COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
DATE: 21 MAY 2014
In the matter between:
PIETER VAN DEN
THE INTERNATIONAL UNIVERSITY
Neutral citation: Van den Dries v
The International University of Management (I 602/2008)  NACHMD
159 (21 May 2014)
25 and 26 March 2014
21 May 2014
Requisites restated. Plaintiff establishing receipt of funds indebiti
by the defendant,
having been mistakenly paid over by the
plaintiff. Defendant pleading that it had not been enriched. Onus
upon it to show that further payment made was not mala
fide. Defendant discharging that onus.
plaintiff’s claim is dismissed with costs. These costs include
the costs of one instructing and one instructed counsel, where
At issue in this enrichment action is
whether the defendant can be said to have been enriched at the
expense of the plaintiff and, if so, to what extent.
The plaintiff lives in the Netherlands. He
is attached to a donor organisation, engaged in development and
welfare assistance in Namibia.
The defendant is a tertiary academic
institution, offering degree and other courses to students in
In the particulars of claim, the plaintiff
alleged that he sponsored a certain Mr Ndihokubwayo Jean Prosper
(“Prosper”), a Burundian refugee and a student in a four
year course on HIV / Aids Management at the defendant, to pay his
tuition fees with the defendant.
On 6 February 2007, the plaintiff
transferred the sum of €7290 into the defendant’s bank
account to pay for Prosper’s tuition fees. The tuition fees
payable in respect of that year were however only N$7290. Due to an
error on the part of the plaintiff, he paid the sum of €7290 to
the defendant, resulting in an over payment of €6146, 32.
It was alleged that the plaintiff had no
obligation to make this over payment and that the defendant had
received this sum without a valid causa.
It was further alleged that the defendant was thus enriched in the
sum of €6,146.32 at the expense of the plaintiff and that the
plaintiff was impoverished in that amount. It was thus claimed from
The defendant raised certain special pleas
which are not relevant for present purposes. The defendant also
pleaded over on the merits. It was admitted that the sum of €7290
had been received. The defendant specifically pleaded non-enrichment
of the (in the amount of €6146,32) as it had paid over that
amount to Prosper in the bona fide
belief that the latter was entitled to it and that the payment to
Prosper had preceded the institution of the action.
In the course of case management, witness
statements had been filed by the parties in respect of their
witnesses. They were taken as read after being confirmed under oath
by the respective witnesses. They were thereafter cross-examined on
their statements. As was foreshadowed by the pleadings, much of the
factual matter in this action turned out to be common cause.
The plaintiff confirmed that he had met
Prosper and agreed to pay his tuition fees directly to the
defendant’s bank account. He had at that stage only intended to
pay the tuition fees for the current year (2007) when making his
payment on 6 February 2007. The tuition fees for that year amounted
to N$7290 but he had mistakenly transferred €7290.
When he noticed the error on 22 February
2007, he sent a telefacsimile to the defendant’s erstwhile
Vice-Chancellor informing the defendant of the mistake and requesting
a refund in respect of the over payment of €6146, 32.
The plaintiff also testified that the then
Vice-Chancellor on 19 March 2007 reverted to him and undertook to
remit the over payment. But this was not done. In the meantime
Prosper had written to the plaintiff asking for the balance of the
over payment to be paid to him in order to assist him with his living
The defendant however took the position
that any amount paid over for the benefit of or to the credit of a
student could not be remitted to the source of the funds except with
that student’s consent. This was in accordance with its
procedures. The then Vice-Chancellor informed the plaintiff
subsequently on 3 July 2007 that the student had requested “a
refund” from the amount standing to his credit with the
defendant and that a substantial amount had already then been paid.
The student had informed the defendant that there was an
understanding between the plaintiff and himself to that effect,
namely that he would be entitled to receive tuition fees from the
plaintiff as well as living expenses for the duration of his course
and that the sum paid by the plaintiff and standing to his credit
should be put to that use.
