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[2017] ZASCA 116
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Yarona Healthcare Network (Pty) Ltd v Medshield Medical Scheme (1108/2016) [2017] ZASCA 116; [2017] 4 All SA 705 (SCA); 2018 (1) SA 513 (SCA) (22 September 2017)
Links to summary
THE
SUPREME COURT
OF
APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 1108/2016
In
the matter between
YARONA
HEALTHCARE NETWORK (PTY) LTD
APPELLANT
and
MEDSHIELD
MEDICAL SCHEME
RESPONDENT
Neutral
Citation:
Yarona
Heathcare Network v Medshield
(1108/2016)
[2017] ZASCA 116
(22 September 2017)
Coram
:
Navsa ADP, Petse & Mathopo JJA &
Mbatha & Rogers AJJA
Heard:
29 August 2017
Delivered:
22 September 2017
Summary:
Condictio indebiti: respondent’s
mistakes in making payments inexcusably slack: excusability not a
requirement where claimant
a medical scheme: respondent proved its
impoverishment: if respondent enriched by services provided by
appellant, latter should
have counterclaimed with condictio indebiti.
Prescription:
actual or constructive knowledge necessary for prescription to start
running that of board of trustees: appellant
failed to prove that
board had actual or constructive knowledge by relevant date.
ORDER
On
appeal from:
The
Gauteng Division of the High Court, Pretoria (Molefe J sitting as
court of first instance).
The
appeal is dismissed with costs including the costs of two counsel.
JUDGMENT
Rogers
AJA (Navsa ADP, Mathopo and Petse JJA & Mbatha AJA concurring)
Introduction
[1]
The appellant (Yarona) and the respondent
(Medshield) were the defendant and plaintiff respectively in the
court a quo. Medshield,
a medical scheme registered in terms of the
Medical Schemes Act 131 of 1998 (the Act), sued Yarona for
R6 110 237, being
the sum of various payments made to
Yarona over the period 6 August 2007 to 17 July 2009. Medshield
alleged that the payments were
made in the bona fide and reasonable
but mistaken belief that they were owing, whereas in truth they were
not, and that Yarona
was unjustifiably enriched by the payments and
Medshield correspondingly impoverished. The summons was served on 9
June 2011.
[2]
Yarona defended the action, pleading that the
payments were made for services rendered in terms of an agreement
concluded during
June 2007. Yarona counterclaimed for additional
amounts allegedly owing under the agreement. There was also a special
plea of prescription
in respect of the payments made prior to 7 June
2008 – Yarona alleged that Medshield had the requisite
knowledge, or could,
by exercising reasonable care, have acquired the
requisite knowledge, by the date of each payment, alternatively by 7
June 2008
at the latest. In its replication Medshield denied the
existence of the alleged agreement.
[3]
A separation order was made for the
determination, in advance of other issues, of the question whether
the service agreement had
been concluded. The separated issue was
enrolled for trial on 2 March 2015. On 26 February 2015 Yarona’s
attorneys wrote
to Medshield’s attorneys stating that during
their client’s trial preparation it had become evident that
Yarona would
not be able to prove that the persons who purported to
represent Medshield in concluding the agreement had the authority to
do
so and that Yarona thus conceded the separated issue. An order to
this effect, including a dismissal of Yarona’s counterclaim,
was made.
[4]
The trial of the remaining issues was conducted
before Molefe J in April 2016. Prior to the commencement of evidence
Yarona’s
counsel clarified that Yarona’s concession
that no valid service agreement was concluded did not entail an
admission that
Yarona had not performed work for Medshield’s
benefit or that such work could be left out of account in assessing
Medshield’s
claim of unjustified enrichment. Apart from this
reservation, the main issues were whether recovery was barred because
of inexcusable
slackness on Medshield’s part and the date by
which Medshield could, through the exercise of reasonable care, have
acquired
knowledge of the facts giving rise to Yarona’s alleged
indebtedness.
[5]
Medshield called five witnesses. Yarona closed
its case without adducing evidence. On 5 July 2016 Molefe J granted
judgment in Medshield’s
favour. She gave leave to appeal to
this court.
Factual background
[6]
In what follows I shall, after their first
mention, refer to individuals by their surnames. Medshield had four
benefit options,
the Access, Bonus, Value and Plus options. In 2006
Medshield concluded an agreement with Calabash Health Solutions (Pty)
Ltd (Calabash)
in terms of which Calabash was to provide managed care
services in relation to the Access option for which it was entitled
to a
capitation fee (ie a specified amount per member subscribing to
the Access option). Yarona in turn had an agreement with Calabash
for
the supply of network management services, namely the establishment
and maintenance of networks of health practitioners who
agreed to
render services at negotiated rates. According to Ms Melani Coetsee,
one of Medshield’s witnesses, there was a
corporate connection
between Calabash and Yarona - they both formed part of what she
called the Bathabile group of companies.
[7]
With effect from 1 April 2007 Old Mutual
Healthcare (Pty) Ltd (OMHC) replaced Medscheme as Medshield’s
administrator. OMHC
had an office in Randburg dedicated to
Medshield’s administration. Medshield’s only employees at
that time were its
principal officer and his secretary. Until
mid-2007 the principal officer was Mr Welcome Mboniso. When he
resigned on account of
ill-health he was replaced by Mr Clinton
Alley. There was a short period of overlap between them. Alley’s
secretary was Ms
Joselyn Baatjies.
[8]
Yarona, which had an indirect involvement in
Medshield’s Access option via its contract with Calabash,
wanted to extend its
involvement to Medshield’s other benefit
options. There were discussions along these lines with
representatives of OMHC,
including a workshop in late May 2007.
Yarona’s managing director was Mr Bradley Soll. Alley, who was
at this time a trustee
and the principal officer in-waiting, was
aware of the discussions. At Soll’s request, Alley facilitated
the obtaining of
a letter dated 31 May 2007, purportedly signed by
Mboniso, in which Medshield requested OMHC to provide Yarona with
such information
as Yarona needed to undertake ‘an exercise on
their risk sharing models and reimbursement strategies’.
Mboniso testified
that he had not signed or known about this letter
but said that his secretary and Baatjies had access to his electronic
signature
for urgent documents.
[9]
For its contention that there was a binding
agreement, Yarona relied on this letter and on a draft service
agreement with an effective
date of 1 June 2007. Yarona’s case
(until it conceded the issue) was that Medshield had accepted the
terms in the draft.
