PVL3704/101/3/2013
Tutorial letter 101/3/2013 Undue Enrichment Liability and Estoppel
PVL3704 Semesters 1 & 2 Department of Private Law
IMPORTANT INFORMATION:
This tutorial letter contains important information about your module.
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CONTENTS
Page
1 INTRODUCTION ............................................................................................................................ 4
1.1 Tutorial matter ................................................................................................................................. 4
2 PURPOSE OF AND OUTCOMES FOR THE MODULE ............................................................... 5
2.1 Purpose .......................................................................................................................................... 5
2.2 Outcomes ....................................................................................................................................... 5
3 LECTURER(S) AND CONTACT DETAILS .................................................................................... 7
3.1 Lecturer(s) ...................................................................................................................................... 7
3.2 Department ..................................................................................................................................... 8
3.3 University ........................................................................................................................................ 8
4 MODULE-RELATED RESOURCES .............................................................................................. 9
4.1 Study guide ..................................................................................................................................... 9
4.2 Tutorial letters ................................................................................................................................. 9
4.3 Prescribed textbooks ...................................................................................................................... 9
4.4 Recommended books ..................................................................................................................... 9
4.5 Electronic reserves (E-reserves) .................................................................................................... 9
4.6 Prescribed cases ............................................................................................................................ 9
4.6.1 List of prescribed cases ................................................................................................................ 10
4.7 Important new developments ....................................................................................................... 11
5 STUDENT SUPPORT SERVICES FOR THE MODULE .............................................................. 11
6 MODULE-SPECIFIC STUDY PLAN ............................................................................................. 12
7 ASSESSMENT ............................................................................................................................. 12
7.1 Assessment plan .......................................................................................................................... 12
7.2 General information regarding assignments ................................................................................. 12
7.2.1 General assignment numbers ....................................................................................................... 12
7.2.2 Unique assignment numbers ........................................................................................................ 12
7.2.3 Due dates of assignments ............................................................................................................ 13
7.2.4 Submission of assignments .......................................................................................................... 13
7.2.5 Assessment of assignments ......................................................................................................... 13
7.2.6 Assessment criteria for problem-type questions ........................................................................... 14
7.3 Assignments ................................................................................................................................. 15
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8 EXAMINATION ............................................................................................................................. 26
8.1 How will it work in practice? .......................................................................................................... 26
8.2 The required subminimum with regard to your examination mark ................................................ 26
8.3 Examination period and supplementary examinations ................................................................. 27
8.4 Previous examination papers. ...................................................................................................... 27
8.5 Tutorial letter with information on the examination ....................................................................... 27
9 FREQUENTLY ASKED QUESTIONS .......................................................................................... 27
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1 INTRODUCTION
Dear Student We are pleased to welcome you to this module and hope that you will find it both interesting and rewarding. We will do our best to make your studies of Undue Enrichment Liability and Estoppel successful. You will be well on your way to success if you start studying early in the semester and resolve to do the assignments properly. You will receive a number of tutorial letters during the semester. A tutorial letter is our way of communicating with you about teaching, learning and assessment. Tutorial Letter 101 contains important information about the scheme of work, resources and assignments for this module. We urge you to read it carefully and to keep it at hand when working through the study material, preparing the assignments, preparing for the examination and addressing questions to your lecturers. Please read Tutorial Letter 301 in combination with Tutorial Letter 101 as it gives you an idea of generally important information when studying at a distance and within a particular College. In this tutorial letter (101), you will find the assignments and assessment criteria for both semesters as well as instructions on the preparation and submission of the assignments. This tutorial letter also provides all the information you need with regard to the prescribed study material and other resources and how to obtain them. Please study this information carefully and make sure that you obtain the prescribed material as soon as possible. We have also included certain general and administrative information about this module. Please study this section of the tutorial letter carefully. Right from the start we would like to point out that you must read all the tutorial letters you receive during the semester immediately and carefully, as they always contain important and, sometimes, urgent information. We hope that you will enjoy this module and wish you all the best! 1.1 Tutorial matter The study material for this module consists of the following: • Two study guides • Tutorial letters (which you will receive during the semester) • Cases (as discussed in the study guides)
There are no prescribed text books or recommended books for this module.
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The Department of Dispatch should supply you with the following study material for this module: • Two study guides • Tutorial Letters 101 and 301 • Further tutorial letters (at least one: Tutorial Letter 201) Once you have registered, Unisa will process your registration and send you your study material by post or courier depending on the choice you indicated on your registration form. You will also receive the my Studies @ Unisa brochure. This brochure will provide you with an orientation for studying through Unisa and will help you to plan your studies. Please note: Your lecturers cannot help you with missing study material. For information about your specific module related study material, see “4 MODULE-RELATED RESOURCES” below. 2 PURPOSE OF AND OUTCOMES FOR THE MODULE
2.1 Purpose The purpose of this module is to equip students with knowledge and insight into the law of undue enrichment liability and estoppel to enable them to solve problems relating to undue enrichment liability and estoppel within the broader context of the law of obligations, as well as basic research skills in the practice of law. 2.2 Outcomes A range of tasks in study guides and/or tutorial letters, assignments, and examinations will show that students have achieved the outcomes. Outcome 1: Interpret given situations in order to analyse the role of unjustified enrichment liability and estoppel and selected aspects of the law of obligations in current South African law and everyday life.