The plaintiff however persisted with his
demand for the repayment of the amount overpaid by him. The matter
remained unresolved and on 2 August 2007 the plaintiff, in the course
of a visit to Namibia, had a meeting with the defendant’s
management. The meeting had also been attended by the student. At
that stage, the excess amount reflected on the account had been
reduced to N$ 6331 with the balance having been applied for the
further tuition fees of the student (for the entire duration of the
course) as well as a series of payments in respect of living expenses
paid directly to the student.
The application of those funds was
explained to the plaintiff at that meeting.
The plaintiff subsequently instituted his
action. He insisted in his evidence that he had not authorised the
payment of living expenses to Prosper.
In cross-examination, it was put to him
that he had not objected at the meeting on 2 August 2007 to the
application of the excess funds for the tuition fees of Prosper.
Whilst the plaintiff did not dispute this, he said he had at that
stage only agreed to pay his tuition fees for 1 year and did not
agree to pay the full student fees for 4 years of tuition in advance.
He accepted that Prosper had completed the studies and had obtained
his degree and that his funds had been applied for the tuition fees
for the entire course.
the close of the plaintiff’s case, the defendant applied for
absolution. Applying the test articulated in Gordon
Lloyd George Page and Associates v Rivera and another
and followed by the Supreme Court,
the application for absolution was rejected with costs. The defendant
thereafter called 4 witnesses, Mr Prosper, the current
Vice-Chancellor, its Chief Financial Controller and Mr Usko Shivute
who had attended the meeting on 2 August 2007.
Mr Prosper testified that he is a refugee
from Burundi and had met the plaintiff at a project sponsored by the
organization the plaintiff was attached to. He said that the
plaintiff had agreed to pay for the 4 year degree course with the
defendant. He had supplied the plaintiff with the details of the
course as well as the required fees. He also supplied the plaintiff
with the bank details of the defendant. The plaintiff had informed
him that he paid over the fees to the defendant. When he however
learnt that there was a surplus credited to his student account, he
applied to the defendant to receive it, after deduction of the
tuition fees. He said that he urgently needed the funds for living
expenses and had approached the defendant to release the surplus as
payment for them. He informed the defendant that the plaintiff had
agreed to sponsor him for his entire course. He also testified that
the plaintiff had never requested a repayment from him.
In cross-examination, he explained that
certain of the amounts which he withdrew from the amount paid by the
plaintiff to his credit with the defendant, were for living expenses.
He said that this occurred in accordance with the defendant’s
rules. He was unable to maintain himself and also needed funds for
computers. It was put to him that he was not entitled to the sums
paid out to him, but he disputed this by stating that he did become
entitled to the surplus once the funds had been paid to his credit
with the defendant.
The current Vice Chancellor of the
defendant, Mrs V. Namwandi gave evidence. She stated that there was a
refund policy as part of the contractual scheme between students and
the defendant which meant that funds which had been paid to the
credit of a student could be refunded to the student but would not be
refunded to a donor except with the student’s consent. She
explained that there were instances where State bursary funds in
excess of the tuition fees were paid over to the defendant and that
relatives of students sought to obtain that money for themselves. The
defendant had refused to pay such sums to student’s relatives
but rather utilised the funds for the students’ tuition or
Mrs Namwandi further testified that the
defendant is a non-profit s 21 company. She stated that the funds
which had been donated by the plaintiff had been applied to Prosper’s
tuition fees for the entire course and that the excess amount of some
N$ 23704,80 had been paid over to him for his living expenses from
the sums paid over by the plaintiff prior to meeting the plaintiff.
Mrs Namwandi further testified that the undertaking given by the
former Vice Chancellor in March 2007 conflicted with the defendant’s
refund policy and the overpayment could not be paid over except with
the consent of the student in question. The student had not provided
his consent for the repayment but had instead convinced the defendant
that the excess sums should be applied for his further tuition fees
and for his living expenses.
Both the financial controller and Mr
Shivute testified as to the meeting of 3 August 2007. They both
testified that the plaintiff had not objected to the presentation
provided as to the expenditure of the funds made at that meeting.
