Source:

South African Law Reports, The (1947 to date)/CHRONOLOGICAL LISTING OF CASES – January 1947 to June 2023/1998/Volume 1: 639 ­ 986 (March)/ABSA BANK
LTD t/a BANKFIN v STANDER t/a CAW PANEELKLOPPERS 1998 (1) SA 939 (C)

URL:
http://jutastat.juta.co.za/nxt/gateway.dll/salr/3/6699/6755/6777?f=templates$fn=default.htm

ABSA BANK LTD t/a BANKFIN v STANDER t/a CAW PANEELKLOPPERS 1998 (1) SA 939 (C)
1998 (1) SA p939

Citation 1998 (1) SA 939 (C)

Case No A1132/95

Court Cape Provincial Division

Judge van Zyl J, Burger AJ

Heard May 10, 1996

Heard January 27, 1997

Judgment January 27, 1997

Counsel DJ Van Der Walt for the appellant

J Koen for the respondent

Annotations Link to Case Annotations

Flynote : Sleutelwoorde
Enrichment ­ Extended actio negotiorum gestorum ­ When available ­ Motor vehicle sold to purchaser in terms of instalment sale agreement
subject to reservation of ownership until full C amount owing paid ­ Purchaser failing to comply with contractual obligations ­ Purchaser lending
vehicle to borrower who was involved in collision with it ­ Borrower delivering vehicle for repair for borrower's account ­ Repairer under
impression that borrower owner of vehicle ­ Borrower disappearing and purchaser refusing to pay for repairs ­ Repairer claiming cost of repairs
as D being increase in value of vehicle on basis that repairs had been reasonable, necessary and useful and owner unjustifiably enriched at
repairer's expense ­ Repairer never intending to manage owner's affairs and accordingly not ordinary negotiorum gestor ­ Repairer's legal position
to be construed as that of bona fide gestor managing affairs of dominus (owner) in E mistaken belief he was managing own affairs ­ Absence of
privity of contract between repairer and owner irrelevant for purpose of enrichment action ­ Policy dictating that it would be unjust, unfair and
unreasonable should repairer be deprived of action against owner ­ Such action the extended actio negotiorum gestorum ­ Repairer entitled to
recover amount by which owner unjustifiably enriched at his expense. F
Headnote : Kopnota
One K had purchased a motor vehicle in terms of an instalment sale agreement which provided that ownership of the vehicle would not pass to
K before the full amount owing in terms of the agreement had been paid. The seller of the vehicle ceded its rights in the agreement to the G
appellant, which became the owner of the vehicle. K failed to comply with her obligations in terms of the agreement. While the vehicle was in
K's possession, she lent it to B who was involved in a collision with it. B thereupon delivered the vehicle to the respondent for repair. The
respondent was at all relevant times under the impression that B was the owner of the vehicle and that the repairs were therefore effected on
B's instructions and for his account. H Thereafter B disappeared and could not be located by the respondent. The appellant instituted an action
for rei vindicatio against the respondent in a magistrate's court for delivery of the vehicle and applied for the attachment of the vehicle pending
finalisation of the action. The respondent opposed the action but not the application. The respondent instituted a I counterclaim for the cost of
the repairs to the vehicle, averring that they had been reasonable, necessary and useful and had increased the value of the vehicle in the
amount of the actual expense incurred and that the appellant had therefore been unjustifiably enriched by such amount at the respondent's
expense. The respondent alleged, in the alternative, that he had acted as the unauthorised manager (negotiorum gestor) of the appellant's
affairs in which regard he had had the intention of managing such affairs and of being reimbursed for the expenses incurred by him in doing so.
The magistrate J

1998 (1) SA p940

upheld the counterclaim in an amount of R4 200, with interest and costs, on the basis that the A appellant had been unjustifiably enriched in
that amount at the expense of the respondent. In an appeal to a Provincial Division,
Held, that the respondent had clearly been impoverished and the appellant enriched in that the latter had been saved the expense of having the
vehicle repaired: this situation was not affected by the fact that the appellant might have a contractual claim against K or a delictual claim
against B for the recovery of such expenditure. (At 956J­­957A/B.) B
Held, further, that on the facts there was no question of negotiorum gestio in its ordinary sense: at no stage did the respondent have the
slightest intention of managing the affairs of the C appellant; he was acting on the strength of an instruction by B to carry out repair work to
the damaged vehicle. Hence the basic prerequisite for an action arising from negotiorum gestio, namely the intention to manage the affairs of
another (animus negotia aliena gerendi), was absent. The respondent's legal position could, however, be construed as that of a bona fide
gestor who had managed the affairs of the dominus (the appellant) in the mistaken belief that he had managed his own affairs in the sense of
complying with his obligations in terms of his agreement with B. (At 944G/H­­I and 957A/B­­C.) D
Held, further, that the fact that there was no privity of contract between the respondent and the appellant was irrelevant for purposes of
instituting an enrichment action, provided the prerequisites for such an action had been complied with: although a causa for the respondent's
impoverishment existed at the time of the agreement with B, that causa had fallen away or become academic as a result of B's disappearance.
(At 957C­­D.) E
Held, further, in the alternative, that policy dictated that it would be unjust, unfair and unreasonable should the respondent be deprived of an
action against the appellant: such action was the extended actio negotiorum gestorum which entitled him to recover the amount by which the
appellant had been unjustifiably enriched at his expense. (At 957D­­D/E.) F
Held, further, on the evidence, that the court a quo had been justified in accepting the amount of R4 200, which it had awarded to the
respondent, as `fair and equitable'. (At 957F/G.) Appeal dismissed.
Annotations:
Reported
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Administrator, Natal v Trust Bank van Afrika Bpk 1979 (3) SA 824 (A): referred to
 Held, further, on the evidence, that the court a quo had been justified in accepting the amount of R4 200, which it had awarded to the
respondent, as `fair and equitable'. (At 957F/G.) Appeal dismissed.
Annotations:
Reported cases G

Administrator, Natal v Trust Bank van Afrika Bpk 1979 (3) SA 824 (A): referred to
Argus Printing and Publishing Co Ltd v Inkatha Freedom Party 1992 (3) SA 579 (A): referred to
Bayer South Africa (Pty) Ltd v Frost 1991 (4) SA 559 (A): referred to H

Brooklyn House Furnishers (Pty) Ltd v Knoetze and Sons 1970 (3) SA 264 (A): discussed
Buzzard Electrical (Pty) Ltd v 158 Jan Smuts Avenue Investments (Pty) Ltd en 'n Ander 1996 (4) SA 19 (A) ([1996] 3 B All SA 1): discussed and
applied
Dunbar v Wilson and Dunlop's Trustee (1887) 15 R 210: considered
Fernie v Robertson (1871) 9 M 437: considered
Fletcher and Fletcher v Bulawayo Waterworks Co Ltd; Bulawayo Waterworks Co Ltd v I Fletcher and Fletcher 1915 AD 636: referred to
Goudini Chrome (Pty) Ltd v MCC Contracts (Pty) Ltd 1993 (1) SA 77 (A): considered
Gouws v Jester Pools (Pty) Ltd 1968 (3) SA 563 (T): criticised and not followed
Indac Electronics (Pty) Ltd v Volkskas Bank Ltd 1992 (1) SA 783 (A): referred to J

1998 (1) SA p941

VAN ZYL J
JOT Motors (Edms) Bpk h/a Vaal Datsun v Standard Kredietkorporasie Bpk 1984 (2) A SA 510 (T): compared
Knoll v SA Flooring Industries Ltd 1951 (1) SA 404 (T): dictum at 408A­­C approved
Meyer's Trustee v Malan 1911 TPD 559: referred to
Minister van Polisie v Ewels 1975 (3) SA 590 (A): referred to B

