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PVL3704
EXAM PACK
DISTINCTION QUALITY
UNISA EXAM
, PVL3704 EXAM 2025
QUESTION 1
Discuss the ‘at the expense of requirement’ of enrichment liability. Refer to
relevant case law in your discussion.
In South African unjust-enrichment law,
One of the four essential elements of a claim is that defendant’s enrichment must have
been at the expense of the plaintiff. In other words, there must be a causal link between
the plaintiff’s loss and the defendant’s gain. This ensures that only those enrichments
traceable to the claimant can be reclaimed. In simple cases of direct transfer e.g. the
plaintiff pays the defendant, this causal link is usually clear. However, when a benefit
passes indirectly via third parties, difficulties arise.
For example, if A (contractor) contracts with B (lessee) to improve property owned by C,
and A expends money improving C’s property, the question is whether C has been
enriched at A’s expense or B’s. Courts will not allow A to claim from C if C’s enrichment
is really at B’s expense. In Buzzard Electrical (Pty) Ltd v 158 Jan Smuts Ave
Investments (Pty) Ltd, the Appellate Division analysed two such multi-party scenarios. It
held that if an owner C contracts with B who then subcontracts A, and A performs work,
C’s enrichment is justified by the contract with B and is not at A’s expense. In that
“second type” of case the court refused to impose enrichment liability on C. By contrast,
in a “first type” case (no contract between C and B, and A independently performs work
on C’s land), a direct enrichment claim by A against C would succeed under the
, condictio specialis (payment) or lien. The Appellate Division emphasised that absent a
direct benefit flowing from the claimant to the defendant, no enrichment action lies.
A striking illustration is Gouws v Jester Pools (Pty) Ltd (1968). There, A (the
contractor) built a swimming pool on C’s land at B’s request. The court held A had no
claim against C, because although C’s property was enriched by the pool, that
enrichment was at B’s expense, not A’s. As Jansen J explained, the contractor had
improved C’s property solely to benefit B; it would be unjust to saddle C for work
initiated by B. Hence the condictio failed on the “expense of” element.
The “at the expense of” requirement demands a close linkage: the defendant’s gain
must derive directly from the plaintiff’s loss. If the enrichment arises from a third party
or is justified by the defendant’s own contract, no claim will succeed. This rule prevents
indirect, multi-party benefits from giving rise to undue enrichment actions, thereby
ensuring fairness in allocating loss and gain among the parties.
, Question 2: The general enrichment action in McCarthy Retail Ltd v Shortdistance
Carriers CC
In McCarthy Retail Ltd v Shortdistance Carriers CC (2001) the Supreme Court of
Appeal (SCA) addressed whether South African law should recognise a broad “general
enrichment action” akin to a single condictio sine causa for all cases. Schutz JA
ultimately took a cautious stance. He observed that although a general action might
yield “an initial surge” of claims, in practice “only very few actions would succeed which
would not have succeeded under one or other of the old forms”. The SCA therefore
favoured preserving the traditional specific actions e.g. condictio indebiti, ob causam
finitam, etc. and only recognising a general action in truly exceptional cases where no
existing remedy sufficed. In his words, it is preferable “to let detailed rules stand, and be
supplemented by a general action which will fill gaps in a rare case, where even
extension of an old action is not sufficient”.
This statement has been the subject of academic comment. Supporters note that it
prevents an “open season” on courts by flooding them with speculative claims; most
enrichment disputes can indeed be channelled into known actions or lien remedies. For
example, earlier cases like Nortje v Pool and Brooklyn House Furnishers v Knoetze
implicitly applied various condictiones without invoking a new general form. Critics,
however, point out that adhering strictly to old forms can leave some injustices
unremedied. Some scholars e.g. D. P. Visser, G. W. de Kock argue the law should
more readily accept a general action when needed, rather than forcing a claimant into
an awkward old remedy. But the SCA was wary of reshaping long-established doctrine
without clear necessity. As Schutz JA observed, one concern was not to “defy gravity”
by opening the dikes of existing rules (alluding to an environment of established specific
actions).