Assessment criteria:
Legal problems and issues relating to unjustified enrichment liability and estoppel are identified in real or simulated fact scenarios.
Examples from everyday life regarding unjustified enrichment liability and estoppel are analysed and interpreted. Outcome 2:
Analyse given real life situations and legal documents to demonstrate an understanding of the history and theoretical framework of, and the most pressing and prevalent issues regarding the law relating to unjustified enrichment liability and estoppel.
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Assessment criteria: The historical roots and development of unjustified enrichment and estoppel are explained and integrated with regard to the existing legal position. Problems and issues relating to enrichment liability and estoppel are identified in real or simulated fact scenarios. Terms, rules, concepts, principles and theories related to enrichment liability and estoppel are explained from a critical perspective. The relevance and applicability of various legal sources and authorities are analysed and critically evaluated in terms of identified problems relating to enrichment liability and estoppel. Different points of view in respect of the law relating to unjustified enrichment and estoppel are discussed and evaluated. Areas in need of legal development or reform are recognised. Language use is consistent with the conventions in the discipline of law. Outcome 3: Apply the principles of undue enrichment law and estoppel in practical situations and solve multi-dimensional legal problems associated with enrichment liability and estoppel. Assessment criteria: Practical problems from case law and everyday examples are solved using appropriate research methods and applying the principles and rules of the law relating to unjustified enrichment and estoppel. Responsible advice on an appropriate course of action is given in respect of unjustified enrichment and estoppel issues. Relevant sources and authorities are found and used to solve problems regarding enrichment liability and estoppel. The relevance and applicability of various legal sources and authorities in respect of identified problems relating to enrichment liability and estoppel are analysed and critically evaluated. The most appropriate and authoritative legal materials are selected to solve identified problems relating to enrichment liability and estoppel. The knowledge and skills students have acquired in other areas of the law such as the law of property, the law of contract and procedural law are integrated in discussing, analysing and applying the principles of the law of unjustified enrichment and estoppel. Substantiated responses are provided, based on knowledge acquired. Responsible advice is provided on an appropriate course of action.
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3 LECTURERS AND CONTACT DETAILS
3.1 Lecturers
Prof CJ Pretorius (Module Leader) Cas van Vuuren 6-10 Telephone number: 012 429-8502 Cell: 079 265 7574 E-mail: [email protected] Mr KA Seanego Cas van Vuuren 6-28 Telephone number: 012 429-8997 E-mail: [email protected] Mrs H Du Plessis Cas van Vuuren 6-18 Telephone number: 012 429-8353 E-mail: [email protected] All queries that are not of a purely administrative nature but are about the contents of this module should be directed to us. You may contact us by post, e-mail, telephone or on myUnisa. Please have your study material and student number with you when you contact us.
You are welcome to visit us to discuss any queries about or problems with the module. However, please make an appointment beforehand, otherwise you run the risk of the lecturer not being available to see you. Our physical address is:
• University of South Africa Preller Street Muckleneuk Pretoria Our offices are on the 6th floor of the Cas van Vuuren building. • Telephone numbers are included above, and you may phone us at these numbers.
Phone calls made to us when we are not available will be forwarded to an answering machine. You might also want to write to us. Letters should be sent to:
• The Lecturer (PVL3704) Department of Private Law PO Box 392 UNISA 0003
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Please note: Letters to lecturers may not be enclosed with or inserted into assignments.
You may e-mail us at [email protected].
You may send us a fax and our fax number is: 012 429-3393. Your correspondence should be addressed to: The Lecturer (PVL3704).
Students who have access to the appropriate computer technology may contact the
lecturers electronically via the myUnisa facility. The instructions for sending us an e-mail are as follows:
• Go to myUnisa . • Log in with your student number and password. • Select PVL3704 from the orange menu bar. • On the left-hand menu bar of the module page, select the “Course contact” option. • The next page is an automated e-mail page. The “From” and “E-mail address” fields are
automatically completed. • Complete the “Message subject” field. • Type your message in the space provided for “Message”. • Click on the “Send Message” button. • Your message will be forwarded to us. 3.2 Department
The Department of Private Law is situated in the Cas van Vuuren building on the 6th floor. The fax number for the Department of Private Law is 012 429-3393. 3.3 University
If you need to contact the University administrative departments about matters not related to the content of this module, please consult the my Studies @ Unisa brochure, which you received with your study material. This booklet contains information on how to contact the University (e.g. to whom you can write for different queries, important telephone and fax numbers, addresses and details of the times certain facilities are open). Physical address: University of South Africa Preller Street Muckleneuk Pretoria Postal address: University of South Africa PO Box 392 UNISA 0003 Always have your student number handy when you call the University.
