Papers by Sfiso Benard Nxumalo
Constitutional court review, Nov 30, 2023
Obiter (Port Elizabeth. Online)/Obiter (Port Elizabeth), Jul 7, 2024
The pen is mightier than the sword. This epigram is especially true in the context of law. One of... more The pen is mightier than the sword. This epigram is especially true in the context of law. One of the many questions which has plagued the legal fraternity is whether or not a clause or provision in a suretyship which stipulates that the surety waives his or her right to rely on prescription as a defence to any claim under the suretyship is legally valid. The purpose of this paper is to: first, delve into the definitions of suretyship, principal, surety, waiver and prescription and dissect the nature of prescription; secondly, discuss the current stance of the law with regard to the aforesaid question; thirdly provide a counterargument; and finally, this paper will put forward the viewpoint of the author.
Obiter, Sep 29, 2022
Context in law is everything, or so says the aphorism. That said, to what extent should courts co... more Context in law is everything, or so says the aphorism. That said, to what extent should courts consider the surrounding context of a contract when interpreting and construing it and its provisions? Does the parol evidence rule preclude a court from taking into account contextual evidence or circumstances in interpreting contractual provisions? Or is the court restricted to the contractual provisions and nothing beyond the four corners of the contract? These are some of the central issues that were considered in University of Johannesburg v Auckland Park Theological Seminary (2021 JDR 1151 (CC)) (UJ CC). The Supreme Court of Appeal (Auckland Park Theological Seminary v University of Johannesburg 2020 JDR 0494 (SCA) (UJ SCA)) and the Constitutional Court had divergent views on the matter. This case note provides a critical analysis of both judgments, ultimately preferring the decision of the Constitutional Court.In the law of contract, it is trite that, generally, all personal rights may be freely transferred or ceded to a third party without requiring the consent or knowledge of the other contracting party, who has a correlative duty. This is known as cession. An example is necessary. Consider A’s deposit of R10 000 into B Bank where B Bank is contractually obliged to return the deposit on A’s demand. A then transfers his right to claim (or demand) his deposit to C. There is no requirement that A procures B Bank’s consent to cede his right to claim. For the sake of completeness, cession is a bilateral juristic act aimed at transferring a personal right from a cedent/creditor to another legal person (cessionary). The cessionary then wears the shoes of a creditor in the cedent’s place. Cession can be differentiated from delegation (which concerns the substitution of a debtor, as opposed to a creditor) and assignment (which refers to a combination of cession and delegation).However, the general rule of cession is subject to limitations. There are two crucial limitations in this regard. First, a right cannot be ceded where it is the subject of a pactum de non cedendo, which can generally be defined as an agreement to not cede. Accordingly, a contract may contain a provision that prevents a creditor from ceding a right without the debtor’s consent. An example of a pactum de non cedendo is where a tenant, in a lease agreement, is not permitted to cede her rights of occupation and possession unless there is prior written consent by the landlord. Secondly, there may be certain rights that are so personal in nature that they cannot be ceded. Such rights cannot be ceded because the identity of the creditor is paramount to the debtor and there is an expectation that the party initially contracted with will fulfil the obligations. Claims for pain and suffering in delict, and claims for maintenance, are traditional examples of such rights. These rights are classified as delectus personae.In light of that general background, the author turns to consider the case of University of Johannesburg v Auckland Park Theological Seminary (supra) with a particular focus on the judgments of the Supreme Court of Appeal and the Constitutional Court. To this end, this case note is structured as follows. First, the pertinent facts of the case are canvassed; secondly, the decision of the Supreme Court of Appeal is examined; thirdly, the findings of the Constitutional Court are analysed; and lastly, the author provides a critical evaluation of the judgments, and endorses the reasoning furnished by the Constitutional Court.
