In his article, Du Plessis does a comparative review of the law of unjustified enrichment in the South African and Scottish jurisdictions and finds that in both these jurisdictions, unjustified enrichment has the following similarities:

These views however still do not give any real substance to the notion of absence of legal ground.

Du Plessis tries to find substance for this notion by comparatively taking the French, Dutch, English and German systems under review. In the French and Dutch systems, the notion of the undue performance is interpreted broadly. It does not only cover the narrower situation where the performance is made in fulfilment of an obligation that does not exist, but also includes situations traditionally covered by the other condictiones.The difference with these two mixed systems when compared to the South African and Scottish systems are that the codification of enrichment claims, and more specifically the codification of a general enrichment action. A common feature of these systems however is that the notion of absence of legal ground has a key role to play in cases not involving transfer.

These two mixed systems can also do little to bring substance to this notion for South African law.

In German law the four typologies recognised are the Leistungskondiktion (enrichment by transfer), the Eingriffskondiktion (enrichment by invasion of the rights of another), the Verwendungskondiktion (enrichment as a result of unauthorised expenditure) and the Ruckgriffskondiktion (enrichment as a result of the payment of one’s debt by another). 

Du Plessis indicates that Professor Reinhard Zimmermann argued as early as 1985 that the experiences of German enrichment law could provide South African law with a 'road through the enrichment-forest', and that Visser has also drawn strongly on German analyses in developing his conception of the condictio indebiti, and earlier proposed a draft codification broadly based on the German approach. 

Visser indeed gives thought to the sine causa requirement in “The general enrichment action cometh”, indicating the crucial challenge it poses and points out that the courts have not had to delineate this element because enrichment liability was confined to the exact parameters laid down in the recognized condictiones and other actions. He is however of the opinion that when the general enrichment action arrives, the fleshing out of this element will determine the success or failure of the notion of such an action, because this is the one element which we have not been using for many years. According to Du Plessis one of the most significant and relevant reasons that the German experience could be used to guide the development of South African and Scottish law, must be that certain broad structural similarities can be ascribed to a shared civilian heritage. All recognize:

(a) that unjustified enrichment, like contract, delict and management of another's affairs, is a distinct source of obligation.

(b) all recognize the absence of a legal ground as key determinant of whether enrichment is unjustified and

(c) all are able to streamline the law of unjustified enrichment by not requiring it to determine why a causa in the form of a valid contract is absent.

He emphasizes that there is a very clear relationship between the claim based on transfer and the condictiones, based on the shared feature that they generally involve sine causa enrichment brought about by a transfer. There is also a special link with regard to the conceptions of the absence of a legal ground requirement, which is of particular interest in the context of the claim based on transfer. He argues that under the objective approach, the legal ground for the transfer is essentially the relationship of indebtedness to which it relates and there can be little doubt that this type of approach bears a strong affinity to the more narrow 'absence of a legal title' approach in South African law.

THE WAY FORWARD: SOUTH AFRICAN LAW

Du Plessis, in comparing the requirements of specific enrichment claims is of opinion that the absence of legal ground is relevant when dealing with both but specifies the following two condictiones:

1) Condictio data non secuta

2) Condictio sine causa specialis.

The absence of a legal ground can bear different meanings depending on which condictio is used, but modern South African law has come to recognize that in all claims based on unjustified enrichment, the general requirement of absence of legal ground need to be met. A narrow and broad meaning can be distinguished when determining the meaning of this requirement.

The narrow approach is that of a valid title, such as a contract or court order for example which entitles the recipient to keep the enrichment. Although it can generally be said that the presence of such a title excludes enrichment liability, the absence of such a title does not necessarily give rise to enrichment liability. Additional considerations like absence of a mistake could result in a claim being refused even though a title is absent. Du Plessis is critical of this approach in respect of the additional considerations which he describes as a “Trojan horse” which is effectively the English approach of unjust factors hidden under the guise of the civilian sine causa requirement.The absence of a legal ground is used in a broad sense to describe meeting all the certain specific elemental requirements to establish the general sine causa requirement. He recognises however that simply requiring the absence of a legal title on its own does not go far enough, in determining when a claim is legitimate and when it is not, and further considerations need to be looked at.

 According to Du Plessis these divergent approaches to the sine causa requirement through the broad and narrow interpretations could be problematic and he is of the opinion that South Africa could learn from other countries. The narrow approach for example does not indicate why a claim should be refused in certain circumstances, while under the broader approach, enrichment can be justified, or without legal ground due to the inexcusability of a mistake for example.

