PVL3704 EXAM PACK
2026
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, lOMoARcPSD|44660598
Exam Notes Unjustified Enrichment and Estoppel – PVL3704
Question
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.
Answer: 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. The quantum of the enrichment claim is calculated at the time the claim is
instituted. That means that the defendant is not liable for benefits that he due to his
enrichment could have gained but didn’t. If the defendant’s enrichment has been
reduced or extinguished before the claim has been instituted, his liability will also
be reduced or extinguished. The onus to prove non-enrichment lies with the
defendant.
In four instances the quantum will be calculated sooner, meaning before the date of
institution of the action:
(a) at the moment the defendant becomes aware of enrichment
(b) at an earlier stage if the defendant should have known that the benefit wasn’t
justified
(c) when the defendant fell into mora and an earlier date if the defendant acted
mala fide.
These exceptions do not apply in the case of minors. In quantifying the claim all
positive and negative side-effects should be considered. Interest earned on money
in the hands of the defendant before litis contestatio cannot be claimed by the
plaintiff, but after mora the plaintiff could claim mora interest If the defendant spent
the money on something he would not have done if it wasn’t for the enrichment, he
can raise the defense of non-enrichment. However, if all or part of what he spent
the money on (e.g. goods) is still of value and in his hands, he must offer the goods
or the value of the goods to the plaintiff. If the goods are more valuable than the
impoverishment, the difference should be paid to the defendant.
Question
A owns a factory manufacturing steel in a continuous process. His monthly
electricity bill averages R100 000. He just received a letter from the
Johannesburg Municipality in which they threaten to cut his electricity if
he doesn’t immediately pay his “arrear account of R300 000”. A knows
that there must be a mistake, because his account is paid in full, but also
knows that if there is a disruption in his electricity supply, he will suffer
severe losses. He pays the amount immediately and sends a letter of
complaint with. Advise A whether he will be able to reclaim the R300 000
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, lOMoARcPSD|44660598
he paid, and with which remedy? In your answer discuss the requirements
for this remedy.
Answer: 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. Requirements for
the action
Transfer of ownership in the form of payment of money or delivery of a
specific object
Payment has to take place under the mistaken belief that the performance
was owing.
The mistake, either a legal or factual mistake, must have been reasonable in
the circumstances (iustus error).
In general, a party cannot reclaim performance with the condictio indebiti if he
was aware that the performance wasn’t owing. Such conduct will be regarded as
a donation, unless it was made under threat or protest. For A to succeed with the
condictio indebiti against the Johannesburg Municipality in these circumstances
he, firstly, had to prove that he didn’t owe the Municipality the R300 000.
Secondly, that the payment was made involuntarily under the threat that the
electricity supply will be suspended if payment wasn’t made. Thirdly, that A
protested against the amount to be paid at the time of payment by sending a
letter of complaint with. Conclusion A will be able to prove all three requirements
under this exception and will therefore be successful with this enrichment action
against the Johannesburg Municipality.
Question
Discuss the nature and extent of enrichment claims without referring
to any specific action.
Answer: A claim that is based on unjustified enrichment is, first and foremost, a
claim to have the specific item concerned transferred in ownership, or for the
occupation or possession to be retransferred to the original owner, occupier, or
holder. In general, the enrichment liability of a party is fixed, or calculated with
reference to the date on which the enrichment action was lodged (at litis
contestatio).
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. The
quantum of the enrichment claim is calculated at the time the claim is instituted.
That means that the defendant is not liable for benefits that, due to his enrichment,
could have gained, but didn’t. If the defendant’s enrichment has been reduced or
extinguished before the claim has been instituted, his liability will also be reduced
or extinguished. The onus to prove non-enrichment lies with the defendant.
In four instances the quantum will be calculated before the date of institution of the
action:
(a) at the moment the defendant becomes aware of enrichment
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, lOMoARcPSD|44660598
(b) at an earlier stage if the defendant should have known that the benefit wasn’t
justified
(c) when the defendant fell into mora; and
(d) an earlier date if the defendant acted mala fide
These exceptions do not apply in the case of minors.
