When you enter into a business deal or a simple agreement, you expect things to go according to plan. But what happens when money changes hands and the deal falls through? In South African law, there are two main ways to get your money back: Contractual Remedies and Unjustified Enrichment.
As we move through 2025 and into 2026, recent court rulings have made it clearer than ever that these two paths are very different. Here is what you need to know about protecting your interests.
1. The Core Difference
A contractual remedy is used when you have a valid agreement and one person fails to do what they promised. You are suing based on the “rules” you both signed up for.
Unjustified enrichment is different. It applies when there is no valid contract, perhaps because it was void or never existed, but one person has unfairly gained wealth at the expense of another. For example, if you accidentally pay money into the wrong bank account, there is no contract between you and that stranger, but they have been “enriched” at your expense.
2. You Cannot Mix and Match
Recent High Court rulings in 2024 and 2025 have sent a strong message to litigants. You cannot treat these two legal paths as the same thing.
When a lawyer files a claim in court, they must plead these remedies as alternatives. This means you must choose one primary path. If you try to claim for a breach of contract and then suddenly try to add an enrichment claim without following the correct legal structure, the court will likely reject your claim as “excipiable” or legally flawed.
3. No “General” Shortcut
Many people think that if they can prove they lost money and someone else gained it, the court will automatically help them. However, the Supreme Court of Appeal (SCA) clarified in 2024 that South Africa still does not have a “general enrichment action.”
You cannot just argue that a situation is unfair. You must fit your case into a specific, recognized legal category. These categories are often based on old Roman-Dutch legal terms like the condictio indebiti (money paid by mistake). Unless your case is extremely rare, you cannot just bypass these established rules.
4. Special Rules for Government Contracts
If you are dealing with the state, the rules shift slightly. In 2024 and 2025, the Constitutional Court has used Section 172 of the Constitution to help people who have been disadvantaged by unlawful government tenders.
If a government contract is declared void, the court might grant “just and equitable” compensation. This is a powerful tool because it sometimes bypasses the strict technical requirements of enrichment law. It focuses on what is fair under the Constitution rather than just the old legal formulas.
5. Arbitration Still Applies
If you have a contract that says all disputes must go to an arbitrator, you cannot avoid arbitration by calling your claim “unjustified enrichment.” The courts have decided that even if your claim is for an overpayment (enrichment) rather than a direct breach, the arbitration clause still covers it. This keeps the legal process simple and prevents people from jumping between different forums.
Why This Matters for You
The legal landscape in 2026 is becoming more technical. The newly released 2nd Edition of The South African Law of Unjustified Enrichment warns that enrichment is not a “free-floating” concept that you can use whenever you feel wronged. It requires a precise legal strategy.
Whether you are a business owner or an individual, it is vital to know whether your claim sits in the world of contracts or the world of enrichment.