Browsing by Author "Sibanda, Nkanyiso"

Now showing 1 - 4 of 4
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    Analysing the transfer of ownership in the case of suspensive instalment agreements – a causal or abstract system and the implications thereof
    (University of the Western Cape, 2023) Morgan, Kirsty Kate; Sibanda, Nkanyiso
    South Africa follows an abstract system of transfer of ownership, as opposed to a causal system of transfer. Under an abstract system of transfer, the cause of the transfer, the iusta causa, is separated from and abstracted from the transfer of ownership itself. This results in the validity of the transfer of ownership being reliant on a real agreement and conveyance. The validity or invalidity of the underlying cause of the transfer is irrelevant for the purposes of determining whether ownership has passed. Instead, the validity of the transfer is dependent upon the real agreement and conveyance, specifically, delivery in respect of movable property. Delivery may take the form of either real or constructive delivery. In respect of constructive delivery, there is a numerous clausus of constructive delivery modes. In order to transfer ownership through the use of constructive delivery, the requirements of a particular mode must be met. The real agreement is insufficient on its own to affect transfer of ownership. The rigidity of the abstract system of transfer, although beneficial for legal certainty, can result in conceptual challenges at times. This thesis examines the conceptual challenges presented by the case of instalment agreements that reserve ownership until certain obligations are met. Specifically, analysing how and when the transfer of ownership, in the case of these types of credit agreements, takes place. This thesis analyses two approaches, the Lauritzen approach and the Info Plus approach, concluding that the latter approach provides the most equitable balancing of interests. The Info Plus approach allows ownership to transfer immediately, resulting in ownership passing to the transferee for the duration of the instalment agreement. The timing of the transfer, that is immediately, has important implications for other areas of law, in particular credit regulation as well as the law of cession and lease.
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    Exploring the possibilities of relaxing the privity principle of contract to accommodate the interests of third parties in South Africa
    (University of the Western Cape, 2018) Mbonderi, Bright; Sibanda, Nkanyiso
    This thesis investigates the possibility of relaxing the privity principle of contract to accommodate the interests of third parties in South Africa. It explores concepts relating to the doctrine of privity as well as the two legs that constitute this common law doctrine. It will draw lessons from the English legal system because English law of contract managed to reform the doctrine of privity in order to accommodate the interests of third parties to a contract. While this thesis is not a comparative study of England and South Africa, it will draw substantially from lessons that can be taken from England with regard to abrogating the privity principle of contract. England has been chosen as the point of reference because there has not yet been any other African country that has reformed this privity principle of the common law of contract in order to accommodate the interests of third parties.
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    A living customary law of commercial contracting in South Africa: some law-related hypotheses
    (Taylor & Francis, 2017) Hutchison, Andrew; Sibanda, Nkanyiso
    Inspired by calls to ‘decolonise’ South African law and legal education, this paper will posit some hypotheses as to the nature of a living customary law of commercial contracting from the perspectives of two South African contract law teachers. An account of the commercial format of customary contracting is largely absent from the law reports and leading legal textbooks in this country. The dominant narrative in existing legal sources, however, (which may be stereotyped), is of African communalism prevailing in customary contract practice. This is reflected, for example, in the discourse on ‘ubuntu’, which is being used at present as a vehicle for the constitutional transformation of the South African common law of contract. Other existing empirical accounts from discourses such as economics and anthropology also suggest, however, that contracting in indigenous African communities rests on notions of trust and community. This is reinforced by the existence of informal township dispute resolution structures. We will thus posit a central hypothesis that customary commercial contracting is relational in nature, using an inter-disciplinary literature review and drawing on the lived experiences of the authors. Other related hypotheses will also be developed. Ultimate truth here is a matter for future empirical study.
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    The Social Obligation Norm as the Framework for Land Restitution in South Africa
    (University of the Western Cape, 2017) Sibanda, Nkanyiso; Sulaiman, M.
    This research project proposes that the social-obligation norm of ownership should be adopted as the ethic on which land restitution is carried out in South Africa. While there exists a subtle and indirect appreciation of the social-obligation norm in South African constitutional property law, this is veiled by the respect given to the classical liberal conception of ownership which gives more regard to an owner's ius abutendi and subsequently, accepts that owners can do as they please with their property as long as they do not break any law. Of course, South Africa no longer adheres to such a classical liberalist approach to ownership. An adherence to classical liberalist views of ownership has arguably, led to the neglect of arable restituted land. To this effect, the Constitution as well as the Restitution of Land Rights Act 22 of 1994 (RLA) need to clearly and more positively express the social-obligation norm of ownership in order to promote productive and sustainable utilisation of cultivable restituted land. The thesis argues that the current failures of the land restitution programme are linked to the absence of a social-obligation norm in the RLA as well as the negatively framed Property Clause in the South African Constitution. Even the envisaged changes to the land restitution process as outlined in the 2011 Green Paper on Land Reform as well as in the Property Valuation Act, will not solve the current problems of wasteful neglect of land. The thesis therefore suggests that a positive expression and formulation of the social-obligation norm in the RLA as well as in the Property Clause will promote active, sustainable, productive, and optimal utilization of all cultivable land acquired through the country's land restitution process. This will assist with meeting the developmental aspirations for the rural economy as envisaged in chapter six of the National Development Plan 2030. Furthermore, utilising the land productively through the socialobligation norm is an expression of Ubuntu, a key constitutional theme in South Africa. The experiences of Brazil and Germany deserve special analysis. This is because the socialobligation norm occupies a prominent and positive place in the constitutional property law of both these countries. Further, both countries respect private ownership of property as long as the property is utilised in a manner that permits others to flourish and improve the quality of their life.