The draft, which purported to have been signed by
Soll on Yarona’s behalf on 1 June 2007, made provision for
Medshield to
pay Yarona a monthly fee of R250 000 plus VAT. In
fact, the draft agreement was not submitted to Medshield’s
board of
trustees for approval and Medshield did not conclude a
contract with Yarona.
[10]
Notwithstanding this state of affairs, Medshield
began to make monthly payments to Yarona. The first was on 6 August
2007 in the
amount of R279 300 (R245 000 plus VAT).
Although Medshield could not locate any documents relating to the
first four
payments, Yarona’s documentation shows that it began
invoicing Medshield in June 2007. Since the first payment for which
Medshield had records was for an invoice in respect of services
supposedly rendered in November 2007, the first four payments
probably
related to invoices covering July to October 2007. Yarona
continued to issue monthly invoices well into 2009. Each invoice was
for R279 300. Over the period 6 August 2007 to 17 July
2009 Medshield made 20 payments in this amount or multiples thereof.
According to Medshield’s records, these covered monthly
invoices up to January 2009. There was no payment for April 2008
but
the invoice for June 2008 was paid twice and the invoice for August
2008 thrice. In each invoice the services rendered were
described as
‘healthcare provider research and geo-mapping’.
[11]
Medshield also paid Yarona an amount of R15 092
on 27 March 2008. According to Yarona’s invoice, this was for
flights
and accommodation for Soll and Alley in respect of a
‘Medshield roadshow’ in March 2008. Furthermore, on 26
June 2009
Medshield paid Yarona an amount of R229 845 which, if
it was owing at all, was due to Calabash, not Yarona. These further
payments, together with the payments in respect of the monthly
invoices, make up Medshield’s claim of R6 110 237.
[12]
In April 2008, and despite the absence of valid
contracts, Ms Angela Blackburn, at that time employed by OMHC at the
Randburg office
as the Medshield claims manager, loaded Yarona
‘baskets’ onto OMHC’s system in respect of the
Value, Bonus and
Plus options. These ‘baskets’ contained
details of Yarona’s health practitioner networks. Claims for
services
provided to Medshield members by health practitioners
belonging to these networks were paid at the rates negotiated by
Yarona.
Blackburn testified that she loaded the baskets on Alley’s
instructions. She said that April 2008 was when ‘we went
live
with the Yarona network’. This accords with internal Yarona
documents stating that the implementation date of the ‘reimbursement
model’ for Medshield’s Bonus, Plus and Value options was
1 April 2008. The Yarona baskets were operative for the rest
of the
year. Blackburn accepted in cross-examination that over the period
April to December 2008 OMHC processed thousands of Medshield
claims
for these options, some of which were from practitioners on the
Yarona network who would have been remunerated in accordance
with
Yarona’s discounted rates.
[13]
During May 2008 Calabash defaulted on its
obligations in respect of the Access option. After May 2008 Medshield
paid Access claims
directly. The Calabash agreement formally
terminated in October 2008, though for several months there was a
winding-down period
during which Calabash performed certain
administrative functions for which it was paid an administration fee
of around R230 000
per month.
[14]
During August 2008 Medshield’s board
decided to terminate its administration agreement with OMHC.
Preparation for self-administration
took some months. In anticipation
of self-administration, Blackburn resigned from OMHC and began
employment with Medshield as from
1 October 2008 as General Manager:
Operations. Ms Melani Coetsee, who served as a trustee from July 2007
to November 2008, was
engaged as Medshield’s Chief Operating
Officer as from January 2009. By 1 March 2009, when
self-administration began, Medshield
had over a hundred employees.
One of these was Ms Nawaal Davids, a former OMHC accountant who was
appointed as Medshield’s
bookkeeper.
[15]
In early January 2009 Blackburn asked Coetsee
whether she should load the Yarona baskets for 2009. Coetsee
testified that she did
not know what Blackburn was talking about. She
was aware of Yarona’s involvement with the Access option via
the Calabash
agreement but knew that the Calabash agreement had
terminated in October 2008. Coetsee instructed Blackburn not to load
the Yarona
baskets.
[16]
I have mentioned that Medshield’s last
payment to Yarona was on 17 July 2009 (a delayed but duplicate
payment for services
supposedly rendered in June 2008) and that the
last month of purported services for which payment was made was
January 2009 (this
payment was made on 20 February 2009).
[17]
During September 2009 Medshield’s financial
department detected suspicious payments made from Medshield’s
bank account,
apparently for Alley’s personal benefit.
Following preliminary investigation Alley was suspended. Soll, in the
meanwhile,
was claiming that Yarona had a valid contract with
Medshield and was demanding ongoing payment. When Mr Clive Stuart,
Medshield’s
acting principal officer, asked Coetsee whether she
knew anything about payments due to Yarona, she told him that
Medshield’s
contract with Calabash had ended in 2008 and that
there was no contract with Yarona. Subsequent investigation revealed
the payments
which became the subject of Medshield’s claim.
Coetsee testified that Alley had instructed OMHC to allocate the
payments
to ‘marketing fees’, a single globular amount in
the accounts which included payments to other service providers as
well, with the result that the monthly payments to Yarona were not
detected. Coetsee testified that it was only in January 2010
that
Medshield discovered the full extent of the unlawful payments to
Yarona. Following a disciplinary hearing in January 2010
Alley was
dismissed. Neither Alley nor Soll testified.
The payment procedure
in general
[18]
Coetsee, who was a trustee from July 2007 to
November 2008 and thereafter Medshield’s Chief Operating
Officer, testified that
only the board could authorise the conclusion
of contracts. There was no delegated authority. Once a contract was
duly concluded,
the principal officer was responsible for authorising
payment in terms of the contract. She said that there was a
procurement policy
in place but could not recall its content. No such
document was produced by Medshield in discovery.
[19]
From the evidence of Coetsee and Davids it
emerges that the procedure for payment during the Alley era was as
follows: Alley received
the invoice and approved or declined it. If
he approved it, he signed it. He gave the approved invoice to
Baatjies who wrote it
in her payment instruction book. Alley signed
the instruction. Every few days an OMHC driver collected documents
from Medshield,
including invoices and accompanying payment
instructions. On receipt of these documents, Davids checked that the
instruction accorded
with the invoice (both of which were meant to
bear Alley’s signature) and asked a clerk to prepare an
electronic funds transfer
(EFT) requisition. If the EFT requisition
accorded with the invoice, Davids authorised it. The payment
instruction was then loaded
onto the electronic banking system.
Davids thereafter sought a payment release authority from two of the
signatories authorised
to operate on Medshield’s bank account.
