Interference without ownership: The theft of incorporeal money in the South African law of unjustified enrichment
Published date | 23 August 2021 |
Author | Scott, H. |
Date | 23 August 2021 |
Citation | 2021 Acta Juridica 343 |
Pages | 343-373 |
DOI | https://doi.org/10.47348/ACTA/2021/a13 |
343
https://doi.org/10.47348/ACTA/2021/a13
Interference without ownership: The
theft of incorporeal money in the South
African law of unjustied enrichment
HELEN SCOTT*
First National Bank o f Southern Afr ica v Perry, Nissan South Africa v
Marnitz NO and Absa Bank v Lombard Insurance, as well as Tr us tee s,
Estate Whit ehead v Dumas and Absa B ank v Moore, together a mount
to a concerted attempt on the part of South Afr ican court s to
provide victims of the thef t of incorporeal money with adequate
redress. However, it ha s proved dicult to nd a satis factory juristic
explanation for this ser ies of decision s. This chapter shows that a
model organ ised around the extension of the vindicatio to incorporeal
money is unworkable. In stead, having considered briey a second
possibility, namely, the Engl ish constr uctive tr ust, this chapter
advances an a nalysis of the plai nti’s claim to t he stolen money solely
in terms of the non-consensual enr ichment (that is, en richment
other than by del iberate conferral) of the defendant at thei r expense.
Apart from its superior ex planator y power, such an approach oers a
blueprint for future development, insofar as it opens the way to the
recognition of a secured cla im where the proceed s of stolen money
have been used to d ischarge the thief ’s pre-exist ing secured debts: the
doctri ne of subrogation to exti nguished right s. This chapter closes by
considering the implications of these conclusions for wider debates
about the proper size and shape of the law of unjust enrich ment.
I PR EFACE
I rst met Dale Hutchison – or rather Professor Hutchison – when
I studied the law of contract at the University of Cape Town in
1997. He was one of our most popular lecturers, regarded with
real warmth and aection by the class. But we also revered him
* Tutori al fellow of La dy Marga ret Hal l and professo r of private law i n the
Oxford Law Fa culty. I would like to tha nk Graham Brad eld, Wolfgang Ernst ,
Robin Evans- Jones, Rory Gregson, B irke Häcker, Douglas Sco tt, Bill Swadl ing
and Nial l Whitt y for their invaluable a ssistan ce. The mist akes are cer tain ly my
own. I would al so like to than k several generation s of UCT students for helping
me to sort th rough these complex ideas .
2021 Acta Juridica 343
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344 THE FUT URE OF THE LAW OF CONTR ACT
https://doi.org/10.47348/ACTA/2021/a13
for the clarity and elegance with which he taught the subject – for
his ability to make even dicult, techn ical law seem accessible.
It was in 1997 too that I rst read his seminal essay on the
twentieth-century history of the lex Aquilia, a piece that I have
returned to m any times over the cour se of the last 24 years, ea ch time
learning more from it. Later, as a col league in the Department of
Private Law, I came to look forward to his departmental seminars.
These were always unshowy and workmanlike, a practical guide
to a tricky case or line of cases, but at the same time they seemed
to embody the particular genius of the doctrinal pr ivate lawyer:
clarity and brevity of ex position, acute awareness of social and
commercial contex t, and the instinct for coherence that keeps a
case-based system in balance between inexibilit y and chaos.
The subject of the contribution that follows is the law of unjust
or unjustied enrichment rather than the law of contract, and its
focus is the least contractual part of unjustied enrichment – what
I have called enrichment arising from non-consensual sh ifts in
wealth. Nevertheless, it falls squarely within the theme of this
volume insofar as I seek to show, rst, that the theft of incorporeal
money is handled by South African law not within the framework
of the law of property but rather in terms of an exclusively
obligationary model, and, secondly, that only an analysis that
focuses primarily on the parties’ contractual relationships – on
their contractual rights and duties, actual and putative – can
explain the South African law in this respect. In wr iting it, I have
tried to pay tr ibute to Dale by putting into pract ice the intellectual
virtues he exemplies. If I have fallen short, that only ser ves to
show how dicult it is to do doctrina l law well, however easy
Dale may make it look.
II THE THEFT OF INCORPOREAL MONEY
If middle-class anecdote is to be believed, nancial cr ime is
a growth industry in South Africa. Despite the best eort s of
individua l banks and regulator y bodies, the theft of money out
of bank accounts is increasingly common, and it falls largely to
traditional private law to provide relief to victims.1 When such
1 S ee B Wessels ‘Recons idering t he state’s liabi lity for h arm ar ising fr om
crime: The p otential development of th e law of delict’ (2019) 30 Stellenbosch L R
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