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[2012] ZASCA 11
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Nelson Mandela Metropolitan Municipality v Ngonyama Okpanum Hewitt- Coleman and Others (765/2010) [2012] ZASCA 11 (14 March 2012)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No:765/2010
Not reportable
In
the matter between:
NELSON
MANDELA METROPOLITAN
MUNICIPALITY
…..........................................................................................
Appellant
and
NGONYAMA
OKPANUM HEWITT-COLEMAN
…............................
First
Respondent
HARLECH-JONES
ARCHITECTS
…..........................................
Second
Respondent
RAJ
MAHARAJH & ASSOCIATES
…..............................................
Third
Respondent
BHAM
TAYOB KHAN MATUNDA
….............................................
Fourth
Respondent
COTTERELL
DAVIES MAZWANA PEIRSON
…...............................
Fifth
Respondent
SCHOOMBIE
HARTMAN
….............................................................
Sixth
Respondent
LOUW
STRYDOM CONSULTING ENGINEERS
….....................
Seventh
Respondent
SKC
& NIEMANN CC
….................................................................
Eighth
Respondent
ELDRED
BOONZAAIER CONSULTING ENGINEERS
…...............
Ninth
Respondent
BERGMAN-INGEROP
(PTY) LIMITED
…......................................
Tenth Respondent
MAKALIMA
JOHNSTON ASSOCIATES CC
….........................
Eleventh
Respondent
METROPLAN
…...........................................................................
Twelfth
Respondent
BOPITE
ENGINEERING GEOLOGISTS CC
…......................
Thirteenth
Respondent
HEMSLEY
& MYRDAL
…......................................................
Fourteenth
Respondent
Neutral
citation:
Nelson Mandela Municipality v Ngonyama Okpanum
Hewitt-Coleman
(765/2010)
[2012] ZASCA 11
(14 March 2012)
Coram:
Brand, Malan, Bosielo,
Majiedt JJA and Boruchowitz AJA
Heard:
20 February 2012
Delivered: 14 March 2012
Summary:
Condictio indebiti – mistake – excusability –
overpayments made by Municipality to professional consultants –
reasonableness of mistake
________________________________________________________________
ORDER
On
appeal from:
the South Eastern Cape High Court, Port Elizabeth
(Mhlantla J sitting as court of first instance).
(1) The appeal is upheld with costs
including the costs of two counsel;
(2) The order of the court below is
set aside and replaced with the following order:
‘
(a) The first, second and third
respondents are ordered to pay the sum of R401 252,69 to the
plaintiff jointly and severally;
(b) the fourth, fifth and sixth
defendants are ordered to pay the sum of R151 676,18 to the plaintiff
jointly and severally;
(c) the seventh, eighth and ninth
defendants are ordered to pay the sum of R153 107,80 to the plaintiff
jointly and severally;
(d) the tenth defendant is ordered to
pay the sum of R7 896,47 to the plaintiff;
(e) the eleventh and twelfth
defendants are ordered to pay the sum of R75 069,38 to the plaintiff
jointly and severally;’
(f) the fourteenth defendant is
ordered to pay the sum of R21 478,66 to the plaintiff;
(g) the defendants are ordered jointly
and severally to pay interest on the respective amounts to the
plaintiff at the prevailing
prescribed interest rate
a tempore
morae
;
(h) the defendants are ordered to pay
the plaintiff’s costs of suit jointly and severally.’
________________________________________________________________
JUDGMENT
MALAN
JA (Brand, Bosielo, Majjiedt JJA and Boruchowitz AJA concurring):
[1] This is an appeal against the
order of Mhlantla J dismissing with costs the plaintiff’s
action against the defendants
for the repayment of fees that were
allegedly not due. The action was dismissed on the ground that,
although the amounts paid were
in excess of what was due, the
plaintiff when making payment was grossly negligent. The appeal is
with the leave of the court below.
Introduction
[2] The Nelson Mandela Metropolitan
Municipality, formerly known as the Port Elizabeth Transitional Local
Council, instituted action
against the respondents, all professional
consultants, for the sum of R1 073 818,41, alternatively R810 481,19,
which it alleged
was paid in excess of what was due to them in
respect of their professional fees. I will refer to the plaintiff,
the appellant,
as the Municipality and to the respondents as the
defendants or consultants.
[3] The Municipality owned the Matthew
Goniwe Hostel in Kwazakhele, Port Elizabeth. The hostel was
overcrowded, derelict and in
a state of decay for a long time. The
services in the hostel had collapsed: water pipes were broken, sewers
blocked and overflowing,
and some residents lived in communal toilet
blocks. Electrical reticulation had collapsed and cables were
disintegrating with illegal
connections crossing from one building to
another. Some 16 000 people at one stage lived in the hostel.
[4] The community had put considerable
pressure on the Municipality to resolve the problems and upgrade the
hostel. In 1995 Mr Alan
Zeiss, a qualified attorney, was the chief
estates officer and acting director of the Municipality’s
housing department.
The Provincial Housing Board (the PHB) provided
funds in the form of housing subsidies pursuant to their Hostel
Redevelopment Programme.
The Municipality’s budget and
administration committee considered its 1994/5 operating budget and
requested a report on the
future of the hostel. Mr Zeiss prepared a
memorandum and the committee resolved that the hostel be upgraded and
that funds to this
end be obtained from the PHB. The proposed
undertaking, which became known as the Matthew Goniwe project,
involved the upgrade
of the hostel, the construction of houses as
part of the Greenfields development and the infill of additional land
situated at
the hostel. The Municipality did not have the required
funds to embark on the project and resolved that it be funded
entirely from
funds made available for that purpose by the PHB.
[5] Moreover, the Municipality had
neither the capacity nor the expertise to prepare and motivate an
application for funding and
to supervise completion of the project.
It was therefore resolved that a managing agent be appointed. His
appointment was followed
by the appointment of the defendants as
architects, quantity surveyors, consulting and electrical engineers,
land surveyors and
town planners as the primary consultants. The
first to twelfth defendants were appointed in July 1996. Other
defendants were appointed
by the managing agent. The consultants were
required to and did conclude joint venture agreements for each
discipline involved
in the project. The managing agent had to consult
with the local community, the consultants and interested parties,
prepare an
application for funding and co-ordinate and manage the
implementation of the upgrading proposals. The managing agent’s
fees
and appointment were to be approved by the PHB and were
subsequently approved.
