n Stellenbosch Law Review = Stellenbosch Regstydskrif - Wegval of vermindering van verryking as verweer

Volume 17, Issue 3
  • ISSN : 1016-4359
  • E-ISSN: 1996-2193



It is generally accepted that the quantum of the liability of the unjustifiedly enriched party is the lesser of either the amount by which he has been enriched or the amount by which the claimant has been impoverished <i>sine causa&lt;/i&gt; at <i>litis contestatio.&lt;/i&gt; Some qualifications to this general rule have been acknowledged since Roman law. One of the exceptions concerns the defendant who had knowledge or implied knowledge of the unjustified enrichment. Where the enriched party was aware of the unjustified enrichment or where such knowledge is imputed to him, he cannot plead the diminishment of the quantum of the enrichment. He will be liable to compensate the claimant the full amount of the latter's impoverishment. <br>In <i>Mndi v Malgas&lt;/i&gt; 2006 2 SA 182 (EPD) the claimant was charged and paid exorbitant interest rates of 30% per month on a personal loan by the appellant. The interest claimed and paid clearly exceeded the statutory maximum then allowed under the Usury Act 73 of 1968 of 32% per year. Under the Act, any claim for interest that exceeded the stated maximum is without any legal foundation and constitutes an offence. Section 7 explicitly states: ''Any borrower or credit receiver . . . who . . . has paid an amount which exceeds the amount which in terms of this Act could lawfully have been recovered from him in connection with such transaction, may, at any time within a period of three years as from the date of such payment, recover from the person to whom he made the payment, a sum equal to the amount overpaid by him.'' <br>In the &lt;i&gt;Mndi&lt;/i&gt; case the court found that the enrichment of the appellant was unjustified, but held that the claimant could only partially succeed with her claim for the recovery of the interest of more than R28 692, 60 that she transferred into the banking account of the appellant. The court held that the claim must be limited to a mere R4 435, 40, ie, to the extent that the appellant retained the interest she received. The appellant purported that she paid five-sixth of the excess interest to her club members in their illegal loan scheme. <br>It is submitted that this decision not only does not indicate why the statutory measure of ''a sum equal to the amount overpaid'' was not applied, but neglected to refer to the qualification of the enrichment principle. It must be assumed that the appellant should have been aware that the claimed interest rate was illegal and the subsequent reception of the amount in her account unjustified.

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