New Club Garage v Millborrow and Son 1931 GWLD 86: discussed
Reid v Lord Ruthven (1918) 55 SLR 616: referred to
Sales & Services Co Ltd v Motor & General Finance Co Ltd 1954 SLT (Sh Ct) 107: considered
Standard Kredietkorporasie Bpk v JOT Motors (Edms) Bpk h/a Vaal Motors 1986 (1) C SA 223 (A): referred to
Vadas (Pty) Ltd v Philp 1940 CPD 267: considered
Williams' Estate v Molenschoot and Schep (Pty) Ltd 1939 CPD 360: criticised
Wynland Construction (Pty) Ltd v Ashley­Smith en Andere 1985 (1) SA 534 (C): considered
Wynland Construction (Pty) Ltd v Ashley­Smith en Andere 1985 (3) SA 798 (A): considered. D

Case Information
Appeal from a decision in a magistrate's court. The facts appear from the reasons for judgment.
D J van der Walt for the appellant.
J Koen for the respondent.
Cur adv vult. E

Postea (27 January 1997).

Judgment
Van Zyl J: The appellant (`ABSA') instituted a rei vindicatio against the respondent F (`Stander') for delivery of a 1984 Tredia SL 1600 motor
vehicle on the basis that it was the owner and Stander was in unlawful possession thereof. The action was accompanied by an application that
the sheriff attach and retain the vehicle in his safekeeping pending the finalisation of the action.
Stander opposed the action but not the application, and the vehicle was duly attached. The G basis of Stander's defence was that he had not
been in unlawful possession of the motor vehicle and, in any event, had a counterclaim for the cost of repairs thereto. Such repairs had been
reasonable, necessary and useful and had increased the value of the vehicle in the amount of the actual expenses incurred, namely R6 989,72.
ABSA was hence unjustifiably enriched H by such amount at his expense.
In the alternative Stander alleged that he had acted as the unauthorised manager (negotiorum gestor) of ABSA's affairs, in which regard he had
the intention of managing such affairs and of being reimbursed for the expenses incurred by him in doing so. I
An exception by ABSA to both the plea and counterclaim was dismissed with costs.
When the matter went on trial, only the counterclaim was still in dispute. It appears from the record of proceedings that the claim in convention
for delivery of the vehicle had already been granted, costs being in the cause. J

1998 (1) SA p942

VAN ZYL J
After the hearing of evidence the court a quo granted the counterclaim in the amount of R4 A 200, together with interest and costs, on the
basis that ABSA had been unjustifiably enriched in such amount at the expense of Stander.
The present appeal is directed against the dismissal of the exception aforesaid and the granting B of the counterclaim in the said amount.
The relevant facts may be dealt with briefly. A motor trader known as Motortown sold the vehicle in question to one Georgina Kent (`Kent') in
terms of an instalment agreement. Motortown subsequently ceded its rights in such agreement to ABSA, which became the owner of the
vehicle. C
It was a term of the agreement that ownership of the vehicle would not pass to Kent before the full amount owing in terms thereof had been
paid. Kent failed, however, to comply with her obligations in terms of the agreement by falling into considerable arrears with her instalments.
While the vehicle was in Kent's possession, she lent it to one Bezuidenhout who was involved D in a collision with it while it was under his
control. He thereupon delivered it to Stander for repair. Stander was, at all relevant times, under the impression that Bezuidenhout was the
owner of the vehicle and the repairs were hence effected on Bezuidenhout's instruction and for his account.
Thereafter Stander attempted unsuccessfully to locate Bezuidenhout but managed to get in E touch with Kent. She refused to pay for the
repairs, averring that Bezuidenhout was liable to Stander for payment thereof.
In his evidence Stander, a qualified panelbeater, testified that the value of the vehicle prior to F its repair was approximately R2 000. An
insurance assessor, one Van der Merwe, assessed the value of the vehicle after it had been repaired at R6 200. A valuator, one Janse van
Rensburg, testified on behalf of ABSA that the value of the vehicle, after the repairs had been effected, was only R3 000.
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The court a quo was not impressed by Janse van Rensburg and accepted Van der Merwe's G valuation. By deducting the value of the vehicle
 repairs, averring that Bezuidenhout was liable to Stander for payment thereof.
In his evidence Stander, a qualified panelbeater, testified that the value of the vehicle prior to F its repair was approximately R2 000. An
insurance assessor, one Van der Merwe, assessed the value of the vehicle after it had been repaired at R6 200. A valuator, one Janse van
Rensburg, testified on behalf of ABSA that the value of the vehicle, after the repairs had been effected, was only R3 000.
The court a quo was not impressed by Janse van Rensburg and accepted Van der Merwe's G valuation. By deducting the value of the vehicle
prior to repair (R2 000) from its value after repair (R6 200) the court established the quantum of the claim at R4 200.
In limine Mr Koen, on behalf of Stander, requested that the appeal be dismissed by reason of its continuation almost two years after the
judgment of the court a quo. After hearing argument H this Court granted condonation of the non­compliance with the applicable Rules and
ordered that ABSA pay the costs of the condonation application.
Mr Van der Walt for ABSA argued that Stander had not proved that ABSA had been enriched and Stander impoverished. He submitted that ABSA
had a contractual claim against I Kent for the full balance of the purchase price regardless of whether the vehicle was damaged or not. Stander
in turn had a contractual claim against Bezuidenhout for payment of his costs of repair. On this basis Kent, and not ABSA, would have been
justifiably enriched. In the alternative, if ABSA had been unjustifiably enriched, it was at the expense of Bezuidenhout and not of Stander, since
Bezuidenhout still had to make payment to Stander, even J

1998 (1) SA p943

VAN ZYL J
though he would not enjoy the benefit of the repairs. In this regard Mr Van der Walt relied on A the decision in Gouws v Jester Pools (Pty)
Ltd 1968 (3) SA 563 (T).
Mr Koen countered this argument by submitting that Stander had acted as the unauthorised manager (negotiorum gestor) of ABSA when
effecting the repairs. He found support for this contention in the case of Williams' Estate v Molenschoot and Schep (Pty) Ltd 1939 CPD B 360.
The present case is complicated by the fact that there are various legal relationships existing between the relevant role players. There is,
firstly, a contractual relationship of purchase and sale (emptio venditio) between ABSA and Kent subject thereto that ABSA retains C ownership
(dominium) of the vehicle until all amounts owing by Kent to ABSA in respect of the sale of such vehicle have been paid. Kent had the right to
use the vehicle pending compliance with her aforesaid obligations.
A second contractual relationship arose when Kent, as user, lent the vehicle to Bezuidenhout. It must have been a tacit or implied term of the
agreement of loan (commodatum) that the D vehicle would be returned within a reasonable time and in the same condition as it had been in at
the time she lent it to him. Whether or not she was entitled to enter into such agreement of loan in terms of her agreement with ABSA is not,
for present purposes, of any relevance.
A third contractual relationship, which may be described as a letting and hiring of work E (locatio conductio operis) or mandate (mandatum),
came into existence when Stander agreed to repair the damaged vehicle at the request of Bezuidenhout, whom he wrongly believed to be the
owner thereof.
On a purely contractual basis Stander has a claim only against Bezuidenhout for the repairs F effected to the vehicle. There is no contractual
nexus between Stander and Kent or between Stander and ABSA. If, therefore, Bezuidenhout should not pay, Stander would have no contractual
recourse against Kent or ABSA.
This does not mean, however, that Stander would be without a remedy. As long as he remains G in possession of the vehicle after effecting
repairs thereto, he would be entitled to a lien or right of retention (ius retentionis) as against ABSA, despite the fact that the repairs have been
effected in terms of an agreement between himself and Bezuidenhout, provided that the expenses incurred by him in effecting such repairs have
been necessary or useful. A lien of this nature is known as an `enrichment lien' and constitutes a real right, as opposed to a `debtor H and
creditor lien', which arises from an agreement and provides merely a personal right as between the contracting parties. The distinction was
succinctly put by Nienaber JA in Goudini Chrome (Pty) Ltd v MCC Contracts (Pty) Ltd 1993 (1) SA 77 (A) at 84J­­85A:
`Rights of retention are broadly classified as enrichment (preservation or improvement) liens or as I debtor and creditor liens. The former are real rights, the
latter not.'