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4 MODULE-RELATED RESOURCES
4.1 Study guides
You will receive two study guides for this module: Study Guide 1 deals with Unjustified Enrichment Liability and Study Guide 2 deals with Estoppel. At the beginning of Study Guide 1 you will find instructions on how to study this module. 4.2 Tutorial letters
Apart from Tutorial Letters 101 and 301, you will also receive other tutorial letters during the semester. These tutorial letters will not necessarily be available at the time of registration, but will be posted to you as soon as they are available or needed (for instance, for feedback on assignments). If you have access to the internet, you can view the study guides and tutorial letters for the modules for which you are registered on the University’s online campus, myUnisa, at http://my.unisa.ac.za. Tutorial letters are part of your study material for assignment and examination purposes. They are just as important as the study guide itself. Read and reread each tutorial letter and keep it for reference purposes. Tutorial letters which contain additional study material must be regarded as part of your study material for study and examination purposes. 4.3 Prescribed textbooks
There are no prescribed textbooks for this module. 4.4 Recommended books There are no recommended books for this module. 4.5 Electronic reserves (E-reserves) There are no E-reserves for this module. 4.6 Prescribed cases It is sufficient for the purposes of this module if you study the prescribed cases as they appear in the study guides. We might include references of recent decisions that you have to study to the list of prescribed cases, in subsequent tutorial letters. You will at the same time receive a discussion of such cases. Make sure that you include these new references in the list here below when you prepare for the examination.
It is compulsory that you study the cases listed below as they appear in the study guides. This will help you to gain greater insight into the relevant principles and their application. For the purposes of assignments and examinations, a thorough knowledge of these cases is essential. You should also bear in mind that the other cases discussed in your study guides which do not appear in the list below are also relevant and should not be ignored. Decisions by our courts are an important source of authority for the issues the court must decide on. When a case dealing with a certain aspect is discussed in the study guide, we expect you to refer to such a case as authority for that specific aspect both in written assignments and in the examination, even if such a case is not one of your prescribed cases.
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4.6.1 List of prescribed cases Undue Enrichment
1 B & H Engineering v First National Bank of SA Ltd 1995 (2) SA 279 (A)
2 Brooklyn House Furnishers Ltd v Knoetze & Sons 1970 (3) SA 264 (A)
3 Buzzard Electrical v 158 Jan Smuts Avenue Investments 1996 (4) SA 19 (A)
4 CIR v Visser 1959 (1) SA 452 (A)
5 First National Bank of SA Ltd v B & H Engineering 1993 (2) SA 41 (T)
6 Fletcher and Fletcher v Bulawayo Waterworks Co Ltd 1915 AD 636
7 Gouws v Jester Pools (Pty) Ltd 1968 (3) SA 563 (T)
8 Govender v Standard Bank of SA Ltd 1984 (4) SA 392 (C)
9 Hauman v Nortjé 1914 AD 293
10 Kommissaris van Binnelandse Inkomste v Willers 1994 (3) SA 283 (A)
11 Nortjé v Pool 1966 (3) SA 96 (A)
12 Odendaal v Van Oudtshoorn 1968 (3) SA 433 (T)
13 Rahim v Minister of Justice 1964 (4) SA 630 (A)
14 Rubin v Botha 1911 AD 568
15 Weilbach v Grobler 1982 (2) SA 15 (O)
16 Willis Faber Enthoven (Pty) Ltd v Receiver of Revenue 1992 (4) SA 202 (A
Estoppel 1 Akojee v Sibanyoni 1976 (3) SA 440 (W)
2 Baumann v Thomas 1920 AD 428
3 Electrolux (Pty) Ltd v Khota and Another 1961 (4) SA 244 (W)
4 Grosvenor Motors v Douglas 1956 (3) SA 420 (A)
5 Johaadien v Stanley Porter (Paarl) (Pty) Ltd 1970 (1) SA 394 (A)
6 Oakland Nominees (Pty) Ltd v Gelria Mining and Investment Co 1976 (1) SA 441 (A)
7 Sonday v Surrey Estate Modern Meat Market 1983 (2) SA 521 (C)
8 Union Government v National Bank of SA Ltd 1921 AD 121
9 Van Ryn Wine and Spirit Co v Chandos Bar 1928 TPD 417
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4.7 Important new developments Study Guide 1: Enrichment Liability
Page 77
Insert the following as the last paragraph on the page:
“In Leeuw v First National Bank Ltd 2010 (3) SA 410 (SCA) L deposited two cheques into his account with First National Bank. L was allowed to draw money from his account on the basis of the first deposit. However, it transpired that the signatures on both cheques had been forged and the bank reversed the credits in L’s account for the two cheques, and claimed the amount which it had paid out to him with the condictio indebiti. L pleaded estoppel to the bank’s claim, averring that the bank had misrepresented to him that the cheques were good for the money. L was in the habit of asking bank official whether cheques he intended to deposit into his account were acceptable for deposit and relying on them to help him complete the deposit slips. The defence of estoppel failed because the bank had not guaranteed to L that the cheque first deposited would be paid and a reasonable person in the position of L would not have believed that the bank was guaranteeing the funds represented by the cheque. The bank’s claim based on the condictio indebiti succeeded.”
Page 116
Insert the following under the third grammatical paragraph:
“In Business Aviation Corporation (Pty) Ltd and Another v Rand Airport Holdings (Pty) Ltd 2006 (6) SA 605 (SCA) the Supreme Court of Appeal finally held that the Placaats only apply to rural property.”