He captures the difficulty of choice between these two approaches as follows: “Of crucial concern in this context is whether certain specific factors such as mistake should positively be formulated as requirements for a claim, or whether it is preferable to regard enrichments without       title as recoverable in principle, and only restrict their availability with certain defences.”

Visser makes the following comment in this regard:

“Since there is no general enrichment action in South African law, there is also no single, all-encompassing criterion to determine whether enrichment is justified or not. The matter is determined separately in respect of each enrichment action: if the particular elements of a specific enrichment action have been satisfied, the enrichment is sine causa, but if an essential element is absent, it cannot be said that the retention of the enrichment is without cause. Thus the elements of the particular condictio taken together determine whether the enrichment is without cause.”

Visser, in what he terms a “third way” of understanding and explaining the sine causa requirement has found guidance in his reading of developments of Scottish law. He places emphasis on the approach used by Lord President Rodger in the leading Scottish case of Shilliday v Smith in which the Roman principle that the core reason for granting an enrichment action is that the enrichment occurred sine causa, is endorsed.

The Court in this case found that a person can be said to be unjustly enriched at another’s expense when he has obtained a benefit from the other, without there being a legal ground which would justify him retaining that it. It was argued, in determining whether or not the enrichment is sine causa , it is important  to consider how the enrichment came about, or to identify situations  appropriate for the court to declare the retention to be unjustified (in the broad sense). The condictiones provide examples of common situations that have been recognised as deserving of a remedy based on enrichment in the past, as long as it is recognised that the role of these situations is subordinate to the general principle.

In Lord President Rodger’s words: “The person framing the pleadings must consider how the defender’s enrichment has come about and then search among the usual range of remedies which will achieve his purpose of having that enrichment reversed.”

The result is then that the various factors are not requirements or elements of a particular claim in terms of a particular condictio but rather factors that form “part of the explanation as to why the enrichment, which is without legal ground in the narrow sense, is also without legal ground in the sense of there not being an overall justification for the retention”. Mistake would no longer be an element of requirement of a claim in terms of the condictio indebiti – rather, the fact that the transfer occurred because of a mistake constitutes an explanation as to why the transfer was made sine causa. 

German law has discarded reference to subjective factors that cannot lay any clear claim to being of primary concern in awarding claims, in favour of broadly based defences By following this trend, the mixed systems may very well release themselves from outmoded notions that mistakes or other related factors should somehow be crucial for establishing enrichment claims.                        There seems consensus that the Willburg/Von Caemmerer typology, developed to bring some substance to the sine causa requirement under the German general enrichment action, now constitutes a suitable way of conceptualising basic forms of sine causa enrichment in South African law. One should however guard into believing that the German typology is exhaustive as German enrichment law in certain key aspects is quite different from Scottish and South African law.

Scott on the other hand, adopts a different view. She argues that when the claim involves a situation where there is an extra-contractual transfer of some kind, the Leistungskondiktion, understood in either its subjective or its objective forms, cannot readily provide an answer to the question why the transfer was indeed sine causa. She argues that the identification of some factual basis that explains why the transfer is sine causa is essential in many circumstances where enrichment by transfer is at issue (especially in the absence of a failed contract). Scott argues that since the Leistungskondiktion cannot, in such instances, point to a contractual failure out of which a failure of the purpose of the transfer can be inferred, the only way that recovery can be explained is by pointing to the specific reason why recovery should be allowed and she therefore indicates her general support for the current form in which the sine causa element is articulated in South Africa; one in which “the absence of legal ground approach relies on a covert unjust factors approach in order to function”.

CONCLUSION

Du Plessis concludes that the meaning that the Scottish and South African legal systems will give to the core requirement that enrichment has to be 'without legal ground' are of importance in determining the direction that the future development of unjustified enrichment. He prefers the option indicated in German law, where the concept of “absence of legal title” is given greater substance simply by the identification of certain claims that govern typical situations of enrichment liability and he argues persuasively for our law to shift away from action-based treatment of the sine causa requirement to an approach similar to the German position. This is the preferred approach that will give the sine causa approach the necessary substance needed in modern enrichment law.

BIBLIOGRAPHY

1)        Du Plessis, J (2005) Towards a rational structure of liability for unjustified enrichment: thoughts from two mixed jurisdictions. SALJ: 142 -181

2)        Glover, G (2009) Reflections on the sine causa requirement and the condictiones in South African law. Stellenbosch Law Review: 468 – 493

3)        Visser, D & Purhase, A (2002) The general enrichment action cometh. SALJ: 260- 270

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