, PVL3704 ASSIGNMENT 1 SEMESTER 2 2025
DUE DATE: 21 AUGUST 2025
QUESTION 1
DISCUSS IN GENERAL (WITHOUT REFERENCE TO A SPECIFIC
ENRICHMENT ACTION) HOW THE EXTENT OF ENRICHMENT LIABILITY
(OR THE QUANTUM OF THE ENRICHMENT CLAIM) WILL BE
CALCULATED (15)
THE “LESSER OF THE TWO” PRINCIPLE
At the core of calculating enrichment liability lies the "lesser of the two" rule.
This principle dictates that the quantum of the enrichment claim is confined to
the lesser between the plaintiff’s impoverishment and the defendant’s
enrichment. The courts have repeatedly affirmed this in leading decisions,
notably in McCarthy Retail Ltd v Shortdistance Carriers CC, where it was held
that a defendant cannot be ordered to pay more than they were enriched, nor
should a plaintiff recover more than they lost1. This rule balances equity by
neither unduly enriching the plaintiff nor impoverishing the defendant.
For example, if a plaintiff mistakenly builds a structure worth R200 000 on the
defendant's land, but the market value of the property increases by only R120
000, the enrichment is limited to R120 000. Conversely, if the defendant is
enriched by R150 000 but the plaintiff’s impoverishment was only R90 000,
the claim is limited to R90 000. The lower of the two figures determines the
maximum recoverable amount under unjustified enrichment law2.
1
McCarthy Retail Ltd v Shortdistance Carriers CC 2001 (3) SA 482 (SCA) at 489E–F.
2
Lotz, J.G. & Brand, D. (2015). "Enrichment" in LAWSA, Vol. 9(2), 3rd ed. Durban: LexisNexis, para 104.
DUE DATE: 21 AUGUST 2025
QUESTION 1
DISCUSS IN GENERAL (WITHOUT REFERENCE TO A SPECIFIC
ENRICHMENT ACTION) HOW THE EXTENT OF ENRICHMENT LIABILITY
(OR THE QUANTUM OF THE ENRICHMENT CLAIM) WILL BE
CALCULATED (15)
THE “LESSER OF THE TWO” PRINCIPLE
At the core of calculating enrichment liability lies the "lesser of the two" rule.
This principle dictates that the quantum of the enrichment claim is confined to
the lesser between the plaintiff’s impoverishment and the defendant’s
enrichment. The courts have repeatedly affirmed this in leading decisions,
notably in McCarthy Retail Ltd v Shortdistance Carriers CC, where it was held
that a defendant cannot be ordered to pay more than they were enriched, nor
should a plaintiff recover more than they lost1. This rule balances equity by
neither unduly enriching the plaintiff nor impoverishing the defendant.
For example, if a plaintiff mistakenly builds a structure worth R200 000 on the
defendant's land, but the market value of the property increases by only R120
000, the enrichment is limited to R120 000. Conversely, if the defendant is
enriched by R150 000 but the plaintiff’s impoverishment was only R90 000,
the claim is limited to R90 000. The lower of the two figures determines the
maximum recoverable amount under unjustified enrichment law2.
1
McCarthy Retail Ltd v Shortdistance Carriers CC 2001 (3) SA 482 (SCA) at 489E–F.
2
Lotz, J.G. & Brand, D. (2015). "Enrichment" in LAWSA, Vol. 9(2), 3rd ed. Durban: LexisNexis, para 104.