Constitutional Court Review, 2023
In Thubakgale & Others v Ekurhuleni Metropolitan Municipality & Others [2021] ZACC 45, 2022 (8) B... more In Thubakgale & Others v Ekurhuleni Metropolitan Municipality & Others [2021] ZACC 45, 2022 (8) BCLR 985 (CC), the Constitutional Court was confronted with a seemingly straightforward question: are constitutional damages competent and appropriate relief to vindicate an infringement of a socio-economic right? The Court was split in addressing this question. Jafta J’s judgment answered the question in the negative because, in his view, socio-economic rights can never attract constitutional damages; whereas, the minority judgment, per Majiedt J, held that constitutional damages may be awarded to vindicate violations of socio-economic rights, provided such damages constitute effective relief in light of the facts. In this article, I argue that, despite the seemingly straightforward question, the Court reasoned itself into a Gordian knot. I identify several reasoning defects that reveal the underlying weakness in the asserted justifications proffered by Jafta J’s judgment and to a degree, the minority judgment. I argue that the applicants all have property entitlements that are worthy of constitutional protection under Section 25(1) of the Constitution. I contend that Jafta J’s judgment ignores the plain text of Section 38 and Section 172(1)(b) of the Constitution and impermissibly fetters this wide discretion afforded to courts. Jafta J’s judgment also conflicts with previous jurisprudence of the Constitutional Court and the Supreme Court of Appeal. Undoubtedly, this has adverse consequences for the rule of law. Furthermore, Jafta J’s reasoning creates inequality between litigants who claim relief for socio-economic rights violations and those who seek to vindicate their civil and political rights. Moreover, Jafta J’s judgment mischaracterises all socio-economic rights as being subject to progressive realisation, and therefore courts can only examine the reasonableness of the legislative and other measures taken by the state. This is plainly not true as other socio-economic rights are not subject to the reasonableness standard. Jafta J’s judgment also follows the long tradition of the Constitutional Court by conflating the right contained in Section 26(1) with the obligations that arise under Section 26(2). It is argued that rights and obligations are analytically distinct and should not be conflated. The starting point should be to give primacy to rights by setting out their entitlements and benefits that are a denouement of specific rights and to then consider the obligations as a secondary endeavour. The progressive realisation caveat qualifies the obligation but not the right.
Obiter, 2022
Context in law is everything, or so says the aphorism. That said, to what extent should courts co... more Context in law is everything, or so says the aphorism. That said, to what extent should courts consider the surrounding context of a contract when interpreting and construing it and its provisions? Does the parol evidence rule preclude a court from taking into account contextual evidence or circumstances in interpreting contractual provisions? Or is the court restricted to the contractual provisions and nothing beyond the four corners of the contract? These are some of the central issues that were considered in University of Johannesburg v Auckland Park Theological Seminary (2021 JDR 1151 (CC)) (UJ CC). The Supreme Court of Appeal (Auckland Park Theological Seminary v University of Johannesburg 2020 JDR 0494 (SCA) (UJ SCA)) and the Constitutional Court had divergent views on the matter. This case note provides a critical analysis of both judgments, ultimately preferring the decision of the Constitutional Court.In the law of contract, it is trite that, generally, all personal rights ...
African Law Review, 2022
Excising property from the claws of colonial Eurocentric thought is necessary. It plays a crucial... more Excising property from the claws of colonial Eurocentric thought is necessary. It plays a crucial role in imbuing those who have been historically (violently) dispossessed of land and marginalised, with dignity and the freedom to construct their own lives as well as selfdetermine. Plainly put, property, in a postcolonial and decolonial world, plays a crucial and unique role by (re)centring those who, through the harshness of colonisation, were relegated to the margins of society. To borrow the words of Bob Marley, property, in postcolonial and decolonial contexts, is an essential verse in the "songs of freedom". To explicate the unique role of property in postcolonial and decolonial contexts, this paper will: First, set out the role that property played during colonisation, and touch on its effects; and secondly, dissect the role of property in postcolonial, decolonial contexts through the prism of decentering and dignity; self-determination; and reconstructing "use". The paper will look at South Africa, Ireland, and Australia.
Oxford Property Law Blog, 2021
In South Africa, the right to evict held by a property-holder is not merely incidental to propert... more In South Africa, the right to evict held by a property-holder is not merely incidental to property rights. The exercise of the right to evict must be understood against the bloody history of land dispossession through forced removals and evictions. These removals and evictions were initially effected through the barrel of the gun and trickery; later followed by an oppressive assemblage of laws. Evictions, which are generally seen as the logical corollary of the right to exclude, cannot be carried out without considering the historical injustices of colonialism and apartheid that displaced many Africans. Sections 25 (the property clause) and 26(3) (the right not to be arbitrarily evicted from one’s home) of the Constitution of the Republic of South Africa, 1996 recognise this imperative and actively attempt to secure property rights for those who have historically been deprived of, and denied, these rights.
African Law Review , 2021
The trilogy of decisions delivered in the case of Minister of Minerals and Energy v Agri South Af... more The trilogy of decisions delivered in the case of Minister of Minerals and Energy v Agri South Africa 2012 (5) SA 1 (SCA) gave rise to a hotbed of academic debate and confusion. This paper acts as a critique of the three respective decisions. As such this paper will:
- First, briefly delve into the Supreme Court Appeal’s (SCA) decision and criticise it accordingly.
- Secondly, dissect the majority and minority judgements of the Constitutional Court respectively and criticise the decisions accordingly.
- Thirdly, this paper will attempt to offer a different and arguably more viable approach to expropriation in relation to mining and prospecting rights.