Usually the signatories would be Alley and an OMHC manager. Coetsee
testified that
a senior OMHC manager could sign in place of the
principal officer. Normally, the authorised EFT signatories were
presented with
batches of EFT requisitions for signature. Davids
testified that she never queried an instruction to pay, whether to
Yarona or
anyone else. Her role was limited to checking that the
payment instruction and EFT requisition accorded with the invoice.
[
20]
It
s
eems that when Medshield
began self-administration in March 2009 the payment procedure carried
on as before, save that the roles
previously played by the OMHC
employees were now performed by corresponding Medshield employees.
The payment
documentation in this case
[21]
As I have said, Medshield was not able to locate
any documentation relating to the first four payments (relating to
the July-October
2007 invoices). One thus does not know to what
extent the procedure described by Coetsee and Davids was faithfully
observed. In
respect of the November and December 2007 invoices,
Medshield located the EFT requisition but not the invoices and
payment instructions.
The EFT requisition for the payment of these
two invoices bears Alley’s signature, though not in the place
provided for the
signature of the EFT signatories. The requisition
was not signed by a second signatory. In respect of all but one of
the subsequent
payments there are payment instructions bearing
Alley’s signature. Where Medshield was able to locate the
invoices, they
generally bore Alley’s signature though again
there are exceptions. The EFT requisitions routinely contained the
signature
of only one authorised EFT signatory, presumably that of an
authorised OMHC manager. Alley did not sign them. No EFT requisitions
were discovered in respect of the payments of 27 March 2008
(R15 091,67 for the ‘roadshow’), 12 February 2009
(R279 300 for Yarona’s July 2008 invoice) and 20 February
2009 (R558 600 for Yarona’s December 2008 and January
2009
invoices) and the related invoices did not bear Alley’s
signature (which may be because the copies in the record are
Yarona’s
file copies).
[22]
In respect of the four payments made to Yarona
after self-administration began in March 2009, two of the EFT
requisitions were signed
by two authorised signatories, being Alley
and Coetsee. In the case of the other two payments the EFT
requisitions in the record
only contain Alley’s signature.
Error and excusability
[23]
Medshield’s
pleaded case was the condictio indebiti. The payments were said to
have been made in the reasonable but mistaken
belief that they were
owing. It is not every mistake which entitles the mistaken party to
recover payment. Our courts have approved
statements in the old
authorities to the effect that the mistake should have been ‘neither
heedless nor far-fetched’;
that it should not have been based
on ‘gross ignorance’; that it should have been ‘neither
slack nor studied’.
[1]
In
Willis
Faber Enthoven (Pty) Ltd v Receiver of Revenue & another
[2]
Hefer JA said the following:
‘
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 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.’
Although
this passage is formulated with reference to errors of law, it is
equally applicable to errors of fact. As Hefer JA observed
at an
earlier point in his judgment,
[3]
there is no logic in the distinction between mistake of fact and
mistakes of law in the context of the condictio indebiti.
[24]
The onus
rests on the claimant to prove the excusability of the error.
[4]
In
Affirmative
Portfolios CC v Transnet Ltd t/a Metrorail
[5]
a contractor
implemented an increase in the rates payable for its services. The
court found that the contractor had not been entitled
to charge the
increased rates. The employer, Transnet, sought to recover the
amounts overpaid over a six-month period. The trial
court found that
Transnet’s mistake was excusable but this court disagreed.
Boruchowitz AJA said that although the nature
of Transnet’s
mistake was clear the reason for the mistake was not. Transnet failed
to explain why the mistake occurred and
why it occurred repeatedly
over a six-month period. The written agreement was readily accessible
to its officials. Their failure
to detect the unauthorized increase
and to check the rates stipulated in the invoices against the
agreement could only be attributed
to extreme slackness or negligence
on their part.
[6]
[25]
In the
present case Medshield submitted that the trial judge was right to
find that the payments were made as a result of excusable
error. In
the alternative it argued that this court should hold that in the
circumstances of this case excusability was not a requirement.
We
were asked to build on the exception recognised in relation to
executors in Wessels
The
Law of Contract
[7]
and extended by analogy to liquidators and trustees in
Bowman,
De Wet and Du Plessis NNO & others v Fidelity Bank Ltd.
[8]
Payments pre-dating
self-administration
[26]
I start
with the payments which occurred before Medshield’s
self-administration began in March 2009. Because a medical scheme
is
a corporate body,
[9]
it is
necessary – in order to assess excusability – to identify
the individuals who represented Medshield in making
the payments.
Medshield did not plead their identity. The evidence was that there
were several authorised signatories on the bank
account and that an
EFT had to be authorised by two of them. The two signatories would
thus be the persons who represented Medshield
in respect of any
particular payment.
[27]
Both sides focused their submissions on the
responsibilities of the board of trustees and finance committee. In
my view those submissions
were misdirected. The board and finance
committee were not involved in making the payments. The question is
not whether these bodies
were slack in failing to detect that
unlawful payments had been made (though this may be relevant to
prescription). Excusability
is concerned with the mistakes made by
those persons who actually effected payment, in this case the
authorised signatories. It
may be that if the board had established
better systems of control, OMHC’s authorised signatories would
have been more careful.
There is insufficient evidence to make a
finding to this effect but I do not think it matters. The fact
remains that the board
was ignorant of, and thus not privy to, the
making of the payments. The board was not the functionary which
mistakenly made the
payments and it thus makes no sense to enquire
whether the board’s ‘mistake’ was excusable.
[28]
As I have said, the EFT requisitions generally
bore the signature of only one person, being an OMHC manager. They
should also have
been signed by Alley or by a second senior OMHC
manager. Since Alley’s signature usually appeared on one or
both of the payment
instruction and invoice, it may be that OMHC, not
unreasonably, regarded this as a sufficient signed authority from him
to proceed
with the payment without obtaining his separate signature
on the EFT requisitions. On that basis, excusability would on the
face
of it need to focus on the conduct of Alley and the relevant
OMHC signatory.
[29]
Medshield’s
case was conducted on the basis that Alley knew that the payments
were not owing to Yarona. It is difficult to
avoid that conclusion.
Medshield’s counsel argued (albeit in relation to prescription)
that Alley’s knowledge should
not be attributed to Medshield,
invoking the rule that where an agent in the course of his employment
defrauds his principal the
latter is not charged with constructive
knowledge of the transaction.
[10]
If Alley had acted alone in causing Medshield to make the payments,
Medshield could not have brought its enrichment claim as a
condictio
indebiti because Alley did not mistakenly believe that the money was
owing.
