n Stellenbosch Law Review = Stellenbosch Regstydskrif - Reflections on the requirement and the in South African law

Volume 20, Issue 3
  • ISSN : 1016-4359
  • E-ISSN: 1996-2193



The present interesting and difficult challenges of classification for the modern South African jurist. Their casuistic development has made them difficult to work with, and for a long time it was argued that a single general enrichment action should take their place. But the Supreme Court of Appeal in 2001 3 SA 482 (SCA) chose not to follow this path, and instead preferred the idea that a general enrichment action should be subsidiary to the traditional actions. This has breathed new life into debates on the future of the . This article first examines the current range of application of the . It then proceeds to show how the courts in the first decade of the 21st century seem to have eschewed the technicalities inherent in pleading the , and have preferred rather to resolve cases by applying the general requirements of enrichment liability, in contrast to the injunction in . The difficulty with this approach is the lack of substance that is given to the requirement. The article proceeds to examine the various theories about how we in South Africa should understand and give content to the requirement. This provides a springboard for considering the possible futures of the . Broadly, it seems that two options are possible: either to collapse the into one action to deal with cases of enrichment by transfer; or largely to retain the status quo. The most recent decisions of the Supreme Court of Appeal indicate that the latter, more conservative option is likely to be chosen in the short-term. If this approach is to be adopted, it will require a further review of how each of the constituent fulfils a particular function. A revisionist view of the is postulated by way of example.

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