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[2020] ZASCA 65
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van Niekerk v Liberty Group Limited (1392/2018) [2020] ZASCA 65 (15 June 2020)
Reportable
Case
No: 1392/2018
In
the matter between:
JOHANNES THEOBALT HATTINGH VAN NIEKERK
Appellant
and
LIBERTY GROUP
LIMITED
Respondent
Neutral
citation:
Johannes TH van Niekerk v Liberty Group Limited
(1392/18)
[2020] ZASCA 65
(15 June 2020)
Coram:
NAVSA, ZONDI, MOCUMIE, SCHIPPERS AND DLODLO JJA
Heard:
14 May 2020
Delivered:
This judgment was handed down electronically via e-mail to the
parties’ legal representatives on 15 June 2020 It has been
published on the Supreme Court of Appeal website.
Summary:
Unjustified enrichment –
condictio indebiti
–
overpayment of benefit under insurance policy – written cession
of portion of benefit by beneficiary to secure debt
– cession
registered with insurer – debt still unpaid – full
benefit paid to beneficiary – insurer paid
under bona fide but
mistaken belief – amount of benefit ceded paid to cessionary –
debt still unpaid – overpayment
to beneficiary excusable error
–
indebite
– overpayment recoverable.
ORDER
On
appeal
from:
Limpopo Division of the
High Court, Polokwane (Phatudi J sitting as court of first instance):
The
appeal is dismissed with costs.
JUDGMENT
Schippers
JA (Navsa, Zondi, Mocumie and Dlodlo JJA concurring):
[1]
This appeal, with the leave of the Limpopo Division of
the High
Court, Polokwane, essentially concerns the application of the
principles of the
condictio
indebiti
. The
central question is this. Was the conduct of the respondent, Liberty
Group Limited (Liberty), in making an erroneous payment
in the sum of
R470 000 under an insurance policy to the appellant, inexcusably
slack, that disentitled it to recovery of that amount
in terms of the
condictio indebiti
?
[2]
The facts are uncontroversial. In March 1996 the appellant,
Mr
Johannes van Niekerk, took out a life insurance policy with Liberty
(the policy) on the life of his mother, Mrs Hester van Niekerk.
The
appellant was the beneficiary under the policy and paid the premiums
or ‘contributions’, as they are referred to
in the
policy. The guaranteed benefit in terms of the policy was R1 808
263.68.
[3]
On 13 June 2013 the appellant ceded to his brother, Mr
Daniel
Johannes van Niekerk (the cessionary), a portion of the benefit under
the policy in the sum of R470 000, as security for
monies lent and
advanced by the cessionary. The cession was facilitated by the
cessionary’s insurance broker, Ms Katrien
Neethling. She
submitted the completed cession form to Liberty which recorded the
cession on its system, known as ‘Blueprint’,
in
accordance with the terms of the policy.
[4]
The appellant, as cedent, signed a collateral cession
(‘aanvullende
sessie’), described in the cession form as follows:
‘
2.
Aanvullende sessie
·
Die regte op die polis word as sekuriteit aan ‘n
derde oorgedra.
·
Die sedent bly egter die poliseienaar maar kan nie by
die polis baat nie tensy die sessie gekanseller word. Terwyl die
sessie bestaan
kan die sessionaris die polis sonder die eienaar se
toestemming in kontant omskep.
·
Die sedent bly egter
verantwoordelik vir die premies op die polis.’
[1]
The
appellant and the cessionary did not however agree to the terms
indicated by the second bullet describing the collateral cession.
That provision was crossed out on the cession form, rendering it
inoperative.
The
form states the following under the heading ‘POLISBESONDERHEDE’:
‘
Aanvullend:
tydelike oordrag van eienaarskap as
sekuriteit vir ‘n skuld R470 000.’
[2]
[5]
Clause 9 of the General Conditions of the policy reads:
‘
SETTLEMENT
OF CLAIM
Any
benefits due will be paid to the Owner or his estate, provided that:
–
if a Beneficiary has been appointed and the contract is
not ceded, payment will be made to the Beneficiary
–
if the contract is ceded, payment will be made to the
Cessionary, or any Beneficiary nominated by the Cessionary as Owner.’
