Van Niekerk v Van den Berg 1965 (2) SA 525 (O)

Van Niekerk v Van den Berg 1965 (2) SA 525 (O)

Issue: Whether a person who has made a payment to another person under a mistake of fact is entitled to recover the payment, even if the other person has changed their position in reliance on the payment.

Facts:

Van Niekerk (the plaintiff) and Van den Berg (the defendant) were farmers. They were also neighbours.

The plaintiff mistakenly believed that a certain fence was on his property. The defendant knew that the fence was not on the plaintiff's property, but he did not tell the plaintiff.

The plaintiff then built a new fence on what he believed to be his property line. The new fence encroached on the defendant's property.

The defendant discovered the encroachment and demanded that the plaintiff remove the new fence. The plaintiff refused to remove the new fence.

The defendant then sued the plaintiff for the removal of the new fence and for damages. The plaintiff argued that he was not liable to remove the new fence or to pay damages because he had made the encroachment under a mistake of fact.

Held:

The Orange Free State Provincial Division held that the plaintiff was liable to remove the new fence and to pay damages for the encroachment. The Court reasoned that a person who has made a payment to another person under a mistake of fact is not entitled to recover the payment, even if the other person has changed their position in reliance on the payment.

The Court distinguished this case from the case of United Building Society v Smookler’s Trustees 1906 TS 623, where the Court had held that a person who has made a payment to another person under a mistake of fact is entitled to recover the payment. The Court reasoned that the case of United Building Society v Smookler’s Trustees 1906 TS 623 was an exceptional case and that the general rule is that a person who has made a payment to another person under a mistake of fact is not entitled to recover the payment, even if the other person has changed their position in reliance on the payment.

Key Facts:

• A farmer mistakenly believed that a certain fence was on his property and built a new fence on what he believed to be his property line. The new fence encroached on his neighbour's property.
• The neighbour discovered the encroachment and demanded that the farmer remove the new fence. The farmer refused to remove the new fence.
• The neighbour sued the farmer for the removal of the new fence and for damages. The farmer argued that he was not liable to remove the new fence or to pay damages because he had made the encroachment under a mistake of fact.

Reasons:

The Court held that the farmer was liable to remove the new fence and to pay damages for the encroachment because a person who has made a payment to another person under a mistake of fact is not entitled to recover the payment, even if the other person has changed their position in reliance on the payment.

Conclusion:

The Court's decision in Van Niekerk v Van den Berg 1965 (2) SA 525 (O) is a significant case in South African law. The Court's decision clarifies the law relating to the right of a person to recover a payment they have made under a mistake of fact.