Exam (elaborations)
PVL3704 - LATEST ASSIGNMENT PACK 2021
- Course
- PLV3704
- Institution
- University Of South Africa (Unisa)
PVL3704 - LATEST ASSIGNMENT PACK 2021/ PVL3704 - LATEST ASSIGNMENT PACK 2021/ PVL3704 - LATEST ASSIGNMENT PACK 2021
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By: Hlanganani • 2 year ago
By: ImtheBlackSuperman • 2 year ago
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PLV 3704UNJUSTIFIED ENRICHMENT
LIABILITY AND ESTOPPEL
2021 LATEST ASSIGNMENT
PACK PUT TOGETHER FOR
YOUR EASY LEARNING
CONTAINS ASSIGNMENTS AND
MEMOS FROM 2012 TO 2021
SEMESTER 1 AND 2
, 2020 – SEMESTER 1 - ANSWERS TO ASSIGNMENT 1
Question 1
Discuss in general (without reference to a specific enrichment action) how the extent of
enrichment liability (or the quantum of the enrichment claim) will be calculated. (10)
Answer
In principle the plaintiff is allowed to claim the amount he has been impoverished, or the amount
by which the defendant has been enriched, whichever is the lesser. (1) See Study Guide 1, pars
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 defendan t 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 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)
2
, [max 10]
Question 2
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 it
threatens 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. 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)
Answer
You should follow the following steps in answering this type of question:
(a) You first need to identify the correct unjustified enrichment action. If necessary, explain
why another enrichment claim cannot be used. (2)
(b) Then discuss the relevant requirements for a successful claim under the action and any
defences against such claim. It is important here to refer to any relevant case law. (6)
(c) Apply the requirements of the claim to the facts provided. (1)
(d) Make a definite conclusion on the question asked. (1)
(a) Identifying the correct action
The correct action to be instituted by A is the condictio indebiti. This action is available in
instances where a debt not owing was paid. (1) Incidentally no unlawful, ultra vires or void
contract is relevant here and therefore it seems as if no other condictiones could be applicable.
(1)
(b) Requirements for the action and defences against it
See Study Guide 1, par 3.4 for the requirements. State each of the requirements:
(i) Transfer of ownership in the form of payment of money or delivery of a specific
object (1/2)
(ii) Payment has to take place under the mistaken belief that the performance was
due. (1/2)
(iii) The mistake, either a legal or factual mistake (1/2), must have been reasonable in
the circumstances (iustus error). (1/2)
In general, a party cannot reclaim performance with the condictio indebiti if he was aware that
the performance wasn’t due. (1) Such conduct will be regarded as a donation (1/2), unless it
was made under threat or protest. (1/2) See Study Guide 1, par 4.6.
Case law
In CIR v First National Industrial Bank Ltd 1990 3 SA 641 (A) (1) FNB paid stamp duties to the
Commissioner for Inland Revenue which in fact were not due under protest. The court a quo
held that the payment could be reclaimed on the basis of unjustified enrichment. (1) The
Appellate Division found by majority that the money could be reclaimed on the basis of a tacit
3
, contract (1), but the minority found that where there is payment in such circumstances, the
presumption of a donation falls away. (1)
(c) Applying the requirements to the facts
A made a payment under threat and protest, knowing that the debt wasn’t due. (1) The
requirements for the conditio indebiti have thus been complied with.
(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.
Secondly, that the payment was made involuntarily under the threat that the electricity supply
will be suspended if payment wasn’t made. Thirdly, that A protested against the amount to be
paid at the time of payment by sending a letter of complaint.)
(d) Conclusion
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)
[max 10]
1.1 ANSWERS TO ASSIGNMENT 2
The correct answer to each of the questions below is the one that is highlighted. Brief
explanations are given as to why each choice is right or wrong. Revert back to that part of the
Study Guide if you still do not understand why a certain choice is right and the others wrong.
Question 1
Answer: See Study Guide 1, Study Unit 14
Indicate which one of the following statements most correctly describes 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.
(1)
Question 2
4
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