[6]
Mrs Van Niekerk died on 18 August 2015. The appellant
completed a
form with the following heading: ‘Claimant’s Statement
for Death Claim’, and claimed the full benefit
under the
policy, which he requested Liberty to deposit directly into his bank
account. On 24 August 2015 Ms. Elizna Smith, the
appellant’s
broker, submitted the claim form to Liberty on his behalf. On 10
September 2015 Liberty paid the full benefit
under the policy, ie R1
808 263.68 to the appellant.
[7]
Subsequent to payment of the full benefit of the policy
to the
appellant, Ms Neethling inquired of Liberty why the cessionary had
not, in terms of the policy, been paid the amount of
R470 000,
secured by the cession. According to the evidence, at the time of
payment to the appellant, Liberty was not in possession
of the
cession form and subsequently obtained a copy of it from Ms
Neethling. Liberty then discovered that it had mistakenly paid
the
appellant the full benefit of the policy. On 25 September 2015
Liberty paid the sum of R470 000 to the cessionary.
[8]
In the interim, Liberty tried to recover the R470 000
from the
appellant. Pursuant to a telephonic discussion with him, by letter
dated 22 September 2015, Liberty advised the appellant
that he had
been overpaid, requested him to repay R470 000, and furnished its
bank details for him to do so. The appellant refused
to repay the
money. On 1 October 2015 Liberty again wrote to the appellant,
requesting repayment and apologising for any inconvenience
caused.
The letter was accompanied by a small gift (a fruit basket). Still,
the appellant refused to repay the funds.
[9]
In January 2016 Liberty instituted action against the
appellant for
recovery of the money. The particulars of claim stated the following.
Liberty paid the appellant the amount of R1
808 263.68 in the bona
fide but mistaken belief that such payment was due and payable, and
without taking into account the cession
of R470 000, which had been
overlooked. The appellant was entitled to payment of only R1 338
263.68. He was unjustifiably enriched
and Liberty impoverished, in
the sum of R470 000.
[10]
Following on a notice of intention to defend by the
appellant,
Liberty applied for summary judgment. In his opposing affidavit, the
appellant stated that Liberty had caused its own
impoverishment by
paying the cessionary the amount of R470 000, as it had no obligation
to do so. The cession, he said, was one
in securitatem debiti
to
provide temporary security for his debt to the cessionary, which
‘lapsed’ when Liberty paid the full benefit under
the
policy to the appellant. He denied that he had been enriched as he
was, in his words, ‘the owner of all the funds’.
He also
denied that Liberty had been impoverished, since it ‘had no
entitlement to pay the funds’ to the cessionary,
or that
Liberty’s error was reasonable. Summary judgment was refused
and the appellant was granted leave to defend the action.
[11]
The appellant’s plea was essentially a repetition
of the
allegations in his affidavit opposing summary judgment. He denied
that he had ceded ownership of R470 000 of the benefit
under the
policy to the cessionary. He alleged that it was his intention to
retain ownership of the whole of the policy and to
cede only limited
rights to the cessionary as security for the fulfilment of his
obligations under the agreement between them;
that the debt secured
by the policy was not yet due; and consequently that the cession was
unenforceable. The appellant denied
that the payment of R470 000 was
made erroneously because he was entitled to receive the full benefit
under the policy –
the cessionary was not entitled to payment
at all.
[12]
At the trial only Liberty tendered evidence, by four
witnesses. The
appellant chose not to testify, called no witnesses and closed his
case. The cessionary was subpoenaed by Liberty
but failed to appear
at court. Whilst a warrant for his arrest was being issued by the
court, the parties received a medical certificate
stating that he was
suffering from a contagious illness. Liberty subsequently dispensed
with his evidence.
[13]
The evidence was largely common ground, not seriously
disputed and
certainly not contradicted. Ms Neethling testified that the appellant
and the cessionary had agreed that a portion
of the benefit under the
policy in the sum of R470 000, would be ceded to the cessionary for a
debt owed to him by the appellant.
When the cession was signed, the
debt was already R470 000. Ms Neethling had written that amount on
the cession form prior to its
signature by the appellant. She said
that in the event of the appellant not settling the debt or any part
of it, the debt had to
be settled on the death of Mrs Van Niekerk.
Pursuant to the conclusion of the cession, she sent the form by email
to Liberty. After
the death of Mrs Van Niekerk, Ms Neethling also
submitted a claim form to Liberty on behalf of the cessionary, as she
put it, ‘just
for notice’ of the cession.
