There is a new buzz word in political circles here, unjustified enrichment. It is an old English Legal dictum but goes back even further to Roman Law. What it comes down to is that no one should have "unjustly benefited at another's expense." If you want to impress your date, if you can find one for lawyers are generally very boring people, you will say "nemo locupletari potest aliena iactura" which is the Latin version.
Now it is complex and many a doctoral thesis has been written on it. Not many legal men, me included, really understand it in great detail. As always it depends very much on what happened. The courts ask several questions to establish the facts:
Was the defendant enriched?
Was the enrichment at the expense of the claimant?
Was the said enrichment unjust?
Does the defendant have a legal defense?
What remedies are available to the claimant?
Practically speaking it is not only the case such as at Nkandla where the owner is scoring rather heavily with "improvements made" at the expense of the State. What will happen there the courts will decide, I presume, but my own feeling is he will not repay one cent. Not because of the merits which are clear but because not all pigs are treated equally. This joke will go on for the next ten years. You have to wonder though, why do they need such security measures? Are they that terrified of the brandewyn (brandy) drinking white right-wing whiners? I wonder about the "blue light convoys" too - are we that petrified of the common man going his way on the road? Or are we so incapable of time management that we have to drive that fast not to be more than fashionably late? You know, not even the nationalists did that under Apartheid and the threat against them was arguably much higher. After all they had the "swart gevaar" and the "rooi gevaar" after them. What does this lot fear?
On our own level, unjustifiable enrichment may also be where electronic funds transfers into an incorrect bank account or, (and this you deserve if accepting a cheque) - the payment of cheque which has been stopped after the work is done. It is very logical in law; if you receive money by mistake then you have no legal right to keep the money and must return it at once. Obviously, we read every now and then of someone who went on shopping sprees with such ill-gotten gains. It always ends in tears.
Then there are circumstances which can only happen in real life. Mr A decides to build a swimming pool and gets Mr B the builder to do so. They sign the contract, pay the money and sure as hell, Mr B builds that swimming pool in the wrong property, belonging to Mr C who is now unjustly enriched.
Another example we often see with widows is where a skunk disguised as a car salesman sells her a nicely polished piece of junk at much greater value than what it actually is. He could be forced to repay the unjustified balance but of course, these actions take a lot of time and money. Sometimes it is borderline fraud but remember we are talking civil law now, not criminal which fraud is.
The last example of importance because it happens often is where you take care of someone's property. Let us say your neighbour has gone to Port Shepstone for the December Holidays to waste his bonus instead of paying his credit card. You note something is wrong at the property and to prevent further damage, you fix it and expects this fellow to repay you, but you know, he spend all his money on crap and is now proving difficult. The law will force him to pay but there are three distinctive categories.
First is Necessary Expense - expenses in respect of preservation of property and protection of property if efforts successful (saved expenses). For instance a broken window or seriously leaking pipe....must be repaid.
Secondly, we have Useful Expenses - all expenses versus the amount by which value is enhanced whichever the lesser amount. For instance to replace the locks with a better type of lock, it is not strictly necessary but have long term benefit. It must be repaid as the above formula states but it is getting touch and go.
Then lastly, Luxurious Expenses - decorations not necessary or useful...not paid and can be removed. For instance, and this is ridiculous but happened, they guy comes back and has a brand new pavement to his garage.
So what happens then? Well it depends on what category it falls in but comes down to fairness to the guy who is out of pocket which is a very debatable issue. So now you see why a luxury swimming pool is suddenly not a swimming pool but a water reservoir for fire, it then does not have to be repaid. A small house becomes a mansion with lots of unnecessary extras which is for "security" purposes, also then not be repayable. I know security by the way - I wrote books on it, have the law degrees and more than 20 years' experience in it. Nothing I see there can be justified in law. If unfairly enriched at the cost of another, you have to do the honourable thing and repay it. But of course, no long haired liberal politician has that kind of honour. It is expecting too much.
Koos Kotze is a former member of the South African Police Force. He served between 1985 and 1991 primarily as a sergeant in the Pretoria Flying Squad. During his police years, he was awarded the South African Police Medal for Combating Terrorism twice besides lesser awards. After leaving the Police Force he obtained the law degrees B Iuris & LLB at the University of the Free State (Bloemfontein, South Africa) and was a commercial law attorney for eight years. These days he is the owner of JKLS Africa and Associates, a specialist legal consultancy which specializes in reducing legal risk in sub Saharan Africa. He wrote several books on business, law, counter-terrorism and security issues. At times he is asked to participate on the Voice of America regarding legal forensic matters.