Inkundla , 2017
The pen is mightier than the sword. This epigram is especially true in the context of law. One of... more The pen is mightier than the sword. This epigram is especially true in the context of law. One of the many questions which has plagued the legal fraternity is whether or not a clause or provision in a suretyship which stipulates that the surety waives his or her right to rely on prescription as a defence to any claim under the suretyship is legally valid. The purpose of this paper is to: first, delve into the definitions of suretyship, principal, surety, waiver and prescription and dissect the nature of prescription; secondly, discuss the current stance of the law with regard to the aforesaid question; thirdly provide a counterargument; and finally, this paper will put forward the viewpoint of the author.
Books by Sfiso Benard Nxumalo
Juta , 2022
Africa has a chequered history with democracy and democratic consolidation with some scholars exp... more Africa has a chequered history with democracy and democratic consolidation with some scholars expressing scepticism regarding the prospects of democratic projects in Africa. This scepticism is perhaps not entirely unfounded. At the same time, the last three decades have unveiled a diverse experience with democratic entrenchment throughout the continent, with some countries experiencing democratic progress, while others have stagnated or regressed. This divergence ignites recurring interests about the prospects for democracy on the continent. The last decade in particular has arguably seen more regression than progress although there are promising signs of democratic resilience.
This book explores the inherent challenges in embedding democracy in Africa. The contributors provide a diverse perspective on democratic governance in selected African states, highlighting the actors and factors responsible for democratic regression in Africa. The authors also reflect on the paradoxical and increasing popular demand for democratic governance at a time when authoritarian regimes are devising innovative strategies to circumvent democratic tenets. This situation is indicative of the continued relevance of democracy in African states and, as highlighted by some authors, demonstrates democratic resilience despite hostile political environments. The authors take this optimism further by exploring the role of regional supranational organisations and the courts in guarding democratic principles and acting as a bulwark against democratic regression. The authors draw from a diverse range of countries in Africa to explain some of the key causes and features of democratic regression and offer practical and contextual insights into measures aimed at strengthening democratic governance in specific African states.
Democracy in Africa will be a valuable resource for scholars interested in democracy, constitutional governance and human rights in Africa. It will be equally valuable to national, continental and international institutions and non-governmental organisations working in the area of democracy, governance and human rights.
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Papers by Sfiso Benard Nxumalo
- First, briefly delve into the Supreme Court Appeal’s (SCA) decision and criticise it accordingly.
- Secondly, dissect the majority and minority judgements of the Constitutional Court respectively and criticise the decisions accordingly.
- Thirdly, this paper will attempt to offer a different and arguably more viable approach to expropriation in relation to mining and prospecting rights.
Books by Sfiso Benard Nxumalo
This book explores the inherent challenges in embedding democracy in Africa. The contributors provide a diverse perspective on democratic governance in selected African states, highlighting the actors and factors responsible for democratic regression in Africa. The authors also reflect on the paradoxical and increasing popular demand for democratic governance at a time when authoritarian regimes are devising innovative strategies to circumvent democratic tenets. This situation is indicative of the continued relevance of democracy in African states and, as highlighted by some authors, demonstrates democratic resilience despite hostile political environments. The authors take this optimism further by exploring the role of regional supranational organisations and the courts in guarding democratic principles and acting as a bulwark against democratic regression. The authors draw from a diverse range of countries in Africa to explain some of the key causes and features of democratic regression and offer practical and contextual insights into measures aimed at strengthening democratic governance in specific African states.
Democracy in Africa will be a valuable resource for scholars interested in democracy, constitutional governance and human rights in Africa. It will be equally valuable to national, continental and international institutions and non-governmental organisations working in the area of democracy, governance and human rights.
- First, briefly delve into the Supreme Court Appeal’s (SCA) decision and criticise it accordingly.
- Secondly, dissect the majority and minority judgements of the Constitutional Court respectively and criticise the decisions accordingly.
- Thirdly, this paper will attempt to offer a different and arguably more viable approach to expropriation in relation to mining and prospecting rights.
This book explores the inherent challenges in embedding democracy in Africa. The contributors provide a diverse perspective on democratic governance in selected African states, highlighting the actors and factors responsible for democratic regression in Africa. The authors also reflect on the paradoxical and increasing popular demand for democratic governance at a time when authoritarian regimes are devising innovative strategies to circumvent democratic tenets. This situation is indicative of the continued relevance of democracy in African states and, as highlighted by some authors, demonstrates democratic resilience despite hostile political environments. The authors take this optimism further by exploring the role of regional supranational organisations and the courts in guarding democratic principles and acting as a bulwark against democratic regression. The authors draw from a diverse range of countries in Africa to explain some of the key causes and features of democratic regression and offer practical and contextual insights into measures aimed at strengthening democratic governance in specific African states.
Democracy in Africa will be a valuable resource for scholars interested in democracy, constitutional governance and human rights in Africa. It will be equally valuable to national, continental and international institutions and non-governmental organisations working in the area of democracy, governance and human rights.