PVL3704 PORTFOLIO MEMO - MAY/JUNE 2022 - SEMESTER 1
QUESTION 1
Discuss the requirement that the defendant must have been enriched. (10)
QUESTION 2
In McCarthy Retail Ltd v Shortdistance Carriers CC 2001 (3) SA 482...
QUESTION 1
Discuss the requirement that the defendant must have been enriched. (10)
If a defendant is to be held liable for enrichment it is not sufficient that the defendant
has been enriched and that the plaintiff has been impoverished. There must also be a
causal link between the enrichment and the impoverishment and this is expressed by
saying that the defendant’s enrichment must be ‘at the expense of the plaintiff’.
Normally this requirement causes little difficulty since in most cases the causal link is
obvious. Problems have, however, arisen in what DH Van Zyl refers to as cases of
‘‘indirect enrichment’’. These are cases where A and B enter into a contract in terms
of which A renders performance to B but the benefit of the performance accrues to C.
For example, if A (as the subcontractor) contracts with B to supply the roof of a house
which B is building for C, then if B renders performance (pays for the work) to A, C will
then be enriched at B’s expense and not at A’s. Does it make a difference, then, if B
becomes insolvent and is unable to pay A or if B disappears so that A is unable to
enforce the contract against B? De Vos’s view is that the fact that B does not render
performance to A cannot affect the juridical position between A and C and that in the
above example C is enriched at B’s expense and not at A’s, with the result that A
cannot bring an enrichment action against C.
This view was endorsed in Gouws v Jester Pools where A had built a swimming pool
for B in terms of a contract between A and B and on land which A believed belonged
to B but the land did in fact belong to C. After B disappeared without paying A for the
pool, A brought an enrichment action against C. The action failed, and the court held
that C had been enriched at B’s expense and not at A’s. Van der Walt, Scholtens and
Van Zyl do not share the above view but are of the opinion that in the circumstances
of the Gouws case, C was indeed enriched at the expense of A and that A’s action
should have succeeded. Van der Walt’s view is that the ‘at-the-expense-of’
requirement is satisfied once there has been a direct transfer of assets from A’s estate
to that of C. ‘‘Direct transfer’’ is that the assets pass directly from A to C and not from
A to B and then from B to C, that is not via the estate of an intermediary person.
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