On enrichment liens as such the learned Judge said (at 85A­­C):

`An enrichment lien is a form of security for the payment of expenses which were necessarily incurred by one party for the preservation or protection of
someone else's property (impensae necessariae) or usefully incurred for its J

1998 (1) SA p944

VAN ZYL J
improvement, ie the enhancement of its market value (impensae utiles). . . . It is immaterial whether A the work was done in terms of a contract and, if so,
whether the contract was with the owner of the property. The party who did the work may retain possession of the property in respect of which his work was
done against the true owner, against his counterpart in contract (if there is one) or against B anyone else who claims it from him, until he has been reimbursed
for his expenditure or the amount by which the owner had been enriched, whichever figure is the lesser.'

In Brooklyn House Furnishers (Pty) Ltd v Knoetze and Sons 1970 (3) SA 264 (A) at 270F­­271D Botha JA classified enrichment liens as `salvage
liens' and `improvement liens' C which are based on the general principle of Roman law as set forth in Dig 50.17.206: Iure naturae aequum est
neminem cum alterius detrimento et iniuria fieri locupletiorem (`In accordance with natural law it is fair that no one should be enriched at the
expense of another and wrongfully'). This principle appears also in Dig 12.6.14: Nam hoc natura aequum est neminem cum alterius detrimento
fieri locupletiorem (`For it is naturally fair that no one D should be enriched at the expense of another'). See also Wynland Construction (Pty)
Ltd v Ashley­Smith en Andere 1985 (3) SA 798 (A) at 812G­­813A and the thought­provoking discussion of liens by J C Sonnekus
`Retensieregte ­ Nuwe Rigting of Misverstand par excellence?' in (1991) TSAR at 462­­82.
Sonnekus is critical (at 464­­9) of the reference to a lien as a `right' rather than a E `competence' or a `power'. He describes it (at 467) as a
`power to withhold' (`terughoudingsbevoegdheid') arising from a claim on whatever ground and (at 469) rejects the distinction between
enrichment liens and debtor and creditor liens as real and personal rights respectively. His argument is persuasive and it would appear that the
distinction should be reconsidered. F
The difficulty in the present case is that Stander has elected to give up his lien by allowing the sheriff to attach and retain the vehicle in his
safe­keeping pending the finalisation of the present action. The apparent reason for his doing so was that he could not dispute ABSA's
ownership G of the vehicle and its right to recover it in terms of a rei vindicatio. He persists, however, in his counterclaim based on ABSA's
unjustifiable enrichment at his expense, alternatively on his unauthorised management (negotiorum gestio) of ABSA's affairs.
At the outset it should be pointed out that, on the facts of the present case, there is no question H of negotiorum gestio in its ordinary sense.
At no stage did Stander have the slightest intention to manage the affairs of ABSA: he was acting on the strength of an instruction by
Bezuidenhout to carry out repair work to the damaged vehicle. Hence the basic prerequisite for an action arising from negotiorum gestio, namely
the intention to manage the affairs of I another (animus negotia aliena gerendi), was absent. I have dealt fully with this prerequisite in my
study on Negotiorum Gestio in South African Law (1985) at 31­­40, where the relevant authorities are set forth.
The absence of the animus negotia aliena gerendi does not, however, put an end to the matter. In such cases the unauthorised manager of the
affairs of another (negotiorum gestor) may still have an action against the person whose affairs he is managing (the dominus negotii). Such
action J

1998 (1) SA p945

VAN ZYL J
(the actio negotiorum gestorum contraria) is, however, limited to recovery by the gestor o f A the actual unjustified enrichment of the
dominus. Enrichment of this nature has, because of its particular character, become known as `indirect' or `third party' enrichment and the
action may best be described as the `extended' actio negotiorum gestorum. The enrichment B function of the actio negotiorum gestorum,
including
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indirect enrichment situations, was the subject of my Leyden: Wed
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die Suid­Afrikaanse Reg: 'n Regshistoriese en Regsvergelykende Ondersoek (1970) (hereinafter referred to as `Van Zyl Saakwaarneming').
 VAN ZYL J
(the actio negotiorum gestorum contraria) is, however, limited to recovery by the gestor o f A the actual unjustified enrichment of the
dominus. Enrichment of this nature has, because of its particular character, become known as `indirect' or `third party' enrichment and the
action may best be described as the `extended' actio negotiorum gestorum. The enrichment B function of the actio negotiorum gestorum,
including its application in indirect enrichment situations, was the subject of my Leyden thesis, Die Saakwaarnemingsaksie as Verrykingsaksie in
die Suid­Afrikaanse Reg: 'n Regshistoriese en Regsvergelykende Ondersoek (1970) (hereinafter referred to as `Van Zyl Saakwaarneming').
Although indirect enrichment was unknown to Roman law, it developed from a form of C enrichment action provided for in Dig 3.5.48 and 12.1.23
in terms of which a gestor who had, bona fide, managed the affairs of another under the mistaken impression that they were his own, was
granted an enrichment action against such other. The relevant authorities are dealt with in Van Zyl Saakwaarneming at 29­­36.
Among the post­glossators and commentators of medieval Roman law, Baldus, and Salycetus D (in their commentaries on Cod 4.26.7) dealt with
the case where A, at the instance of B, performs services for C, without agency or something similar linking A and C. If, for some or other
reason, A should not be able to recover from B, and if it is clear that A has been impoverished and C enriched as a result of A's rendering of
services, A would, according to E these learned jurists, be able to claim directly from C on the basis of the latter's unjustified enrichment at the
expense of B. According to Baldus (loc cit) C is liable not because A has any intention to bind him, but ex alia aequitate, puta ne locupletetur
cum aliena iactura (`on the ground of some other form of equity, namely that he should not be enriched at the F expense of another'). That A's
action against C is an enrichment action, in the form of the `extended' actio negotiorum gestorum, appears from Salycetus (op cit), who refers
to it as the utilis actio negotiorum gestorum, where A is the negotiorum gestor and C the dominus negotii.
Indirect enrichment of this nature occurred also in the German usus modernus pandectarum G and natural law. See Wolff Institutiones Juris
Naturae et Gentium at 548 cited in Van Zyl Saakwaarneming at 80 n 220. The action was undoubtedly the extended actio negotiorum
gestorum, as appears from the terminology used by Cocceius Grotius Illustratus (a commentary on the De Jure Belli ac Pacis of Hugo Grotius)
2.10.2, where he speaks of the actio negotiorum gestorum utilis as the action granted under these H circumstances. Leyser Meditationes ad
Pandectas 2 sp 130.8 and Stryk Continuatio Usus Moderni Pandectarum 15.3.3 prefer calling the action an actio de in rem verso (utilis). A
similar approach appears from certain works emanating from the German historical school and Pandektenwissenschaft (`pandectist doctrine').
The authorities may be found in Van Zyl Saakwaarneming at 87­­8. I
In the Roman­Dutch law of the seventeenth and eighteenth centuries there is support for the granting of an action to the gestor against the
dominus in cases of indirect enrichment. Westenberg Principia Juris 15.3.7 and Schrassert Consultatien 2.53 suggest an utilis actio de in rem
verso, whereas Huber Praelectiones Juris Civilis 15.3 n 2 bases the action J