Appointment
[6] The initial letters of appointment
of the primary consultants were in similar terms and signed by Mr
Zeiss, on behalf of the
Municipality, following a resolution of the
Municipality’s executive committee. They were dated 15 July
1996 and read as
follows:
‘
UPGRADING
OF MATTHEW GONIWE HOSTEL
I
wish to advise that the Council’s Executive Committee, at a
meeting held on 21 May 1996 agreed that, subject to the provision
of
the required funds by the Provincial Housing Board, Messrs [name of
consultant] be appointed as [eg Quantity Surveyors or Civil
and
Structural Engineers] for the above project.’
[7] In the course of 1996 and later
various other agreements, the client- consultant agreements, were
signed by the defendants.
They were signed by Mr Zeiss on behalf of
the Municipality in mid-1997 under circumstances to which I shall
refer later. The consultants
first had to secure funding for the
project from the PHB and had to draft and submit a funding proposal
to the PHB in the manner
prescribed in the Implementation Manual of
the Hostel Redevelopment Programme. This was done and a preliminary
amount for the funding
application, that is R625 000, was
approved by the PHB on 29 November 1996. Funding for the entire
project and the fees of
the defendants were approved much later under
circumstances to which I will refer.
Termination
of the project
[8] After work on the project had
commenced, a dispute between the Municipality and the defendants
arose leading to the termination
of the agreements and the suspension
of the project in mid-1998. The Municipality ascertained that the
consultants had charged
and were paid fees that were higher than
those approved by the PHB. Action was instituted for the amount of
the overpayment based
on the
condictio indebiti
.
Particulars
of claim
[9] The Municipality’s
particulars of claim contains the allegation that the first to the
twelfth defendants accepted their
appointments during July 1996, and
the fourteenth defendant its during June-July 1997. Their
appointments entailed the rendering
of services to the Municipality
for the design, tender and construction phases of the Matthew Goniwe
project. The total amount
payable to all the defendants was to be
restricted to such amount as was approved and made available by the
PHB. Both the appointment
of the defendants and the amount of their
fees were to be subject to the final approval of the PHB. The
defendants were obliged
to allocate among themselves no more than the
total fees and disbursements payable to all of them as was approved
and made available
by the PHB. It was pleaded in the alternative
that, in respect of each discipline the defendants forming part of
the relevant joint
venture, were obliged to, and did, allocate among
themselves, no more than the fees payable in respect of that
discipline, having
regard to the total of the fees available to such
discipline. The ratios in which the fees available for each
discipline stood
to the total of the fees were set out in a schedule
to the particulars of claim. The plaintiff’s alternative claim
is based
on the client-consultant agreements. It was the plaintiff’s
contention that on the basis that these agreements constituted
the
basis for the defendants’ fees they were overpaid.
[10] The PHB ultimately approved the
appointment of the defendants but restricted the total amount of fees
and disbursements to
(a) 7,5 per cent of the total amount approved
and to be made available in respect of the Greenfields development
and infill sites
and (b) 9,2 per cent of the total amount approved
and to be made available by the PHB in respect of the upgrading of
the hostel.
[11] The Municipality specified the
total amount made available by the PHB for the project and the amount
available for payment
of the defendants’ fees and disbursements
which sum had to be divided among them in accordance with the ratios
agreed by
them. However, to quantify the overpayment it was also
necessary to have regard to the amount of work done at the time the
Municipality
instructed the defendants to cease work.
[12] The Municipality alleged, and
this was not disputed, that during the period 1996 to 1999
substantial sums were paid to the
defendants. Having regard to the
nature and extent of the work actually executed, the nature and
extent of the services provided
and the maximum amounts permissible
in accordance with the agreed ratios the defendants were overpaid by
substantial amounts. The
alternative claim was based on the
client-consultant agreements and consisted of a claim for an
overpayment, being the difference
between the amount paid to the
consultants and the fees permitted under these agreements at the time
of work stoppage. The amounts
overpaid were calculated by Mr D
Elliot, the Municipality’s expert witness and, during the
course of the trial, recalculated
by him, taking into account certain
propositions put to him in cross-examination. His calculations were
set out in exhibits L and
M. His conclusion was that an overpayment
in the amount of R810 481,19, the amount claimed in the alternative,
had been made.
[13] The Municipality alleged that all
the defendants were jointly and severally liable for the total amount
of the overpayment.
In the alternative, it claimed payment from the
defendants forming part of each joint venture the amount overpaid to
such joint
venture, jointly and severally.
Defences
[14] The defendants denied that the
amounts paid to them were not due or, if due, were paid by mistake
or, if paid in error, that
the mistake of the Municipality was bona
fide and reasonable. All the elements of the
condictio indebiti
were therefore put in issue. In addition, certain specific defences
were pleaded. The defendants also took issue with the allegation
that
any liability they may have was joint and several or joint only.
Generally, all the defendants pleaded that the amounts paid
to them
were due in terms of their respective client-consultant agreements
and that their appointments and fees were not subject
to the approval
of the PHB. Any attempt by the PHB, some specifically pleaded, to
restrict their fees was ‘irrelevant to
the rights and
obligations of the parties to the client customer agreement’.
Some of the defendants counterclaimed but these
counterclaims were
not persisted with. Others pleaded oral variations of the
client-consultant agreement while some relied on separate
agreements
relating to specific work to be done, such as the emergency
electrical intervention. In addition, the first defendant
pleaded
that the managing agent had informed the defendants on 9 February
1998 that the PHB had approved the application for funding,
the
appointment of consultants and the fee structure. I will deal with
these defences in due course.
Evidence
[15] The Municipality called Messrs
Mzimkulu Msiwa, Alan Zeiss and Dicky Elliot as witnesses. The
defendants relied on the evidence
of Messrs Timothy Hewitt-Coleman
(on behalf of the consortium of architects), Thembinkosi Matunda (on
behalf of the fourth, fifth
and sixth defendants, the consortium of
quantity surveyors), Richard Boonzaaier (on behalf of the ninth
defendant, the civil engineer),
Peter du Toit (on behalf of the tenth
defendant, the electrical engineer), Ndabezitha Ndzombane (on behalf
of the eleventh and
twelfth defendants, the consortium of town
planners) and Robert Hemsley (on behalf of the fourteenth defendant,
the land surveyor).
At the trial Mr Maharaj, the third defendant’s
representative, stated that its defence was fundamentally the same as
that
of the first defendant and closed its case without calling any
witnesses. The action against the thirteenth defendant was not
proceeded
with.