[14]
Ms Emily Weideman, a claims assessor at Liberty, together
with Ms
Linah Mngoma, the team leader for death claims, took the decision to
pay the proceeds of the policy to the appellant. Ms
Weideman
testified that prior to making payment, she had looked for the
cession on the Blueprint system, which indicated that there
was a
cession against the policy in the name of the cessionary, but she
could not find it. According to the system, no cession
form had been
submitted. Neither had the form been included with the documents
required to effect payment of the policy. Ms Mngoma
essentially
confirmed Ms Weideman’s evidence and said that they could not
find the cession form on the Blueprint system because
it had been
recorded by another department within Liberty. It will be recalled
that the appellant had submitted a claim for payment
of the full
amount due in terms of the policy.
[15]
As already stated, the overpayment to the appellant
was discovered
when the cessionary claimed payment of R470 000. On 16 September 2015
Ms Weideman and Ms Mngoma telephoned the appellant
regarding
repayment of that amount but he told them that he would discuss the
matter with his broker, Ms Smith. Subsequently Ms
Smith dealt with
the matter on the appellant’s behalf when the letters of 22
September and 1 October 2015 were sent to him,
requesting repayment.
[16]
In her evidence, Ms Smith confirmed that she had submitted
the claim
form (which the appellant completed) together with supporting
documentation to Liberty. She said that the cession was
still in
existence when the overpayment was made. She accepted that the debt
secured by the cession remained extant, and said that
the appellant
was very upset by Liberty’s mistake. Ms Smith testified that
she had asked Ms Mngoma a few times not to proceed
with legal action
against the appellant as she was, in her words, ‘trying to get
the situation sorted’. This however,
to no avail.
[17]
On 15 October 2015 Ms Smith advised Liberty that the
appellant was
not willing to refund the R470 000, for the following reasons. In
2013 he had encountered difficulty in getting the
policy reinstated,
after Liberty informed him that it had lapsed due to system errors on
its part. Thereafter it had taken the
appellant months to obtain
confirmation from Liberty that the cession had been registered for
the correct amount, ie for not more
than R470 000 and then, after all
the paperwork had been done, Liberty still made the mistake of
overpayment. It is clear from
her evidence that at that stage, both
parties knew that the payment to the appellant was erroneous.
[18]
The high court, after referring to the decision
of this court in
Grobler v Oosthuizen
[3]
at paras 23 and 24, held as follows:
‘
In
view of [the] express provisions, there is no room for the alleged
pledge or a re-cession agreement as contended for on behalf
of the
defendant. I find therefore that the nature of the cession was one
in
securitatem debiti
, irrespective of whether it is structured as
an out-and-out cession subject to a
pactum fiduciae
, and
should for purposes of the debtor, be deemed to all intents and
purposes, as an out-and-out cession.’
[19]
The court concluded that the overpayment to the appellant
was made
without lawful cause, and that it resulted in his unjustified
enrichment and Liberty’s impoverishment. The appellant
was
therefore ordered to repay Liberty the sum of R470 000, together with
interest and costs.
[20]
The high court’s view referred to in
paragraph 18 above is confusing and
appears
to be based on a misreading of
Grobler
.
Earlier in that case Brand JA stated that an out-and-out cession
meant that a cedent would have divested him or herself of the
right
in question. In that case too it was the right to the proceeds
of a policy that was in question,
[4]
and the dispute was whether the relevant cession
was an out-and-out cession or one
in
securitatem debiti.
[5]
In
Grobler
this Court
said that even where the cession document describes the cession as an
‘out-and- out’ cession, that is not
always decisive, and
one should be careful to differentiate
between
form and substance.
[6]
[21]
This Court in
Grobler
affirmed the pledge theory as the doctrinal
basis of
a cession
in
securitatem debiti
, as opposed to the theory
of an outright or out-and-
out
cession coupled with a
pactum fiduciae
.
[7]
Brand JA said:
‘
In
accordance with this theory, the effect of a cession
in
securitatem debiti
is that the principal debt is “pledged”
to the cessionary while the cedent retains what has variously been
described
as the “bare dominium” or a “reversionary
interest” in the claim against the principal debtor (See eg
Land- en Landboubank van Suid Afrika v Die Meester
1991 (2) SA
761
(A) at 771C- G;
Development Bank of Southern Africa Ltd v Van
Rensburg
2002 (5) SA 425
(SCA) para 50).
