NAME :
STUDENT NUMBER :
SUBJECT : THE LAW OF DAMAGES
MODULE CODE : LPL4802
UNIQUE NUMBER : N/A
ASSESSMENT TYPE: TAKE HOME EXAMINATION
DUE DATE : 28 OCTOBER 2022
Honesty Declaration:
In writing and submitting this paper i affirm that:
1. I understand what academic dishonesty entails and are aware of UNISA’s
policies in this regard.
2. I have not allowed, and will not allow, anyone to copy my work with the
intention of passing it off as his or her own work.
3. I did not make use of another student’s work with or without permission
and submitted it as your own.
, Date: XXXXXXXXXXXXXXXXXXX
Signature: XXXXXXXXXXXXXXX
QUESTION 1: ESSAY
PATRIMONAL DAMAGES FOR LOSS
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 still plays a significant
role here. The fraud being referred in this situation is not 'fraud' in the criminal sense of
1
Fenhalls v Ebrahim 1956(4) SA 723(N).
2
Andre Boraine, ‘Towards Codifying The Actio Pauliana’ (1996) 8 S. Afr. MerL.J. 225.
STUDENT NUMBER :
SUBJECT : THE LAW OF DAMAGES
MODULE CODE : LPL4802
UNIQUE NUMBER : N/A
ASSESSMENT TYPE: TAKE HOME EXAMINATION
DUE DATE : 28 OCTOBER 2022
Honesty Declaration:
In writing and submitting this paper i affirm that:
1. I understand what academic dishonesty entails and are aware of UNISA’s
policies in this regard.
2. I have not allowed, and will not allow, anyone to copy my work with the
intention of passing it off as his or her own work.
3. I did not make use of another student’s work with or without permission
and submitted it as your own.
, Date: XXXXXXXXXXXXXXXXXXX
Signature: XXXXXXXXXXXXXXX
QUESTION 1: ESSAY
PATRIMONAL DAMAGES FOR LOSS
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 still plays a significant
role here. The fraud being referred in this situation is not 'fraud' in the criminal sense of
1
Fenhalls v Ebrahim 1956(4) SA 723(N).
2
Andre Boraine, ‘Towards Codifying The Actio Pauliana’ (1996) 8 S. Afr. MerL.J. 225.
