Reflections on the sine causa requirements and the condictiones in South African law

• Main Author: Glover, Graham
• Format: Others
• Language: English
• Published: 2009
• Online Access: http://hdl.handle.net/10962/70668; https://hdl.handle.net/10520/EJC54716

The condictiones present interesting and difficult challenges of classification for the modern South African jurist. Their casuistic development has made them difficult to work with, and for a long time it was argued that a single general enrichment action should take their place. But the Supreme Court of Appeal in McCarthy Retail Ltd v Shortdistance Carriers CC 2001 3 SA 482 (SCA) chose not to follow this path, and instead preferred the idea that a general enrichment action should be subsidiary to the traditional actions. This has breathed new life into debates on the future of the condictiones. This article first examines the current range of application of the condictiones. It then proceeds to show how the courts in the first decade of the 21st century seem to have eschewed the technicalities inherent in pleading the condictiones, and have preferred rather to resolve cases by applying the general requirements of enrichment liability, in contrast to the injunction in McCarthy. The difficulty with this approach is the lack of substance that is given to the sine causa requirement. The article proceeds to examine the various theories about how we in South Africa should understand and give content to the sine causa requirement. This provides a springboard for considering the possible futures of the condictiones. Broadly, it seems that two options are possible: either to collapse the condictiones into one action to deal with cases of enrichment by transfer; or largely to retain the status quo. The most recent decisions of the Supreme Court of Appeal indicate that the latter, more conservative option is likely to be chosen in the short-term. If this approach is to be adopted, it will require a further review of how each of the constituent condictiones fulfils a particular function. A revisionist view of the condictio indebiti is postulated by way of example.