Page 138
Amend the last sentence of the first grammatical paragraph to read as follows:
“If the court decides to allow the exceptio, then the plaintiff is prevented from claiming in terms of the contract. However, if the innocent party cancels the contract on the basis of the plaintiff’s breach (positive malperformance), the plaintiff would have an enrichment claim based on the ordinary principles of enrichment liability (enrichment or impoverishment, whichever is the smallest) and not a claim for the contract price less the costs of obtaining proper performance.” Study Guide 2: Estoppel Page 70 Insert the following as the last paragraph under 8.2.1: “In Oriental Products (Pty) Ltd v Pegma 178 Investments Trading CC and Others 2011 (2) SA 508 (SCA) Harms DP indicated obiter that ownership could possibly be transferred by estoppel.” 5 STUDENT SUPPORT SERVICES FOR THE MODULE Important information appears in your my Studies @ Unisa brochure.
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6 MODULE-SPECIFIC STUDY PLAN
Please refer to your my Studies @ Unisa brochure for general time management and planning skills. 7 ASSESSMENT
7.1 Assessment plan
Your mark will comprise a year mark that will be gained from one written assignment, one multiple-choice assignment and a written examination of two hours. First examiners set and assess the assignments and examination. In the case of examinations, second examiners are used to moderate questions, the marking process and the marked scripts. Second examiners also assist in taking oral examinations. All examiners are senior academics or specialists in the field. 7.2 General information regarding assignments
Assignments are seen as part of the learning material for this module. As you do the assignments, study the reading texts, consult other resources, discuss the work with fellow students or tutors or do research, you are actively engaged in learning. Looking at the assessment criteria given for each assignment will help you to understand what is required of you more clearly. In some cases, additional assessment might be available on the myUnisa site for your module. For students attending tutorial sessions, tutors may also set additional tasks and give feedback in class. Please note: If you have any enquiries about assignments, you might find information on
myUnisa. To go to the myUnisa website, start at the main Unisa website, http://www.unisa.ac.za, and then click on the ‘login to myUnisa’ link under the myUnisa heading on the screen. This should take you to the myUnisa website. You can also go there directly by typing in http://my.unisa.ac.za.
7.2.1 General assignment numbers You have two compulsory assignments for this module, Assignment 01 and Assignment 02. 7.2.2 Unique assignment numbers The unique numbers for the assignments are: • First semester: o Assignment 01: 778713 o Assignment 02: 725737 • Second semester: o Assignment 01: 855338 o Assignment 02: 697480
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7.2.3 Due dates of assignments The due dates for the submission of the assignments are: • First semester: o Assignment 01: 5 March 2013 o Assignment 02: 3 April 2013 • Second semester: o Assignment 01: 27 August 2013 o Assignment 02: 24 September 2013 7.2.4 Submission of assignments Assignments should be addressed to: • The Registrar PO Box 392 UNISA 0003 You may submit written assignments and assignments completed on mark-reading sheets either by post or mobile MCQ submission or electronically via myUnisa. Assignments may not be submitted by fax or e-mail. Assignments may not be posted together in one envelope. Each assignment for each module has to be posted separately.
For detailed information and requirements with regard to assignments, see the brochure my Studies @ Unisa, which you received with your study material. To submit an assignment via myUnisa: • Go to myUnisa. • Log in with your student number and password. • Select the module from the orange bar. • Click on assignments in the menu on the left-hand side of the screen. • Click on the assignment number you wish to submit. • Follow the instructions. 7.2.5 Assessment of assignments Although students may work together when preparing assignments, each student must write and submit his or her own individual assignment. In other words, you must submit your own ideas in your own words, sometimes interspersing relevant short quotations that are properly referenced. It is unacceptable for students to submit identical assignments on the basis that they worked together. That is copying (a form of plagiarism) and none of these assignments will be marked. Furthermore, you may be penalised or subjected to disciplinary proceedings by the University.
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You will receive the correct answers to the multiple-choice assignment (assignment 02) in a tutorial letter. For the written assignment (assignment 01), markers will comment constructively on your individual assignment. However, commentaries on both assignments will be sent to all students registered for this module in a follow-up tutorial letter, and not only to those students who submitted the assignments. As soon as you have received the commentaries, please check your answers. The assignments and the feedback on these assignments constitute an important part of your learning and should help you to be better prepared for the next assignment and the examination. The feedback on the self-assessment assignment is also included in this tutorial letter. This will enable you to mark your assignment as soon as you have completed it. 7.2.6 Assessment criteria for problem-type questions The following mark rubric is an example of a typical mark rubric which will be used to assess a problem type question (which counts 10 marks) in the assignment or examination:
Evaluation criteria Not yet achieved Partially achieved Achieved
1. Identifying the problem and giving appropriate advice.
0 0.5-2.5 3
2. Discussing the relevant law applicable to the problem referring to the relevant case law (prescribed cases and cases discussed in Study Guide), writers and legislation.
0 0.5-4.5 5
3. Applying the law to the facts of the problem.
0 0.5-1.5 2
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7.3 Assignments
ASSIGNMENT 01: FIRST SEMESTER
DUE DATE: 5 MARCH
NO EXTENSION!
COMPULSORY ASSIGNMENT
UNIQUE NUMBER: 778713 Please note: This is a compulsory assignment for PVL3704 and it counts 10% towards your final mark for this module.
• This assignment should be submitted by all students registered for the FIRST SEMESTER. Take note that only one of the two questions will be marked, but you must answer both questions!