1998 (1) SA p946

VAN ZYL J
on equity and regards it as subsidiary (to a direct action based on contract): ex aequitate A contra alium dandam in subsidium actionem, quia
quod de me ad te pervenit, hoc a te mihi reddi, bonum et aequum est (`a subsidiary action must be given against the other because it is good
and fair that that which you have received from me should be returned by B you to me'). This appears to accord with decisions of the Hooge
Raad in 1706 and 1707 reported by Van Bijnkershoek in his Observationes Tumultuariae at 303. These authorities are cited in Van Zyl
Saakwaarneming at 95­­6.
The significant aspect of this historical survey is that, in cases of indirect enrichment, recourse is had to the action arising from the bona fide
management of another's affairs under the C mistaken belief that they are the gestor's own. The varying nomenclature used to describe this
action is irrelevant. What is relevant, however, is that it appears to operate as a subsidiary action, when a direct action against another party
should not be available or effective. Equity D then dictates that the gestor should not be unjustifiably impoverished and the dominus
unjustifiably enriched as a result of the gestor's performance which has benefited the dominus.
The European ius commune underlying Roman­Dutch law has made its presence felt in a E number of European legal systems which have since
become codified. Thus in French law s 1375 of the Code Civil provides for a form of indirect enrichment in which the dominus must reimburse
the gestor for his useful and necessary expenses. Although this terminology is not used in so many words, it would appear that an actio de in
rem verso is available in cases in which the European ius commune awarded an extended actio negotiorum gestorum. This F was in fact what
happened in the famous Boudier decision of 1892, which is regarded as the case which, in an indirect enrichment situation, introduced a general
enrichment action into French law. In the course of time the action underwent limitations, including that it should be regarded as being of a
subsidiary nature in that it would not be available should another G (direct) action be available to the plaintiff against the intermediary with
whom he has contracted. See E Schrage and B Nicholas `Unjust Enrichment and the Law of Restitution: A Comparison' in Schrage (ed) Unjust
Enrichment: The Comparative Legal History of the Law of Restitution (1995) 9­­30 at 24.
In German law there has been a major contribution on this topic by J P Dawson `Indirect Enrichment' in Ius Privatum Gentium: Festschrift für
Max Rheinstein 2 (1969) at H 789­­818. See also B Kupisch Die Versionklage (1965) at 114­­16, who points out that the actio de in rem verso
of the pandectists found its way into early legislation such as the Allgemeines Landrecht (`General Land Law') of Prussia (1794), particularly in
three­ party I relationships such as the present. Although the action was not described as an extended actio negotiorum gestorum, it clearly
played the same role and provided a remedy to the gestor against the dominus in cases where the former had acted in terms of an agreement
with an intermediary and had had no intention of managing the affairs of the latter.
In their outstanding survey entitled `Basic Features of the German Law of Unjustified Enrichment' in Restitution Law Review 2 (1994) at J

1998 (1) SA p947

VAN ZYL J
14­­43 R Zimmermann and J du Plessis describe (at 31) the German law relating to third party A enrichment as approaching `an almost
impenetrable jungle of dispute and uncertainty'. They point out (at 32­­6) that German jurisprudence has evolved various categories of third
party enrichment, in some of which an action lies between party A and party C without there being a B direct legal (contractual) relationship
between them. Under certain circumstances, however, it is subject to a `subsidiarity principle' (at 36­­8) which requires that a direct action
between the contracting parties should not be possible or enforceable. See further J C Sonnekus `Ongeregverdigde Verryking én
Ongeregverdigde Verarming vir Kondikering in C Drieparty­verhoudings' in (1996) TSAR 1 at 13­­18, where the learned author deals with a
number of decisions of the German Bundesgerichtshof.
Particularly interesting in this regard is s 1041 of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch) which appears under the subtitle
`Application of a Thing to the Advantage of Another' (`Verwendung einer Sache zum Nutzen des andern'), directly after the D subtitle dealing
with negotiorum gestio (`Geschäftsführung ohne Auftrag') in ss 1035­­40. It reads:
`Wenn ohne Geschäftsführung eine Sache zum Nutzen eines andern verwendet worden ist; kann der Eigentümer sie in Natur, oder, wenn dies nicht mehr
geschehen kann, der Wert verlangen, den sie Zur Zeit der Verwendung gehabt hat, obgleich der Nutzen in der Folge vereitelt worden ist.' E

A free rendition of this section is that, if a person, without managing the affairs of another, does something for the latter's benefit, he may
reclaim what he has done in natura or, if that should no longer be possible, he may claim the value of what he has done at the date thereof,
even though the benefit should, in the result, have fallen away. The action, known as the F Versionklage, is clearly the actio de in rem verso of
the European ius commune, which may be equated with the extended actio negotiorum gestorum referred to above. This is in fact what M
Wellspacher says in his pioneering work, Versio in rem (1900) at 63 sqq.
A similar approach has been followed in Switzerland where ss 422 and 423 of the Swiss G Code of Obligations (Obligationenrecht) contain
provisions which indicate that an action similar to the actio de in rem verso may be available to a person who has indirectly enriched another.
The authorities may be found in Van Zyl Saakwaarneming 141­­2.
In Scotland which, like South Africa, has a `mixed' or `hybrid' legal system, the principle of H indirect enrichment has been given qualified
recognition, as appears from the in­depth research of N R Whitty ­ `Indirect Enrichment in Scots Law' in (1994) Juridical Review 200 and 239.
There is, in general, resistance to the concept of indirect enrichment. In exceptional cases, however, redress is permitted, such as where a
principal is gratuitously benefited by the I unauthorised act of his agent or where a third party is gratuitously benefited by the fraudulent or
otherwise wrongful act of another. In this regard Whitty makes the significant observation (at 207) that `(t)here may be other exceptional
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gestio as a doctrine redressing indirect enrichment. He points out (at J
 In Scotland which, like South Africa, has a `mixed' or `hybrid' legal system, the principle of H indirect enrichment has been given qualified
recognition, as appears from the in­depth research of N R Whitty ­ `Indirect Enrichment in Scots Law' in (1994) Juridical Review 200 and 239.
There is, in general, resistance to the concept of indirect enrichment. In exceptional cases, however, redress is permitted, such as where a
principal is gratuitously benefited by the I unauthorised act of his agent or where a third party is gratuitously benefited by the fraudulent or
otherwise wrongful act of another. In this regard Whitty makes the significant observation (at 207) that `(t)here may be other exceptional
rules in particular circumstances founded on special considerations of policy'. At 274­­81 the learned author deals specifically with negotiorum
gestio as a doctrine redressing indirect enrichment. He points out (at J

