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STUDY UNIT 5 - CONDICTIO OB TURPEM VEL INIUSTAM
CAUSAM
D is a deputy-director in the Gauteng Provincial Department of Works and is responsible for managing certain contracts. E is a private
contractor who is contending for a certain contract to be awarded by the Department. E has paid D R20,000 in order that D ensure the
contract goes to E. D accepted the payment, but the contract was subsequently awarded to X on the recommendation of D. E has now
lodged a claim against D for repayment of the money. Advise D on the validity of the claim and any defences he may have. (10) (15)
A has sold uncut diamonds to B for an amount of R10 000,000 in contravention of statutory law. B
has paid the amount, but before the diamonds could be delivered, the money was confiscated by
the police during a raid at A’s house. Advice B on the availability of an enrichment action to
reclaim the R10 000,000. Refer in your answer to case law. (10)
In this case the contract between the parties is illegal due to it being contrary to the law. Such a
contract is, therefore, void from the outset. When a contract is void ab initio two enrichment actions
come into play:
1. condictio indebiti - if the contract is void for reasons other than illegality
2. condictio ob turpem vel iniustam causam - if the contract is void due to illegality.
The latter is relevant in this case and the requirements for the action and defences against it are:
1. Performance was rendered in terms of an illegal agreement.
An agreement may be deemed illegal:
(1) in terms of the common law where either the subject matter of the contract, its
object or its conclusion is contra bonos mores or against public policy; or
(2) Where it is prohibited expressly or by necessary implication by statute.
2. The other party was enriched at the expense of the plaintiff, who was impoverished by the
performance.
3. A tender was made to return any performance received by the plaintiff.
In Albertyn v Kumalo 1946 WPA 529 it was held that the plaintiff had to
tender the return of that which he had received from the defendant in terms of the
void contract when sueing with the rei vindicatio for the return of something which
he had delivered. The court decided obiter that this also applies to the present
condictio.
4. The plaintiff is not a turpis persona or there are cogent reasons why the par
delictum rule should not be strictly applied.
The right to institute this condictio is restricted by the par delictum rule, in terms of
which a party is not entitled to reclaim money or property if such a party is a turpis
persona, that is where his actions are tainted with turpitude or impropriety. That
which a party has performed in terms of an unlawful agreement is reclaimed with
this action. An agreement is unlawful if the conclusion thereof in itself, or the
performance or the aim of the parties, is contrary to common law, statute law, good
morals or the public interest. In the assessment of the unlawfulness or lawfulness an
objective criterion must be employed, that is the ignorance of the parties about the
unlawfulness is irrelevant.
Since the decision in Jajbhay v Cassim, the courts have exercised a general
discretion to relax the rule if simple justice requires it. In Jajbhay v Cassim the
Appellate Division held that the par delictum rule is not inflexible, and that the
shamefulness of the parties can be weighed up if it is in the public interest. The
court approaches the question whether a plaintiff who is a turpis persona (person
who acted in a shameful manner) can reclaim on the basis of ‘‘simple justice
between man and man’’. The fact that a plaintiff is a turpis persona therefore does
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not per se exclude his right to reclaim what he has performed, since he may well
succeed if the court finds that ‘‘simple justice between man and man’’ so requires.
Turpis persona tested subjectively
To determine whether a contract is unlawful, an objective test is used. To establish
whether a party is a turpis persona or has acted shamefully, a subjective test is used,
namely was the party to the unlawful agreement aware of the unlawfulness of the
agreement which implies that actual knowledge of the possible illegality of the
transaction is required.
Application to the facts
a) The contract is illegal in terms of statutory law.
b) The other party was enriched at the expense of the plaintiff, who was
impoverished by the performance.
c) Both parties are turpi personae as they were aware of the illegality of their
contract.
d) There is no reason for the court to relax the par delictum rule in these
circumstances.
A will not be successful with this enrichment action if the par delictum rule is strictly applied.
However, A may be successful if the court shows leniency and exercises its discretion to relax the
rule. However, courts will not be inclined to help a person who acted shamefully, contrary to
common law, statutory law, good morals or the public interest.
