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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