1998 (1) SA p948

VAN ZYL J
278­­9), with reference to cases such as Fernie v Robertson (1871) 9 M 437, Dunbar v A Wilson and Dunlop's Trustee (1887) 15 R 210 and
Sales & Services Co Ltd v Motor and General Finance Co Ltd 1954 SLT (Sh Ct) 107, that the agent of a gestor who provides services for a
dominus has a direct action against the dominus. There is also a case where a B plaintiff claiming to be a gestor (rather than a gestor's agent)
has successfully sued the dominus with a direct action. See Reid v Lord Ruthven (1918) 55 SLR 616.
English law has little in common with European law or with that of the `mixed' legal systems of Scotland and South Africa. There have been calls
for relief to be granted in indirect or third C party enrichment situations, but English Courts have, in general, required some form of
contractual privity between the plaintiff and defendant. As K Barker says in his article on `Restitution and Third Parties' in 1994 Lloyd's
Maritime and Commercial Law Quarterly 305 at 310: `(I)f plaintiffs want restitution from a third party, they must bargain for it.' See also D R J
Sutton `What Should be Done for Mistaken Improvers' in Finn (ed) Essays on Restitution (1990) at 241­­96; L D Smith `Three­Party
Restitution: A Critique of Birks's Theory of Interceptive Subtraction' in (1991) 11 Oxford Journal of Legal Studies at 481­­519; P Watts `Does a
Subcontractor have Restitutionary Rights against the Employer?' E in 1995 Lloyd's Maritime and Commercial Law Quarterly at 398­­403. On the
exceptional approach to indirect enrichment in USA law, see J P Dawson `Indirect Enrichment' in Ius Privatum Gentium: Festschrift für Max
Rheinstein 2 (1969) 789 at 799­­802, with reference to the express and constructive trust as (at 799) `a remedial device for the prevention of
unjust enrichment'. See also J F Shreves `The Remote Contractor's F Unjust Enrichment Rights after the Mechanic's Lien has Failed' in (1981)
26 South Dakota Law Review 374.
Whether or not an enrichment action should be allowed in cases of indirect or third party enrichment has given rise to a lively debate among
South African legal academics. In his G pioneering work on unjust enrichment in South African law, De Vos has rejected the very existence of
an action under these circumstances on the basis that it does not comply with the so­called `at the expense of' requirement for an enrichment
action in that the impoverishment of the one is not causally linked with the enrichment of the other. In any event, according to him, it H is in
conflict with the principles relating to equality of creditors (paritas creditorum) in cases where the intermediary has become insolvent and is
unable to pay the person who has rendered performance for the benefit of a third party: the insolvent estate of the intermediary has a claim
against the third party and the person who has rendered the performance has a concurrent claim against such insolvent estate. See De Vos
Verrykingsaanspreeklikheid in I die Suid­Afrikaanse Reg 3rd ed (1987) at 339­­53; idem `Ongeregverdigde Verryking ``ten koste van'' Iemand' in
(1957) 4 Butterworths SA Law Review 36; idem `Enrichment at whose Expense? A Reply' in (1969) 86 SALJ at 227­­30; idem `Aspekte van
Verrykingsaanspreeklikheid' in (1970) Acta Juridica 231 at 236­­41; idem `Retensieregte weens Verryking' in (1970) 33 THRHR at 357­­68.
A different approach was adopted by Honoré `Third Party Enrichment' J

1998 (1) SA p949

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in (1960) Acta Juridica at 236­­53. After reviewing relevant common law authorities and A South African case law, he concluded (at 253) that
our law indeed recognises some cases of third party enrichment although the state of the law in this regard is `somewhat anomalous . . .
because contemplation and reliance, notions which are in place in the sphere of contract, have B been imported into actions for unjust
enrichment'. He was supported in this view by Scholtens `Enrichment at Whose Expense?' in (1968) 85 SALJ at 371­­9 and in (1968) Annual
Survey of SA Law at 150­­2.
More recently Sonnekus has taken a strong stand against the granting of an action in indirect C enrichment cases on the basis that, where
there is any intervening contractual obligation to render performance, the relevant impoverishment and enrichment cannot be regarded as
sine causa or unjustified. In this regard he rejects De Vos' approach that an action should be denied because of non­compliance with the `at
the expense of' requirement. The learned author, in my view, adopts a somewhat restrictive approach to the causa concept in this D regard. As
long as the performance of the plaintiff is rendered in terms of an agreement, he says, the performance is cum causa and not sine causa. If
either the enrichment or impoverishment is cum causa, there is no compliance with the sine causa requirement for an E enrichment action. To
establish whether or not there is an otherwise legally relevant ground or reason for the shift in assets from the one party to the other
complies, in his view, with the aim of enrichment principles to achieve fairness towards both parties. This approach, to my mind, ignores the
equitable approach envisaged by the general enrichment principle of Dig 50.17.206 and 12.6.14 by rendering the enrichment or impoverishment
irrelevant should some F or other contractual causa for the shift in assets be present. Causa in this sense does not relate to the justifiability of
the enrichment or impoverishment, but simply to the factual ground or reason for it. See Sonnekus `Retensieregte ­ Nuwe Rigting of Misverstand
par excellence?' in (1991) TSAR 462 at 474. See also idem `Ongeregverdigde Verryking én G Ongeregverdigde Verarming vir Kondikering in
Drieparty­verhoudings' in (1996) TSAR 1; idem `Terughouding sonder Bevoegdheid is Eiegeregtigde Optrede Ongeag die Vaandel waaronder
Gevaar Word' in (1996) 113 SALJ 22; idem `Ook Verrykingsretensieregte Behoef Bewese Ongeregverdigde Vermoënsverskuiwing' in (1996) TSAR
583.
A refreshingly novel approach is that of Visser `The Role of Judicial Policy in Setting the Limits H of a General Enrichment Action' in Kahn (ed)
The Quest for Justice: Essays in Honour of Michael McGregor Corbett, Chief Justice of the Supreme Court of South Africa (1995) 342 at 358­
­61. Like De Vos (but unlike Sonnekus) he deals with indirect or `triangular' I enrichment in his discussion of the causal link between
enrichment and impoverishment as a prerequisite for an enrichment action. Although he is in agreement with the general approach advocated
by De Vos and Sonnekus, namely that an intervening contract between A and B or between B and C precludes a direct action between A and C,
he points out the unfairness which may arise should B disappear or become insolvent. In such cases, he says (at 358) `a personal right is of no
value J

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and one is tempted to hold C to be enriched at the expense of A, in spite of the latter's A personal right against B'. To overcome this problem
he makes the following suggestion (loc cit):
`It would seem that the most satisfactory solution to this problem is to allow each situation to be judged according to relevant policy considerations so that,
over time, a body of precedent will cover B the typical instances of indirect enrichment.'

In this regard Visser is critical (at 359) of the decision in Gouws v Jester Pools (supra) and of the fact that, in Brooklyn House Furnishers (Pty)
Ltd v Knoetze and Sons (supra), the Appellate Division reached a decision diametrically opposed to that in the Gouws matter but C chose to
distinguish rather than overrule it. He describes this (at 360) as a `manoeuvre' of the Court which indicates that it
`does not view the ``at­the­expense­of'' requirement as capable of being expressed in a simple dogmatic formula and that policy considerations have an
important role to play in the determination of its ambit'.