• Please fill in the correct unique number on the cover of your assignment. • This is a written assignment. For instructions on the submission of written assignments,
please see my Studies @ Unisa. • We will supply you with detailed personal comments on the assignment itself, as well as with
detailed general comments in a later tutorial letter. • You must, as far as possible, use your own words when you answer the assignment. If you
merely copy sections of the study guide or a textbook, you will be penalised (see below how language will affect your mark).
• It is not necessary that you provide a list of sources or footnotes in your assignment. • The length restriction for the entire assignment is six written pages or four typed pages. • Please note that, once marked, your assignment will be judged for use of correct
language. Up to 10% (2 marks) may be deducted for grammatical errors, poor language or merely copying parts of your textbooks without reflecting the contents in your own words.
• This assignment covers study units 1 to 5 of Study Guide 1 (Unjustified Enrichment
Liability).
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Question 1
Discuss the general requirement that the defendant’s enrichment must have been at the expense of the plaintiff. Refer in your answer to case law. (15)
Question 2
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)
TOTAL: [25]
ASSIGNMENT 02: FIRST SEMESTER
DUE DATE: 3 APRIL
NO EXTENSION!
COMPULSORY ASSIGNMENT
UNIQUE NUMBER: 725737 Please note: This assignment is compulsory for PVL3704 and counts 10% towards your
final mark for this module.
REMEMBER!
• This assignment should be submitted by all students registered for the FIRST SEMESTER.
• Since this is a multiple-choice assignment, it must be completed on a mark-reading sheet.
• Please write the correct unique number for the appropriate module on the mark-reading sheet.
• This assignment covers the whole of Study guide 1: Unjustified Enrichment Liability.
Choose the most correct option in every instance. If there is more than one correct option, choose the appropriate combined option.
The following facts are relevant for questions 1 to 3.
A has demanded payment from B of an amount of R50,000 which he believes B is owing. B has checked its records and has paid the amount in the bona fide belief that the amount is owed in terms of their contract. Unbeknown to B, his bookkeeper, C had already paid the amount a week earlier by way of an electronic funds transfer into the account of A. At the time of the second payment A's account was overdrawn in the amount of R30,000 and was therefore in credit in the amount of R20,000 after the payment. A has taken R15,000 out of his account to pay his employees their monthly wages. He has also paid R10,000 for a luxury weekend after realising that his account was in credit.
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Question 1
Which statement best explains the nature of B’s claim against A?
1. B has a claim against A based in delict for a fraudulent misstatement.
2. B has contractual claim against A based on their contract.
3. B has an enrichment claim against A based on the condictio causa data causa non secuta.
4. B has an enrichment claim against A based on the condictio indebiti.
5. B has no claim against A because he paid the amount voluntarily.
Question 2
Which statement regarding the requirements for an enrichment action is correct?
1. A has been enriched at the expense of B.
2. A has been enriched at the expense of C, who made the payment.
3. A's enrichment is not unjustified as there was a contract between A and B.
4. A's enrichment is unlawful because he made a demand for payment at a time that it was not due.
5. B has been impoverished at the expense of the bank.
Question 3
Which statement best explains the calculation of the enrichment claim?
1. B can claim an amount of R50,000 from A with an enrichment action.
2. B can only claim R20,000 from A because his account was overdrawn and the bank received the benefit of the other R30,000.
3. B can claim nothing as A has not been unjustifiably enriched at B’s expense.
4. B can claim only R25,000 because the rest of the enrichment amount has been spent on the wages and A's holiday.
5. B can claim only R40,000 because the rest of the enrichment amount has been lost on the luxury holiday.
Question 4
In order to be successful with a claim based on the condictio indebiti, the plaintiff must prove the following fact(s) or requirement(s):
1. That the impoverished party made a payment that was not due.
2. That the enrichment was unlawful.
3. That the mistake of the impoverished party was excusable.
4. 1 and 3 are correct.
5. 1 and 2 and 3 are correct
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Question 5
In which one of the following circumstances can the condictio indebiti be used?
1. Where a bank has made payment in terms of countermanded cheque.
2. Where a party knowingly makes a payment that is not due, but under duress and protest.
3. Where a contract is rescinded due to a breach of contract.
4. Where a party has made an undue payment in terms of an illegal contract.
5. Where a party has made payment which is due but where the cause for the payment later falls away.
The following facts are relevant for Questions 6 and 7.
X has concluded a contract with Y to build a tennis court at a cost of R40,000 on the property he is renting from Z in Pretoria. It can be shown that the value of the property has increased by R20,000 due to the improvement. X has disappeared before paying Y for the work done. Y now wants to lodge a claim against Z, the owner of the property.
Question 6
Which statement best explains the ground on which and amount that can be claimed?
1. Y has an enrichment claim against Z for an amount of R40,000.
2. Y has an enrichment claim against Z for an amount of R20,000.
3. Y has a contractual claim against X for R40,000.
4. X has an enrichment claim against Z for R40,000.
5. Y has an enrichment claim against X for R20,000.
Question 7
Which statement best explains the authority on which you based your answer in question 6?
1. In terms of the decision in Gouws v Jester Pools (Pty) Ltd 1968 3 SA 63 (T) it was held that Y has no claim against Z because Z had not been enriched at his expense.
2. In terms of the decision in Gouws v Jester Pools (Pty) Ltd 1968 3 SA 63 (T) it was held that Y has a claim against Z because Z had been enriched at his expense.