PVL3704
EXAM PACK
DISTINCTION QUALITY
UNISA EXAM
, PVL3704 EXAM 2025
QUESTION 1
Discuss the ‘at the expense of requirement’ of enrichment liability. Refer to
relevant case law in your discussion.
In South African unjust-enrichment law,
One of the four essential elements of a claim is that defendant’s enrichment must have
been at the expense of the plaintiff. In other words, there must be a causal link between
the plaintiff’s loss and the defendant’s gain. This ensures that only those enrichments
traceable to the claimant can be reclaimed. In simple cases of direct transfer e.g. the
plaintiff pays the defendant, this causal link is usually clear. However, when a benefit
passes indirectly via third parties, difficulties arise.
For example, if A (contractor) contracts with B (lessee) to improve property owned by C,
and A expends money improving C’s property, the question is whether C has been
enriched at A’s expense or B’s. Courts will not allow A to claim from C if C’s enrichment
is really at B’s expense. In Buzzard Electrical (Pty) Ltd v 158 Jan Smuts Ave
Investments (Pty) Ltd, the Appellate Division analysed two such multi-party scenarios. It
held that if an owner C contracts with B who then subcontracts A, and A performs work,
C’s enrichment is justified by the contract with B and is not at A’s expense. In that
“second type” of case the court refused to impose enrichment liability on C. By contrast,
in a “first type” case (no contract between C and B, and A independently performs work
on C’s land), a direct enrichment claim by A against C would succeed under the
, condictio specialis (payment) or lien. The Appellate Division emphasised that absent a
direct benefit flowing from the claimant to the defendant, no enrichment action lies.
A striking illustration is Gouws v Jester Pools (Pty) Ltd (1968). There, A (the
contractor) built a swimming pool on C’s land at B’s request. The court held A had no
claim against C, because although C’s property was enriched by the pool, that
enrichment was at B’s expense, not A’s. As Jansen J explained, the contractor had
improved C’s property solely to benefit B; it would be unjust to saddle C for work
initiated by B. Hence the condictio failed on the “expense of” element.
The “at the expense of” requirement demands a close linkage: the defendant’s gain
must derive directly from the plaintiff’s loss. If the enrichment arises from a third party
or is justified by the defendant’s own contract, no claim will succeed. This rule prevents
indirect, multi-party benefits from giving rise to undue enrichment actions, thereby
ensuring fairness in allocating loss and gain among the parties.
, Question 2: The general enrichment action in McCarthy Retail Ltd v Shortdistance
Carriers CC
In McCarthy Retail Ltd v Shortdistance Carriers CC (2001) the Supreme Court of
Appeal (SCA) addressed whether South African law should recognise a broad “general
enrichment action” akin to a single condictio sine causa for all cases. Schutz JA
ultimately took a cautious stance. He observed that although a general action might
yield “an initial surge” of claims, in practice “only very few actions would succeed which
would not have succeeded under one or other of the old forms”. The SCA therefore
favoured preserving the traditional specific actions e.g. condictio indebiti, ob causam
finitam, etc. and only recognising a general action in truly exceptional cases where no
existing remedy sufficed. In his words, it is preferable “to let detailed rules stand, and be
supplemented by a general action which will fill gaps in a rare case, where even
extension of an old action is not sufficient”.
This statement has been the subject of academic comment. Supporters note that it
prevents an “open season” on courts by flooding them with speculative claims; most
enrichment disputes can indeed be channelled into known actions or lien remedies. For
example, earlier cases like Nortje v Pool and Brooklyn House Furnishers v Knoetze
implicitly applied various condictiones without invoking a new general form. Critics,
however, point out that adhering strictly to old forms can leave some injustices
unremedied. Some scholars e.g. D. P. Visser, G. W. de Kock argue the law should
more readily accept a general action when needed, rather than forcing a claimant into
an awkward old remedy. But the SCA was wary of reshaping long-established doctrine
without clear necessity. As Schutz JA observed, one concern was not to “defy gravity”
by opening the dikes of existing rules (alluding to an environment of established specific
actions).