This had included the receipt of the excess amount by the defendant
for the further tuition fees payable in respect of that course and
the student’s living expenses. Instead, they testified,
the plaintiff had listened to the explanation provided to him
concerning the expenditure of the funds and the fact that there was
some N$6331 still unutilized at that stage and that the plaintiff and
Mr Prosper had left the meeting together in an amicable manner. They
were both under the impression that the matter had thus become
resolved after the explanation was provided to the plaintiff. It was
not put to them on behalf of the plaintiff that he had persisted with
objections concerning the expenditure of the excess amount in respect
of future tuition and other expenditure after the explanation had
Mr Z Grobler who represented the plaintiff
argued that the plaintiff had met the requisites for an enrichment
action and that the defendant had been enriched as a consequence of
the mistaken payment in excess of the N$7290.
Grobler submitted that the refusal to repay the excess amount was in
breach of the undertaking given by the erstwhile Vice-Chancellor on
19 March 2007. He submitted that the attitude of the defendant, being
in breach of that undertaking, “could only be described as mala
He referred to African
Diamond Exporters (Pty) Ltd v Barclays Bank International Ltd
where it was held that a person who has received another person’s
money or goods and parts with them in bad faith would be liable and
could not plead non-enrichment in a claim under the condictio
He submitted that the onus was thus on the defendant to show that it
had not been enriched and that its defence could not be a good
defence, given the fact that the repayment had been claimed prior to
payments made to Prosper and contrary to an undertaking to refund the
excess amount. He submitted that the plaintiff had established its
claim and sought judgment on this behalf.
Jacobs on behalf of the defendant submitted that the date for
determining enrichment would be either the litis
or when judgment had been reserved.
Jacobs further submitted that the evidence had shown that the
defendant had not acted in bad faith and that it had in fact acted in
good faith and without any ulterior motives in applying the sum for
the student’s further tuition fees and for his living expenses
after having been approached and been convinced by the student that
he was entitled to the surplus pursuant to an arrangement between the
plaintiff and himself. This also accorded with its refund policy. The
student had convinced the defendant that the plaintiff had agreed to
pay his fees for the duration of his course and the funds had been
applied to that end with the further amounts being paid in respect of
living expenses. He further submitted that the plaintiff had not
objected to the defendant receiving the monies for the entire course
when he met with the defendant. He submitted that the evidence of
that meeting had been clear and that the plaintiff had no longer
objected to the application of the surplus in that way. He referred
v Cohen Benjamin & Co
and argued that the defendant had not been enriched by the excess
payment made in February 2007. He contended that it had received the
and was not party to any agreement or delict in respect of which an
obligation to restore the money arose. He argued that the obligation
would not be extended beyond the enrichment of the person who
received the payment where it had made the funds over to a third
defendant enriched for the purpose of an enrichment action?
plaintiff’s claim was brought as a condictio
The essential elements for such an action were recently referred to
by this court:
A condictio indebti
is open to the party who has made payment to another due to an
excusable error and believed that the payment was owing whereas it
was not. That party may then reclaim payment to the extent that the
receiver was enriched at the expense of the former party. The
may also be open to the party to reclaim performance made in terms of
an invalid contract, as would be the condictio
sine causa. It would seem that the
latter action is more frequently be used in those circumstances.
The essential requirements for a condictio indebiti are:
the defendant must be enriched;
the plaintiff must be impoverished;
the defendant’s enrichment must be at expense of the plaintiff;
the enrichment must be unjustified in the sense of having been made
in a reasonable but mistaken belief that a payment was owing –
thus been a reasonable error in the circumstances of the case.’
respect of a defence of non-enrichment, as was expressly pleaded in
this matter, once a transfer indebite
has been established, the onus would then shift to the defendant to
prove that it was not enriched by the transfer.
