HARARE – The High Court has dismissed a claim of unjust enrichment against Sarah Borcherds and Julian William Gerard Borcherds, who were accused of defrauding Delta Beverages Private Limited of US$1,093,648.12.
High Court judge Justice Gladys Mhuri found that the defendants had fully discharged their debt by paying the equivalent amount in RTGS dollars, as permitted by Section 4(1)d of Statutory Instrument 33/19.
The ruling emphasised that the defendants’ payment was in accordance with the law and therefore just.
The case centred around the defendants’ alleged fraudulent activities between 2016 and 2019, during which they instructed Delta Beverages’ bankers to transfer funds to their personal account.
The defendants admitted liability and paid the amount due in RTGS dollars on January 20, 2020.
The plaintiff argued that the defendants were unjustly enriched, as they had benefited from the proceeds of crime and only disgorgement of such benefit could cure the illegality.
“The last element in establishing unjust enrichment according to Gamanje (Pvt) Ltd supra states that for the claim of unjust enrichment to succeed there must not be any positive rule of law which refused an action to the impoverished person.
“The requirement suggests that in the presence of a positive rule of law that refused an action to an impoverished person such as the plaintiff the claim of unjust enrichment may fail at such instance.
“The benefit acquired by the defendants borrows its legitimacy from S.I 4(1)d of S.I 33/19 and therefore the claim of unjust enrichment fails on this point,” the judge stated.
The court, however, found that the defendants’ benefit was not illegal or unjust, as it was anchored in the application of a provision of law.
“The court therefore takes the view that the defendant’s benefit is not illegal or unjust as it borrows its legitimacy from a positive rule of law, in this case s.4(1)d of S. I 33/19.
“The defendants paid the sum due to the plaintiff in RTGS dollars because that is what the applied relevant rule of law permitted them to do. The respondent’s payment was in accordance with the law, and it is just because the law assumes it to be so.
“The court is therefore of the view that the respondents have discharged their debt in accordance with the relevant provision of law specified in s.22(1)d of the Finance Act No.2 of 2019. The argument of unjust enrichment is thereby dismissed.
“In the premise, plaintiff’s case therefore fails and it is ordered that its claim be and is hereby dismissed with each party bearing its own costs,” the judge ruled.
The defendants were represented by Titan Law, while Scanlen & Holderness acted for the plaintiff.
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