…
[D]espite
the doctrinal differences arising from the pledge theory, this court
has in its latest series of decisions – primarily
for pragmatic
reasons – accepted that theory in preference to the outright
session/
pactum fiduciae
construction (see eg
Leyds NO v
Noord-Westelike
Koöperatiewe Landboumaatskappy Bpk
1985 (2) SA 769
(A) at 780E-G;
Bank of Lisbon and South Africa
Ltd v The Master (supra)
at 291H-294H;
Incledon (Welkom) (Pty)
Ltd v Qwa Qwa
Development Corporation Ltd
[1990] ZASCA 85
;
1990 (4)
SA 798
(A) at 804F-J;
Millman NO v Twiggs
[1995] ZASCA 62
;
1995 (3) SA 674
(A)
at 676H;
Development Bank of Southern Africa Ltd v Van Rensburg
(supra)
para 50). In the light of these decisions the doctrinal
debate must, in my view, be regarded as settled in favour of the
pledge
theory.’
[22]
A claim ceded
in
securitatem debiti
automatically reverts to
the cedent once the secured debt is extinguished. In such event a
re-cession by the cessionary
is
not required.
[8]
In
Development Bank of Southern Africa Ltd v
Van Rensburg NO
and
Others
,
[9]
Nienaber JA described the cedent’s reversionary interest as
follows:
‘This
reversionary interest, properly understood, refers to the cedent’s
interest in the debtor’s performance
(ie satisfaction of
principal debt by the debtor) rather than to his interest in the
cessionary’s performance (ie re-cession
of the principal debt
on satisfaction of the secured debt
–
which is a right
ex
contractu
against the cessionary).’
[10]
[23]
The true character and consequences of a cession
in securitatem debiti
depends
on the intention of the parties as embodied in their agreement.
[11]
In the present case it is clear from the cession form that the
parties entered into a collateral cession (‘aanvullende
sessie’)
as envisaged in that form, save that they
did not incorporate
into
their agreement the
provision
in terms of which the cedent
would
remain owner of the policy but could not derive any benefit from it
unless
the cession was
cancelled, and which authorised the cessionary to convert the policy
to cash without the owner’s consent.
[24]
In my view, there can be no doubt that the
cession is one
in securitatem debiti
,
founded on the pledge theory. The appellant ceded or ‘pledged’
the right to payment of R470 000 by Liberty to his
own creditor (the
cessionary), as security for a debt owed to the latter.
[12]
This is consistent with both the cession form and the context. The
form states, in terms, that the cedent transfers the rights
to the policy to the cessionary named in the
form; and that it constitutes a temporary transfer of ownership as
security for a debt
in the sum of R470 000. The right was to be
retained by the cessionary until the secured debt had been paid.
Indeed, that was the
evidence: the appellant continued with payment
of contributions in respect of the policy and the secured debt of
R470 000 had to
be
settled in
full upon the death of Mrs Van Niekerk, when he became entitled to
the
benefit of the policy.
The appellant, as cedent, retained a reversionary interest
(satisfaction of the principal debt by Liberty)
and had he settled
the secured debt,
the ceded
right would automatically have reverted to him. That did not happen
because the debt was still unpaid when the appellant
claimed, and
received, the full benefit of the policy from Liberty.
[25]
In terms of clause 9 of the policy conditions, payment
of the benefit
due under the policy would be made to the beneficiary if the contract
was not ceded, but if it was, payment would
be made to the
cessionary. It follows from this provision and the cession form that
where, as in this case, a portion of the benefit
was ceded, the owner
of the policy, the appellant, was not entitled to payment from
Liberty in the sum of R470 000 when he received
it, nor at any
relevant time.
[26]
Whatever the nature of the cession, the appellant’s
allegation
that he was entitled to the full benefit of the policy and thus had
not been enriched, because he was the owner of all
the funds, is
simply wrong. His debt had been extinguished and he received the same
amount in cash from Liberty. The submission
by his counsel that
Liberty did not prove that the secured debt of R470 000 was payable
to the cessionary is without substance.