Judgment of the court below
[16] The court below found that the
evidence established that the defendants were appointed subject to
PHB approval both in respect
of the terms of appointment as well as
the fee structure and fees of the defendants. The approval of the PHB
limited their professional
fees to 7,5 per cent in respect of the
Greenfields development and infill site and 9,2 per cent for the
hostel upgrade. That, the
court below found, included all work from
inception including the preliminary planning, funding applications,
emergency electrical
intervention, fees and disbursements. The
defendants’ reliance on the purported client- consultant
agreement, it held, was
therefore misplaced. The court also found
that some of the defendants had signed their client-consultant
agreements knowing that
both their fees and the continuation of the
project were subject to PHB approval.
[17] The court below, however, held
that the Municipality failed to discharge the burden of proving that
it had not been negligent
when it made the payments and that its
error was excusable. The Municipality should, it found, before making
payment of the claims
submitted by the defendants, have advised them
that their claims exceeded the amounts approved. The only explanation
offered was
that the Municipality had relied on the managing agent to
verify the claims for payments made. That explanation was found to be
inadequate and not sufficient to render the mistake of the
Municipality excusable.
[18] The evidence supports the finding
of the court below that the consultants’ fees were subject to
PHB approval and that
it was a term of their appointment. Mr du Toit,
who testified on behalf of the tenth defendant, agreed in so many
words that the
preliminary fees were included in the total cost of
the project and that the PHB had to approve the fees of the
consultants. Mr
Boonzaaier, who testified on behalf of the ninth
defendant, conceded that their appointment as well as their fees had
to be approved
by the PHB. During cross-examination, Mr Matunda,
testifying on behalf of the fourth, fifth and sixth defendants,
conceded that
the ‘whole of the funding was subject to the PHB
… and obviously the fees being part of that’. He
admitted that
the consultants were working at risk, pending such
approval. Mr Ndzombane, on behalf of the twelfth defendant,
understood that
all fees had to be approved by the PHB and that the
Municipality was not incurring any liability beyond the fees
approved. This
was also conceded by Mr Hewitt-Coleman, testifying on
behalf of the first defendant. The conclusion of the court below that
all
the defendants were working at risk pending approval by the PHB
of both their fees and appointments is justified.
History
[19] In order to understand the
circumstances under which the Municipality paid the fees of the
defendants a review of the history
of the project and, particularly,
the numerous applications made for funding by the defendants and
their negotiations with the
PHB concerning fees is necessary. Mr
Zeiss testified that the city engineer’s department was not
involved in housing matters
at the time the project was considered.
Nor was the Municipality able to establish a body, to be known as the
Local Negotiating
Group (the LNG), through which the community and
the residents of the hostel could participate in the upgrading
process. It was
at that time government policy that a formalised body
be established for the implementation of housing projects to
facilitate communication
between the developer, the consultants and
the hostel community.
[20] The executive committee, with the
subsequent approval of the PHB, resolved in August 1995 to appoint a
managing agent, the
H-J Studio Trust, controlled by Mr Elwyn
Harlech-Jones, to ‘facilitate the successful implementation of
the project’
(clause 3 of its appointment). This entailed the
establishment of a local negotiating group (phase 1), assisting the
‘social
compact’ to appoint a professional team, the
submission of an application to cover preliminary planning costs, the
‘workshopping’
of all proposals, the submission of an
application for development funding (phase 2) and the co-ordination
and management of the
upgrading proposals (phase 3). Mr Harlech-Jones
was associated with the second defendant. Clause 6 of the managing
agent’s
appointment provided that –
‘
[i]n
executing its functions as Managing Agent, the Trust shall comply
with all directives of the Council, in its capacity as the
local
authority, and all policies, guidelines and directives of the
Provincial Department of Housing and the PHB, as specifically
set out
in the publications entitled, “Policy for the Upgrading of
Public Sector Hostels and Hostel Initiative Operations
Manual”
and “A Guide to use the Implementation Manual” of the
Department of Housing.’
In terms of clause 8 the managing
agent acknowledged that it was to be paid from funds approved by the
PHB and undertook, other
than at its own risk, not to proceed with
the work until the PHB had made such funding available. It also had
to prepare the budget
for the project and submit an application for
its funding.
[21] A ‘social compact
committee’ which eventually became the LNG was formed. It was a
consultative body that had no
executive powers and facilitated
meetings between the stakeholders in the project. Mr Zeiss attended
the meeting of the LNG on
17 November 1995 where it was minuted that
he had said that the Municipality –
‘
would
play a caretaker role in the overall managing of the project which he
felt should be community driven involving a broad cross
section of
the beneficiary community. The day-to-day running of the hostel would
continue and the Council will provide the necessary
secretarial
support i.e. recording the minutes of meetings and the supply of a
venue for meetings. He concluded that the common
objective was the
upgrading of the hostel and the Managing Agent was expected to play a
leading role in such upgrading.’
[22] It was the managing agent’s
responsibility to assemble a team of consultants. The Department of
Housing had also placed
considerable pressure on the Municipality to
ensure that marginalized professionals and consultants be involved
and it was decided
that a lead consultant for every discipline be
appointed to head a joint venture of those professionals within each
discipline.
[23] The managing agent produced a
document entitled Guidelines for Appointment of Consultants, the
final draft of which was dated
23 February 1996, setting out the
organizational network of the project. It stated that the managing
agent ‘will be responsible
to obtain the budget approvals from
the L.N.G. and negotiate, on behalf of the [Municipality], the
project finance and subsidies
from the [PHB]’. It dealt with
the goals and aims of the ‘social contract’ involved: the
consultants were expected
to be accountable at all times and to bear
the community’s interests at heart when carrying out their
professional services.
The social contract emphasised the importance
of providing low-cost, high-quality housing with community
involvement, and to engender
community work by the professionals. As
far as the professional consultants were concerned it was provided
that they –
‘
will
be contractually responsible to the [Municipality] . . . Contractual
Documentation will be required to be signed by the participating
Consultants to formalise professional appointments.’
The different roles of the consultants
were set out. Their professional fees were to be calculated on the
standard fee regulation
‘for every profession, altered by
negotiation in accordance with the Scope of Work’. Moreover, it
is provided that
‘[t]he financing and subsidy policy of the
Provincial Housing Board should be considered within the overall
budget allocation
for the Project’. As far as the financial
control for the project was concerned it was specifically provided
that –
‘
11.1
The financial obligation of the [Municipality] is limited to the
funds approved by the P.H.B.
11.2
All claims for Professional Fees will be certified for payment by the
Managing Agent, payment to be effected with the prior
approval of the
L.N.G.’