3. The decision in the Gouws case was confirmed in Buzzard Electrical v 158 Jan Smuts Avenue Investments 1996 4 SA 19 (A).
4. The decision in the Gouws case was rejected in Buzzard Electrical v 158 Jan Smuts Avenue Investments 1996 4 SA 19 (A).
5. The decision in the Gouws case was confirmed in Brooklyn House Furnishers Ltd v Knoetze & Sons 1970 3 SA 264 (A).
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Question 8
G has noticed that his neighbour's (H) stud bull is seriously ill. The neighbour is currently on a hiking trip in Nepal and cannot be reached. G has called out a veterinary doctor to attend to the bull and has paid all his bills as well as for the medication. The total cost was R12,000. Despite the treatment the bull has died. Which statement best explains the basis of G's possible claim against H?
1. G has no claim against H because the bull has died and the expenses have been wasted.
2. G has an enrichment claim against H for his expenses as necessary expenses.
3. G has a claim against H in terms of the actio negotiorum gestorum contraria for R12,000.
4. G has a claim against H in terms of the actio negotiorum gestorum utilis for R12,000.
5. G's claim against H in terms of the actio negotiorum gestorum contraria will fail because the bull died.
Question 9
G has noticed that his neighbour's (H) stud bull is seriously ill. The neighbour is currently on a hiking trip in Nepal and cannot be reached. G has called out a veterinary doctor to attend to the bull and has paid all his bills as well as for the medication. The total cost was R12,000. Despite the treatment the bull has died. G is a meddlesome neighbour and H has previously warned him not to do anything on his farm under any circumstances, but rather to call K, if G should notice any problem. G did not bother to call K. Which statement best explains the basis of G's possible claim against H?
1. G has no claim against H because the bull has died and the expenses have been wasted.
2. G has an enrichment claim against H for his expenses as necessary expenses.
3. G has a claim against H in terms of the actio negotiorum gestorum contraria for R12,000.
4. G has a claim against H in terms of the actio negotiorum gestorum utilis for R12,000.
5. G's claim against H in terms of the actio negotiorum gestorum contraria will fail because the bull died.
Question 10
Which statement correctly explains the possession or occupation of another's property?
1. A bona fide occupier is someone who lawfully occupies the immovable property of another person.
2. A bona fide occupier is someone who unlawfully occupies the immovable property of another person as if he is the owner thereof.
3. A bona fide possessor is someone who lawfully occupies the property of another person as if he is the owner thereof.
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4. A bona fide possessor is someone who unlawfully occupies the property of another person as if he is the owner thereof.
5. A mala fide possessor is someone who unlawfully occupies the property of another person temporarily as if he is entitled to occupy the property as a lessee.
TOTAL: [10]
ASSIGNMENT 01: SECOND SEMESTER
DUE DATE: 27 AUGUST
NO EXTENSION!
COMPULSORY ASSIGNMENT
UNIQUE NUMBER: 855338 Please note: This is a compulsory assignment for PVL3704 and it counts 10% towards your final mark for this module.
• This assignment should be submitted by all students registered for the SECOND SEMESTER. Take note that only one of the two questions will be marked, but you must answer both questions!
• Please fill in the correct unique number on the cover of your assignment. • This is a written assignment. For instructions on the submission of written assignments,
please see my Studies @ Unisa. • We will supply you with detailed personal comments on the assignment itself, as well as with
detailed general comments in a later tutorial letter. • You must, as far as possible, use your own words when you answer the assignment. If you
merely copy sections of the study guide or a textbook, you will be penalised (see below how language will affect your mark).
• It is not necessary that you provide a list of sources or footnotes in your assignment. • The length restriction for the entire assignment is six written pages or four typed pages.
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• Please note that, once marked, your assignment will be judged for use of correct language. Up to 10% (2 marks) may be deducted for grammatical errors, poor language or merely copying parts of your textbooks without reflecting the contents in your own words.
• This assignment covers study units 1 to 5 of Study Guide 1 (Unjustified Enrichment
Liability). Question 1
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. (10)
Question 2
A owns a factory manufacturing steal 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 electricty 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 alos knows that if there is a disruption in his electricty 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 he paid, and with which remedy? In your answer discuss the requirements for this remedy. (10)
TOTAL: [20]
ASSIGNMENT 02: SECOND SEMESTER
NO EXTENSION!
DUE DATE: 24 SEPTEMBER
COMPULSORY ASSIGNMENT
UNIQUE NUMBER: 697480 Please note: This assignment is compulsory for PVL3704 and counts 10% towards your
final mark for this module.
REMEMBER!
• This assignment should be submitted by all students registered for the SECOND SEMESTER.
• Since this is a multiple-choice assignment, it must be completed on a mark-reading sheet.
• Please write the correct unique number for the appropriate module on the mark-reading sheet.
• This assignment covers the whole of Study guide 1: Unjustified Enrichment Liability.
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Choose the most correct option in every instance. If there is more than one correct option, choose the appropriate combined option.
The following facts are relevant for questions 1-2.
A, an American tourist, has leased a vehicle from B. While travelling in the Northern Cape, the vehicle breaks down. A contracts with C, a garage in Springbok, to repair the vehicle at a cost of R12,000. After two days A leases another vehicle from X and completes his trip. He departs for America. C wants to claim the R12,000 from B.
