n Tydskrif vir die Suid-Afrikaanse Reg - Claiming the return of property with an enrichment remedy and determining the monetary value of property transferred when quantifying an enrichment claim : notes

Volume 2009, Issue 4
  • ISSN : 0257-7747
  • E-ISSN: 1996-2207



Despite the watershed judgment of the supreme court of appeal in 2001 3 SA 482 (SCA), unjustified enrichment is not as yet recognised as a general ground for obligations in South African law. This is also sometimes expressed by the statement that there is no general enrichment action in South Africa. What can be said in the post McCarthy era, is that a claimant who has been impoverished may, in certain (perhaps even in most) instances, have an enrichment remedy available against a defendant who has been unjustifiably enriched at its (the claimant's) expense. Whilst the success of a claimant depends on it proving certain requirements which the recognised enrichment remedies have in common (the so-called generic requirements), the converse does not necessarily apply: an enrichment remedy is not automatically available in all instances where the generic requirements are proved.

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