QUESTION 3:
Briefly discuss the condictio ob turpem with reference to Minister van Justisie v Van Heerden. (5)
In Minister van Justisie v Van Heerden a police officer in the employ of the plaintiff sold and
delivered diamonds to the defendant with a view to trapping him in the process of illicit diamond
dealing. The plaintiff then reclaimed the diamonds. Defendant’s defence was that the plaintiff had to
offer to return the R300. The court rejected this defence because the plaintiff was not affected by
the par delictum rule while the defendant was. Thus this case confirmed De Vos’s view that the
plaintiff need not tender to return what he has received if the defendant himself would have been
precluded from claiming by the par delictum rule.
check with proff
C has defrauded D by an amount of R400 000. C has paid the money into the bank account of X
Company (Pty) Ltd, of which C is the main shareholder and managing director. At the time of the
payment the bank account was overdrawn to the amount of R150 000. D wants to reclaim the
money. From whom would he claim the money: from D, X or from the bank N?
In FNB v Perry a forged and stolen cheque from KZN government (KZN) was handed by Dambha to
FPV, a stockbroking firm who then credited Dambha’s account with the amount. Both KZN and FPV
held accounts with the appellant FNB. FPV deposited the cheque into their FNB account and
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the funds were collected by FNB from the KZN account and credited to the account of FPV.
On instructions from Dambha, FPV made out a cheque in favour of a trust of which Dambha was a
trustee and the funds were deposited with Nedbank in accordance with Dambha’s instructions and
Nedbank credited the account of the trust.
The court accepted that the impoverished party in these circumstances was FPV, because they
ultimately bore the loss of the fraud perpetrated by Dambha. The court held that where funds are
transferred, the impoverished party is entitled to follow the funds as they pass from party to party as
long as they remain an identifiable unit.
In these circumstances it is the bank holding the money that is the enriched party as a result of the
illegal transactions. The appropriate action against the bank by the defrauded party would be the
condictio ob turpem, even though neither the conduct of the bank nor that of the defrauded party
was tainted by turpitude. The bank remains enriched as long as it holds the funds. If the bank
had paid out the money without knowledge of the fraud, its enrichment would have been
diminished. If it had paid the money with knowledge of the fraud, it would have remained liable to
the impoverished party.
D would reclaim the money with the condictio ob turpem from the bank holding the funds
then add requirements for ob turpem from above Q and application.
STUDY UNIT 6 - CONDICTIO CAUSA DATA CAUSA NON SECUTA
Scenario 1
A leaves B a piece of land subject to a modus that B must pay for C’s university education. B has failed to do so. The other heirs now
want to cancel the legacy because of the noncompliance with the modus.
Scenario 3
F and G have concluded a contract subject to a resolutive condition. F has paid R10 000 to G when the condition realises and the
contract is extinguished. Can F claim the money from G?
QUESTION 1 / VRAAG 1
A has donated R1000,000 to B on the condition that B gets married to A's oldest daughter X. At the time B and X were engaged. X,
however, has now had second thoughts and has broken the engagement. B has spent R30,000 of that money on an engagement ring
and R20,000 on a lavish holiday. Advise A in full on whether he has any claim against B, and if so discuss the basis for the claim in full as
well as the amount that could be claimed. (20)
Add next answer first.
In principle the plaintiff is allowed to claim the amount he has been impoverished, or the amount
the defendant has been enriched, whichever is the lesser. (1) The quantum of the enrichment claim
is calculated at the time the claim is instituted. (1)
Interest earned on money in the hands of the defendant before litis contestatio cannot be
claimed by the plaintiff, (1) but after mora the plaintiff can claim mora interest. (1)
If the defendant spent the money on something he would not have done if it wasn’t for the
enrichment, he can raise the defence of non-enrichment. (1) However, if all or part of what he spent
the money on (eg goods) is still of value and in his hands, he must offer the goods or the value of the
goods to the plaintiff. (1) If the goods are more valuable than the impoverishment, the difference
should be paid to the defendant. (1)
John leaves his car to Mary on condition that Mary pay for his son’s university education. Mary failed to do so. John’s heirs want to
cancel the legacy, which action can they use?
Write notes on the application and requirements for the condictio causa data (10)
(3) Write a critical analysis of the scope of application of the condictio causa data causa non secuta
in modern South African law.