The professional consultants were
required to enter into –
‘
Joint
Ventures with other emerging Consultants and should be prepared to
work on a bi-partisan level to ensure upliftment of the
Professionals, who have in the past been marginalised and denied
opportunities of Professional advancement.’
[24] In a further document dated 19
March 1996 the managing agent dealt with the appointment of
consultants and noted that ‘[a]ppointments
will only be
finalised once the Provincial Housing Board approves the funds for
Preliminary Planning . . . ‘. The preliminary
planning
concerned the entire project and its costs formed part of the costs
of the total project although the Municipality might
have had to
provide some bridging finance. On 12 April 1996 the PHB approved
further fees of the managing agent, the appointment
of a liaison
officer and the running costs of the LNG. It required the managing
agent to exercise proper control over the funds
awarded.
[25] An advertisement was placed in
the
Eastern Province Herald
calling interested persons to come
forward before 24 April 1996 to be considered for appointment as
consultants. A meeting of the
consultants appointed, the so-called
primary consultants, was held on 7 May 1996. The
Guidelines
referred to were read at the meeting and copies were also handed out.
It was minuted that –
‘
[e]ach
Primary Consultant accepted the contents of the Guidelines, as it was
confirmed that the Guidelines would form part of the
appointment
contract with the [Municipality].’
The formal appointment of the
consultants was discussed and it was stated that the agreements would
be between them and the Municipality.
The first action would be the
formulation of a preliminary planning budget after approval of which
the appointments would be formalised.
A letter was written to the
managing agent, with copies to the LNG and the architects and
quantity surveyor, emphasising that the
Municipality, and not the
LNG, had to make the appointments –
‘
this
being subject to the necessary finance being made available by the
Provincial Housing Board for the payment of Professional
fees.’
[26] The executive committee of the
Municipality resolved on 21 May 1996 to appoint the primary
consultants. The resolution made
it clear that their appointment was
subject to the provision of the required funds by the PHB. This led
to the letters of appointment
referred to being sent to the
defendants. It is not disputed that all the defendants had accepted
their appointments.
[27] Numerous meetings were held by
the defendants. At the meeting of 7 May 1996 the managing agent
confirmed that once a team of
consultants had been selected and
approved, all consultants would be equal and the designation of
‘primary’ consultant
would no longer be used. At one
meeting the cost of the preliminary study was determined in an amount
of R625 000. It was minuted
at the meeting of consultants on 3 July
1996 that the preliminary budget in the said amount had been approved
by the PHB. It was
further agreed that consultants would make
available to the managing agent copies of their standard contracts to
be used by the
Municipality when formalising their appointments. The
executive committee of the Municipality resolved on 23 July 1996 that
application
be made to the PHB for approval of the R625 000
preliminary planning budget subject to there being no financial
implications for
the Council.
[28] Concern was, however, expressed
by the managing agent in his report of 4 August 1996 that funding of
the project had not been
finalised. This concern was repeated at the
meeting of 15 August 1996 and it was stated that the question of
financing be addressed
as a matter of priority. An outline for the
funding application was presented to consultants on 9 October 1996.
It was minuted
at the task group meeting of 10 October 1996 that
preliminary fees by the consultants had been processed and presented
to the Municipality.
The managing agent’s report of 15 October
1996 envisaged that the funding application to the PHB would be made
in November
1996.
[29] It was only by letter dated 3
December 1996 that the Municipality was informed that the appointment
of certain (primary) consultants
had been approved and that a
preliminary fee of R625 000 was allowed by the PHB at its meeting on
29 November 1996. As a result
of this approval the Municipality
commenced making payments to the consultants for services rendered.
At this time, however, the
fees of the consultants had not yet been
approved by the PHB.
[30] The PHB resolved at its meeting
on 31 January 1997 to approve the amount of R22 343 332,50 for the
hostel upgrade and R16 867
500 for the construction of housing for
the Greenfields development giving a total of R 39 210 832,50. All
previously approved
funds, with the exception of the managing agent’s
fees, were to be part of the development cost. The amount of R625 000
thus
formed part of the total grant. As far as the upgrading and
infill units were concerned the PHB provided that any shortfall
between
the development costs and the grant be funded by the
Municipality. The Municipality, however, never accepted liability for
any
shortfall in the funds approved. The PHB also specified that the
costs of the emergency electrical intervention, to which I will
refer
again, formed part of the total grant. A further 15 per cent ‘top
up’ grant in respect of dilapidated buildings
and infill sites
due to conditions of the soil in respect of the Greenfields
development and infill units was also allowed.
[31] On 17 February 1997 the managing
agent reported that the grant had been approved. He added that the
amount of R39 210 832,50
also included the fees of the consultants.
From the minutes of the consultants’ meeting of 21 February
1997 it appears that
a copy of the grant was given to each consultant
for circulation to each of the associates. It was also resolved that
application
be made for approval of the ‘top up’ grant in
relation to the Greenfields development. The managing agent was
mandated
to clarify the fee of R625 000 with the Department of
Housing and Local Government (the Department) which, it was stated at
the
meeting, should have been regarded as an once-off payment not
forming part of the main grant. The consultants were requested to
finalise their fees by 10 March 1997. There was some discussion of
the fees at the meeting and it was again questioned whether
the R625
000 should be seen as an additional grant. It was also debated
whether the total fees should be 7,5 per cent of total
cost but not
exceeding 10 per cent. Further discussions about the fees followed on
13 March 1997 and it was noted that the matter
should be discussed
with the Department. A further meeting was held on 10 April 1997
where the managing agent reported that the
fee of 7,5 per cent was
calculated for the Greenfields development with standard fees for the
hostel. The latter fees, however,
had not been approved by the PHB at
that time. The managing agent wrote to the Department on 10 April
1997 stating that fees of
7,5 per cent for the Greenfields
development was acceptable but that the standard tariff for the
hostel should apply. The managing
agent wrote to the Municipality on
17 April 1997 stating that total fees would amount to 12 per cent of
the funds granted. Mr Zeiss
testified that the Municipality was in no
position to validate the fees suggested and would only have forwarded
the suggestion
to the Department.
[32] This debate on fees culminated in
a meeting of the managing agent with the Department on 18 April 1997.
Mr Zeiss as well as
the chairman of the PHB attended. At that time
the defendants were threatening to stop work unless a decision on
fees was taken.
The fees suggested by the managing agent in his
letter of 17 April 1997 were acceptable to the consultants. The
managing agent
reported to the consultants what had transpired at the
meeting and requested Mr Matunda, one of the quantity surveyors, to
finalise
their fees and brief in terms of the suggested parameters
for submission to the PHB. His proposal, containing details of the
work
and fees, was to form the basis of a further meeting with the
Department. The PHB, however, was not in favour of the standard
tariff
of fees and it was agreed that a revised document be
furnished.