In quantifying the claim all positive and negative side-effects should be taken into
account. Interest earned on money in the hands of the defendant before litis
contestatio cannot be claimed by the plaintiff, but after mora the plaintiff can claim
mora interest. If the defendant spent the money on something he would not have
done if it wasn’t for the enrichment, he can raise the defense of non-enrichment.
However, if all or part of what he spent the money on (e.g., goods) is still of value
and in his hands, he must offer the goods or the value of the goods to the plaintiff. If
the goods are more valuable than the impoverishment, the difference should be
paid to the defendant.
Question
Discuss with reference to case law and the opinions of writers whether a
general enrichment action exists in South African Law.
Answer: Reference to case law the enrichment actions of classical Roman-
Dutch law are still available to a plaintiff in current South African law. The South
African courts have also recognized liability for enrichment in a number of
circumstances where none of the old actions was applicable, thereby extending the
scope of unjustified enrichment liability in South African law.
With regard to such extensions of enrichment liability, the majority of South African
academics had, by 1966, concluded that a general subsidiary enrichment action
had developed in South African law that would apply in any case of unjustified
enrichment where none of the previous actions were available. The view was,
therefore, that where the circumstances of a particular case fell within the scope of
one of the existing Roman-Dutch law actions, the plaintiff had to rely on the
particular action in question. If, however, the circumstances of his or her case fell
outside the scope of any of the existing actions, he or she could rely on the scope of
a general enrichment action. Consequently, the view was not that a general
enrichment action had been substituted for the existing actions, but that a general
action had been developed that was additional, and subsidiary, to the existing
actions.
Opinions of writers
How we have reached our present state is a matter of history. The Roman law,
although containing several general affirmations of liability for unjustified
enrichment, did not evolve a general action. Nor did the mediaeval writers,
although there are some who would challenge this statement. But there is a strong,
if by no means unanimous, body of academic opinion that Grotius, influenced by
Page 3 of 30
2026
FOR ASSISTANCE CONTACT
EMAIL:
, lOMoARcPSD|44660598
Exam Notes Unjustified Enrichment and Estoppel – PVL3704
Question
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.
Answer: 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. The quantum of the enrichment claim is calculated at the time the claim is
instituted. That means that the defendant is not liable for benefits that he due to his
enrichment could have gained but didn’t. If the defendant’s enrichment has been
reduced or extinguished before the claim has been instituted, his liability will also
be reduced or extinguished. The onus to prove non-enrichment lies with the
defendant.
In four instances the quantum will be calculated sooner, meaning before the date of
institution of the action:
(a) at the moment the defendant becomes aware of enrichment
(b) at an earlier stage if the defendant should have known that the benefit wasn’t
justified
(c) when the defendant fell into mora and an earlier date if the defendant acted
mala fide.
These exceptions do not apply in the case of minors. In quantifying the claim all
positive and negative side-effects should be considered. Interest earned on money
in the hands of the defendant before litis contestatio cannot be claimed by the
plaintiff, but after mora the plaintiff could claim mora interest If the defendant spent
the money on something he would not have done if it wasn’t for the enrichment, he
can raise the defense of non-enrichment. However, if all or part of what he spent
the money on (e.g. goods) is still of value and in his hands, he must offer the goods
or the value of the goods to the plaintiff. If the goods are more valuable than the
impoverishment, the difference should be paid to the defendant.
Question
A owns a factory manufacturing steel in a continuous process. His monthly
electricity bill averages R100 000. He just received a letter from the
Johannesburg Municipality in which they threaten to cut his electricity if
he doesn’t immediately pay his “arrear account of R300 000”. A knows
that there must be a mistake, because his account is paid in full, but also
knows that if there is a disruption in his electricity supply, he will suffer
severe losses. He pays the amount immediately and sends a letter of
complaint with. Advise A whether he will be able to reclaim the R300 000
Page 1 of 30
, lOMoARcPSD|44660598
he paid, and with which remedy? In your answer discuss the requirements
for this remedy.
