Subsidiarity of the general action for unjust enrichment (part 1)

In McCarthy Retail Ltd v Shortdistance Carriers CC the court found that one of the restraints to a general action for unjust enrichment is the belief (or fear) that a tide of litigation would be let loose. Initially there may be some surge of litigation, particularly under the emotive banner of “unjust enrichment”. But, the court continues, it should not last long, once the restrictions even on a general action are appreciated. This article is about one of these restrictions of this, in this decision prospectively recognised, general action, more specifically its subsidiary nature. After a short discussion of four cases in which the general action for unjust enrichment played or could play a certain part, the concept of subsidiarity as such will be discussed more thematically. Then follows a country-by-country comparative survey that leads to a conclusion, which is a plea for a flexible notion of subsidiarity in South African law.