[33] The PHB resolved on 25 April 1997
to approve professional fees of 7,5% for the Greenfields development
and infill sites, and
to ‘negotiate the professional fees for
the alterations to the existing hostels, with the consultants to an
acceptable norm’.
This resolution again led to a flurry of
activities. The consultants attended the meeting of the task team on
8 May 1997 and agreed
that a further meeting be held with the
Department. At that time the detailed design for the project had
virtually been completed.
Agreement had to be reached with all the
roleplayers for the submission of a fees proposal to the PHB. On 15
May 1997 the managing
agent informed the meeting of the LGN that the
consultants’ brief and fee structure ‘was a difficult
process because
all the key role players had to be satisfied.’
With regard to the breakdown of fees he noted that not all the
information
had been received from the consultants. He remarked,
however, that he was not happy with the apparent arrangement between
the province
and the consultants as he wanted a detailed breakdown
and requested deferment of the item for a period of seven days to
extend
the negotiating process. A meeting with the Department was
arranged for 26 May 1997. Further proposals followed which were
discussed
at the meeting of the LNG but the fees suggested were
higher than the ceiling set by the PHB at the meeting on 26 May 1997.
The
Municipality supported the proposals of the defendants. At the
LNG meeting on 28 May 1997 it was resolved that the consultants would
supply the managing agent with a breakdown of fees costed per
activity, a revised scope of work and a new ‘proposed fees
structure to cover any additional functions as well as alternative
suggestions which would be subject to the approval of the Department
. . .’.
[34] The lack of clarity on fees was
delaying the project. A new fee structure was approved at the meeting
of the LNG of 5 June
1997 and it was resolved that it be submitted to
the Department for approval. The Municipality’s housing
committee recommended
on 7 July 1997 that the fee proposals put
forward be accepted and submitted to the PHB. The managing agent was
requested by Mr
Zeiss on 9 July 1997 to call for tenders and submit
the consultants’ brief and fee structure to the PHB for
approval. There
was still no finality on fees as appears from the
minutes of the consultants’ meeting of 31 July 1997. Further
meetings followed.
A meeting with the Minister was called for. It was
noted that the consultants were performing at risk. The chief
executive of the
Municipality on 8 August 1997 wrote to the
Minister that the delays –
‘
have
now resulted in the Managing Agent being instructed to advise all
professionals working on the planning and design of the project
to
cease all further work until finality has been reached by the Board
on the appointment of the professional team and their respective
fee
structure.’
[35] The Municipality was informed on
12 August 1997 of the 25 April 1997 resolution of the PHB and of the
further negotiations
between the Department and the consultants. It
was stated by the PHB that –
‘
negotiations
took place and the consortium of consultants agreed to reduce the
fees to an acceptable norm of 9,2% for alterations
to the existing
hostel . . . . It should also be noted that an average of 7,4% fee
structure has been achieved for this development
through negotiations
when both the upgrading of the existing hostel and the Greenfields
project are combined. This was achieved
notwithstanding the fact the
Housing Board anticipated an average fee of 7,5 %. A contract
document for the employment of consultants
has also been drawn up by
the Managing Agent . . .’.
[36] The PHB resolved at its meeting
on 26 August 1997 that –
‘
(a)
A standard tariff of fees of 9.2% be approved in principle for the
alterations to the existing hostel and that the fees be reviewed
on
submission of the final detailed designs
(b)
The involvement of professionals such as Architects, Electrical
Engineers, Quantity Surveyors in the Greenfields project must
be
clarified
(c)
The previous decision in respect of professional fees for the
Greenfields portion of the project must be made available . .
. to
the Board.’
This resolution did not explain all
the issues relating to the professional fees and a clarification,
particularly in view of the
earlier decision of the PHB, was
requested by the Municipality. The managing agent reported to the
consultants on 14 October 1997
that the PHB had approved the
appointment of consultants and the fees for the hostel. They were
requested to separate their fees
for the hostel and the Greenfields
development. It was anticipated that the fees for the hostel would be
paid. At that time problems
with the size of the houses that was
built on the Greenfields development occurred, leading to the PHB
refusing to subsidise houses
that did not comply with their
specifications. The managing agent was not satisfied with the fee of
7.5 per cent imposed for the
Greenfields development and moved for a
‘realistic’ fee of 12 per cent. By November 1997 neither
the architects nor
the quantity surveyors for the Greenfields
development had been approved by the PHB. On 18 November 1997 the
managing agent requested
the consultants to submit claims for the
balance of their fees for the Greenfields development in order to
discuss their payment
with the PHB at their meeting on 11 December
1997.
[37] At their meeting on 29 January
1998 the PHB resolved to allow a 12.5 per cent variance allowance in
respect of the Greenfields
development and also approved the
appointment of architects, electrical engineers and quantity
surveyors. At the meeting of 24
April 1998 a further sum of R6 586
125, subject to the availability of funding, was approved. The
Municipality was informed of
the resolution of 29 January 1998 on 20
May 1998. The managing agent notified the consultants on 9 February
1998 that the PHB had
approved at their meeting of 29 January 1998 –
‘
the
comprehensive application for funding and the appointment of
consultants for the construction phase of the project. The fee
structure as set out in the fee schedule was also approved.’
[38] In June 1998 the Municipality
established a housing department within the city engineer’s
department. It was decided
to reduce the number of consultants active
on the project, hence a series of letters were sent to them during
June 1999 terminating
some of the appointments. The city engineer
took over management of the project. There were complaints about the
non-payment of
fees by the consultants. Mr Zeiss responded to the
managing agent on 29 September 1999 that in terms of the agreement –
‘
fees
as approved by the Provincial Housing Board are payable to you. It
appears that there has been a considerable over payment
of fees not
only to you, but to other consultants, all of which payments were
authorised by you. These payments have all been referred
for audit
and until such time as agreement is reached as to what fees have been
approved and these compared with the amounts paid
to determine the
accuracy or otherwise of such allegations no additional fees will be
paid to you or any consultant.’
The managing agent responded by
stating that ‘[a]ll fees which were claimed were paid in terms
of the Client Consultant Agreement
signed between the Trust and the
[Municipality] dated 7
th
August 1997’.