That policy considerations may indeed play an important role where commercial convenience D requires it appears from cases such as JOT
Motors (Edms) Bpk h/a Vaal Datsun v Standard Kredietkorporasie Bpk 1984 (2) SA 510 (T), where Coetzee J held that mala fide possessors
have the same right of retention as bona fide possessors who have effected E necessary and useful expenses to a thing belonging to another.
This was in his view (at 515E) justifiable from the point of view of `legal policy' (`uit regspolitiese oogpunt gesien'). This judgment was upheld
on appeal in Standard Kredietkorporasie Bpk v JOT Motors (Edms) Bpk h/a Vaal Motors 1986 (1) SA 223 (A). See in general on the role of
policy F considerations in the development of law the important contribution of former Chief Justice M M Corbett `Aspects of the Role of Policy
in the Evolution of our Common Law' in (1987) 104 SALJ at 52­­69. Policy in practice can be seen clearly in cases such as Minister van Polisie v
Ewels 1975 (3) SA 590 (A); Administrateur, Natal v Trust Bank van Afrika Bpk 1979 G (3) SA 824 (A) and, more recently, Bayer South Africa
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 This was in his view (at 515E) justifiable from the point of view of `legal policy' (`uit regspolitiese oogpunt gesien'). This judgment was upheld
on appeal in Standard Kredietkorporasie Bpk v JOT Motors (Edms) Bpk h/a Vaal Motors 1986 (1) SA 223 (A). See in general on the role of
policy F considerations in the development of law the important contribution of former Chief Justice M M Corbett `Aspects of the Role of Policy
in the Evolution of our Common Law' in (1987) 104 SALJ at 52­­69. Policy in practice can be seen clearly in cases such as Minister van Polisie v
Ewels 1975 (3) SA 590 (A); Administrateur, Natal v Trust Bank van Afrika Bpk 1979 G (3) SA 824 (A) and, more recently, Bayer South Africa
(Pty) Ltd v Frost 1991 (4) SA 559 (A); Indac Electronics (Pty) Ltd v Volkskas Bank Ltd 1992 (1) SA 783 (A); Argus Printing and Publishing Co
Ltd v Inkatha Freedom Party 1992 (3) SA 579 (A).
When we turn to South African case law on the subject of indirect enrichment there is no case in which the common­law actio de in rem verso
or extended actio negotiorum gestorum H has been applied. Yet there are cases in which an analogous remedy has been considered or might
have been considered if full recourse had been taken to the relevant sources of our common law.
One of the earliest cases, which bears a strong similarity to the case before us, was New Club I Garage v Milborrow and Son 1931 GWLD 86.
The owner (C) of a motor vehicle hired it to an intermediary (B) who instructed a garage (A) to repair it when it broke down. A did so under the
impression that B was the owner, whereafter B disappeared from the scene and A was unable to recover his expenditure from him. He thereafter
instituted action against C on the basis of negotiorum gestio. The action was successful on the ground that A had a lien on the vehicle. On
appeal it was held that A was a negotiorum gestor and was entitled to J

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his claim for necessary and useful expenses and also for necessary storage of the vehicle. A Hutton J explained this decision on the following
grounds (at 99­­100):
`I am clearly of opinion, however, that up to the time of respondent's discovery that appellant was the owner of the car, his (respondent's) position was that of
a negotiorum gestor. He took charge of the B car bona fide in the absence of the owner, without any mandate express or implied from the owner, and for the
owner's benefit, and with the intention of holding the owner liable for all legitimate expenses connected with his care and custody. It was not essential that he
should know who the owner was, provided that he undertook the business for the owner, whosoever he might ultimately turn out to be. . . . And the owner is
bound to reimburse the negotiorum gestor for all useful and C necessary expenses incurred by him in connection with his administration of the owner's business,
and to indemnify him against all obligations incurred by him on account of the same, as well as against all losses sustained by him in connection therewith. . . .
And for all the expenses, both useful and necessary, the respondent, as bona fide and innocent possessor of the car, had a lien on the car resting on the
equitable principle that no one shall be enriched at the expense of another.' D

Although the impression might be created that the Court regarded A as an ordinary gestor, it would appear that the action it was prepared to
grant was the extended actio negotiorum gestorum since A at no stage entertained any intention to administer the affairs of C. E Significantly,
no mention was made of the contractual nexus between C and B (lease) or A and B (mandate or locatio conductio operis). B's disappearance
obviously made any action against him ineffective and unenforceable, so that a direct action by A, the impoverished gestor, against C, the
enriched dominus, was justified under the circumstances.
The facts in Williams' Estate v Molenschoot and Schep (Pty) Ltd 1939 CPD 360 differ F from those in the Milborrow case in that the plaintiff (A)
effected certain repairs to a house belonging to the defendant (C) in terms of an oral agreement between A and B, who purported to act as A's
`duly authorised agent', which he was not. The Court held that A was the negotiorum gestor of C, the dominus, and was hence entitled to
reimbursement of his G actual expenditure, despite the fact that he also had an actio mandati against B on the basis of the instruction received
from him. Although I was initially of the view that this is the correct legal position (Van Zyl Saakwaarneming at 165), I no longer believe that it
is so, since A, as in the Milborrow case, had no intention at all to manage the affairs of C. Once again the extended actio negotiorum gestorum
could come into play and A could claim the measure of H his impoverishment, relating to necessary and useful expenses incurred, from the
enriched party C. This action once again presupposes that A had no effective or enforceable action against B.
In this regard reference may be made to Vadas (Pty) Ltd v Philp 1940 CPD 267 at 275­­6, where the action in the Williams' Estate case is
described as an action arising from I negotiorum gestio, but which entitled the plaintiff `to recover any amount by which defendant has been
enriched'. This must needs refer to the extended actio negotiorum gestorum. See also Knoll v SA Flooring Industries Ltd 1951 (1) SA 404 (T) at
408A­­C, where De Villiers J criticised the decision in the William's Estate case and said: J

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VAN ZYL J
`I have some doubt whether it was necessary, in that case, to rely on the principles of negotiorum A gestor (sic) at all. It seems to me if a person, thinking
that he was authorised to do so, that he had been engaged by the owner, bona fide does certain work to his house by which he has benefited ­ been enriched ­ in
a certain amount it would be unjust for the owner to be enriched at the expense of B the builder, and the latter could in equity claim the amount by which the
owner has been enriched. That seems to me to be a perfectly good cause of action and, although one may bring it under the principles of negotiorum gestor
(sic), it does not seem to me that it is essential, for success in an action, to bring in that principle. The equitable doctrine of unjust enrichment is wide enough to
cover the facts in Williams' case to my mind.'

It would appear that the learned Judge was justifiably critical of the finding in Williams' Estate C that an ordinary case of negotiorum gestio
was present. Although he did not suggest that the Court in that case should in fact have held that it was the extended actio negotiorum
gestorum on which the plaintiff (A) had relied, it could be no other insofar as he bases it on `(t)he equitable doctrine of unjust enrichment'. D
The recognition of the extended actio negotiorum gestorum in cases such as these was dealt a severe blow by Jansen J (Cillié J concurring) in
Gouws v Jester Pools (Pty) Ltd 1968 (3) SA 563 (T). The facts of the case were that A, a contractor, entered into an agreement with B E to
construct a swimming pool on what he believed was B's property. After the work had been completed it appeared that C, and not B, was the
owner of the property. In the meantime, however, B had left the country so that A's contractual claim against him became ineffective and
quite useless. In an action by A against C a magistrate's court found for A on the ground that C had been unjustifiably enriched at the expense
of A. This judgment was F upset on appeal on the basis that C's enrichment had not been `at the expense of' A. The learned Judge held (at
571B) that A could not be regarded as an ordinary negotiorum gestor vis­à­vis C, since he did not have the animus negotia aliena gerendi, but
rather the intention `to further his own interests by performance of his contract with B'. For this reason, it was held G (at 572D­­H) that the
granting of an action on the basis of negotiorum gestio in the Milborrow case was not justified, `in any event not on the basis of a true
negotiorum gestio'. The learned Judge did not, however, consider the appropriateness of the extended actio negotiorum gestorum a s a n
enrichment action, but simply rejected any enrichment action on H the basis that the enrichment had not been at the expense of A but at the
expense of B. In this regard he accepted (at 574F­­G) the causal prerequisite for an enrichment action as propounded by De Vos.
With great respect I find myself unable to agree with the learned judgment of Jansen J inasmuch as he has failed to give due consideration to
the extended actio negotiorum I gestorum under circumstances such as these. It was, in my view, unjust and inequitable to deny A an action
against C when it was quite clear that A was impoverished and C enriched as a result of A's construction of a swimming pool on C's property. Of
course this would not have been the case if A could indeed have recourse against B or B against C, but B's disappearance from the scene
rendered any potential action against or by him academic. In addition it must be borne in mind that the very essence of negotiorum J

