Regspraak: ’n Verrykingseis behoort slegs suksesvol te wees mits ongegronde verryking ter sprake is en ’n deliktuele vordering slegs mits aan al die aanspreeklikheidsvestigende elemente voldoen is

• Date: 20 September 2021
• Published date: 20 September 2021
• Author: Sonnekus, J.C.
• DOI: https://doi.org/10.47348/TSAR/2021/i4a7
• Citation: 2021 TSAR 794
• Pages: 794-823

TSAR 2021 . 4 [ISSN 0257 – 7747]

794

Regspraak

’N VERRYKINGSEIS BEHOORT SLEGS SUKSESVOL TE

WEES MITS ONGEGRONDE VERRYKING TER SPRAKE IS

EN ’N DELIKTUELE VORDERING SLEGS MITS AAN AL DIE

AANSPREEKLIKHEIDSVESTIGENDE ELEMENTE VOLDOEN IS

FirstRand Bank Limited v The Sp ar Group Limited 2021 2 All SA 680 (HHA)

SUMMARY

A CLAIM FOUNDED ON UNJUSTIFIED ENRICHMENT OR DELICT SHOULD

SUCCEED ONLY IF ALL THE APPLICABLE REQUIREMENTS HAVE BEEN MET

This decision of the supreme court of appeal to which two acting judges of appeal have made

undisclosed cont ributions and with which the other members of the bench concurred, is not a model

of precise formulation nor a clear application of the legal principles that should have been applied.

Instead of a determinable careful breakdown of the various legal principles involved, the judgment

dismissed t he appeal of the bank. Conse quently, the Spar claim for presuma bly more than R10 million

was upheld provided th at all the costs involved in the litigat ion through three levels of the h igh court

were totalled. T his was done without a clear ind ication of the remedy or remedie s applied, because all

the require ments for the potentially ap plicable remedies were not shown to h ave been met.

In this civil ma tter, reference is made to clai ms founded on theft, unjust ied enrichment , and breach

of a duty to take ca re, apart from the appa rent reliance on a presumed p erfected general nota rial bond

and a perceived shor t-term business lea se for the lessor’s own account.

Spar entered into a franchise agreement with Umtshingo, a company represented by Paulo in

Nelspruit, a nd as a consequence provided the t hree outlets doing busine ss under the Spar banner w ith

all the applicable st ock under a credit agr eement. Spar was not aware of th e fact that the Kwik Spar was

never part of the Umt shingo company but was a close cor poration, and as such, a se parate legal entity.

Any agreeme nts, including the pur ported general not arial bond entered i nto between the company a nd

Spar, were res inter alios acta as far as the close corporation was concerned. The supreme court of

appeal, notw ithstanding the clear p osition stated in section 29(1) of Act 69 of 1984, held that the close

corporat ion was “de facto, a division of the whole busi ness” of the company. This is clearly wr ong.

Each outlet had its own separate bank account with the appellant. Spar was under the impression

that it had safegu arded its risk as credit provide r with a registered general notarial bond, which was

enhanced w ith a perfection clause over Umtsh ingo’s movable property. When Umtshingo defa ulted on

its perform ance liability, Spar applie d for and obtained an int erim perfection o rder and presumed th at it

was consequently ent itled to immediately manage th e outlets for its own account and benet. In realit y,

the inte rim perfect ion order was never conrm ed; instead it was dismi ssed at a la ter stage. Even if it

had been con rmed, the outcome of a perfec tion order is merely to put the mortgage e in the position of

pledgee. The latt er is never entitled to dispo se of the objects of the pledge. This is t he usual business of

an outlet that sell s groceries or liquor. Beca use the perfection orde r was never nalised, t he mortgagee

had no limite d real right to the movables of its debtor a nd it could at most claim preference to t he free

residue on liquida tion of the mortgagor as debtor. The judg ment does not refer to these conseq uences

of section 102 of the Insolvency Act no r to the requirements for a spe cial notarial bond over movables

as prescrib ed in Act 57 of 1993. The supreme court of appe al, however, did not distance itself f rom the

premise which u nderlies the decision of the f ull bench that Spar was t he mortgagee of a special no tarial

bond in this mat ter.

Spar presume d that it had also entered i nto a short-term bu siness lease agreem ent with Paulo, but the

court of rst instance had already found that, based on the facts, there never was a signed agreement .

The supreme court of appeal ig nored this ndi ng of the factual position and premi sed its judgment on

the perceived ag reement.

Spar was under t he impression that, a s a consequence of the pe rfection order and /or the business leas e

agreement, it was entitle d to expect p erformance f rom Paulo and f rom the ban k, notwithst anding the

fact that Spa r was not the accou nt holder of the applicable ac counts reecting the sums credite d to the

accounts of Umtsh ingo via the available speed p oint card machines in t he outlets.