[39] On 31 January 1999 the PHB
confirmed the total grant with specific reference to the
redevelopment of the existing hostel with
the conditions that the
grant replaced all previous grants resolving inter alia that ‘(vi)
all previously approved funds
with the exception of the facilitators
fees be accepted as part of the development cost’ and that
‘(ix) the emergency
intervention form part of the total grant’.
Payment
process
[40] The Municipality alleged that
some 102 payments were made over the period from 21 November 1996 to
1 July 1999. The court below
found that 45 authorisations were signed
by Mr Judd (an official of the Municipality), three by Mr Zeiss and
eight by an unknown
official. Twenty two claims were accompanied by
statements that the claims were made in terms of the respective
client-consultant
agreement. Nine contained statements to the effect
that they were in respect of preliminary expenditure and one that it
was payable
in terms of the managing agent’s instruction.
[41] The payment process involved Mr
Judd’s processing of the claims submitted and certified by the
managing agent. The Municipality
would thereafter submit a claim to
the Department for a refund. As Mr Zeiss said: ‘If the managing
agent signed it off, we
passed it for payment.’ The managing
agent was responsible for the financial administration of the project
and the Municipality
assumed that he had done his job. The city
treasurer did not undertake any investigation as to whether the fees
were payable or
not but simply verified whether the paperwork was in
order, ie whether the claim submitted was certified by the managing
agent.
As I have said, the payments were made from November 1996. The
same payment procedure was followed both before and after the
notification
by the managing agent to the consultants on 9 February
1998, relied on by the first defendant. There is no evidence that
this notification
in any way affected the standard procedure the
Municipality followed when making payments. Nor is there any
suggestion that the
defendants in any way relied on it in preparing
their claims for payment. The ‘tariff’ referred to in the
notification
is a reference to the fees schedule forming part of the
client-consultant agreements. The schedule, however, contains no
tariff
but set out maximum amounts payable.
Client-consultant
agreements
[42] The client-consultant agreements
were prepared pursuant to a resolution of the LNG on 5 June 1997.
They consisted of four parts
and it was recorded in each that it
constituted a contract between the consultant and the Municipality to
perform certain services
against payment of professional fees. It set
out the consultant’s mandate and the respective fees in a
schedule. It also
contained the scope of the different services to be
rendered in addenda to the agreements. This draft document was
formulated because,
according to Mr Zeiss, the Department wanted to
ensure that there was no duplication of work among the various
consultants and
to curtail fees. The draft was approved by the LNG on
26 June 1997 and the consultants resolved to submit it to the
Department
for formal approval at their meeting of 27 June 1997. The
Municipality’s housing committee approved the fees and scope of
mandate as well as the terms of the client- consultant agreement on 7
July 1997 subject to approval by the PHB. Mr Zeiss explained
that his
signature on the agreements meant that the agreement was approved
subject to approval by the PHB. If the PHB did not approve
the draft
agreements or the fees specified, he continued, they would have had
to either renegotiate fees or reduce the scope of
work. It is clear
that the appointment of the consultants and their fees were both
subject to the approval of the PHB. The evidence
shows and the court
below correctly found that the approval of the PHB formed part of the
appointment of the consultants and, hence,
a term of the
client-consultant agreements relied upon by the defendants. The fees
set out in the client-consultant agreements
were never approved by
the PHB.
Quantum
[43] The extent of the work completed
was largely common cause. Mr Elliot, a quantity surveyor, whose
expertise was not disputed,
made his own assessment of the work
completed. He also verified the ratios in which the fees applicable
to each discipline stood
to the total amount of fees payable. He met
with the defendants to clarify those areas where he had been required
to make assumptions.
After he gave evidence he was recalled to
present further calculations taking into account issues raised by Mr
Matunda when the
latter testified. In the new calculations, set out
in exhibits L and M, he accommodated the views of Mr Matunda that the
fees should
be calculated as a percentage of the grant rather than
the contract value and also that the fees for the hostel upgrade and
the
Greenfields development and infill sites be separated and looked
at individually. VAT was further added to the final figures. He
also
brought into account R56 033,79 paid to the quantity surveyors that
had been left out of his earlier calculations. The amount
of the
overpayment arrived at was R810 481,19 and was calculated on the
basis that the fees, including disbursements of the tenth
defendant
for the emergency electrical intervention, formed part of the total
fees to be paid from the funds granted and were not
to be regarded as
a separate item. He also disallowed the fees and disbursements
claimed by the ninth defendant for an additional
thirteenth month of
supervision, the fees and disbursements of the fourth, fifth and
sixth defendants in respect of firm bills
of quantities and the fees
and disbursements of the fourteenth defendant in respect of
additional work and further disbursements
made as a result of an
increase in the fees of the Surveyor General. As I will show, there
is no reason not to accept his calculations
and it was hardly
contended otherwise.
[44] As far as the fees for the
emergency electrical intervention is concerned, I am satisfied that
there is no evidence that the
Municipality undertook any liability
for the fees of the tenth defendant for the intervention. It is
correct that the managing
agent wrote to the Department on 15 October
1996 that he had been requested to co-ordinate the emergency
electrical intervention
’with funding approved by the
[Municipality]’ and that he had to submit an application for
additional funding to the
PHB. Mr Judd thereafter approved payment of
the tenth defendant’s fees. It does not follow, however, that
the Municipality
had accepted any liability for these fees. The PHB
on 3 December 1996 resolved specifically that the cost of the
emergency electrical
intervention be deducted from the total amount
of the grant. This was confirmed by their subsequent resolution of 31
January 1999.
Mr Msiwa’s unchallenged evidence is that the
electrical intervention was part of the whole project and that, by
reason of
the bad condition of the electricity supply to the hostel,
the work was merely performed earlier than it would have been in the
normal course of events. There is thus no room for the contention of
Mr du Toit, who testified on behalf of the tenth defendant,
that the
emergency intervention fees were to be treated separately from the
fees payable in respect of the entire project.
[45] There is also no basis for
allowing the fees of the ninth defendant in respect of supervision
for a thirteenth month and the
increased fees and additional
disbursements of the fourteenth defendant. Their increased fees and
disbursements were simply not
part of the scope of work envisaged in
the respective client-consultant agreements.
[46] It was further submitted that, as
far as the fees of the quantity surveyors for final bills of
quantities were concerned, the
managing agent had requested final,
and not provisional, bills of quantities. Mr Matunda, who testified
on behalf of the fourth,
fifth and sixth defendants, could not
demonstrate that the agreement he relied upon had been varied to
provide for the drawing
up of firm bills of quantities. As appears
from his cross-examination, it was highly unlikely that an agreement
to call for firm
bills of quantities would have been concluded at a
time when the whole project had practically come to a standstill.
