10 June 2024

International Cases

Mhlari NO and Others vs. Nedbank Limited

South Africa



Requirements for a claim based on unjust enrichment are that, defendant must be enriched, Plaintiff must be impoverished

The Appellants appeal against the judgment of the High Court in terms of which they were, ordered to pay the Respondent, Nedbank Limited (Nedbank) the sum of R12 316 632,37. The first, second and seventh Appellants are trustees of the Trust, and the third to sixth appellants were cited as sureties for and co-principal debtors with the Trust for the due performance of its contractual obligations vis-a-vis Nedbank. Nedbank is a duly registered and incorporated public company with limited liability. It trades as a deposit-taking institution in terms of the Banks Act, 1990, and is a credit provider duly registered in terms of the National Credit Act, 2005.

The requirements for a claim based on unjust enrichment are that the defendant must be enriched, the plaintiff must be impoverished, the enrichment must be at the expense of the plaintiff, and the enrichment must have been unjustified (sine causa). Although, there is no unified general enrichment action, these are requirements common to all enrichment actions.

A person who pays money (or delivers a thing) to another because of a reasonable error of fact or law in the belief that the money is owing, whereas it is not, has a claim for repayment in terms of the condictio indebiti, to the extent that the person who received the payment has been enriched at his or her expense. The condictio sine causa specialis lies where the money is in the hands of the defendant without cause, whether due to the plaintiff’s mistake or not. Therefore, a defendant may raise as a defence to the condictio indebiti that the mistake was unreasonable and negligent, but in a claim based on the condictio sine causa specialis that consideration is irrelevant.

Nedbank’s reliance on the first and second appellants’ representations regarding the capacity of the Trust was reasonable in the circumstances. Nedbank’s failure to undertake a due diligence exercise in respect of the trust deed under these circumstances was therefore understandable and, did not constitute inexcusable slackness. Its mistake was therefore reasonable and excusable, and the counterclaim must consequently succeed.

The trustees of the Patrick Malabela Family Trust are ordered to pay the amount of R5 436 347.57 to the Plaintiff, together with mora interest thereon, calculated from 12 September 2019 to date of final payment, both days inclusive. The appeal is upheld.

Tags : Payment Direction Legality

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