The appellant admitted to his
broker, Ms Smith, that the sum of R470 000 was payable to the
cessionary, when he instructed her
to ensure that no higher amount
would be paid to the former. And before us his counsel conceded that
there was no evidence on record
to show that the appellant had paid
the secured debt.
[27]
What remains is whether Liberty met the
requirements of the
condictio indebiti
.
These are that generally, the action is only available where
ownership of
money or other
property is transferred by the act (
negotium
)
of the parties; the action lies only against the recipient of the
indebitum
; the
transfer of money must
have
taken place
indebiti
in
the widest sense, ie there must have been no legal or
natural obligation to make it; the payment or
transfer must have been made in the
bona
fide and reasonable, but mistaken, belief that the debt was owing;
and the mistake must be excusable.
[13]
[28]
The only requirement in issue in this case is
whether Liberty’s mistake in
paying
the full benefit of the policy to the appellant, is excusable, in
respect of which it bears the onus.
[14]
The requirement that the mistake must be neither slack
nor studied has been criticised by academic
writers.
[15]
In
Willis Faber Enthoven (Pty) Ltd v Receiver
of Revenue and Another
,
[16]
Hefer JA, alive to the criticism by
Prof
Visser,
[17]
said:
‘
But
the historic nature of the remedy as one granted
ex aequo et bono
should be preserved and care should be taken to avoid it being
turned into a tool of injustice to the receiver of money paid
indebite
. As Tindall J (as he then was) warned in
Trahair v
Webb & Co
1924 WLD 227
at 235 “Where a plaintiff bases
his claim for relief on an equitable doctrine the court must be
careful that, in a desire
to do justice to the plaintiff, an
injustice is not done to the defendant”. ’
[29]
Having concluded that no distinction should be drawn
in the
application of the
condictio indebiti
between a mistake of law
and mistake of fact, Hefer JA went on to say:
‘
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
.’
[18]
[30]
In
Bowman, De Wet and Du
Plessis NNO and Others v Fidelity Bank Ltd
,
[19]
this Court considered that it was inappropriate to refine the above
approach,
and held that the
determination of what is an excusable error and what is not in the
circumstances of the case, involves the exercise
of a value
judgment.
[20]
[31]
Ms Weideman testified that the cession form had not
been provided by
the appellant and that she tried, unsuccessfully, to find it on the
Blueprint system, which reflected only the
name of the cessionary and
the type of cession as ‘collateral’. Ms Weideman and Ms
Mngoma became aware of the terms
of the cession and the amount ceded,
when they received a copy of the cession form from Ms Neethling. The
cession had been registered
on the Blueprint system by another
department within Liberty. At best for the appellant, Ms Weideman or
Ms Mngoma should have taken
steps to establish the true state of
affairs from that department, before paying out the full benefit of
the policy. For this reason,
Liberty’s counsel conceded that
there was a degree of slackness on its part.
[32]
At some point before the death of his mother the appellant
had been
informed by Liberty that the full benefit would be paid to the
cessionary, and as stated earlier, asked Ms Smith to ensure
that only
R470 000 would be paid in terms of the cession. In an email on 1 June
2015 she informed the appellant as follows:
‘
Die
sessie se bedrag is nooit verander nie alhoewel dit voorkom asof
iemand probeer het om dit te verander.
Daar is nog steeds ‘n
kollaterale sessie op die polis.
Ons
is nog besig om te kyk wat hier aangegaan het en ek sal in verbinding
wees sodra ek antwoorde het.
Op hierdie
stadium kan jy rustig wees dat die res van die versekerde bedrag nog
steeds aan jou sal uitbetaal [word].
’
[21]
[33]
It took Ms Smith some two months to get the relevant
information from
Liberty. On 13 July 2015 she forwarded an email that she had received
from Liberty to the appellant, to which
the cession form was
attached, and confirmed that the amount ceded was R470 000. The
appellant thanked Ms Smith in an email on
15 July 2015, stating that
the issue had been one of grave concern to him. At all material times
he knew that he was not entitled
to the full proceeds of the policy,
and never disputed that the sum of R470 000 was the amount of the
secured debt.