Condictio
indebiti
[47] The
condictio
indebiti
is
the enrichment remedy by means of which the
solvens
recovers from the
accipiens
money paid or
property transferred in intended payment or performance of a debt
that is not due.
1
The
condictio
indebiti
is
available against the
accipiens
.
Who the latter is is a legal question because the person physically
receiving the performance may in law not be regarded as the
recipient
of the performance, such as an agent or a conduit or a person
nominated for payment.
2
The payment or
transfer must have been
indebite
in the widest
sense, that is, there must have been no legal or natural obligation
to pay or perform.
3
The payment or
performance must further have been made in the mistaken belief that
the debt was due. Generally, if the plaintiff
knew that the debt was
not due or doubted whether it was due recovery may be excluded.
4
In the past it was
required that the mistake be one of fact or mixed fact and law and
not of law only,
5
but in
Willis
Faber Enthoven (Pty) Ltd v Receiver of Revenue & another
6
the distinction was
done away with and it was held that an error of law could also give
rise to the
condictio
indebiti
.
[48] Generally, as
in the case of a mistake of fact, the mistake must be excusable, that
is the ignorance of the
solvens
must be
nec
supina nec affectata
–
neither
slack nor studied.
7
No precise
formulation of the circumstances when a mistake would be excusable is
possible since it calls for a value judgment. In
Bowman,
De Wet & Du Plessis NNO & others v Fidelity Bank Ltd
8
Harms JA said:
‘
It
is a general requirement for the
condictio
indebiti
that
the error that gave rise to the payment must not have been an
inexcusable error, that is inexcusable in the circumstances of
the
case . . . . There have been many attempts to lay down rules or
formulations in this regard in order to circumscribe what is
excusable and what is not . . . Since one is concerned
with the exercise of a value judgment, it seems inappropriate
to
refine the test of whether judicial exculpation is justified . . .‘.
Similarly, in
Willis
Faber Enthoven (Pty) Ltd v Receiver of Revenue & another
9
Hefer JA remarked:
‘
It
is not possible nor would it be prudent to define the circumstances
in which an error of law can be said to be excusable or,
conversely,
to supply a compendium of instances where it is not. All that need to
be said is that, if the payer’s conduct
is so slack that he
does not in the Court’s view deserve the protection of the law,
he should as a matter of policy, not
receive it. There can obviously
be no rules of thumb; conduct regarded as inexcusably slack in one
case need not necessarily be
so regarded in others, and vice versa.
Much will depend on the relationship between the parties; on the
conduct of the defendant
who may or may not have been aware that
there was no
debitum
and
whose conduct may or may not have contributed to the plaintiff’s
decision to pay; and on the plaintiff’s state of
mind and the
culpability of his ignorance in making the payment.’
An excusable
mistake is not required in all cases for the
condictio
indebiti
to
be available. It is not necessary where the plaintiff acts on behalf
of others, such as where he is an executor claiming an overpayment,
10
or a person making
payment in a representative capacity.
11
[49] The
requirement that the mistake be excusable has often been criticized,
and proposals for its reformulation have been made.
12
In view of my
conclusion that the mistake of the Municipality in making payment was
excusable, it is not necessary to question this
requirement and
venture into a consideration of the historical roots of this rule.
13
Excusability
[50] The court below found that the
mistake of the Municipality was not excusable and said that ‘[i]f
they [Judd and Zeiss]
knew there was no approval or there was a
limit, they should have advised the defendants accordingly and
rejected the claims which
fell outside the ambit of the approved
tariff’. However, there was no approved tariff. What the PHB in
the end approved was
that the defendants’ fees be limited to
7.5 per cent and 9.2 per cent of the total funds available for the
Greenfields development
and infill site and the hostel upgrade
respectively.
[51] It was simply not possible for
the Municipality, even if they had the required expertise, to have
known at any one time during
the course of the project what the
approved fees would be and that the payments of fees exceeded the
amount of the percentages
approved. The approval of the PHB was given
in stages: The first resolution was taken on 25 April 1997 and
related to the Greenfields
development and infill sites and limited
those fees to 7,5 per cent. The second resolution was passed on 26
August 1997 following
a period during which the consultants were
involved in negotiating their fees. This resolution limited the
professional fees for
the upgrading of the hostel to 9,2 per cent of
the funds granted and called for the involvement of certain of the
consultants to
be clarified. This resolution again led to further
negotiations. At their meeting on 29 January 1998 the PHB resolved to
allow
a 12.5 per cent variation allowance and approved the
appointment of certain of the consultants. This resolution also
affected the
amount of the defendants’ fees. At the 24 April
1998 meeting a further amount was made available by the PHB. The
final resolution
of the PHB was passed only on 31 January 1999. It
was only after an analysis of the work completed by Mr Msiwa after
the establishment
in June 1998 of a housing department within the
city engineer’s department and supervision of the project by
him that the
fact of the overpayments could be established.
[52] The actual quantification of the
amounts overpaid required complex calculations by Mr Elliot,
calculations he had to revise
after extensive cross-examination. The
Municipality lacked the capacity and expertise during the period
payments were made to ascertain
the extent of their liability and the
extent of the consultants’ entitlement. It relied on the
managing agent. While it is
correct that the latter was the agent of
the Municipality, the managing agent was also involved with the
second defendant. But,
moreover, in certifying the claims of the
defendants and presenting them for payment, he also acted as their
agent. The defendants
were at all times aware of the need for the PHB
to approve their fees and, accordingly, knew that their fees were
limited. They
knew that pending approval they were working at risk.
They nevertheless submitted claims pending approval in terms of the
client-consultant
agreements that were in excess of the amounts that
were eventually approved. They were indeed in a much better position
than the
Municipality to have ensured that their fees were kept
within the limits that were acceptable to the PHB. As I have found,
the
notification by the managing agent on 9 February 1998 played no
role in the payment procedure followed by the defendants and the
Municipality.
[53] The Municipality made payment
relying on both the claims submitted and the managing agent’s
certification. The latter
was, as I have said, the agent of both the
Municipality and the defendants. While the Municipality was aware
that the defendants’
fees had to be approved it made payment in
anticipation of such approval. It cannot be said that it intended to
pay the claims
submitted whether or not they were due. Payment
without further verification does not mean that the Municipality was
indifferent
or reckless. Nor can the defendants, who knew that their
fees had to be approved, suggest that they were under the impression
that
they were entitled to the amounts claimed. As I have said, the
Municipality did not have the means of verifying the true facts.
