
(2)
Question 22
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√3. In terms of the "proximate cause" as applied by the courts, it is sufficient
that the misrepresentation by the person denying estoppel made a material contribution
to the detrimental conduct of the person relying on estoppel.
(2)
Question 23
Question 24
damage.
(2)
Question 25
Chose the correct statement.

√2 In Grosvenor Motors (Potchefstroom) Ltd v Douglas 1956 3 SA 420 (A) a
plea of estoppel did not succeed.
estoppel succeeded.
5 In Adams v Mocke 23 SC 722 a plea of estoppel succeeded
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Section B
Question 1
A has concluded a contract with B in terms of which B must paint the exterior of the
house that A occupies. A is in fact looking after the house for C, who is overseas for an
extended period. A promises to pay B R20 000 when the work is complete. B completes
the work thinking that the house belongs to A, but A absconds without paying the
contract price to B. If it is assumed that B has a claim against C, explain in full which
action would be used, how the claim should be quantified and any defences that C may
raise against the claim by B (10)
➢ Question of indirect enrichment

➢ Relevant action: actio negotiorum gestorum utilis (extended management of
affairs action)
➢ See discussion page 90-94 of SG
Question 2
C steals a cheque from D and forges it with E as the payee. C agrees with E that E will
deliver R100 000 worth of goods to C as soon as the amount has been deposited into his
bank account. C deposits the cheque with F, E’s bank in favour of E. The cheque is
honoured and the money paid from D's account. F credits E’s account with the amount. By
the time that D finds out that the cheque has been stolen, E has already released the goods
to C and has also spent R50 000 of the money. Advise D whether he has an enrichment
claim against either E or F, and if so the nature and requirements for that action. Advise D
also regarding the extent of the claim. (15)
See May/June 2012
This question should be marked leniently. There are two possible actions that may be discussed
and the student should receive credit for either, or both.
1 Identification
This question deals with enrichment and the law of bills of exchange (1) The general rule is that
if a bank pays out on a cheque that has been stolen and forged, or a cheque that has been
countermanded, there is no valid instruction to the bank to pay out the value of the cheque. In the
result the account of the drawer of the cheque (client of the bank) cannot be debited with the
amount and the bank has in fact paid out its own money. Thus D is not impoverished, the bank is
(2).
2 The law
The possible remedies in enrichment that the bank may have in these circumstances are the
conditio sine causa specialis and the condictio indebiti. There requirements are as follows:
Condictio sine causa specialis (1) (Study Guide 1 72)
Its exact parametres are uncertain and under common law it was said that this action was a catch
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all for all situations that did not fit under one of the other actions but required a remedy (1). It thus
developed casuistically and potentially may be applied in the following situations:
• Where a causa for a performance exists, but later falls away (1). Also known here as the
conditio ob causam finitam (1);
• Where the plaintiff’s property was alienated or consumed by somebody else; (1)
• Where a bank has made payment under a countermanded or forged cheque; and (1)
• Where transfer of property has occurred sine causa but non of the other condictiones sine
causa apply, but its scope here is uncertain. (1)
Condictio indebiti (Study Guide 1 32)
• Something given or transferred in ownership to another (1). Can consist of corporeal things
or incorporeal things, such as rights (1);
• Transfer must have taken place as a result of mistake on the part of the transferor – he or
she must have believed that performance was due; and (1)
• The mistake may be one of law or fact (1), but must have been reasonable (iustus error) in
the circumstances. (1)
3 Case law (Study Guide 1 74-76)
There three cases dealing with the paying out of countermanded cheques which could provide
direction in the present circumstances as well:
Govender v Standard Bank of SA Ltd 1984 (4) SA 392 (C) (1)
• Facts indicate a typical case of paying countermanded cheque where there is an underlying
debt between the drawer of the cheque and beneficiary (1). (Note: student may give facts
in great detail, but only 1 mark may be awarded).
• Court stated that condictio sine causa appropriate action and not the condictio indebiti
because elements of payment made under mistaken belief not present. (1)
• Court found that the action must fail because payment of cheque not sine causa (underlying
debt present) and recipient not unjustifiably enriched because he was willling to perform
in terms of the underlying contract. (2)
First National Bank of SA Ltd v B & H Engineering 1993 (2) SA 41 (T) (1)
• On similar facts to Govender court granted the conditio sine causa. (1)
B & H Engineering v First National Bank of SA Ltd 1995 (2) SA 279 (A) (1)
• Decision of court a quo overturned on appeal and approach in Govender followed. (1)
• Where parties agree to pay a debt by cheque, the debt is extinguished once the cheque is
paid out whether or not authorised at that stage. (1) Recipient also not enriched by
payment because receipt of the amount was balanced by the loss of its calim against the
drawer of the cheque.
4 Commentary
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• Pretorius suggests that bank should have a claim and the parties left to sort out their
contractual dispute.
5 Application
• In case scenario of forged and stolen cheque similar situation exists because bank pays
out without a valid instruction and the recipient of the money (E) has performed in terms
of a valid underlying debt (to C) and is not enriched. Consequently a claim based either
on the conditio indebiti or the condictio sine causa could fail in circumstances. (2) But
where there is no underlying debt for the payment perhaps a claim may succeed. (1)
6 Quantum of possible claim (Study Guide 1 24-25)
• If claim allowed the impoversiehd party may only claim amount by which he is impoverished
or the defendant is enriched, whichever is the lesser (1). Quantum of claim determined at
litis contestatio (1). If some of the money has been used on an expense that would
otherwise not have been incurred, enrichment may be accordingly diminished (1), unless
enriched party was aware of enrichment or reasonably could have been aware of
enrichment. (1)
Question 3
Discuss the nature and extent of enrichment claims, including factors that could
influence the amount of a claim. (10)
calculated sooner, meaning before the date of institution of the action:
(a) at the moment the defendant becomes aware of enrichment (1);
(b) at an earlier stage if the defendant should have known that the benefit wasn’t justified (1);
(c) when the defendant fell into mora (1);
(d) and an earlier date if the defendant acted mala fide (1). These exceptions do not apply in the
case of minors. (1)
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Question 4
Write a critical discussion on whether the entrusting of property to another creates the
impression that the receiver is entitled to dispose of it. In your answer you must refer to
The question whether there could reasonably be misrepresentation often arises where an owner
entrusts his or her property to the possession of another.
Since the separation of ownership from possession occurs so frequently, it would be
unreasonable and contrary to the legal views of the community, as interpreted by the courts, to
accept without further investigation that the possessor of property is its owner.
The representation is a misrepresentation if the message it gives a reasonable person is false.
However, if the owner goes further and not only tolerates the possession of his or her property
by another, but also gives him or her the title documents or a blank transfer form or something
similar, his or her representation may in fact amount to a misrepresentation, since his or her
conduct may be reasonably conducive to the false conclusion that the possessor is the owner.
In Electrolux (Pty) Ltd v Khota 1961 (4) SA 244 (W) this matter is explained as follows:
The first enquiry should be into what was the specific conduct of the owner that the
respondent relies upon for the estoppel. If that conduct is not such as would in the eyes
of a reasonable person, in the same position as the respondent, constitute a
representation that the swindler was the owner of, or entitled to dispose of, the articles,
then cadit quaestio - no estoppel could then arise. But if such conduct does beget that
representation, then the next enquiry would logically be whether the respondent relied
upon, or was misled by, that representation in buying the articles.
The owner's mere entrusting a person with the possession of its articles is not sufficient
to produce the representation that the dominium or ius disponendi was vested in the
possessor. The respondent would not be entitled to assume from such mere possession
that the possessor was authorised to dispose of the articles. If he made such an
assumption he would only have himself to blame for his gullibility. To give rise to the
representation of dominium or ius disponendi, the owner's conduct must be not only the
entrusting of possession to the possessor but also the entrusting of it with the indicia of
the dominium or ius disponendi.
GSM

