Delict, Unjustified Enrichment, and Human Rights

This course investigates the relationship between, on the one hand, delict and unjustified enrichment (that is, non-contractual obligations) and, on the other, human rights, particularly as those are enacted in bills of rights or similar legally-binding documents. The main emphasis will be on South African law. In the first place, the course will look at the important ways in which the South African law of delict has been (and still might be) changed in order to bring it in line with the South African Constitution: examples are in respect of omissions by public bodies, vicarious liability, and defamation. In the second place, the course will look at the moral rights and values underlying the South African law of unjustified enrichment, and at how they relate to the rights in and values of the South African Constitution. The course will, however, also place the South African law in a broader comparative context: in particular, it will look at the relationship between delict/tort and unjustified enrichment/restitution, on the one hand, and human rights, on the other, in English, Canadian and German law.

Readings

IGeneral

Friedmann, D and Barak-Erez, D (eds) Human Rights in Private Law (2001) – selected chapters

Nolan, D and Robertson, A (eds) Rights and Private Law (2011) – selected chapters

Reid, E and Visser, D (eds) Private Law and Human Rights: Bringing Rights Home in Scotland and South Africa (2013) – selected chapters

Robertson, A and Tang Hang Wu (eds) The Goals of Private Law(2009) – selected chapters

Ziegler, K (ed) Human Rights and Private Law (2007) – selected chapters

IIDelict

Cases

Carmichele v Minister of Safety and Security and Another (Centre of Applied Legal Studies Intervening) 2001 (4) SA 938 (CC)

F v Minister of Safety and Security and Another2012 (1) SA 536 (CC)

K v Minister of Safety and Security 2005 (6) SA 419 (CC)

Le Roux and Others v Dey2011 (3) SA 274 (CC)

Lee v Minister for Correctional Services 2013 (2) SA 144 (CC)

Media24 v SA Taxi Securitisation 2011 (5) SA 329

Minister of Safety and Security and Another v Carmichele 2004 (3) SA 305 (SCA)

Minister of Safety and Security v F2011 (3) SA 487 (SCA)

Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA)

Mitchell v Glasgow City Council [2009] UKHL 11, [2009] 1 AC 874

Mthembi-Mahanyele v Mail & Guardian and another 2004 (6) SA 329 (SCA) at 336-60

NM and others v Smith 2007 (5) SA 250 (CC)

Smith v Ministry of Defence [2013] UKSC 31; [2013] ICR 981

Secondary reading

Davis, D ‘How Many Legal Philosophers Can Be Made to Dance on the Head of a Pin? A Reply to Professor Fagan’ (2012) 129 South African Law Journal 59

du Bois, F ‘Human Rights and the Tort Liability of Public Authorities’ (2011) 127 Law Quarterly Review 589

du Bois, F ‘State Liability in South Africa – A Constitutional Remix’ (2010) 25 Tulane European and Civil Law Forum 139

Fagan, A ‘A Straw Man, Three Red Herrings, and a Closet Rule-Worshipper’ (2012) 129 South African Law Journal788

Fagan, A ‘Causation in the Constitutional Court: Lee v Minister of Correctional Services' (2013) 5 Constitutional Court Review

Fagan, A ‘The Constitutional Court Loses Its (and Our) Sense of Humour: Le Roux v Dey’ (2011) 128 South African Law Journal 395

Fagan, A ‘The Secondary Role of the Spirit, Purport and Objects of the Bill of Rights in the Common Law’s Development’ (2010) 127 South African Law Journal 611

Fagan, A ‘Reconsidering Carmichele’ (2008) 125 South African Law Journal 659

Fagan, A ‘The Confusions of K’ (2009) 126 South African Law Journal 156

Nolan, D ‘The Liability of Public Authorities for Failing to Confer Benefits’ (2011) 127 LQR 260

Nolan, D 'Negligence and Human Rights: The Case for Separate Development' (2013) 76 Modern Law Review 286

Price, P ‘The Influence of Human Rights on Private Common Law’ (2012) 129 South African Law Journal 330

Stevens, R Torts and Rights (2007)

Whitty, N and Zimmermann, R (eds) Rights of Personality in Scots Law: A Comparative Perspective (2009) – selected chapters

Wright, J Tort Law and Human Rights (2001/2015)

IIIUnjustified Enrichment

Cases

MN v AJ (2013 (3) SA 26 (WCC)

National Credit Regulator v Opperman and others 2013 (2) SA 1 (CC)

Woolwich Equitable Building Society v Inland Revenue Commissioners[1993] AC 70

Secondary reading

Ackermann, L Human Dignity: Lodestar for Equality in South Africa (2013)347-89

Degeling, S andSan Roque,M ‘Unjust Enrichment: A Feminist Critique of Enrichment’(2014) 36 Sydney Law Review

du Plessis, JEThe South African Law of Unjustified Enrichment (2012) 17-23

Elliott, S, Haecker, B and Mitchell, C (eds), Restitution of Overpaid Tax (2013)

Jansen,N ‘The Idea of Legal Responsibility’(2014) 34 Oxford Journal of Legal Studies 221

Scott, HUnjust Enrichment in South African Law: Rethinking Enrichment by Transfer (2013) 208-211

Visser, DUnjustified Enrichment (2008) 24-26, 396-405

Williams, R Unjust Enrichment and Public Law (2010)

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