QUESTION 1: QUANTUM OF DAMAGES FOR PATRIMONIAL LOSS CAUSED BY
CERTAIN FORMS OF DELICT
a) Differences between the object of contractual and delictual damages.
The Court in Trotman v Edwick 1 held that a litigant who sues on contract sues to
have his bargain or its equivalent in money or in money...
Read both Ameropa Commodities (Pty) Limited v Benchimol NO 2020 JDR 1223
(KZD) and Fenhalls v Ebrahim and Others 1956 (4) SA 723 (D) cases and answer the
question below:
Discuss the nature and application (requirements) of the actio pauliana as a remedy
for neutralising the damage, the creditors may suffer due to the debtor’s alienation
made in fraudem creditorum. Refer to authority in your discussion
The remedy action pauliana applies to any transaction aimed at defrauding creditors, in
the sense that its application results in the setting aside any such transaction.
1. The remedy is available if the transaction actually defrauds the creditors in that the assets of
the person alienating the property are diminished by such alienation. The action can be
instituted before or after the sequestration of the debtor. However, the following must be
proved: the alienation must have diminished the debtor's assets; the recipient must not have
received his own property or something owing to him; (the debtor or alienator must have
intended to defraud his creditors (if he received value in respect of the alienation, the recipient
must also have been aware of the debtor's intention); the fraud must have caused the loss
, suffered by the creditors.
2 The intention to defraud stil l plays a significant role here. The fraud being referred in this
situation is not 'fraud' in the criminal sense.
3. That there should be the intention to defraud (sec. 13 and following)
4. That the fraud should have its effect (sec. 22).”’ (My emphasis).
5. The scholars Van der Merwe and Olivier in Die onregmatige daad in die Suid-Afrikaanse reg2
summarised the actio Pauliana and concluded that the remedy is not restricted in its use by the
curator bonorum only, but it is available to all creditors.
6. In Wiener v Estate Mckenzie, 3 the court analysed the authorities in support of the common
law remedy, as follows: ‘. . .In Fraudem Creditorum. --- Under the Roman-Dutch law whenever a
debtor entered into a transaction in fraud of and to the actual detriment of his creditors, it
could be set aside by an action at law, and the property disposed of recovered. See Voet (48.8);
Grotius' Introduction (2.5.4): Van der Keessel (Thes. 200); Van Leeuwen's RomanDutch Law
(Kotze's Translation, Vol. I., p. 195)
1 Fenhalls v Ebrahim 1956(4) SA 723(N)
2 Andre Boraine, ‘Towards Codifying The Actio Pauliana’ (1996) 8 S. Afr. MerL.J. 225.
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