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ANSWER ALL THE QUESTIONS

Application in South African law:

Where the upholding of an impression by means of estoppel results in a situation prohibited in

Holsain: if a trade licence is wrongly issued to a merchant in spite of an express resolution to

Ultra vires acts:

In the judgment of the court a quo two questions were distinguished:

The court summarises this as follows:

Re requirements for estoppel:

• Misrepresentation – creation of false belief by estoppel denier. (1)

• Misrepresentation is any word or conduct that communicates an untruth. Generally

• Misrepresentation where owner leaves his property in possession of another.

• Examples from case law

• In Electrolux v Khota 1961 4 SA 244 (W) court held as follows:

• A created the impression (misrepresentation) in the mind of C, both in writing and

ANSWER ALL THE QUESTIONS

Turpis persona tested subjectively

Application to the facts

a) The contract is illegal in terms of statutory law.

The basis of estoppel should not simply be sought in delictual misrepresentation.

Hoisain: if a trade license is wrongly issued to a merchant in spite of an express resolution to

The reliance on estoppel must be allowed by law

Holsain: if a trade licence is wrongly issued to a merchant in spite of an express resolution to

Ultra vires acts:

Choose the most correct option in every instance.

(1) A has demanded payment from B of an amount of R50,000 which he believes B is

1. B has a claim against A based on delict for a fraudulent misstatement.

√1. A has been enriched at the expense of B.

1. Where a bank has made payment in terms of a countermanded cheque.

1. Y has an enrichment claim against Z for an amount of R40,000.

(10) Which statement correctly explains the possession or occupation of another's

1. In Nortje v Pool 1966 3 SA 96 (A) the Appellate Division recognised the

2. In Nortje v Pool 1966 3 SA 96 (A) the Appellate Division recognised the

1. Estoppel and waiver are one and the same.

(15) Which statement is the most correct?

1. The protection of good faith is the basis of estoppel.

(18) Chose the most correct statement.

(19) Estoppel is most similar to which theory?

1. The declaration theory.

1. A has committed a misrepresentation to C by giving the misleading letter to B

(25) Choose the correct statement.

1 In Fawden v Lelyfeld 1937 TPD a plea of estoppel did not succeed.

Transfer of thing (which can be corporeal or incorporeal) in ownership to another;

Contract of service or employment (locatio conductio operarum) – employee only entitled to

Gestor must perform service without instruction.

(1-2 for each requirement depending on content). See SG 1 83.

bona fide possessor:

Has possession of thing in mistaken belief he is owner thereof.

Mala fide possessor:

Has possession of thing knowing that he is not the owner thereof.

Indicate which statement best explains L’s presence on O’s land

4. L as lessee of rural land, has no claim against O in terms of the Roman-Dutch

The following set of facts is relevant for questions 18-22

4. C cannot rely on estoppel at all in cases where ownership is at stake.

The “Proximate Cause” Test:

Status and legal capacity:

SECTION A : MULTIPLE CHOICE QUESTIONS

The following facts are relevant to Q1-4

1. B has a claim against A based on delict for a fraudulent misstatement.

v1. A has been enriched at the expense of B.

1. Where a bank has made payment in terms of a countermanded cheque.

1. Y has an enrichment claim against Z for an amount of R40,000.

1. Estoppel and waiver are one and the same.