Book Review: Unjustified enrichment — A casebook

• Jurisdiction: South Africa
• Author: Jacques du Plessis
• Pages: 310-312
• Published date: 30 May 2019
• Date: 30 May 2019
• Citation: (2000) 11 Stell LR 310

Unjustified enrichment — a casebook

2000 Stell LR 310

Jacques du Plessis

Professor, University of Stellenbosch

UNJUSTIFIED ENRICHMENT — A CASEBOOK — bY SIEG EISELEN and GERRIT

PIENAAR. Second edition. Butterworths Durban 1999 xvi and 441 p. Price

R273,60.

It might sound whimsical to suggest that authors could put their work on a diet and

force it to work out, but it seems that this is exactly what Professors Eiselen and

Pienaar have done with their casebook on the South African law of unjustified

enrichment. Apparently motivated by the need to cut costs and make the work more

accessible (see the review by Du Plessis 1996 Stell LR 120), the new edition is about

two-thirds the length of the original. However, in substance the book has not

changed

2000 Stell LR 311

much. About 28 extracts have been deleted, mostly to no real detriment (the

notable exception being African Diamond Exporters (Pty) Ltd v Barclays Bank

International Ltd 1978 3 SA 699 (A), which remains particularly interesting to

students for hinting at profit margins in the diamond trade). There are seven new

extracts, which cover important recent cases such as B & H Engineering v First

National Bank of South Africa Ltd 1995 2 SA 279 (A), Kommissaris van Binnelandse

Inkomste en ’n ander v Willers 1994 3 SA 283 (A), Buzzard Electrical (Pty) Ltd v 158

Jan Smuts Avenue Investments (Pty) Ltd 1996 4 19 (A) and ABSA Bank Ltd t/a

Bankfin v Stander t/a CAW Paneelkloppers 1998 1 SA 939 (C). Unfortunately, some

of the notes to the new cases are perhaps a bit too brief — especially the note to

the Willers case, which could have made much more of how Nortje v Pool NO 1966

3 SA 96 (A) should be viewed in future. Of the remaining notes, few have been

rewritten — the most effort went into relocating some of the case notes to the front

of sections, where they now act as introductory paragraphs. Only rarely has the

structure itself been altered, notable changes being the treatment of the actio

negotiorum gestorum utilis and the relocation of the treatment of cheque payments

(2 2 2) from the condictio indebiti to the condictio sine causa specialis (although the

authors still maintain that the condictio indebiti is the preferable remedy when

dealing with the repayment of countermanded cheques — see pages 79 sq).

An unfortunate aspect of the second edition is that a number of errors have been

made in re-arranging some of the notes. For example, a note to King v Cohen

Benjamin & Co 1953 4 SA 641 (W) on page 38 states that “for a detailed analysis of

the case see Scholtens 1977 ASSAL 167–171 Scholtens 1978 ASSAL 229–231”.

However, this note in fact used to accompany a (now discarded) extract from

African Diamond Exporters (Pty) Ltd v Barclays Bank International Ltd 1978 3 SA

699 (A). Another example relates to a note which used to accompany a (now

discarded) extract from Baliol Investment Co (Pty) Ltd v Jacobs 1946 TPD 269. A

part of this note now not only forms part of the introduction to Commissioner for

Inland Revenue v First National Industrial Bank Ltd 1990 3 SA 641 (A), but finds its

way in the notes again, and to make matters worse, the same paragraph is

duplicated in two successive notes (compare paragraph b on page 61 with

everything which follows the second sentence of paragraph c on page 62). On page

71 we find that notes to the (now discarded) Gouws v Jester Pools (Pty) Ltd 1968 3

SA 563 (T) accompany the newly included Buzzard Electrical (Pty) Ltd v 158 Jan

Smuts Avenue Investments (Pty) Ltd 1996 4 19 (A). Picture the poor student who

has just read Buzzard, and then comes across the following note (which used to

follow the Gouws case):

“The statement by Lee Introduction to Roman Law 347–348 that there shouldbean

‘antecedentlegal relation between the persons concerned’ referred to by the court in

Gouwsv Jester Pools (Pty) Ltd 1968 (3) SA 563 (T), is incorrect.”

(2000) 11 Stell LR 310

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