[11]
However Alley did
not act alone. In such circumstances I consider (and the contrary was
not argued) that the condictio indebiti
is available if the second
person, without whose participation the payment could not have been
made, mistakenly believed the money
was owing, provided of course the
mistake was excusable.
[30]
The difficulty confronting Medshield is that
there is no evidence as to who signed the EFT requisitions as
authorised EFT signatories
or what their thinking was. Davids
testified that the authorised OMHC signatories were Ms Nikita Sigaba
and Mr Regan van Heerden.
For eight of the payments which occurred
before self-administration, no signed EFT requisitions were located
so one does not know
which OMHC official authorised them. For one
payment the EFT requisition does not contain an OMHC signature. For
the other nine
payments the OMHC signatures are indecipherable but
appear to come from three different people. Assuming two of them were
Sigaba
and Van Heerden, the identity of the third is unknown. Sigaba
and Van Heerden did not testify. One thus does not know what went
on
in their minds when they authorised the EFTs or what steps, if any,
they took to satisfy themselves that the payments were owing.
[31]
In the
absence of evidence, the furthest one might go in making assumptions
in favour of the OMHC signatories is that they relied,
without more,
on Alley’s approval for the payment of the invoices. In my view
this was inexcusably slack. OMHC was a professional
administrator. In
accordance with good corporate governance, Medshield’s rules
required the board to ensure that proper control
systems were
employed and expressly specified that payments from its bank account
had to be authorised under the joint signature
of at least two
persons authorised by the board. In order to obtain accreditation as
an administrator, OMHC would have had to satisfy
the Registrar that
its own systems of financial control were adequate.
[12]
The OMHC signatories must have known that the purpose of requiring
two signatories was to neutralise as far as possible the dangers
inherent in reposing complete confidence in one person. The advantage
of the second signatory would entirely disappear if such
signatory
could rely solely on representations made by the first signatory. One
has no evidence as to what knowledge the OMHC signatories
had of
Alley’s credentials. One knows that the payments started very
shortly after he assumed office. The payments were substantial
and
took place virtually every month. As administrator OMHC could be
expected to have been placed in possession of all material
contracts
concluded by Medshield. If not, OMHC ought to have demanded that they
be made available. As a most basic precaution,
the OMHC signatories
should, when the payments started, have ascertained whether they were
in accordance with a contract concluded
by Medshield. One does not
know that they even asked Alley or anyone else whether a contract
existed.
[13]
[32]
In the
passage quoted earlier from
Willis
Faber
Hefer
JA said that relevant considerations in assessing excusability
included whether the defendant’s conduct induced the
plaintiff’s mistake and whether the defendant knew that the
money was not owing. Medshield argued that there was an improper
relationship between Alley and Soll. In their heads of argument
Medshield’s counsel submitted that Alley and Soll actively
deceived OMHC and Medshield’s board. I do not think it is open
to Medshield to advance that case insofar as Soll and Yarona
are
concerned. During the course of the trial Yarona’s counsel
objected to evidence designed to show that Yarona acted fraudulently
and on the second occasion on which this occurred the judge
disallowed the line of questioning. Yarona’s counsel, in
motivating
the objection, submitted that fraud should be pleaded, an
established principle recently reiterated by this court in
Home
Talk Developments (Pty) Ltd & others v Ekurhuleni Metropolitan
Municipality
.
[14]
[33]
If
Medshield wanted to prove that Yarona acted in cahoots with Alley,
the obvious claim would been one based on fraud or theft.
I do not
say that in such circumstances the condictio indebiti would not have
been available as an alternative.
[15]
But if Medshield wished to rely on Yarona’s alleged fraud as a
factor excusing Medshield’s mistake, it was required
to plead
it. Yarona’s concession that no valid agreement existed was not
a concession that it knew there was no agreement
when it invoiced
Medshield and received the payments. Although there are emails
between Alley and Soll which might be thought suspicious,
it is
difficult to assess their import in the absence of evidence from
Alley and Soll. If Medshield had pleaded fraud, Yarona might
have
been constrained to call Soll as a witness. For the rest it seems to
me that the OMHC signatories probably relied not on Yarona’s
conduct in issuing the invoices but, improperly, on Alley’s
conduct in approving them.
Payments
post-dating self-administration
[34]
Coetsee co-signed two of the four EFT
requisitions post-dating self-administration. The first was a payment
of R279 300 on
17 April 2009 for Yarona’s October 2008
invoice. Coetsee appended her signature to the invoice and EFT
requisition on 16
April 2009, about a month and a half after
self-administration began. She testified that Alley came to her
office and told her
that Medshield had reneged on its agreement with
Calabash in respect of the Access option, that the outstanding
invoice related
to Access services rendered for October 2008 and that
if Medshield did not pay it might be taken to court. She did not find
it
strange that the invoice was in Yarona’s name – she
saw Calabash and Yarona as the same thing and assumed Medshield
would
be making payment in terms of its agreement with Calabash. Although
the Calabash agreement had terminated, Alley told her
that the
invoice related to October 2008. She knew that Calabash was entitled
to a wind-down fee until the end of 2008. She continued:
‘
We
were still in the process of setting, or starting the
self-administration and he actually misled me into believing this was
an outstanding payment which it was not. I did not have the ability
to check the financials or question Mr Alley because he is the
accounting officer of the scheme and he would have known what we had
paid and not paid, he had been the accounting officer since
2007 so I
did not question him. I trusted him and I signed the invoice.’
[35]
Coetsee’s view that Alley could not be
questioned was unreasonable. It was also unacceptable for her to
assume that it made
no difference whether the recipient of the
payment was Calabash or Yarona. Her co-signing of this EFT
requisition was inexcusably
slack.
[36]
The second payment which Coetsee authorised was
an amount of R229 845 on 26 June 2009. Unlike the first payment,
this was in
fact a payment arising from Medshield’s contractual
relationship with Calabash. Coetsee testified that Alley approached
her
to say that there was still a balance owing to Calabash in
respect of the period ending December 2008. She was shown a
spreadsheet
listing all invoices and payments. The figures on the
spreadsheet are not fully legible. Be that as it may, Alley’s
proposal
was that Medshield settle with Calabash by paying 50 per
cent of the allegedly outstanding amount. Alley told her he had
confirmed
with Calabash’s managing director, Mr Martin Rimmer,
that this would be acceptable. Coetsee understood that 50 percent
totalled
R229 845. It was on this basis that she co-signed the
EFT requisition. The requisition reflected Calabash as the supplier
but contained Yarona’s bank details. There is nothing to show
that the money was not in fact owed to Calabash. Coetsee’s
error was to sign a requisition which resulted in the money going to
Yarona instead of Calabash. She may not even have noticed
that the
bank details were those of Yarona. I think her explanation in this
instance just passes muster though in the light of
what follows this
is not a matter of great moment.
