CONFIDENTIAL
Page 1 of 15
PVL3704
Oct/Nov 2025
UNIVERSITY EXAMINATIONS
Memorandum
October/November 2025
PVL3704
Enrichment Liability and Estoppel
100 Marks
3 Hours (14:45 – 17:45)
Date of Exam: 14 October 2025
This paper consists of 9 pages.
This is a closed-book examination
Instructions:
, CONFIDENTIAL
Page 2 of 15
PVL3704
Oct/Nov 2025
QUESTION 1
Write a critical discussion on the existence of a general enrichment action in South African law. (15)
Study unit 14 on study guide 1
The law of unjustified enrichment in South Africa is one of the most debated and conceptually complex areas of
private law. The central question, which has persisted for more than a century, concerns whether South African law
recognises a general enrichment action — a single, all-embracing cause of action that applies whenever one party
is enriched at the expense of another without legal justification. While early academic opinion and case law vacillated
on this issue, the courts have, since the Nortjé en ’n Ander v Pool NO 1966 (3) SA 96 (A) decision, consistently
denied the existence of such a general action. Nonetheless, contemporary developments, including the influence of
constitutional values such as Ubuntu, continue to challenge and shape this position. Before 1966, a number of South
African jurists believed that our law recognised a subsidiary general enrichment action that operated alongside the
traditional Roman-Dutch enrichment actions (e.g., the condictio indebiti, condictio ob turpem vel iniustam causam,
condictio causa data causa non secuta, and actio negotiorum gestorum). The idea was that this subsidiary action
would serve as a safety net for cases not covered by the classical actions, potentially evolving into an all-embracing
general action for unjustified enrichment.
Cases such as Knoll v SA Flooring Industries Ltd 1951 (1) SA 404 (T) and Pretorius v Van Zyl 1927 OPD 226
suggested that courts were willing to grant relief based on a general principle prohibiting unjust enrichment. However,
other decisions, notably Brunsdon’s Estate v Brunsdon’s Estate 1920 CPD 159 and Muller v Grobbelaar 1946
OPD 272, expressly denied the existence of a general enrichment action. This division in authority highlighted the
uncertainty within our jurisprudence. Academic writers, too, were divided. Early editions of De Vos’s work on
unjustified enrichment concluded that Roman-Dutch law did not recognise such a general action, as the Hooge
Raad in Holland had only rarely granted remedies ex aequitate (out of fairness) where no specific action applied.
However, later discoveries by scholars like Scholtens (1966 SALJ 391) and the publication of the Observationes
Tumultuariae Novae of Willem Pauw revealed additional Dutch decisions supporting a more general enrichment
liability. Unfortunately, these materials were not before the court in Nortjé, which might have influenced its outcome.
2. The Nortjé Case: The Turning Point
The pivotal decision in Nortjé en ’n Ander v Pool NO 1966 (3) SA 96 (A) settled at least formally that South African
law did not recognise a general enrichment action. In Nortjé, A had obtained rights to prospect for kaolin on B’s land.
After prospecting, A discovered kaolin but derived no benefit, while B’s land arguably increased in value. A sought to
recover this enrichment from B. The Appellate Division, per Botha JA, held that no general enrichment action existed
in South African law. The recognised enrichment actions were limited and specific; A’s claim did not fall within any of
them. The court reasoned that if such a claim were to succeed, it would have to be on the basis of a general
enrichment principle, which our law had not yet adopted. Botha JA did, however, leave the door open for future
development, noting that while South African law had not yet reached the stage of recognising a general action,
“such a development might still take place.”Thus, Nortjé formally rejected a general enrichment action but
acknowledged the potential for its evolution in line with legal and societal developments. Although Nortjé remains the
formal authority, subsequent decisions have revealed judicial discomfort with the rigidity of the specific enrichment
actions. In Nissan South Africa (Pty) Ltd v Marnitz NO and Others 2006 (4) SA 272 (SCA) and McCarthy Retail
Ltd v Shortdistance Carriers CC 2001 (3) SA 482 (SCA), the Supreme Court of Appeal (SCA) appeared to decide
enrichment matters without strict reference to the requirements of the specific actions. In Nissan, for instance, the SCA
granted relief without identifying whether the claim fell under any of the traditional condictiones. Similarly, in the
Glenrand MIB Ltd v PricewaterhouseCoopers Inc 2010 (3) SA 320 (SCA) case, the court emphasised equitable
considerations and practical justice over strict formalism. These cases suggest a functional convergence towards a
general enrichment principle, even though the courts refrain from explicitly acknowledging it as such. The academic
Page 1 of 15
PVL3704
Oct/Nov 2025
UNIVERSITY EXAMINATIONS
Memorandum
October/November 2025
PVL3704
Enrichment Liability and Estoppel
100 Marks
3 Hours (14:45 – 17:45)
Date of Exam: 14 October 2025
This paper consists of 9 pages.