Question 1
Which statement best explains whether C has a claim against B and the authority on which it is based?
1. In terms of the decision in Gouws v Jester Pools (Pty) Ltd 1968 3 SA 63 (T) it was held that C has no claim against B because B had not been enriched.
2. In terms of the decision in Gouws v Jester Pools (Pty) Ltd 1968 3 SA 63 (T) it was held that C has no claim against B because B has not been enriched at C's expense.
3. The decision in the Gouws case was confirmed in Buzzard Electrical v 158 Jan Smuts Avenue Investments 1996 4 SA 19 (A).
4. The decision in the Gouws case was rejected in Buzzard Electrical v 158 Jan Smuts Avenue Investments 1996 4 SA 19 (A).
5. The decision in the Gouws case was overruled in Brooklyn House Furnishers Ltd v Knoetze & Sons 1970 3 SA 264 (A).
Question 2
Which statement best explains whether C has a retention right or whether he can exercise it?
1. C can exercise a retention right over the vehicle against B until such time as it has been paid for its necessary expenses.
2. C can exercise a retention right over the vehicle against B until it has been paid the full contract price.
3. In terms of the decision in Buzzard Electrical v 158 Jan Smuts Avenue Investments 1996 4 SA 19 (A) C has no retention right because it has no enrichment claim against B.
4. An enrichment retention right is a personal right and can therefore be exercised only against the creditor.
5. C has no retention right under these circumstances.
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Question 3
In which one of the following circumstances can the condictio indebiti be used?
1. Where a person has made a payment in terms of a contract subject to a suspensive condition, and the contract has now been extinguished due to the condition being unfulfilled.
2. Where a person has made a payment in terms of a contract subject to a resolutive condition, and the contract has now been extinguished due to the condition being fulfilled.
3. Where an undue payment has been made in circumstances where the mistake is not excusable.
4. Where an executor who is now functus officio has made a payment to heirs which was not due because a creditor had lodged its claim too late.
5. Where a bank has made payment in terms of a forged cheque.
Question 4
Which of the following is/are (a) prerequisite(s) for a claim in terms of the condictio indebiti?
1. The enrichment was unlawful.
2. The defendant was unjustifiably enriched.
3. There was a causal link between the enrichment and impoverishment
4. The mistake must have been excusable
5. 2 and 3 and 4 are correct
Question 5
A has sold uncut diamonds to B for an amount of R100,000 in contravention of statutory law. B has paid the amount but before the diamonds could be delivered, it was confiscated by the police during a raid of A's house. Which statement best explains the nature of the claim against A?
1. In circumstances like these a court may exercise an equitable judicial discretion to relax the par delictum rule, depending on the relative turpitude of the parties' conduct.
2. B has a claim for damages against A due to a breach of contract.
3. B has a claim against A in terms of the condictio ob turpem vel iniustam causam because it is unfair that he should lose his money and get nothing.
4. B has a claim against A in terms of the condictio sine causa specialis because there is no other enrichment action at his disposal.
5. B has a claim for damages against A based on delict.
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Question 6
In which one of the following circumstances can the condictio sine causa specialis be used?
1. As a general enrichment action.
2. Where property is transferred on the grounds of a valid cause which later falls away.
3. Where a contract is terminated due to a resolutive condition.
4. Where property has been transferred in terms of an illegal agreement.
5. Where undue payment was made due to an excusable error.
The following facts are relevant for questions 7-9.
K is the owner of a farm adjacent to that of L. Unbeknown to K and L, K has been occupying part of L's land due to a fence that was mistakenly put up 10 years ago. K has effected the following improvements on that part of the farm: (a) built a dam at a cost of R30,000; (b) a luxury little lapa on the edge of the dam at a cost of R100,000; (c) a borehole at a cost of R20,000; (d) planted fruit trees at a cost of R15,000 (e) planted mealies which are almost ready to harvest at a cost of R60,000 (value R120,000). During his tenure of the land he has harvested mealies worth R300,000 (production cost R250,000) and fruit from the fruit trees sold at R55,000. L has now become aware of the true situation and demands that K leaves the land.
Question 7
Which statement best explains the nature of K's possession or occupation of the land?
1. K is a bona fide occupier of the land.
2. K is a mala fide occupier of the land.
3. K is a bona fide possessor of the land.
4. K is a lawful occupier of the land.
5. K is a lawful possessor of the land.
Question 8
Which statement best explains the nature and extent of K's claim(s), if any?
1. K has an enrichment action for all of the expenses that he has incurred in the improvement of L's land.
2. K has an enrichment action for the full amount of all the necessary and useful expenses he has incurred.
3. K has a choice to claim either the amount of his expenses incurred or the value by which L's land has been increased, whichever is more.
4. K has an enrichment action for the useful and necessary expenses he has incurred to the extent that those expenses have increased the value of L's land.
5. K has no claim for the mealies which have not been harvested yet as they now belong to L.
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Question 9
Which statement best explains the amounts that may be brought into account against K's claim, if any?
1. L is not entitled to subtract anything from K's enrichment claim.
2. L is entitled to reduce the enrichment claim against him by subtracting the value of K's occupation of the land.
3. L is entitled to reduce the enrichment claim against him by subtracting the value of the mealies and fruit harvested by K and the value of K's occupation of the land.