[37]
In respect of the other two payments made after
self-administration began, the EFT requisitions do not contain
Coetsee’s signature.
And only one of them contains Alley’s
signature. The one payment was a third payment of Yarona’s
August 2008 invoice
and the other a second payment of Yarona’s
June 2008 invoice. In the absence of evidence as to who (apart from
Alley) caused
these payments to be made, Medshield did not discharge
the onus of proving excusable error.
Is excusability a
requirement in this case?
[38]
In his work
The Law
Of Contract
[16]
Sir John Wessels dealt with the question whether an executor who paid
heirs or legatees with full knowledge of the facts but under
a
mistaken belief as to their legal rights could recover the money by
way of the condictio indebiti. After observing that the decision
in
Rooth v
The State
[17]
stood in the way of such a conclusion, he continued (citation of
authority omitted):
‘
It
seems, however, more reasonable to hold that a person who, like an
executor, is acting for the benefit of others, and who in
that
capacity overpays an heir or legatee under a bona fide mistake as to
their legal rights, should not suffer for his mistake
. . . .’
[39]
Although
the focus of this passage was whether the executor could, contrary to
the general rule then prevailing, rely on an error
of law, this court
in
Bowman
[18]
understood Wessel’s proposal as entailing the further
proposition that excusability was not a requirement in the
circumstances
contemplated by the author.
[19]
In that case Harms JA said that Wessels’ proposal seemed
‘eminently sensible’. In support of this view Harms
JA
said that a creditor could by way of the condictio indebiti recover
from an heir money improperly paid to him by the executor
without
having to prove that the executor’s mistake was excusable. That
being so, there was no reason why, if the executor
himself instituted
the condictio, he had to prove that his mistake was excusable. In
Bowman
this
view was applied by analogy to liquidators and trustees who had paid
more than was owing to a secured creditor. Their error,
I should add,
was one of fact.
[40]
Medshield’s counsel argued that we should
extend this exception to errors made in the administration of a
medical scheme’s
affairs. While recognising that a medical
scheme is a separate juristic person, Medshield submitted that the
Act requires medical
schemes to be administered in the interests of
members and beneficiaries and that those charged with its
administration can be
seen to be acting in a representative capacity
similar to executors, liquidators and trustees.
[41]
Yarona’s counsel argued that the rationale
for the exception recognised in
Bowman
was
the undesirability of holding the representative liable to the heir
or creditor for his mistake. That did not apply here where
the
medical scheme itself as a corporate body made the payments. The
members of the scheme would not have a claim against the medical
scheme for negligent payments. There might be a claim for negligence
against the trustees or principal officer but there was no
reason in
policy why they should not bear the consequences of their inexcusable
slackness.
[42]
Wessel’s justification for the exception is
unconvincing, at least under our modern system for administering
deceased and
insolvent estates. In insolvency cases, and in many
deceased estates, the persons appointed as liquidators, trustees and
executors
are professionals who earn substantial fees and carry
professional indemnity insurance. There is no compelling reason of
policy
from their perspective to make an exception to the
excusability requirement. In
Bowman
Harms
JA appears to have been swayed not so much by the need to protect
executors and insolvency practitioners but by authority
supporting
the view that where an heir or creditor proceeds directly against the
recipient of an unowed payment, the heir or creditor
need not prove
that the executor’s mistake was excusable. It would be
illogical in those circumstances to say that if the
claim was
instituted by the executor or liquidator rather than heir or
creditor, the executor or liquidator has to prove excusable
error.
[43]
In my
opinion, the more powerful considerations of policy (and policy is a
relevant factor, as the passage I earlier quoted from
Wills
Faber
shows)
are those which focus on the persons in whose interests the
representative is meant to act. For purposes of the present decision
it is unnecessary to go beyond the case of a medical scheme.
Healthcare is a matter of fundamental importance to everyone. Medical
schemes provide a way of ensuring as far as possible that people have
access to adequate healthcare, often by a system in which
contributions are made by members from their earnings and by
employers for the benefit of members. Medical schemes are closely
regulated to ensure that their assets are prudently administered for
the attainment of the sole object of conducting the medical
scheme
business. One of the primary duties of a scheme’s board is to
take all reasonable steps to ensure that the interests
of
beneficiaries in terms of the rules and the Act are protected at all
times.
[20]
The board must
consist of persons who are fit and proper to manage the scheme’s
business.
[21]
Members of
medical schemes are particularly vulnerable to abuse. Many of them
earn modestly. If the funds which should be administered
for their
benefit are abused, they stand not only to lose moneys deducted from
their earnings but to have their access to health
care jeopardised.
[44]
In deciding
whether to extend the protection recognised in
Bowman
,
I do not think it matters that a medical scheme is a juristic person.
The important feature is that the scheme exists for the
benefit of
its members, often vulnerable people, and is administered by persons
who owe a fiduciary duty to them. In that sense
the persons charged
with the administration of the scheme can be viewed as
representatives standing in a similar position to executors,
trustees
and liquidators. Indeed, in the case of a company in liquidation its
assets and liabilities do not vest in the liquidator.
The liquidator
succeeds to the administration of the company in the place of its
directors.
[22]
A similar view
was taken by a full court in
Grant
Thornton Capital Umbrella Fund v Da Silva
[23]
where the
condictio was brought by a provident fund (also a juristic person).
While it is unnecessary to decide whether the requirement
of
excusability should be relaxed in the case of provident funds, the
full court was right not to regard the juristic personality
of the
fund as a bar to extending
Bowman
by
analogy to other situations.
[45]
In regard
to Yarona’s contention that there is no reason to shield a
scheme’s board and principal officer from liability
for their
negligence, I have already indicated that in my view the focus should
be on the vulnerability of the members rather than
the need to
protect the office bearers. This said, there are important
differences between the trustees of a medical scheme on
the one hand
and executors and insolvency practitioners on the other. At
least half of a scheme’s board must be elected
from among
members of the scheme.
[24]
Often a fund’s rules require (as in Medshield’s case)
that the remaining members of the board are to be elected from
persons nominated by the employers. The trustees are not professional
administrators. Furthermore, a remedy against them may be
inadequate.
They may not have the resources to meet claims. Litigation against
them might be costly and protracted. An exception
to the excusability
requirement would not, I must emphasise, take away any rights which
the scheme or members might have against
delinquent office bearers;
it would simply mean that the scheme can, in the interests of
members, recover unowed payments even
though its office bearers acted
with inexcusable slackness. That said, I cannot stress enough that
this is not an invitation to
slackness on the part of office bearers
who might face other sanctions for such conduct.