Application in South African law
South African law of contract has developed to the point that contractual remedies now provide for
circumstances where the condictio causa data causa non secuta used to be implemented This action
is used to reclaim performance. There is uncertainty about the field of application of this action in
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STUDY UNIT 5 - CONDICTIO OB TURPEM VEL INIUSTAM
CAUSAM
D is a deputy-director in the Gauteng Provincial Department of Works and is responsible for managing certain contracts. E is a private
contractor who is contending for a certain contract to be awarded by the Department. E has paid D R20,000 in order that D ensure the
contract goes to E. D accepted the payment, but the contract was subsequently awarded to X on the recommendation of D. E has now
lodged a claim against D for repayment of the money. Advise D on the validity of the claim and any defences he may have. (10) (15)
A has sold uncut diamonds to B for an amount of R10 000,000 in contravention of statutory law. B
has paid the amount, but before the diamonds could be delivered, the money was confiscated by
the police during a raid at A’s house. Advice B on the availability of an enrichment action to
reclaim the R10 000,000. Refer in your answer to case law. (10)
In this case the contract between the parties is illegal due to it being contrary to the law. Such a
contract is, therefore, void from the outset. When a contract is void ab initio two enrichment actions
come into play:
1. condictio indebiti - if the contract is void for reasons other than illegality
2. condictio ob turpem vel iniustam causam - if the contract is void due to illegality.
The latter is relevant in this case and the requirements for the action and defences against it are:
1. Performance was rendered in terms of an illegal agreement.
An agreement may be deemed illegal:
(1) in terms of the common law where either the subject matter of the contract, its
object or its conclusion is contra bonos mores or against public policy; or
(2) Where it is prohibited expressly or by necessary implication by statute.
2. The other party was enriched at the expense of the plaintiff, who was impoverished by the
performance.
3. A tender was made to return any performance received by the plaintiff.
In Albertyn v Kumalo 1946 WPA 529 it was held that the plaintiff had to
tender the return of that which he had received from the defendant in terms of the
void contract when sueing with the rei vindicatio for the return of something which
he had delivered. The court decided obiter that this also applies to the present
condictio.
4. The plaintiff is not a turpis persona or there are cogent reasons why the par
delictum rule should not be strictly applied.
The right to institute this condictio is restricted by the par delictum rule, in terms of
which a party is not entitled to reclaim money or property if such a party is a turpis
persona, that is where his actions are tainted with turpitude or impropriety. That
which a party has performed in terms of an unlawful agreement is reclaimed with
this action. An agreement is unlawful if the conclusion thereof in itself, or the
performance or the aim of the parties, is contrary to common law, statute law, good
morals or the public interest. In the assessment of the unlawfulness or lawfulness an
objective criterion must be employed, that is the ignorance of the parties about the
unlawfulness is irrelevant.
Since the decision in Jajbhay v Cassim, the courts have exercised a general
discretion to relax the rule if simple justice requires it. In Jajbhay v Cassim the
Appellate Division held that the par delictum rule is not inflexible, and that the
shamefulness of the parties can be weighed up if it is in the public interest. The
court approaches the question whether a plaintiff who is a turpis persona (person
who acted in a shameful manner) can reclaim on the basis of ‘‘simple justice
between man and man’’. The fact that a plaintiff is a turpis persona therefore does
1
, 2
not per se exclude his right to reclaim what he has performed, since he may well
succeed if the court finds that ‘‘simple justice between man and man’’ so requires.
Turpis persona tested subjectively
To determine whether a contract is unlawful, an objective test is used. To establish
whether a party is a turpis persona or has acted shamefully, a subjective test is used,
namely was the party to the unlawful agreement aware of the unlawfulness of the
agreement which implies that actual knowledge of the possible illegality of the
transaction is required.
Application to the facts
a) The contract is illegal in terms of statutory law.
b) The other party was enriched at the expense of the plaintiff, who was
impoverished by the performance.
c) Both parties are turpi personae as they were aware of the illegality of their
contract.
d) There is no reason for the court to relax the par delictum rule in these
circumstances.
A will not be successful with this enrichment action if the par delictum rule is strictly applied.
However, A may be successful if the court shows leniency and exercises its discretion to relax the
rule. However, courts will not be inclined to help a person who acted shamefully, contrary to
common law, statutory law, good morals or the public interest.
