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McCarthy Retail Ltd v Shortdistance Carriers CC (3) (110/99) [2001] ZASCA 15 (16 March 2001)

REPORTABLE
Case number: 110/99

IN THE SUPREME COURT OF APPEAL OF

SOUTH AFRICA


In the matter between:


McCARTHY RETAIL LTD APPELLANT


and


SHORTDISTANCE CARRIERS CC RESPONDENT

CORAM: SMALBERGER ADCJ, HARMS, OLIVIER, SCHUTZ and CAMERON JJA

DATE OF HEARING: 27 FEBRUARY 2001

DELIVERY DATE: 16 MARCH 2001

__________________________________________________________________

JUDGMENT

__________________________________________________________________

SMALBERGER ADCJ
SMALBERGER ADCJ:


I agree, for the reasons given by Schutz JA, that the appeal should be allowed applying established principles. I express no opinion on, or concurrence with, the remarks of Schutz JA, sound though they may seem, in relation to the foundation of our enrichment law or the correctness of the majority decision in Nortje en ‘n Ander v Pool NO 1966(3) SA 96 (A). I do so principally because the matters touched upon were not raised or fully argued before us and their consideration is not essential to the determination of the appeal. Nor do I consider it necessary to express any view with regard to the “at the expense of” requirement for enrichment where there is multi-party involvement for, as Schutz JA points out, that does not arise in the context of the present appeal.
I concur in the order made.

____________________
J W SMALBERGER

ACTING DEPUTY CHIEF JUSTICE