Interference without ownership: The theft of incorporeal money in the South African law of unjustified enrichment

• DOI: https://doi.org/10.47348/ACTA/2021/a13
• Pages: 343-373
• Citation: 2021 Acta Juridica 343
• Published date: 23 August 2021
• Author: Scott, H.
• Date: 23 August 2021

343

https://doi.org/10.47348/ACTA/2021/a13

Interference without ownership: The

theft of incorporeal money in the South

African law of unjustied 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 dicult 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 briey 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 oers 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 aection 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 dicult, 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 inexibilit y and chaos.

The subject of the contribution that follows is the law of unjust

or unjustied enrichment rather than the law of contract, and its

focus is the least contractual part of unjustied 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 exemplies. If I have fallen short, that only ser ves to

show how dicult 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 eort 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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