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gestio, in its ordinary or extended sense, is that no consensus or similar relationship between A the parties is required for the establishment of
reciprocal rights and duties. At worst for a plaintiff in the position of A, he should be able to avail himself of the extended actio negotiorum
gestorum as a subsidiary action should his main (contractual) action against the intermediary, B, not be enforceable or of any effect. B
In this regard I respectfully disagree with the somewhat rigid approach adopted by De Vos. If the contractual action should be useless or
academic, the plaintiff should not be allowed to suffer an irrecoverable loss and the defendant to derive an unassailable benefit for which he
does not pay. The fact that, on the face of it, he might not have (strictly) complied with the C causal requirement should not, in
circumstances such as these, deprive him of an action which is based on the undeniably equitable principle that no one should be unjustifiably
enriched at the expense of another. If A's contractual action against B is indeed valueless and if C has, as a result of A's conduct or
performance, received a benefit for which he has not paid, this D equitable principle demands that A should be able to have redress against C,
at least for his necessary and useful expenses, on the basis that C's retention of the benefit would be regarded as unjustified and at the
expense
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Such an approach would be consonant with the policy considerations advocated by Visser E (op cit) and which I fully support. I have no doubt
 circumstances such as these, deprive him of an action which is based on the undeniably equitable principle that no one should be unjustifiably
enriched at the expense of another. If A's contractual action against B is indeed valueless and if C has, as a result of A's conduct or
performance, received a benefit for which he has not paid, this D equitable principle demands that A should be able to have redress against C,
at least for his necessary and useful expenses, on the basis that C's retention of the benefit would be regarded as unjustified and at the
expense of A.
Such an approach would be consonant with the policy considerations advocated by Visser E (op cit) and which I fully support. I have no doubt
that it is in the public interest to avoid the injustice and unfairness which would ensue should A be deprived of any remedy against C under
these circumstances.
The case of Brooklyn House Furnishers (Pty) Ltd v Knoetze and Sons 1970 (3) SA 264 (A) has necessarily brought the correctness of Gouws v
Jester Pools (Pty) Ltd (supra) into F question. It is true that the Appellate Division stopped short of overruling it by distinguishing the remedy
of a lien from that of an action but, as Visser (op cit) has correctly pointed out, the rationes decidendi underlying these cases are
irreconcilable.
The facts in the Brooklyn House case were, in brief, that C sold certain goods to B on G hire­purchase subject to the provision that B was not,
without C's permission, to have the goods stored at a charge. In conflict with this provision B concluded an agreement with A in terms of
which the goods were to be stored in A's warehouse at a certain fee for storage and removal of the goods. At all relevant times A was under
the mistaken but bona fide impression H that B was the owner of the goods. When C subsequently claimed the goods A refused to hand them
over without being reimbursed for his removal and storage expenses. C paid under protest and later unsuccessfully sued A for repayment of
the amount thus paid.
On appeal the Court considered the debate regarding the so­called `at the expense of' I requirement and suggested that, although it was not
indisputable, it was unnecessary to decide the issue since the remedy under consideration was not an enrichment action but a lien raised as a
defence to C's rei vindicatio. The Court was satisfied that, for a successful reliance on a lien in a case such as this, the owner (C) should be
unjustifiably enriched at the expense of the possessor (A) who had incurred necessary and useful expenses in respect of such goods, even if J

1998 (1) SA p954

VAN ZYL J
such expenditure should have been incurred in terms of an agreement between A and B. In this A regard Botha JA stated as follows (at 273H­
­274A):
`Hierdie stelling is nie onaanvegbaar nie . . ., maar dit is nie nodig om nou daarop met betrekking tot 'n verrykingsaksie in te gaan nie, aangesien ons nie hier
met so 'n aksie te doen het nie, maar met B 'n beweerde retensiereg wat bloot as verweer teen die eienaar se rei vindicatio opgewerp word. Dat verryking van
die eienaar ten koste van die besitter, wat die noodsaaklike of nuttige uitgawes aangegaan het, 'n vereiste vir die totstandkoming van so 'n retensiereg is, moet
toegegee word. Dit is byna vanselfsprekend dat verryking van die eienaar deur die besteding van nuttige of C noodsaaklike uitgawes aan die saak, ten koste is
van die persoon wat die uitgawes aangegaan het, en na my oordeel is dit, met betrekking altans tot die bestaan, al dan nie, van so 'n retensiereg, nie ter sake
nie dat die uitgawes aangegaan is ingevolge 'n geldige kontrak met 'n derde teen vergoeding.'

This decision has been criticised by De Vos `Retensieregte weens Verryking' in (1970) 33 D THRHR at 357­­68 and by Sonnekus (supra) in
(1991) TSAR at 480­­1 as not taking proper cognisance of the contractual relationship between B and C. The logical inference to be drawn E
from the decision, however, is that, if the successful raising of a lien by A against C is not affected by the existence of the contractual
relationship between B and C, such relationship should also be irrelevant for the successful institution of an enrichment action by A against C.
The obvious form of enrichment action to be instituted is the extended actio negotiorum gestorum as it has developed in our common law.
This is, of course, subject thereto that, if A is able to recover from B in terms of a contractual relationship and C, in turn, has an F enforceable
contractual action against B, A will not be entitled to have recourse to an enrichment action against C. The latter action is hence of a
subsidiary nature and will be available to A against C only if B has disappeared from the scene and the enforcement of rights and obligations in
respect of B has become impossible or academic.
One of De Vos' major objections to allowing an action in cases of indirect enrichment is that it G would be in conflict with the principle of
paritas creditorum if B should become insolvent and A should then have a choice between contractually suing the insolvent estate of B, on the
one hand, or suing C on the basis of unjustified enrichment, on the other. In the first case he would have only a concurrent claim against the
insolvent estate, whereas in the second he H would be able to claim the full amount owing on an enrichment basis. If he should be allowed to
sue C directly, creditors of the insolvent estate of B would be prejudiced since the estate also has a contractual claim against C, the return on
which would be to the benefit of all creditors.
There would be merit in this argument if B should be in insolvent circumstances but not in cases I where B has simply disappeared without
being insolvent. Furthermore, even if B should be insolvent, the facts of each case should be considered carefully to establish whether it would
not be fair, just, reasonable and in the public interest to grant an action to A against C. It would be wrong, in my view, to apply the paritas
creditorum rule rigidly and without qualification. De Vos himself accepts J

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VAN ZYL J
(op cit in (1970) Acta Juridica at 241) that there may be important exceptions to the paritas A creditorum rule. B C Leech ` ``Enrichment at
Whose Expense?'' ­ A Postscript' in (1994) 57 THRHR 695 suggests, at 701:
`There is no reason why the rule of paritas creditorum should be elevated above the equitable principles of enrichment liability when common sense and our
inherent notions of fair play would seem to cry out for the opposite.' B