This is a closed-book examination
Instructions:
, CONFIDENTIAL
Page 2 of 15
PVL3704
Oct/Nov 2025
QUESTION 1
Write a critical discussion on the existence of a general enrichment action in South African law. (15)
Study unit 14 on study guide 1
The law of unjustified enrichment in South Africa is one of the most debated and conceptually complex areas of
private law. The central question, which has persisted for more than a century, concerns whether South African law
recognises a general enrichment action — a single, all-embracing cause of action that applies whenever one party
is enriched at the expense of another without legal justification. While early academic opinion and case law vacillated
on this issue, the courts have, since the Nortjé en ’n Ander v Pool NO 1966 (3) SA 96 (A) decision, consistently
denied the existence of such a general action. Nonetheless, contemporary developments, including the influence of
constitutional values such as Ubuntu, continue to challenge and shape this position. Before 1966, a number of South
African jurists believed that our law recognised a subsidiary general enrichment action that operated alongside the
traditional Roman-Dutch enrichment actions (e.g., the condictio indebiti, condictio ob turpem vel iniustam causam,
condictio causa data causa non secuta, and actio negotiorum gestorum). The idea was that this subsidiary action
would serve as a safety net for cases not covered by the classical actions, potentially evolving into an all-embracing
general action for unjustified enrichment.
Cases such as Knoll v SA Flooring Industries Ltd 1951 (1) SA 404 (T) and Pretorius v Van Zyl 1927 OPD 226
suggested that courts were willing to grant relief based on a general principle prohibiting unjust enrichment. However,
other decisions, notably Brunsdon’s Estate v Brunsdon’s Estate 1920 CPD 159 and Muller v Grobbelaar 1946
OPD 272, expressly denied the existence of a general enrichment action. This division in authority highlighted the
uncertainty within our jurisprudence. Academic writers, too, were divided. Early editions of De Vos’s work on
unjustified enrichment concluded that Roman-Dutch law did not recognise such a general action, as the Hooge
Raad in Holland had only rarely granted remedies ex aequitate (out of fairness) where no specific action applied.
However, later discoveries by scholars like Scholtens (1966 SALJ 391) and the publication of the Observationes
Tumultuariae Novae of Willem Pauw revealed additional Dutch decisions supporting a more general enrichment
liability. Unfortunately, these materials were not before the court in Nortjé, which might have influenced its outcome.
2. The Nortjé Case: The Turning Point
The pivotal decision in Nortjé en ’n Ander v Pool NO 1966 (3) SA 96 (A) settled at least formally that South African
law did not recognise a general enrichment action. In Nortjé, A had obtained rights to prospect for kaolin on B’s land.
After prospecting, A discovered kaolin but derived no benefit, while B’s land arguably increased in value. A sought to
recover this enrichment from B. The Appellate Division, per Botha JA, held that no general enrichment action existed
in South African law. The recognised enrichment actions were limited and specific; A’s claim did not fall within any of
them. The court reasoned that if such a claim were to succeed, it would have to be on the basis of a general
enrichment principle, which our law had not yet adopted. Botha JA did, however, leave the door open for future
development, noting that while South African law had not yet reached the stage of recognising a general action,
“such a development might still take place.”Thus, Nortjé formally rejected a general enrichment action but
acknowledged the potential for its evolution in line with legal and societal developments. Although Nortjé remains the
formal authority, subsequent decisions have revealed judicial discomfort with the rigidity of the specific enrichment
actions. In Nissan South Africa (Pty) Ltd v Marnitz NO and Others 2006 (4) SA 272 (SCA) and McCarthy Retail
Ltd v Shortdistance Carriers CC 2001 (3) SA 482 (SCA), the Supreme Court of Appeal (SCA) appeared to decide
enrichment matters without strict reference to the requirements of the specific actions. In Nissan, for instance, the SCA
granted relief without identifying whether the claim fell under any of the traditional condictiones. Similarly, in the
Glenrand MIB Ltd v PricewaterhouseCoopers Inc 2010 (3) SA 320 (SCA) case, the court emphasised equitable
considerations and practical justice over strict formalism. These cases suggest a functional convergence towards a
general enrichment principle, even though the courts refrain from explicitly acknowledging it as such. The academic