Answer: 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. Requirements for
the action
Transfer of ownership in the form of payment of money or delivery of a
specific object
Payment has to take place under the mistaken belief that the performance
was owing.
The mistake, either a legal or factual mistake, must have been reasonable in
the circumstances (iustus error).
In general, a party cannot reclaim performance with the condictio indebiti if he
was aware that the performance wasn’t owing. Such conduct will be regarded as
a donation, unless it was made under threat or protest. For A to succeed with the
condictio indebiti against the Johannesburg Municipality in these circumstances
he, firstly, had to prove that he didn’t owe the Municipality the R300 000.
Secondly, that the payment was made involuntarily under the threat that the
electricity supply will be suspended if payment wasn’t made. Thirdly, that A
protested against the amount to be paid at the time of payment by sending a
letter of complaint with. Conclusion A will be able to prove all three requirements
under this exception and will therefore be successful with this enrichment action
against the Johannesburg Municipality.
Question
Discuss the nature and extent of enrichment claims without referring
to any specific action.
Answer: A claim that is based on unjustified enrichment is, first and foremost, a
claim to have the specific item concerned transferred in ownership, or for the
occupation or possession to be retransferred to the original owner, occupier, or
holder. In general, the enrichment liability of a party is fixed, or calculated with
reference to the date on which the enrichment action was lodged (at litis
contestatio).
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. The
quantum of the enrichment claim is calculated at the time the claim is instituted.
That means that the defendant is not liable for benefits that, due to his enrichment,
could have gained, but didn’t. If the defendant’s enrichment has been reduced or
extinguished before the claim has been instituted, his liability will also be reduced
or extinguished. The onus to prove non-enrichment lies with the defendant.
In four instances the quantum will be calculated before the date of institution of the
action:
(a) at the moment the defendant becomes aware of enrichment
Page 2 of 30
, lOMoARcPSD|44660598
(b) at an earlier stage if the defendant should have known that the benefit wasn’t
justified
(c) when the defendant fell into mora; and
(d) an earlier date if the defendant acted mala fide
These exceptions do not apply in the case of minors.
In quantifying the claim all positive and negative side-effects should be taken into
account. Interest earned on money in the hands of the defendant before litis
contestatio cannot be claimed by the plaintiff, but after mora the plaintiff can claim
mora interest. If the defendant spent the money on something he would not have
done if it wasn’t for the enrichment, he can raise the defense of non-enrichment.
However, if all or part of what he spent the money on (e.g., goods) is still of value
and in his hands, he must offer the goods or the value of the goods to the plaintiff. If
the goods are more valuable than the impoverishment, the difference should be
paid to the defendant.
Question
Discuss with reference to case law and the opinions of writers whether a
general enrichment action exists in South African Law.
Answer: Reference to case law the enrichment actions of classical Roman-
Dutch law are still available to a plaintiff in current South African law. The South
African courts have also recognized liability for enrichment in a number of
circumstances where none of the old actions was applicable, thereby extending the
scope of unjustified enrichment liability in South African law.
With regard to such extensions of enrichment liability, the majority of South African
academics had, by 1966, concluded that a general subsidiary enrichment action
had developed in South African law that would apply in any case of unjustified
enrichment where none of the previous actions were available. The view was,
therefore, that where the circumstances of a particular case fell within the scope of
one of the existing Roman-Dutch law actions, the plaintiff had to rely on the
particular action in question. If, however, the circumstances of his or her case fell
outside the scope of any of the existing actions, he or she could rely on the scope of
a general enrichment action. Consequently, the view was not that a general
enrichment action had been substituted for the existing actions, but that a general
action had been developed that was additional, and subsidiary, to the existing
actions.
Opinions of writers
How we have reached our present state is a matter of history. The Roman law,
although containing several general affirmations of liability for unjustified
enrichment, did not evolve a general action. Nor did the mediaeval writers,
although there are some who would challenge this statement. But there is a strong,
if by no means unanimous, body of academic opinion that Grotius, influenced by
Page 3 of 30