[46]
I thus conclude that although Medshield has
failed, in respect of all but one of the payments, to prove that such
payments were
made as a result of excusable error, Medshield’s
right to recover them by way of the condictio indebiti is not barred.
Impoverishment
[47]
Yarona
contends that Medshield was required to prove not only that Yarona
was enriched by the amounts claimed but also that such
enrichment
occurred at Medshield’s expense, ie that Medshield was
impoverished by the amounts claimed.
[25]
Since Yarona received unowed moneys, its enrichment was presumed and
it bore the onus to plead and prove loss of enrichment which
it did
not do.
[26]
Yarona argued,
however, that Medshield failed to prove its impoverishment. This
argument was based on Blackburn’s evidence
that the Yarona
baskets were loaded onto Medshield’s system in April 2008 and
were used in meeting claims over the period
April to December 2008.
Simply put, the argument is that Medshield received value from the
use of the baskets.
[48]
I do not
think that this argument can be upheld. It is as well to begin by
emphasising that Medshield’s claim was not a claim
for
restitutio
in integrum
.
That is a special remedy accorded by our law where voidable contracts
are rescinded on certain recognised grounds. A party seeking
rescission and restitutio in integrum must generally be willing and
able to restore what he has received and should tender such
restoration when claiming.
[27]
Restitutio in integrum does not find application in a case such as
the present, where no contract came into existence. Medshield’s
claim was thus correctly the condictio indebiti. In
Davidson
v Bonafede
Marais
J referred with approval to Prof de Vos’ warning against the
tendency to confuse restitutio in integrum, which is not
an
enrichment action, with the condictiones.
[28]
[49]
There is no
clear authority that a party who institutes a condictio indebiti in
respect of performance made under a putative contract
must tender to
return what he received from the defendant;
[29]
still less that he must prove the value of what he received. Prof de
Vos’ view is that no such tender is needed.
[30]
He also makes the point
[31]
that even in cases of restitutio in integrum the plaintiff need not
make a tender where what he received was a factum (a service).
[32]
[50]
The authors
of the chapter on enrichment in
Lawsa
[33]
state that a party who uses the condictio indebiti to recover a
transfer of value made under an unenforceable contract must tender
to
restore what he received. They cite four cases,
[34]
all dealing with unenforceable oral agreements for the sale of land.
The first three (
Wepener
,
Van der
Berg
and
Bushney)
were rei vindicationes by sellers.
Wepener
and
Van
der Berg
do not support the proposition. Although
Bushney
does, the court incorrectly based its statement on the two earlier
case and incorrectly described the plaintiff’s claim as
one for
restitutio in integrum. The fourth case,
Mattheus
,
was a condictio by the purchaser and does not deal with the question
of tender. In regard to the seller’s rei vindicatio,
there is
more recent authority that no tender is required by the seller in
such cases.
[35]
[51]
This is not
to deny that the seller is legally obliged to repay the purchase
price. To say that no tender is needed merely acknowledges
that the
seller’s rei vindicatio is independent of any claim which the
buyer may have against him for unjustified enrichment.
The
purchaser’s condictio indebiti could be adjudicated
simultaneously with the buyer’s rei vindicatio, which is what
this court envisaged in
Menqa
& another v Markom & another
.
[36]
[52]
To return
to Yarona’s contention that Medshield failed to prove its
impoverishment, the requirement of impoverishment in the
condictio
indebiti is concerned with whether the plaintiff suffered a loss in
the act of making the payment or performance giving
rise to the
condictio. Issues of non-impoverishment typically arise in tripartite
situations where on analysis it emerges that
the loss was in truth
suffered by a third party or where the claimant was shielded from
loss by an indemnity or the like.
[37]
[53]
In the present case there were no circumstances
prevailing at the time of each payment which would justify a
conclusion that Yarona’s
enrichment did not occur at
Medshield’s expense and cause an immediate corresponding
impoverishment. Medshield did not have
a contractual arrangement with
a third party which shielded it from the impoverishment. Whatever
Yarona may have thought, there
was in fact no contract between
Medshield and Yarona. A non-existent contract cannot be used to forge
a causal link between one
or more of the unowed payments which
Medshield made to Yarona and the benefit which Yarona supposedly
conferred on Medshield by
way of the loaded baskets.
[54]
I have no quibble with the proposition that in
cases of bilateral performances by P and D under non-existent or
unenforceable contracts
our law of unjustified enrichment would be
lacking if the end result were not, at least generally, a netting-off
of gains but the
question is how one reaches this result. The correct
solution in my view is that P and D should each use the condictio
indebiti
to recover from each other. If this were done in the same
proceedings, the end result would be set-off pursuant to the
procedure
provided for in rule 22(4) of the Uniform Rules. The party
with the higher enrichment liability would have to pay the difference
to the party with the lower enrichment liability.
[55]
It might be
argued that there is another solution, one which flows from the
rebuttable presumption of enrichment which arises when
an indebitum
is transferred and the related right of the recipient to plead loss
of enrichment as a defence.
[38]
The fallacy in this argument, so it seems to me, is the assumption
that D’s transfer of value to P results in an irreversible
diminution of D’s patrimony (ie a loss of enrichment). If D has
the right to recover what he has transferred, a defence of
loss of
enrichment is not available. In the case of a putative contract, D
has the same right which P has to reclaim, by the condictio
indebiti,
his unowed transfers of value.
[56]
The defence of loss of enrichment is also
unsatisfactory in bilateral cases for other reasons. Other than in a
simultaneous exchange
of performances, D would usually have
transferred value to P because of a mistaken belief that he had a
contractual obligation
to do so rather than because of any particular
payment received from P. Furthermore the rules which determine
whether and in what
amount D has a condictio against P are not the
same as the rules which determine whether D can raise loss of
enrichment as a defence
and the quantum of the permissible reduction.
In a condictio by way of counterclaim, D would be limited to the
lower of P’s
enrichment and D’s impoverishment whereas a
defence of loss of enrichment would entitle D to deduct the full
extent of his
own impoverishment, even though P may have derived no
benefit from D’s performance.
[57]
I do not wish to be understood as elevating
formality above substance. If a defendant were to plead loss of
enrichment in circumstances
where a condictio indebiti by way of
counterclaim was technically the correct remedy, a court would not be
precluded from awarding
the plaintiff a net amount if all the issues
relevant to a pleaded counterclaim had been canvassed at the trial.