In reality, in the absence of any binding agreement with Paulo as effective director of Umtshingo

as the debtor of Spar or a bi nding court order to th is effect, Spar had no claim to pe rformance in this

regard to compel eit her Paulo or the bank wher e Umtshingo held its account s, to ringfence the a ccounts

https://doi.org/10.47348/TSAR/2021/i4a7

2021 TSAR 794

© Juta and Company (Pty) Ltd

https://doi.org/10.47348/TSAR/2021/i4a7

VEREISTES V IR SUKSESVOLLE VER RYKINGSEIS EN DELIKT UELE VORDERING 795

[ISSN 0257 – 7747]TSAR 2021 . 4

of Umtshingo at any st age. Because Spar neglected t o inform itself of the factu al position after havin g

taken control of t he outlets regarding t he legal position of the close cor poration, Spar never ap plied for a

court order a gainst the close corpor ation before it was too late. But for excep tional legislation, all legal

subjects can on ly have a single estate; the sam e competencies and ent itlements of the legal subject a pply

to all assets for ming part of this esta te. Neither by means of a mere unilat eral act nor by means of an

agreement ca n an additional separate es tate be created for any legal subject . The so-called perceived

demand to ringfence some assets of Umtshingo had no legal effe ct unless it wa s conrmed by a valid

court order a s eg during prelimina ry liquidation procee dings or under business r escue proceedings as

governed by the In solvency Act or the Companies Act.

On the premise that there was a perceived valid agreement and/or a valid perfection order, Spar

expected to benet from all sales co nducted under its management of the three outlets. In re ality, the

credit channelled via the old speed point machines went straight into the dedicated accounts of the

account holders. Paulo, in accordance with his entitlement as sole director of the company and sole

member of the close cor poration, made disbu rsements from these a ccounts. The bank se t off the major

portion of its customers’ indebtedness to the bank against the credit in the customers’ account that

derived from t he deposits.

According to the j udgment, in so doing, Pau lo was guilty of theft a nd the bank was not entitle d to the

set-off. Althoug h South African law adher es to the presumption of inno cence until found guilty by a

crimin al court, no referenc e is made in the decision ind icating that Paulo has a lready been found g uilty

of theft or that a cr iminal process ha s even been instigated ag ainst him.

It is submitted t hat theft can onl y apply to the unlawf ul intentiona l appropriation of movable c orporeal

property of another from the latter’s possession. The credit, which was created via the speed point

machines at the cashier’s check-out points in the shops, was at no stage movable corporeal property

in posses sion of Spar. It was immediately re ected on deduct ion from the account of the buyer in the

account of the releva nt account holder – Umtshingo or Cent ral Route. Spar could have prevented th is

by removing the old spe ed point machines and by providi ng alternative card reade rs linked to Spar’s

own bank account. By neglecti ng to do so, Spar created its own prejud ice. At no stage was the bank

unjustiably e nriched by the set-off pe rformed.

There was no ack nowledged source for a perc eived legal duty of the ban k to safeguard the i nterests of

Spar as a third p arty. In the absence of an ag reement with Umtshi ngo or Paulo, Spar had no contra ctual

right to performance that the bank was not supposed to infringe on by permitting his client in the

absence of an applicable court order to disburse funds standing to its credit or to set-off its client’s

liabilities aga inst the credit avai lable. No bank is under legal obl igation or duty to safegu ard the interest

of third par ties; even a public authority needs t o rely on applicable legislation if it wants to comp el a

bank to put a hold on cre dit in an account sus pected to be the fr uits of crimin al activity. For this reason ,

eg Act 121 of 1998 makes provision in section 50 to a pply for a forfeiture order becau se, without it, no

bank is deeme d to be the guardian a ngel of an unconnected t hird party’s interes ts regarding assets h eld

in its client’s accounts .

In view of this judgment, som e old adages have regained signicance – Roma loc uta; causa nita est

… ex Africa semp er aliquid novi.

1 ’n Verrykingseis is die laaste remedie in die arsenaal van ’n litigant wat na

bewering benadeel is weens ’n vermoënsverskuiwing uit sy boedel na dié van die

verweerder sonder dat daar sprake is van enige ander erkende regverdiging vir

sodanige vermoënsver andering en daar o ok nie aan die aanspreek likheidsvestigende

vereistes vir enige van die ander erkende remedies uit die verbintenisreg voldoen

word nie. In die omstandighede k an ’n eiser dus nie suksesvol steun op byvoorbeeld

’n onderliggende ooreenkoms tussen d ie part ye sodat ’n eis vir skadevergoed ing na

kontrakbreuk aa ngewend kan word nie en daar is ook geen sprake van ’n verw ytbare

onregmatige daa d deur sy teenparty wat die eiser se nadeel veroor saak het nie.

Hoewel bepaalde vereistes vir die op bill ikheid gebaseerde condictiones gemee n is

aan alle verr ykingseise het van die onderskeie verrykingsvorder inge daarbenewens

eiesoortige vereistes waaraan juis in die lig van die onderliggende billikheidsaard

van die remedies óók voldoen moet word alvorens sukse svol daarmee die minste van

hetsy die omvang van die voorhande verr yking in die boedel van die verweerder óf

die totaal aan ska de gely deur die eiser weens die ongegronde vermoënsversk uiwing

teruggevorder kan word. Die condictio ob turpem causam kan byvoorbeeld nie

suksesvol aangewend word waar die eiser self met d ie spreekwoordelike vuil hande

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