oa Comparative and International Law Journal of Southern Africa - Indigenous contract of exchange in Bophuthatswana
|Article Title||Indigenous contract of exchange in Bophuthatswana|
|© Publisher:||Institute of Foreign and Comparative Law|
|Journal||Comparative and International Law Journal of Southern Africa|
|Affiliations||1 Faculty of Law, Rand Afrikaans University|
|Publication Date||Jul 1988|
|Pages||212 - 227|
|Keyword(s)||Bartering, Bophuthatswana, Cebukulu v Xulu, Delivery, Exchange of ownership, Indigenous Law, Masekane case and Transfer of ownership|
In all African legal systems the transferor of goods must give warranty of title. Further, the rightful owner can pursue his property and recover it from an innocent acquirer. As in Bophuthatswana, it was held for groups in Natal and KwaZulu that the parties must have valid title of what they deliver in a contract of exchange or sale, that ownership cannot be transferred by delivery if the transferor has no valid title, and that the real owner can recover his stolen property from an innocent transferee - Hlatshwayo v Hlongwane and Cebekulu v Shandu. In the first-mentioned case it was also held that a real owner whose cattle have been attached for the debt of someone else, does not lose his right to recover them. Ownership of an animal or other movable thing to be exchanged or sold passes through delivery, whereafter the transferee bears the risk and is entitled to the increase - Mbulawa v Fokseni, Masikane v Katini, and Cebukulu v XulU. All these cases refer to the law for the amaZulu in Natal and Kwazulu.
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