However the net
position should be the one flowing from reciprocal
condictiones indebiti.
[58]
It is
surprising that this situation is not the subject of clear authority.
The question how to unwind void mutual contracts has
engendered
lively academic discussion.
[39]
Prof Visser and Prof Sonnekus in their respective works on
unjustified enrichment
[40]
appear to approve the solution I have proposed – they do so
with reference to this court’s decision in
Rubin
v Botha
[41]
though the procedural methodology was not worked out in that case. In
Dugas
[42]
the applicant sued for the return of payments he had made under an
invalid hire-purchase agreement for the purchase of a car. The
respondent contended that it would be unjust to allow the applicant
to recover his payments without taking into account the benefit
he
had enjoyed by having the use of the car for 21 months. Without
discussing the procedural aspects, Henochsberg J said that it
was for
the respondent to establish the applicant’s unjustified
enrichment.
[43]
This was also
the view of the appeal court in the Scottish case of
Haggarty.
[44]
[59]
In German
law
[45]
the initial approach
to the problem was the one I have proposed, known in German as the
Zweikondiktionentheorie
(the
two-claims theory). This theory was subsequently thought to produce
potentially unfair results where one of the parties but
not the other
was able to raise a defence of loss of enrichment. This led to the
emergence of the
Saldotheorie
(the
balance theory). In terms of this approach P’s claim is reduced
by the amount of any enrichment that he has lost, even
if the loss of
enrichment was without fault on his part. Even so, German law still
used the two-claims theory in certain cases
of voidable contracts –
for example where the recipient was in bad faith or the contract was
voidable by reason of fraud,
duress or immorality. The balance theory
has also been thought to have its weaknesses with the result that the
modifizierte
Zweikondiktionentheorie
(the
modified two-claims theory) has gained traction. In terms of this
theory P and D should each sue each other by way of the condictio
but
neither can plead loss of enrichment.
[60]
It is unnecessary in this case to decide what
modifications if any to the normal rules should be made where parties
to a putative
or void contract make cross-claims for enrichment
against each other. They are best worked out on the facts of specific
cases.
The simple point is that Yarona did not institute a condictio
against Medshield by way of a counterclaim and did not raise
Medshield’s
supposed enrichment or its own impoverishment in
any other way on the pleadings.
Prescription
[61]
The final
issue is prescription. The onus rested on Yarona to establish the
date by which Medshield acquired, or could by exercising
reasonable
care have acquired, knowledge of the facts giving rise to the
claim.
[46]
In the absence of
evidence that the authority to litigate was delegated, the requisite
actual or constructive knowledge would have
to be that of the board
of trustees.
[47]
[62]
Yarona pleaded that Medshield had or could have
acquired the requisite knowledge by the date of each payment and at
any rate by
not later than 7 June 2008 (ie three years before service
of summons). There is no evidence that the board had actual knowledge
before January 2010 or that the board by 7 June 2008 had knowledge of
circumstances which should have caused it to investigate.
The board
was entitled, in the absence of warning signs, to assume that the
principal officer and OMHC were administering the scheme
properly and
in accordance with concluded contracts.
[63]
Medshield’s financial year-end was 31
December. Coetsee testified that the board would receive the audited
financial statements
for approval the following April. It may thus be
assumed that as at 7 June 2008 the board had seen the financial
statements for
the year ended 31 December 2007. Those financial
statements mentioned the contract with Calabash but made no reference
to Yarona.
The investigations undertaken in the latter part of 2009
revealed that the payments to Yarona were included in the line item
‘marketing
fees’ which was in turn part of
‘administration expenses’. For the year ended 31 December
2007 the administration
expenses were R191 465 000 and the
marketing fees R14 467 000. The latter figure probably
included R1 396 500
in respect of payments to Yarona (being
the payments for Yarona’s invoices for July to December 2007)
but this would not
have been apparent to a reader of the financial
statements.
[64]
Included in the trial bundle were the management
accounts for December 2008. According to Coetsee the monthly
management accounts
were prepared by OMHC and considered by the
finance committee. The December 2008 accounts run to 31 pages and
contain fairly dense
financial information. Page 6 contained the
income statement. The line item ‘Marketing Fees and Promotions’
was R1 555 023
as against a budgeted figure of R850 996.
On page 7 a breakdown was provided of administration costs per line
item. In regard
to ‘Marketing Fees and Promotions’, the
expenditure was said to comprise inter alia a marketing research fee
of R1 275 261
and ‘R279 300 Healthcare provider
Research & Geo mapping supplied by Yarona Network’. It was
noted that an
identical amount had been paid to Yarona in the
preceding month. Coetsee testified that the finance committee, whose
members were
drawn from the board, submitted reports to the board.
[65]
If the above information had been reported to the
board, there can be little doubt that the board could by the exercise
of reasonable
care have ascertained that unowed payments were being
made. The board members would have known that they had not approved a
contract
with Yarona. The difficulty is that there is no evidence
that the management accounts for earlier periods contained the same
references
to Yarona. One might expect that they would, but there is
no explanation as to why, if that were so, the earlier management
accounts
were not adduced to support a contention that the finance
committee, and potentially by implication the board, knew or could
reasonably
have ascertained that unowed payments were being made.
When Coetsee was asked whether other management accounts contained a
similar
breakdown of administration expenses, she said she did not
know because she was not a member of the finance committee. There was
also no explanation as to why the finance committee’s reports
to the board were not adduced. Coetsee was not asked in
cross-examination
what, if anything, those reports said regarding
Yarona. It was not put to her that, as a trustee, she knew of the
payments to Yarona.
[66]
I do not think we would be justified, in the
circumstances, in finding on a balance of probability that the
management accounts
which served before the finance committee prior
to June 2008 explicitly referred to payments made to Yarona. In the
circumstances
it is unnecessary to decide whether, if it had been
proved that the finance committee had the requisite knowledge by June
2008,
such knowledge could have been imputed to the board.
Conclusion
[67]
The following order is made:
The
appeal is dismissed with costs including the costs of two counsel.
_____
_________________
OL Rogers
Acting Judge of Appeal
Appearances
For
the Appellant
Mr MC Maritz SC (and
with him Mr DR van Zyl
Instructed by
Gildenhuys Malatji
Inc, Pretoria, c/o Honey
Attorneys,
Bloemfontein
For
the Respondent
Mr D Berger SC (with
him Ms K Millard)
Instructed by
Hogan Lovells,
Sandton, c/o McIntyre van der
Post, Bloemfontein
[1]
Union Government v National
Bank of South Africa Ltd
1921
AD 121
at 126;
Rahim v
Minister of Justice
1964
(4) SA 630
(A) at 634A-C;
Willis
Faber Enthoven (Pty) Ltd v Receiver of Revenue & another
[1991] ZASCA 163
;
1992
(4) SA 202
(A) at 223I-224B.
