Type of mistake?
Until 1992 (Willis Faber (A)) it had been held that only a mistake of fact would allow a plaintiff to use the CI. A mistake of law excluded the operation of the CI. In 1992 the Appeal Court brought an end to the distinction error in fact or law in the case of Willis Faber!! [Judge: “legal policy would seem to demand, the abolition of a principle that is manifestly unjust in the majority of cases”] An error in itself is not sufficient to ensure the success of the CI, the error has to be excusable as well! Hefer JA is of the opinion that an error of law also has to be reasonable (excusable) to qualify as a mistaken belief. Hefer JA did not state which circumstances will be seen as excusable BUT stated that if the plaintiff’s conduct is so “slack” that he deserves no protection in the eyes of the court, then no such relief will be given by the court. Judge goes further and state that excusability will differ from case to case. 4. DISCUSSION OF THE REQUIREMENTS 1. TRANSFERENCE/DATIO: The transference of property has a wide interpretation for the purposes of enrichment law (eg. Frame v Palmer – held that the value of labour can be claimed by the CI).
Immovable property; money; movable property (specific things); Res fungibiles (consumable goods); Res incorporales (intangible things for example rights – Nortjie v Pool); Habitatio; Possession; Factum (labour/ value of labour) Utilise the act of transfer / act of payment What can be transferred: Ownership in immovable property Ownership in money Ownership in movable property (specific things) Res fungibiles (consumable goods) Res incorporales (intangible things for, example rights) Habitatio (if given unduly = the impoverished can terminate the stay and claim amount of rent that the inhabitant would have paid as lease) Possession (when given unduly = the non-owner can claim possession with CI) Factum (labour/ value of labour). Frame v Palmer case the court accepted that the value of labour can be claimed with CI. Minority judgment of Nortje v Pool case agreed but majority left question open.
Gouws v Jester Pools case stated ‘the view appears to be that the value of labour cannot be claimed by any of the condictiones sine causa” last case = unfair especially where error is excusable. An action with a wide scope that deviates from the strict requirement of datio according to its normal meaning – normal meaning being that of property transfer - registration. (P. 29-31 SG) 2. INDEBITI PERFORMANCE: Transfer must be indebite i.o.w “undue” in the mistaken belief that it was indeed due. Unjustified performance interpreted in broadest sense [Nkosi case] Du Plessis: Indebite performance must not only be sine causa, but should also have been made with the intention to fully extinguish a debt.
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