Where a defendant has disposed of a thing, in order succeed with a
defence of non-enrichment, the defendant would invariably be required
to establish that the disposal was bona
Diamond Exporters the court posed the
question as to whether the defence of non-enrichment would apply
where the recipient of money received indebite
and who is bona fide
in parting with the goods or money, but does so in circumstances
showing neglect on his part. The court answered this question as
am also inclined to the view that the passages cited above from
Wessels Law of Contract in South Africa and from De
Vos Verrykingsaanspreeklikheid in die Suid-Afrikaanse Reg,
relied upon by counsel for the plaintiff, correctly state the law,
namely that a person who receives money or goods, well knowing that
what he receives is indebite, cannot deal with such goods quasi rem
suam and will be liable in damages for any loss or deterioration
caused by his negligence.’
statement is however of an obiter
nature because it was not necessary for the court to determine
whether the condictio
would be available to someone who had received a sum of money
while knowing that the receipt was indebite
but then lost the property without bad faith. After considering
the evidence, the court held that there was no negligence on the part
in relation to the amount paid over to another entity in Antwerp but
that it had been enriched in respect to a smaller amount which had
been applied by it as part of a profit and found that it was enriched
in that amount.
In this matter, the plaintiff had not
replicated by raising negligence on the part of the defendant. That
was not the plaintiff’s case. It was instead that the payment
(to Prosper and applying the money to his fees) was made contrary to
an undertaking given by the defendant’s then Vice Chancellor
and that this amounted to mala fides on
its part. That undertaking was however explained in evidence as being
contrary to the defendant’s policies and that the application
of the overpayment as well as those policies were explained to the
plaintiff at a subsequent meeting where he did not object to the
surplus amount being applied to the further tuition fees of the
student and his living expenses.
Although the defendant was incorrect as a
matter of law in considering that it was precluded by its policy
(even though it formed part of the contractual scheme with its
students) in repaying an overpayment mistakenly made, it does not
follow that its application of the surplus for future tuition and the
balance for living expenses of the student were mala
fide as contended by Mr Grobler. I am
further and in any event satisfied that the defendant established
that it was not mala fide and
that it had bona fide
applied the surplus amount to the further tuition fees for the entire
course in respect of that student and his living expenses in
accordance with its understanding of its refund policy. It was not
the plaintiff’s case that payments of the surplus had been made
negligently. It is thus unnecessary for me to canvass the obiter
remarks in African Diamonds
and consider whether a separate delictual claim arises for damages –
as would appear to be implied – or whether the defence of
non-enrichment would not be established in the event of a negligent
further payment by a defendant.
would follow in the circumstances that the plaintiff has nor
established that the defendant in this matter was not in my view
enriched for the purpose of the enrichment action. In reaching this
conclusion, I am mindful of what was stated by Didcott J in Phillips
where he stated:
it is true, was designed for equitable relief. But that does not mean
that the Court has a general discretion to uphold it, whenever it is
invoked, on what may be thought to be equitable grounds. The remedy
is circumscribed by rules of law and, as I understand these, they
decree in the present litigation that Hughes has no case against
Maphumulo, and likewise none against Phillips.’
In this matter, the defendant was not
enriched by the plaintiff’s overpayment in the sense
contemplated by the condictio indebiti
and established that its application of the funds and payment of
living expenses to the student was not mala
It follows that the plaintiff’s claim
is to be dismissed with costs. These costs include the costs of one
instructing and one instructed counsel, where engaged.
Mr Z. J Grobler
by Grobler & Co.
Mr J Jacobs
by Nederlof Inc
2012(1) NR 370 (SC) at par .
v Paschke and others
2012(2) NR 56- (HC).
of the Republic of Namibia (Ministry of Works, Transport and
Communication) v The African Civil Aviation Agency (Pty) Ltd
(I 3298/2009)  NAHCMD 45 (12 February 2014).
pars  and , footnotes excluded.
Diamond Exporters supra
at 713 H-J.
Riche v Hamman
1946 AD 648 at 657.
Diamond Exporters supra
Diamond Exporters supra
at 714; see generally Visser Unjustified
at 733-735 for the learned author’s instructive discussion of
matter. See also Enrichment
in LAWSA vol.9 (2 ed) at par 209.
1979(1) SA 225 (N) full bench at 231.