PVL3704___LATEST_ASSIGNMENT_PACK_2020/2023

) 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 recl