This accords with the development role which policy considerations can play in the adjudication of every case on its own merits and with
reference to its peculiar facts and circumstances.
A recently reported case relating to indirect enrichment in South African law is Buzzard C Electrical (Pty) Ltd v 158 Jan Smuts Avenue
Investments (Pty) Ltd en 'n Ander 1996 (4) SA 19 (A) (also in [1996] 3 B All SA 1). The facts, concisely stated, are that the owners of certain
property (C) entered into an agreement with a company (B) in terms of which B would develop the property. B thereupon contracted with a
subcontractor (A) to do the electrical D work. The work was completed but B was liquidated and the subcontract price appeared to be
irrecoverable. A exercised a lien in respect of the property on the basis of the unjustified enrichment of C, but agreed to vacate the property
subject to its right to be compensated should C be held liable. Thereafter C raised an exception to A's particulars of claim on the E basis that
they had not been unjustifiably enriched since they were obliged, in terms of their agreement with B, to pay B a specified amount for all the
contract work, which included the work performed by A. In any event, they averred, if there had been any enrichment, it was at the expense
of B and not of A. The exception was upheld and an appeal against this decision was dismissed.
In his judgment (at 25I­­J) Van Heerden JA distinguished between two kinds of enrichment F claims, namely (a) where A contracts with B to
effect improvements to the property of C (the owner) and thereafter institutes an action against C on the basis of unjustified enrichment; (b)
where C contracts with B to improve his property and B then subcontracts with A to do the G work, whereafter A claims against C on the
ground of unjustified enrichment. A further distinction made by the learned Judge (at 26A­­B) is between `direct' liability of C by virtue of an
enrichment action and `indirect' liability where A is in possession of the property and relies on a lien.
The learned Judge thereupon referred to a number of decisions relating to the first type of H enrichment claim in which it was held that A had a
lien. This includes the Brooklyn House Furnishers case supra, which, as pointed out above, distinguished the Gouws case supra. Van Heer­ den
JA (at 26I­­27B) rejected as clearly wrong the distinction which Botha JA sought to draw between an action (the `direct' remedy) and a right
of restitution or lien (the I `indirect' remedy) in the Brooklyn House Furnishers case. The reason for his rejection of this distinction was that a
right of retention does not exist in vacuo, but serves to ensure or strengthen an underlying claim. Neither an action nor a lien would lie if the
owner has not been unjustifiably enriched, as held in Wynland Construction (Pty) Ltd v Ashley­Smith en Andere 1985 (3) SA 798 (A).
The second type of enrichment claim differs totally from the first in J

1998 (1) SA p956

VAN ZYL J
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that (at 27D­­E), in the second type, A's performance emanates from an agreement between A B and C in terms of which the performance has
 owner has not been unjustifiably enriched, as held in Wynland Construction (Pty) Ltd v Ashley­Smith en Andere 1985 (3) SA 798 (A).
The second type of enrichment claim differs totally from the first in J

1998 (1) SA p956

VAN ZYL J
that (at 27D­­E), in the second type, A's performance emanates from an agreement between A B and C in terms of which the performance has
to be rendered by B. In such cases there is no direct or indirect remedy accruing to A as against C since it cannot be said that C has been
unjustifiably enriched at the expense of A. In this regard the Court held (at 28B­­E) that, in B assessing whether or not there has been
unjustified enrichment, amounts in fact paid by C to B and amounts which C is obliged to pay to B but has not yet paid, have to be taken into
consideration. If C has not been enriched at all, he cannot be regarded as unjustifiably enriched.
With reference to the facts in the Buzzard case Van Heerden JA held that the claim instituted C by A was of the second type in which he could
not prove that C had been enriched because (at 28F­­G) he could not show what amount C was contractually obliged to pay B in respect of
electrical work, nor could he indicate whether C had in fact made payments to B in this regard. The underlying principle, according to Van
Heerden JA (at 29F­­G), is that, if C has D received no more as a result of A's performance than that which he has negotiated with B, his
enrichment cannot be sine causa.
The rejection in the Buzzard case of the artificial distinction drawn in the Brooklyn House Furnishers case between an enrichment action and a
lien must, with respect, be welcomed. E See Sonnekus `Ook Verrykingsretensieregte behoef Bewese Ongeregverdigde Vermoënsverskuiwing' in
(1996) TSAR at 583­­91.
The distinction in the Buzzard case between two kinds of enrichment claims is indicative of the differing facts and circumstances which have to
be taken into account in assessing whether or F not an enrichment action should be made available to an impoverished plaintiff against an
allegedly enriched defendant. It is unfortunate, however, that the Court did not approach the case before it on the basis of indirect or third
party enrichment, in which event the distinction between these two forms of enrichments claims might no longer have been of any real G
significance. The question to be asked in the final analysis is whether the enrichment is unjustifiable or not. This is applicable to both forms of
claim, so that the distinction between them may be somewhat artificial and, with respect, create confusion rather than certainty in a field of
law which is far from simple.
The distinction between the remedies of action and lien as being, respectively, `direct' and H `indirect' may, it is respectfully suggested,
likewise cause some confusion in enrichment law, particularly since the term `indirect enrichment' has a special meaning in the sources and
jurisprudence, as demonstrated above.
The facts in the present case have not been complicated by the insolvency of Bezuidenhout, I with whom Stander contracted to repair ABSA's
vehicle. As in the Milborrow case supra the person who gave the instructions to repair the vehicle has simply disappeared from the scene and
any action which Stander might have against him is quite useless. Stander has clearly been impoverished and ABSA enriched in that it has been
saved the expense of having the vehicle repaired. This situation is J

1998 (1) SA p957

VAN ZYL J
not affected by the fact that ABSA might have a contractual claim against Kent or a delictual A claim against Bezuidenhout for the recovery of
such expenditure.
As mentioned above, inasmuch as Stander never had the intention to manage ABSA's affairs, he cannot be regarded as an (ordinary)
negotiorum gestor. His legal position can, however, B be construed as that of a bona fide gestor who has managed the affairs of the dominus,
ABSA, in the mistaken belief that he has managed his own affairs in the sense of complying with his obligations in terms of his agreement with
Bezuidenhout.
The fact that there is no privity of contract between Stander and ABSA is irrelevant for C purposes of instituting an enrichment action,
provided the prerequisites for such an action have been complied with. Although a causa for his impoverishment existed at the time of his
agreement with Bezuidenhout, that causa has fallen away or become academic as a result of Bezuidenhout's disappearance. Alternatively, policy
dictates that it would be unjust, unfair and D unreasonable should Stander be deprived of an action against ABSA. Such action is the extended
actio negotiorum gestorum, which entitles him to recover the amount by which ABSA has been unjustifiably enriched at his expense.
In regard to the quantum of the claim, counsel for ABSA has not submitted with any vigour that the amount of R4 200 awarded by the court a
quo should not be regarded as fair and E equitable under the circumstances. See Meyer's Trustee v Malan 1911 TPD 559; Fletcher and
Fletcher v Bulawayo Waterworks Co Ltd; Bulawayo Waterworks Co Ltd v Fletcher and Fletcher 1915 AD 636 at 656­­7; Wynland Construction
(Pty) Ltd v Ashley­Smith en Andere 1985 (1) SA 534 (C) at 538G (`what is fair and equitable between the parties by F consideration of all the
circumstances').
On consideration of the evidence placed before the court a quo, I am satisfied that it was justified in accepting the said amount as `fair and
equitable'.
It follows that the appeal cannot succeed. In the event I make the following order: G

The appeal is dismissed with costs.

Burger AJ concurred.
Appellant's Attorneys: Marais, Muller. Respondent's Attorneys: Alkema, Cross & Marais, George. H

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