Reflections on the Sine Causa Requirement and the Condictiones in South African Law

• Jurisdiction: South Africa
• Published date: 16 August 2019
• Pages: 468-493
• Citation: (2009) 20 Stell LR 468
• Author: Graham Glover
• Date: 16 August 2019

468

REFLECTIONS ON THE SINE CAUSA

REQUIREMENT AND THE CONDICTIONES IN

SOUTH AFRICAN LAW

Graham Glover *

BA LLB PhD

Associate Professor, Rhodes University

1 Introduction

Much of the modern work on unjustied enrichment around the world

strives to determine how, in a taxonomic sense, we should nd , descr ibe

and classify cases of enr ichment. As we have moved into the 21st rst

century, South Afr ica’s enrichment law has found itself at the point where

it has important choices to ma ke in th is regard. For some time there was a

widely held view that the enrichment actions inherit ed from classical Roman-

Dutch law, and which had dened South Africa’s en richment law from an

organisational perspective in the 20th cent ury, were simply to be tolerated

until a general enrichment action could be recognised, and Sout h Africa’s

law of unjustied enrichment could be described and developed in a more

principled and generalised fashion. But the Supreme Court of Appeal in

McCarthy Retail Ltd v Shortdistance Carriers C C1 (“McCarthy”) favoured a

more cautious approach. By nding t hat a general enrichment action (when it

is eventua lly recognised) should be subsidiary to the t raditional enrichment

actions, the Supre me Court of App eal indicated rmly that the trad itional

actions would remain important to how pa rties classify and plead claims based

on enr ichment.2 This means that some serious thought needs to be given to

the nature a nd role of the condictiones - the in stitutionalised forms of action3

which are applied in our law to deal with most cases of e nrichment by transfer.

The condictione s present interesting a nd difcult cha llenges of classication

for the moder n South African jurist. They have deep historical roots, but

* This art icle grew out of a paper p resented at the Col loquium on the Fut ure Developme nt of the South

African Law of Unju stified Enrichmen t, held at the Un iversity of Stelle nbosch on 27 October 2007

Thanks go t o Professor Jacques du Ple ssis for the invitat ion to participat e in this initiat ive

1 2001 3 SA 482 (SCA) Se e also First National Ban k of Southe rn Africa Ltd v Perr y NO2001 3 SA 960

(SCA) 971

2 McCarthy Retail Ltd v Short distance Car riers CC 20 01 3 SA 482 (SCA) par a 8 See Vis ser Unjustif ied

Enrichment (2008) 53ff; Viss er “Unjust ified En richment” in D u Bois (ed) Wille’s Pr inciples of South

African Law 9 ed (2007) 1045; Sonnek us Unjust ified E nrichment in South African Law (2008)16-23;

Visser & Pu rchase “The General En richment Actio n Cometh” 2002 SALJ 262; Whitty & Visser

“Unjustif ied Enrich ment” in Zimmer mann, Vis ser & Re id (eds) Mixe d Legal Systems in Comparati ve

Perspective: P roperty and Oblig ations in Scotlan d and South Afric a (2004) 401-407

3 The various ways in which cases based upon en richment can be brought befor e the courts are consiste ntly

referred to as actions See gener ally Lotz “Enrich ment” in LAWSA 92 ed rev Brand (20 05) para 210;

Visser Unjustif ied Enrichment 5 This include s the various types of condict io ob causam (rem) dati which

developed in the post-cla ssical era, and which wer e absorbed i nto South Af rican law via Roman-Dut ch

law

(2009) 20 Stell LR 468

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they h ave also evolved in a piecemeal fashion to me et modern commercial

realities. Their development and application replicates (and exemplies) the

casuistic and ad hoc trajectory of enrichment law in South Afr ica, f rom

misunderstood quasi-contractua l oddity to a separate and legitimate branch

of the law of obligations , but one that is still nding its feet. It is ther efore

tting t hat the Colloquium on the Future Development of the South African

Law of Unjustied Enrichment should coincide with the 300th anniversa ry of

the bir th of the fathe r of modern t axonomy, the Swedish botan ist, physician

and zoologist Carl Linnaeus.4 In this spir it, this article will review the cur rent

landscape, and consider the possible futures , of the condictiones in modern

South African law.

2 The traditional position

South A frica’s law of unjustied enrichment has t raditionally b een

characterise d by the formal dominance of the various enrichment actions

inherited from Roman and Roman-Dutch law. The result, as Schutz JA pointed

out in McCarthy, was that

“[u]nlike other branches of our law, the rich Roman source material has not led to an unqualied

judicial recognition … of a general principle of unjustied enrichment, from which solutions to

particular instances may be derived”.5

Instead, enrichment law was under stood and explained almost exclusively

through the wi ndows created by these actions. As Viss er states:

“The territory of enrichment law was (and for the moment remains) demarcated principally in terms

of the Roman condictiones and a few other related actions. Although some of these actions were

created by the South African courts, most of them are rmly rooted in the Corpus Iuris Civilis (or at

least in the medieval extension of its principles). In South African law, therefore, it is not so much a

question of the forms of action ruling us from their graves, but that they have never died – causing us

to continue thinking, quite primitively, in terms of ‘actions’ instead of principle.”6

The res ult was that i nstances of en richment liability were generally

explained7 and applied in a narrow, positivistic, technical way; in much

the same way, perhaps, as the various specic t orts of English law have

traditionally been described and unde rstood. Treatises and textbooks have

generally followed suit: their structure has been based on the traditional

actions, a nd they have explained , one-by-one, the m inutiae of these actions.

In t he absence of a general e nrichment action, the best that a litiga nt could

hope for in a new or unusual case was to argue for an incremental extension

to an existing en richment action.

4 See Freer Linnaeus’ Philosop hia Botanica (2005) xi

5 McCarthy Retail Ltd v Shortdistan ce Carriers CC 2001 3 SA 482 (SCA)para 8 The existence of a general

action was den ied in Nortje v Pool1966 3 SA 96 (A)

6 Unjustified Enr ichment 4

7 I use the word “generally” advi sedly There were of course some who had more visionary inclination s (one

thinks p articularly of Pr ofessors de Vos and Scholtens, a nd later Professor s Zimmerman n and Visser)

REFLECTIONS ON THE SINE CAUSA REQUIREMENT 469

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