Negotiorum gestio and wrongs

• Jurisdiction: South Africa
• Pages: 329-336
• Published date: 29 May 2019
• Author: D H van Zyl
• Date: 29 May 2019

Negotiorum gestio and wrongs

2000 Acta Juridica 329

D H Van Zyl *

Judge of the High Court of South Africa

I Introduction

My involvement with negotiorum gestio or, as it is al so known, the unauth orized

administration of the affairs of another, goes back to 1968, when I had the honour of

becoming a doctoral student of Professor Robert Feenstra at the University of Leyden.

The title of my thesis was Die Saakwaarnemingsaksie as Verrykings aksie in die Suid -

Afrikaanse Reg. 1 It became the basis of chapter 5 of my book: Negotiorum Gestio in

South African Law. 2 In neither of th ese publi cations did I advert to any relationship or

interaction between negotiorum gestio and del ict. Nowhere in the index will you find any

reference to 'de lict', 'wrong' or 'wrongfulness'. What is dealt with, however, is the

question of liability of the (negotiorum) gestor on the basis of negligence (culpa) or a

lack of diligence. I shall return to this below.

At a previous conference held in th e Faculty of Law at the University of Cape Town, 3 I

was asked to speak on the topi c of 'Enrichment and Wrongs in South African Law'. 4 I did

so reluctantly because, at that stage, I did not believe that there was any connection at

all between wrongs, in the sense of delict, and unjustified enrichment, which owed its

very existence to the fact that it could not be classified as either contract or delict.

Contract, delict and unjusti fied enrichment were, in my vi ew, separate causes of action,

each giving rise to reciprocal rights and duties, and their distincti veness did not, and

should not, allow for a ny encroachment of one upon the other. Professor Danie Visser,

however, prompted me, wi th reference to judicial policy considerations and the relevant

development in English and German law, to reconsider my strong p rima facie view. 5

* SC MA LLB (Pret) Dr Jur (Leyden) PhD (UCT) LLD (UCT) D Litt (UOFS); Judge of the High Court of South

Africa (Cape Provincial Division); Visiting Professor, Edinburgh University.

2000 Acta Juridica 330

In this regard I have given consideration to the use of negotiorum gestio as a means

of crossing the divide between unjusti fied enrichment and delict in South African law.

Benefits or enrichment acquired by the defendant, as a neg otiorum gestor, by means of

a wrong committed against the plaintiff, as do minus negotii, could conceivably, without

any corresponding prejudice to or i mpoverishment of the plain tiff, give rise to a remedy

in negotiorum gestio. This remedy, however, would be the actio negotiorum gestorum

directa, which is not an enrichment action, bu t woul d simply furnish the plaintiff with a

remedy for the recovery of the proceeds of the defendant's wrongful conduct. 6 Its effect

would be similar to that of the uniquely German creation known as the

Eingriffskondiktion, 7 which is linked to the concept of unjustified enrichment. It would

differ significantly, however, from the cond ictio sine causa or any othe r condiction based

on unjustified enrichment, as it is understood i n Roman or in Roman-based European

common law (ius commune europaeum), as received into South African law. It would

1 Luctor et Emergo, Leiden 1970.

2 Butterworths, Durban 1985.

3 On 'The Outer Limits of the Law of Obligations', held at the University of Cape Town during June 1996.

4 Since published as 'Enrichment and wrongs in South African law' in Acta Juridica (1997) 27383.

5 On the relevance of policy considerations in the context of a general enrichment action seeD P Visser 'The

Role of Judicial Policy in Setting the Limits of a General Enrichment Action' inE Kahn (ed) The Quest for Justice:

Essays in Honour of Michael McGregor Corbett, Chief Justice of the Supreme Court of South Africa (1995) 342-

65.

6 See my cited article on enrichment and wrongs (n 4) 281-82.

7 See the discussion on German law in III below.

2000 Acta Juridica 329

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