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The Eastern Cape Division of the High Court recently delivered a judgment in Bergsig Special School v MEC: Education on the interface between unjust enrichment claims and the Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002 ("the Act"). The court, acting mero motu, applied recent SCA authority to reject a special plea premised on the Act and clarified the proper forum and timing for related prescription issues. Although the court ultimately dismissed the plaintiff's condonation application as unnecessary, its reasoning will influence how litigants formulate and defend enrichment-based claims against organs of state.
Background
In this case, Bergsig Special School ("Bergsig") had paid salaries and related costs for non‑educator support staff who had been allocated to the school by the Eastern Cape Department of Education but, on Bergsig's case, should have been funded by the Department. Bergsig sought to recover ZAR4,951,042 from the MEC and the Head of Department on the basis of unjust enrichment, alleging that the Department was enriched at the school's expense.
The MEC and Head of Department raised two special pleas: first, that Bergsig failed to serve the six‑month statutory notice required by the Act; and second, that the claim had prescribed under section 11(d) of the Prescription Act 68 of 1969. In response, Bergsig proceeded with an application to condone non-compliance with the Act's notice requirement.
During argument, the court raised, mero motu, whether the Act applied to an enrichment claim at all. The court invited further written submissions on the relevance and effect of the SCA and Constitutional Court decisions in Greater Tzaneen Municipality v Bravospan 252 CC.
Key legal issues
The key legal issues that arose in this case were as follows:
- First, whether the court could raise the applicability of the Act to enrichment claims mero motu.
- Second, whether a claim for unjust enrichment constitutes a "debt" under section 1 of the Act, such that failure to give notice within six months bars the action.
- Third, the appropriate stage and forum to determine the defendants' prescription plea, and whether the plaintiff's pleaded case might, in substance, is based an omission in delict rather than enrichment.
- Finally, the extent to which section 172(1)(b) of the Constitution may afford a just and equitable compensatory remedy where a general enrichment action is not recognised.
The Court's reasoning and decision
On the mero motu point, the court relied on the Constitutional Court's affirmation in Bravospan that a court may raise a point of law mero motu where it considers an error of law to be made. In addition, neither party objected to the court raising the point.
Turning to the Act, the court held that a claim for unjust enrichment is not a "debt" in terms of section 1 of the Act because such a claim is not for "damages" as contemplated by the Act. This conclusion accords with the SCA's judgment in Bravospan, where counsel conceded, and the SCA accepted, that an enrichment claim falls outside the Act's notice regime. On that basis, the MEC and Head of Department's first special plea was rejected, and Bergsig's condonation application - premised on the assumption that the Act applied - was unnecessary and had to be dismissed.
The court rejected the MEC and Head of Department's attempt to recharacterise Bergsig's cause of action as an omission-based delict cloaked in enrichment language. The particulars of claim explicitly pleaded unjust enrichment and did not justify stretching the pleadings to fit a delictual "negligent omission".
As to prescription, the court accepted that it could not be determined on the motion papers and would be ventilated at trial.
On section 172(1)(b) of the Constitution, the court noted Bravospan's recognition that South African law has not yet adopted a general enrichment action, while permitting a just and equitable constitutional remedy in exceptional circumstances. However, the court considered constitutional relief not ripe for determination on the interlocutory record and left any such remedy to the trial court.
The court dismissed the condonation application and, given that it had raised the decisive point itself, made no order as to costs.
Conclusion
The judgment confirms an important procedural clarification: unjust enrichment claims against organs of state are not subject to the Act's six‑month notice requirement because they are not claims for "damages" within the Act's definition of "debt". Accordingly, plaintiffs need not bring condonation applications to regularise late notice for such claims, and defendants should avoid reliance on the Act in enrichment matters.
The judgment requires trial courts to engage more fully with two complex dimensions. First, prescription issues in enrichment claims, which often turn on when the "debt" becomes "due" for purposes of the Prescription Act and which generally cannot be resolved without factual engagement. Second, in light of the Bravospan judgment, litigants may consider invoking section 172(1)(b) as a just and equitable remedial pathway where the doctrinal limits of unjust enrichment would otherwise preclude relief in public law settings.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