Its
failure to do so cannot be construed as an indifference as to whether
the money was due or as an intention to pay whether it
was due or
not. In the circumstances the Municipality has demonstrated that its
mistake was excusable.
Joint
and several liability
[54] Joint ventures were in fact
established by the defendants for every discipline. The civil and
structural engineers formed a
joint venture consisting of the
seventh, eighth and ninth defendants. The quantity surveyors formed a
joint venture consisting
of the fourth, fifth and sixth defendants.
The first three defendants were a joint venture of architects. The
eleventh and twelfth
defendants acted in a joint venture of town
planners.
[55] The remedy relied upon, the
condictio indebiti
,
lies against the
accipiens
,
the person receiving the undue performance. There is no evidence to
suggest that all the defendants incurred liability to the
Municipality jointly and severally.
14
They were appointed, initially, on an
individual basis and accepted their appointments as such. It was only
later that joint ventures
were formed. These joint ventures undertook
the work pertaining to the particular discipline and undertook that
the fees due to
them did not exceed the fees approved of by the PHB.
Payments were made in the mistaken belief that the amounts were due
and owing
either to the individual consultant (as in the case of the
fourteenth defendant) or to the particular joint venture. It follows
that the
accipiens
is either the individual consultant or
the particular joint venture. The relationship between the parties to
a joint venture is
that of partners.
15
Partners are liable jointly and
severally
in solidum
.
16
It follows that the members of each
joint venture are liable jointly and severally
in
solidum
to the
Municipality. The division of the fees payable to each joint venture
was a matter to be determined by the partners in each
joint venture.
Should any of them have recourse to any of the others that is a
matter based on the agreement between them. Any
order made should
therefore be against the partners in the particular joint venture
concerned. The amounts due by them were calculated
by Mr Elliot and
are reflected in the order made.
Order
[56] In the result the following order
is made –
(1) The appeal is upheld with costs
including the costs of two counsel;
(2) The order of the court below is
set aside and replaced with the following order:
‘
(a) The first, second and third
respondents are ordered to pay the sum of R401 252,69 to the
plaintiff jointly and severally;
(b) the fourth, fifth and sixth
defendants are ordered to pay the sum of R151 676,18 to the plaintiff
jointly and severally;
(c) the seventh, eighth and ninth
defendants are ordered to pay the sum of R153 107,80 to the plaintiff
jointly and severally;
(d) the tenth defendant is ordered to
pay the sum of R7 896,47 to the plaintiff;
(e) the eleventh and twelfth
defendants are ordered to pay the sum of R75 069,38 to the plaintiff
jointly and severally;
(f) the fourteenth defendant is
ordered to pay the sum of R21 478,66 to the plaintiff;
(g) the defendants are ordered jointly
and severally to pay interest on the respective amounts to the
plaintiff at the prevailing
prescribed interest rate
a tempore
morae
;
(h) the defendants are ordered to pay
the plaintiff’s costs of suit jointly and severally.’
__________
F
R MALAN
JUDGE
OF APPEAL
APPEARANCES:
For
Appellant: R G Buchanan SC and E A S Ford SC
Instructed
by:
Rushmere
Noach Inc
Port
Elizabeth
c/o
Webbers Attorneys
Bloemfontein
For
Respondent: R P van Rooyen SC and O H Ronaasen
Instructed
by:
Pagdens
Port
Elizabeth
c/o
McIntyre & van der Post
Bloemfontein
1
Frame
v Palmer
1950 (3) SA 340
(C) at 346D-G;
Le
Riche v Hamman
1946 AD 648
at 656 and
see J G Lotz ‘Enrichment’ 9
LAWSA
(2ed) para 211 ff (updated by F D J
Brand).
2
Phillips
v Hughes; Hughes v Maphumulo
1979 (1)
SA 225
(N) at 229B-D. See further Daniel Visser
Unjustified
Enrichment
(2008) at 282-285.
3
Lotz
and Brand para 212.
4
Lotz
and Brand para 212.
5
Rooth
v The State
(1888) 2 SAR 259;
Miller
& others v Belville Municipality
1973
(1) SA 914
(C).
6
Willis
Faber Enthoven (Pty) Ltd v Receiver of Revenue & another
[1991] ZASCA 163
;
1992 (4) SA 202
(A).
7
Voet
12.6.7 and see
Rahim v Minister of
Justice
1964 (4) SA 630
(A) at 634A-B.
For the history of the rule see Visser
Unjustified
Enrichment
at 320.
8
Bowman,
De Wet & Du Plessis NNO & others v Fidelity Bank Ltd
1997 (2) SA 35
(A) at 44C-E.
9
Willis
Faber Enthoven (Pty) Ltd v Receiver of Revenue & another
at 224E-H.
10
Bowman,
De Wet & Du Plessis NNO & others v Fidelity Bank Ltd
at
44G-45G;
Rulten NO v Herald Industries
(Pty) Ltd
1982 (3) SA 600
(D) at
608B-C.
11
Affirmative
Portfolios CC v Transnet Ltd t/a Metrorail
[2008] ZASCA 127
;
2009
(1) SA 196
(SCA) para 29.
12
See
eg J C van der Walt ‘Die
Condictio
Indebiti
as Verrykingsaksie’
(1966) 29
THRHR
220
;
Visser
Unjustified Enrichment
at 301 ff; Helen Scott
Unjust
Enrichment by Transfer
(2005)
(dissertation Oxford) at 257 ff and her ‘The Requirement of
Excusable Mistake in the Context of the
Condictio
Indebiti
: Scottish and South African
Law Compared’
(2007) 124
SALJ
827
; J C Sonnekus
Ongegronde
Verryking in die Suid-Afrikaanse Reg
(2007)
at 245 ff; Jacques du Plessis ‘Towards a Rational Structure of
Liability for Unjustified Enrichment: Thoughts from
Two Mixed
Jurisdictions’
(2005) 122
SALJ
142.
13
See
Reinhard Zimmermann
The Law of Obligations Roman Foundations of
the Civilian Tradition
(1990) at 834 ff; Daniel Visser in
Reinhard Zimmermann and Daniel Visser
Southern Cross Civil Law
and Common Law in South Africa
(1996) at 528 ff.
14
See
Tucker & another v Carruthers
1941 AD 251
at 254. Also Schalk van der Merwe, L
F van Huyssteen, M F B Reinecke and G F Lubbe
Contract
General Principles
3ed (2007) at 247
ff.
15
Joubert
v Tarry & Co
1915 TPD 277
at 281.
16
Joubert
v Tarry & Co
1915 TPD 277
at 281.