[34]
Thus, when the appellant completed the claim form, he
was fully aware
of the following facts: the cession was still in existence; he had
not paid the secured debt; and he was not entitled
to payment of the
full benefit of the policy. This is underscored by Ms Smith’s
evidence that when she discussed repayment
of the R470 000 with the
appellant, it was clear that he knew that the amount paid to him was
incorrect. What is more, in claiming
the full benefit, he declared,
inter alia, that what was stated in the claim form was true, and that
he had not withheld any material
fact from Liberty. Ms Weideman said
that she had read that declaration, the appellant did not submit the
cession form and the full
benefit was paid to him. This conduct by
the appellant, in my judgment, directly contributed to the decision
to pay him the full
benefit of the policy. Given the particular
circumstances of this case, the overpayment by Liberty, is in my view
excusable.
[35]
Finally, there is the submission by the appellant’s
counsel
that he should not be held liable for the costs of the appeal. The
appellant had ample opportunity to repay the money but
refused to do
so. He defended the action on the unfounded basis that the cessionary
was not entitled to payment. His reasons for
not repaying the money
were unrelated to the action. There is no reason why costs should not
follow the result.
[36]
The following order is made: The appeal is dismissed
with costs.
A
Schippers
Judge
of Appeal
Appearances:
For
Appellant:
Morne Coetzee
Instructed
by:
Morne Coetzee Attorneys, Pretoria Lovius Block Inc, Bloemfontein
For
Respondent:
J F Steyn
Instructed
by:
Gerings Attorneys, Johannesburg Rossouws Attorneys, Bloemfontein
[1]
Translation:
‘
2.
Collateral cession
•
The rights under the policy are transferred to a third
party as security.
•
The cedent remains the owner of the policy but cannot
derive any benefit from the policy unless the cession is cancelled.
While
the cession is in existence, the cessionary cannot convert the
policy into cash without the owner's consent.
•
The cedent however remains responsible for the premiums
in respect of the policy.
[2]
Translation:
‘
Collateral:
temporary transfer of ownership as security for a debt R470 000.’
[3]
Grobler v Oosthuizen [2009] ZASCA 51; 2009 (5) SA 500 (SCA).
[4]
Grobler fn 3 para 8
[5]
Grobler fn 3 para 10.
[6]
Ibid.
[7]
In terms of this theory, a cession in securitatem debiti is an
outright or out-and-out cession on which an undertaking (pactum
fiduciae) is superimposed that the cessionary will re-cede the
principal debt to the cedent on satisfaction of the secured debt.
The right which is ceded vests in the cessionary and the cedent is
left with a mere personal right against the cessionary, arising
from
the agreement creating the obligation, to reclaim it once the
secured debt has been redeemed (2 Lawsa 2 ed Part 2 at 47
para 53;
Grobler fn 3 para 17).
[8]
National Bank of South Africa Ltd v Cohen’s Trustee
1911 AD
235
at 246-247; Grobler fn 3 para 20.
[9]
Development Bank of Southern Africa Ltd v Van Rensburg NO and Others
2002 (5) SA 425
(SCA) para 50.
[10]
Cited in Grobler fn 3 para 22.
[11]
Grobler fn 3 paras 11 and 17; PG Bison Ltd and Others v The Master
of the High Court, Grahamstown and Another [2001] 1 All SA
363; 2000
(1) SA 859 (SCA).
[12]
Lawsa fn 7 at 46 para 52
[13]
See 9 Lawsa 2 ed (2005) at 116 para 212 and the authorities there
cited.
[14]
Willis Faber Enthoven (Pty) Ltd v Receiver of Revenue and Another
1992 (4) SA 202 (A).
[15]
See in in this regard 9 Lawsa fn 13 at 118 fn 24.
[16]
Willis Faber fn 14 at 224E-H.
[17]
D Visser Unjustified Enrichment (2008) at 171-182.
[18]
Willis Faber fn 14 para 42. (Emphasis added.); Yarona Healthcare
Network (Pty) Ltd v Medshield Medical Scheme
2018 (1) SA 513
(SCA)
para 23
[19]
Bowman, De Wet and Du Plessis NNO v Fidelity Bank Ltd 1997 (2) SA 35
(A).
[20]
Bowman fn 19 at 44C-E.
[21]
Emphasis added. Translation:
‘
The
amount of the cession has never been changed although it appears
that somebody has tried to change it. There is still only
a
collateral cession on the policy. We are busy with an investigation
to see what precisely happened here and I will be in touch
as soon
as I have answers. At this stage you can rest assured that the
remainder of the insured amount will still be paid to
you.’