[2]
See previous fn, at 224E-G.
[3]
At 220H.
[4]
Willis
Faber
fn
2 above at 224I-225A;
Affirmative
Portfolios CC v Transnet Ltd t/a Metrorail
[2008] ZASCA 127
;
2009
(1) SA 196
(SCA) para 29.
[5]
See previous fn.
[6]
Paras 34-35.
[7]
2 Ed para
999.
[8]
Bowman, De Wet and Du
Plessis NNO & others v Fidelity Bank Ltd
1997
(2) SA 35
(A) at 44H-45G.
[9]
Section 26
of the Act.
[10]
As to this principle, see
R
v Kritzinger
1971 (2) SA
57
(A) at 59H-60D;
NBS Bank
Ltd v Cape Produce Company (Pty Ltd & others
[2002]
2 All SA 262
(A) para 34.
[11]
Absa Bank Ltd v Leech &
others NNO
2001 (4) SA 132
(SCA) para 8.
[12]
Regulation
17(2)(d) of the regulations promulgated in terms of the Act
(GNR 1262, 20 October 1999, as amended).
[13]
See
Greyling v ISCOR
[1984] ZASCA 156
(unreported judgment in Case 233/83) where the
defendant’s counter-claim based on the condictio indebiti
failed because
the defendant failed to adduce evidence from the
official or officials who caused payment of unowed sick leave to be
paid to
the plaintiff.
[14]
Home Talk Developments
(Pty) Ltd & others v Ekurhuleni Metropolitan Municipality
[2017]
ZASCA 77
;
[2017] 3 All SA 382
(SCA) paras 29-31.
[15]
Cf
Diamond
Fields Advertiser v Colonial Government
Buch
App Cases (1910-1911) 8.
[16]
Fn 7 above.
[17]
Rooth v The State
(1888)
2 SAR 259.
[18]
Bowman
Fn 8 above.
[19]
44H-45G.
[20]
Section 57(6)(a).
[21]
Section 57(1).
[22]
Leigh v
Nungu
Trading 353 (Pty) Ltd &
another
2008 (2) SA 1
(SCA).
[23]
Grant
Thornton Capital Umbrella Fund v Da Silva
[2013]
ZAGPJHC 231.
[24]
Section 57(2).
[25]
For this
requirement, see
McCarthy
Retail Ltd v
Shortdistance
Carriers CC
2001
(3) SA 482
(SCA) para 19 per Schutz JA and para 2 per Harms JA;
Kudu
Granite Operations (Pty) Ltd v
Caterna
Ltd
2003
(5) SA 193
(SCA) para 17.
[26]
African Diamond Exporters
(Pty) Ltd v Barclays Bank International Ltd
1978
(3) SA 699
(A) at 713 in fine.
[27]
Feinstein
v Niggli & another
1981
(2) SA 684
(A) at 700F-701C;
Davidson
v Bonafede
1981 (2) SA 501
(C) at 509D-511H.
Cf
Van der Merwe et al
Contract:
General Principles
4
ed at 116-118.
[28]
Fn 27 above, at 510B, with reference to De Vos
Verrykingsaanspreeklikheid
2
ed at 144
.
[29]
See Du Plessis
The South
African Law of Unjustified Enrichment
(2012) at 161; Visser
Unjustified
Enrichment
(2008) at 164
and fn 30.
[30]
De
Vos
Verrykingsaanspreeklikheid
in die Suid-Afrikaanse Reg
3
ed at
166-167.
[31]
Loc cit
.
[32]
See, eg,
Hall-Thermotank
Natal (Pty) Ltd v Hardman
1968
(4) SA 818
(D) at 830G-831C.
[33]
Lotz &
Brand
Lawsa
2
ed vol
9 para 213 and fn 12.
[34]
Wepener
v Schraader
1903
TS 629
;
Van
der Berg v Shaw NO
1933
TPD 242
;
Bushney
v Joliffe
1953
(4) SA 273
(W) at 276H-277A;
Mattheus v Stratford &
another
1946 TPD 498.
[35]
See
Vogel
NO v Volkersz
1977
(1) SA 537
(T), a full court judgment, at 554H-555C;
Hartland
Implemente (Edms) Bpk v Enal Eiendomme BK & andere
2002
(3) SA 653
(NC) at 663I-664H.
[36]
Menqa &
another v Markom & others
2008
(2) SA 120
(SCA) para 25.
[37]
See, eg,
Visser op cit (fn 27
above) at 360 and 366;
Gouws
v Jester Pools (Pty) Ltd
1968
(3) SA 563
(T). And cf
Kudu
Granite
fn 25 above para
23.
[38]
African
Diamond Exporters
fn
26 above.
[39]
See, eg,
Peter Birks ‘No Consideration: Restitution after Void
Contracts’ (1993) 23
Western
Australian Law Review
195-234;
Phillip Hellwege ‘Unwinding Mutual Contracts: Restitutio in
Integrum v. the Defence of Change of Position’
in
Unjustified
Enrichment: Key Issues in Comparative Perspective
Eds
David Johnston and Reinhard Zimmermann (Cambridge University Press,
2012) pp 243-286; Sonja Meier ‘Unwinding Failed
Contracts: New European Developments’ (2017) 21
Edinburgh
Law Review
1-29.
[40]
Visser op cit (fn 27 above) at 612 and fn 264; Sonnekus
Unjustified
Enrichment in South African Law
(2008)
at 50-51 and fn 40.
[41]
Rubin v Botha
1911
AD 568.
[42]
Dugas
v
Kempster
Sedgwick
(Pty) Ltd
1961 (1) SA 784
(D).
[43]
At 793A. I
express no opinion on the learned judge's further statement that use
of the vehicle could not constitute unjust enrichment
within the
meaning of the law (793B).
[44]
Haggarty
v Scottish TGWU
[1954]
ScotCS
CSIH 6; 1955
SC
109.
[45]
As to which, see Visser op cit (fn 27 above) at 102-106 and 498-501;
Du Plessis op cit (fn 27 above) at 387-388.
[46]
Gericke v Sack
1978
(1) SA 821
(A) at 826B-828C.
[47]
Cf
PricewaterhouseCoopers
Inc & others v National Potato Cooperative Ltd & another
[2015] ZASCA 2
;
[2015] 2
All SA 403
(SCA) paras 148-149.