QUESTION 3:
Briefly discuss the condictio ob turpem with reference to Minister van Justisie v Van Heerden. (5)
In Minister van Justisie v Van Heerden a police officer in the employ of the plaintiff sold and
delivered diamonds to the defendant with a view to trapping him in the process of illicit diamond
dealing. The plaintiff then reclaimed the diamonds. Defendant’s defence was that the plaintiff had to
offer to return the R300. The court rejected this defence because the plaintiff was not affected by
the par delictum rule while the defendant was. Thus this case confirmed De Vos’s view that the
plaintiff need not tender to return what he has received if the defendant himself would have been
precluded from claiming by the par delictum rule.
check with proff
C has defrauded D by an amount of R400 000. C has paid the money into the bank account of X
Company (Pty) Ltd, of which C is the main shareholder and managing director. At the time of the
payment the bank account was overdrawn to the amount of R150 000. D wants to reclaim the
money. From whom would he claim the money: from D, X or from the bank N?
In FNB v Perry a forged and stolen cheque from KZN government (KZN) was handed by Dambha to
FPV, a stockbroking firm who then credited Dambha’s account with the amount. Both KZN and FPV
held accounts with the appellant FNB. FPV deposited the cheque into their FNB account and
2
, 3
the funds were collected by FNB from the KZN account and credited to the account of FPV.
On instructions from Dambha, FPV made out a cheque in favour of a trust of which Dambha was a
trustee and the funds were deposited with Nedbank in accordance with Dambha’s instructions and
Nedbank credited the account of the trust.
The court accepted that the impoverished party in these circumstances was FPV, because they
ultimately bore the loss of the fraud perpetrated by Dambha. The court held that where funds are
transferred, the impoverished party is entitled to follow the funds as they pass from party to party as
long as they remain an identifiable unit.
In these circumstances it is the bank holding the money that is the enriched party as a result of the
illegal transactions. The appropriate action against the bank by the defrauded party would be the
condictio ob turpem, even though neither the conduct of the bank nor that of the defrauded party
was tainted by turpitude. The bank remains enriched as long as it holds the funds. If the bank
had paid out the money without knowledge of the fraud, its enrichment would have been
diminished. If it had paid the money with knowledge of the fraud, it would have remained liable to
the impoverished party.
D would reclaim the money with the condictio ob turpem from the bank holding the funds
then add requirements for ob turpem from above Q and application.
STUDY UNIT 6 - CONDICTIO CAUSA DATA CAUSA NON SECUTA
Scenario 1
A leaves B a piece of land subject to a modus that B must pay for C’s university education. B has failed to do so. The other heirs now
want to cancel the legacy because of the noncompliance with the modus.
Scenario 3
F and G have concluded a contract subject to a resolutive condition. F has paid R10 000 to G when the condition realises and the
contract is extinguished. Can F claim the money from G?
QUESTION 1 / VRAAG 1
A has donated R1000,000 to B on the condition that B gets married to A's oldest daughter X. At the time B and X were engaged. X,
however, has now had second thoughts and has broken the engagement. B has spent R30,000 of that money on an engagement ring
and R20,000 on a lavish holiday. Advise A in full on whether he has any claim against B, and if so discuss the basis for the claim in full as
well as the amount that could be claimed. (20)
Add next answer first.
In principle the plaintiff is allowed to claim the amount he has been impoverished, or the amount
the defendant has been enriched, whichever is the lesser. (1) The quantum of the enrichment claim
is calculated at the time the claim is instituted. (1)
Interest earned on money in the hands of the defendant before litis contestatio cannot be
claimed by the plaintiff, (1) but after mora the plaintiff can claim mora interest. (1)
If the defendant spent the money on something he would not have done if it wasn’t for the
enrichment, he can raise the defence of non-enrichment. (1) However, if all or part of what he spent
the money on (eg goods) is still of value and in his hands, he must offer the goods or the value of the
goods to the plaintiff. (1) If the goods are more valuable than the impoverishment, the difference
should be paid to the defendant. (1)
John leaves his car to Mary on condition that Mary pay for his son’s university education. Mary failed to do so. John’s heirs want to
cancel the legacy, which action can they use?
Write notes on the application and requirements for the condictio causa data (10)
(3) Write a critical analysis of the scope of application of the condictio causa data causa non secuta
in modern South African law.
Application in South African law
South African law of contract has developed to the point that contractual remedies now provide for
circumstances where the condictio causa data causa non secuta used to be implemented This action
is used to reclaim performance. There is uncertainty about the field of application of this action in
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