4. L is entitled to reduce the enrichment claim against him by subtracting the value of the mealies harvested by K and the value of K's occupation of the land.
5. L is entitled to reduce the enrichment claim against him by subtracting the value of the mealies harvested by K minus the production costs.
Question 10
Which statement best explains the legal position on the recognition of a general enrichment action in South African law?
1. In Nortje v Pool 1966 3 SA 96 (A) the Appellate Division recognised the existence of a general enrichment action in South Africa without any qualifications.
2. In Nortje v Pool 1966 3 SA 96 (A) the Appellate Division recognised the existence of a general enrichment action in South Africa, but with certain qualifications.
3. In Kommissaris van Binnelandse Inkomste v Willers 1994 3 SA 283 (A) the Appellate Division recognised the existence of a general enrichment action in South Africa.
4. In Kommissaris van Binnelandse Inkomste v Willers 1994 3 SA 283 (A) the Appellate Division rejected the existence of a general enrichment action in South Africa but recognised that courts can extend enrichment liability to circumstances where it is deemed necessary.
5. In Kommissaris van Binnelandse Inkomste v Willers 1994 3 SA 283 (A) the Appellate Division rejected the existence of a general enrichment action in South Africa and also rejected the idea that courts can extend enrichment liability to circumstances where it is deemed necessary.
TOTAL [10]
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8 EXAMINATION Please note: In order to gain admission to the examination in PVL3704, students must submit assignment 01. If you fail to submit this compulsory assignment before or on the due date, you will not gain admission to the examination! Assignment 01 contributes 10% towards your final mark for the module.
Assignment 02 is also compulsory and, like assignment 01, it contributes 10% towards your final mark for the module. Failure to submit assignment 02 will not influence your examination admission, since it is only the submission of assignment 01 that will give you examination admission. However, since assignment 02 counts 10% towards your final mark for the module, it is of the utmost importance that you submit it.
Both assignments 01 and 02 therefore contribute towards your final mark. However, only assignment 01 affects your examination admission.
Note that it is not required that you pass assignment 01 (i.e. get at least 50% for it) in order to gain examination admission. Submission of the assignment is adequate in order to gain examination admission. However, since the mark you obtain for both the assignments will together contribute 20% towards your final mark for the module (10% for assignment 01 and 10% for assignment 02), it will be to your advantage to do well in the assignments. 8.1 How will this work in practice? In order to pass this module, you need to obtain a mark of 50%. As was indicated above, assignment 01 and assignment 02 together count 20% of your final mark (the assignments make up your semester mark). The examination mark will count 80%. Therefore the mark out of 100 you obtain in the examination will be converted to become a mark out of 80. Thus your final mark for the module will be calculated by adding your semester mark to your adjusted examination mark. 8.2 The required subminimum with regard to your examination mark It is very important that you should note that a subminimum applies for your examination mark. You need to obtain at least 40% in the examination before your semester mark will be taken into account for purposes of determining whether you pass, fail or qualify for a supplementary examination. That means that a student who obtains at least 40% in the examination and who worked during the semester and consequently has a good semester mark will have a great advantage above a student who has no semester mark or a bad semester mark. It also means that even if you get full marks (i.e. obtain 20 out of 20) for your assignments you will still fail the module if you earn less than 40% in the examination. You will not even be allowed to write a supplementary examination. It is your responsibility to contact the University before the examination date to ensure that all assignments have been recorded against your name, that the marks awarded are correct and that examination admission has been obtained.
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8.3 Examination period and supplementary examinations This module is offered in a semester period of 15 weeks. At the end of the semester that you are registered for, you will write an examination, the duration of which is 2 hours. This means that if you are registered for the first semester, you will write the examination in May/June 2013 and the supplementary examination will be written in October/November 2013. If you are registered for the second semester you will write the examination in October/November 2013 and the supplementary examination will be written in May/June 2014.
Should you qualify to write a supplementary examination, you would have to obtain at least 50% in the supplementary examination to pass the module. The reason for this is that the assignment mark is not taken into account in the case of a supplementary examination. In other words, only your examination mark is taken into account in the supplementary examination to determine whether you pass.
During the course of the semester, the Examination Section will provide you with information regarding the examination in general, examination venues, examination dates and examination times. Please refer to the my Studies @ Unisa brochure for more details. 8.4 Previous examination papers A previous examination paper will be uploaded on myUnisa before the examination. Also note that the self-assessment assignment in this tutorial letter is partly based on a previous examination paper. You will receive detailed commentary on this assignment in a later tutorial letter. We advise you, however, not to focus on old examination papers only, as the content of modules and therefore examination papers changes from year to year. You may, however, accept that the type of questions that will be asked in the examination will be similar to those asked in the activities in your study guide, in the assignments and in the old examination papers. 8.5 Tutorial letter with information on the examination To help you with your preparation for the examination, you will receive a tutorial letter that will explain the format of the examination paper, give you examples of questions that you may expect and set out clearly what material you have to study for examination purposes.
9 FREQUENTLY ASKED QUESTIONS
Please refer to the A-Z guide in the my Studies @Unisa brochure. We hope that you will enjoy this module and we wish you every success with your studies.
PROF CJ PRETORIUS Telephone number: 012 429-8502 MR KA SEANEGO 012 429-8997 MRS HM DU PLESSIS 012 429-8353 UNISA /hs
