Comprehensive Study Notes: Private International Law

Based on Lecture Slides, Study Unit Materials, and Forsyth’s Textbook

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PART ONE: INTRODUCTION TO PRIVATE INTERNATIONAL LAW

What is Private International Law?

Private International Law (PIL) answers one central question: What legal
system is applicable when a dispute has connections to more than one
country? You may also hear this subject called the "Conflict of Laws" (the
traditional English name), "Choice of Law" (in the United States), or
"International Private Law" (in Scotland). In South Africa, we call it Private
International Law.

The most important thing to understand is that Private International Law is

part of a national legal system. This means each country has its own
unique set of PIL rules. South African PIL is different from English PIL,
which is different from German PIL. There is no single, universal code that
all countries follow.

Why Do We Study Private International Law?

Consider this example: Lungani and Lerato are South African nationals.
They meet and get married in Japan, and their marriage is perfectly valid
under Japanese law. However, that same marriage might not comply with
the formalities required by South African law. For years, this causes no
problem. But what happens if they move back to South Africa?

Suddenly, serious questions arise:

· Are they validly married in the eyes of South African law?

· Can they get divorced in a South African court?

· If they divorce, what law governs the division of their property (the
proprietary consequences)?

· What law determines who gets custody of their children?

Without Private International Law, a South African court might simply

apply its own law (the lex fori) and declare the marriage invalid. That
would be unjust. PIL provides the rules to select the appropriate law – in
this case, the law of Japan where the marriage was celebrated.

Memory Aid: Think of PIL as the "GPS for legal disputes" – when a case
crosses borders, PIL tells the court which legal system to follow.

Important Latin Terminology

You will encounter these terms constantly. Keep them on a flashcard:

· Lex Fori – The law of the court (forum) where the case is being heard.

· Lex Causae – The law that is selected by the choice of law rules to
govern the dispute. This is the "applicable law."

· Lex Domicilii – The law of the place where a person is domiciled.

· Lex Loci Celebrationis – The law of the place where a marriage was
celebrated.

· Lex Loci Delicti Commissi – The law of the place where a delict (wrong)
was committed.

· Lex Rei Sitae (or Lex Situs) – The law of the place where property is
situated.

· Lex Patriae – The law of a person's nationality.

· Lex Loci Contractus – The law of the place where a contract was
concluded.

· Lex Loci Solutionis – The law of the place where performance under a
contract is due.
Two Types of Choice of Law Rules

Unilateral Rules

A unilateral rule tells you when the law of the forum (the court's own law)
applies. It does not help you select a foreign law; it simply says "our law
applies in these circumstances."

Example: Section 10 of the Marriage Act 25 of 1961. This section deals

with marriages performed overseas by South African diplomatic officials. It
says that when a South African diplomatic official officiates a marriage
between South African citizens domiciled in the Republic, that marriage is
deemed to have been celebrated in the province where the male party is
domiciled. The effect is that South African law applies, not the law of the
country where the ceremony actually took place.

Other examples of unilateral rules can be found in the Consumer

Protection Act, the National Credit Act, and the Electronic Communications
and Transactions Act.

Problems with unilateral rules:

First, the "lawless" problem: what if Country A has jurisdiction but its
unilateral rules do not cover the situation, and no other law claims to
apply? Does the dispute float in a legal void?

Second, the "clash" problem: what if both Country A and Country B have
unilateral rules asserting that their own law should apply? Which one
wins?

Third, the "foreign rule" problem: what if only Country B's unilateral rule
says its law applies, but Country A's rules are silent? Should Country A
apply B's law?
Because of these difficulties, the preferred approach is to use multilateral
rules wherever possible. Multilateral rules do not favour any particular
legal system; they use connecting factors to point to the appropriate law,
whether local or foreign.

The Four Stages of the Choice of Law Process

When a court faces a dispute with a foreign element, it works through

these steps:

Stage 1: Jurisdiction. Before anything else, the local court must have the
power to hear the case. In this module, we generally assume that this step
is satisfied and focus on the choice of law questions.

Stage 2: Classification (Characterization). The court must determine what

type of case it is dealing with. Is this a marriage validity case? A contract
dispute? A delict claim? The classification determines which choice of law
rule to use.

Stage 3: Determine the Lex Causae. The court looks at the connecting
factors (the "nexus") that link the dispute to particular legal systems. For
example, in a marriage case, the place of celebration is the connecting
factor. The court applies the choice of law rule to identify which legal
system's law will govern the dispute.

Stage 4: Ascertain the Content of the Lex Causae. Once the court knows
which legal system applies, it must find out what that foreign law actually
says. There are three main ways to do this: expert evidence (a legal
practitioner from the foreign country gives evidence), judicial notice (the
court can take judicial notice of foreign law if it is not outdated and the
sources are clear), or submission of an act or statute (a party hands a
copy of the relevant foreign statute to the court).

For matters of domicile or contracts concluded electronically, the law of

the forum (lex fori) gives content to the interpretation of connecting
factors. For example, the Electronic Communications and Transactions Act
helps interpret where a person is domiciled for an online contract.
However, when nationality is the connecting factor, the lex patriae (law of
the nationality) determines the content – not the lex fori.

Finally, the application of foreign law cannot lead to a result that violates
South African public policy.

Sources of South African Private International Law

South African PIL draws from several sources: case law, Roman-Dutch
authors, foreign law and foreign case law, South African academic
writings, South African legislation and the Constitution, international legal
instruments (treaties and conventions), English PIL (historically influential,
though its influence is changing), and considerations of justice and
convenience.

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PART TWO: DOMICILE

What is Domicile?

The leading definition comes from Mason v Mason: "Domicile means the
place or the country which is considered by law to be a person's
permanent home." Three key points flow from this definition. First,
domicile creates a legal link between a person and a place. Second,
domicile is a legal concept, not merely a fact – a person may be domiciled
somewhere they have never physically been (think of a domicile of origin).
Third, domicile is artificial – it is created by legal rules, not simply by
where a person lives.

Why is Domicile Important for Private International Law?

Domicile acts as a crucial connecting factor for family relations (which law
governs marriage, divorce, and parent-child relationships), status matters
(which court has jurisdiction over matters affecting a person's legal
status), succession (the distribution of a deceased person's movable
property is governed by their domicile at death – the lex ultimi domicilii),
and contractual capacity (a person's ability to enter into binding contracts
can depend on their domicile).

The Two Main Principles of Domicile

Principle 1: Everyone must have a domicile at all times. No natural person

can ever be without a domicile. Even if you have barely any connection to
any place, the law will assign you a domicile.

Principle 2: You can only have one domicile at any given time. You cannot
be domiciled in two different places simultaneously. This ensures that
domicile can serve its function of pointing to a single, determinate legal
system.

Types of Domicile

Under the Roman-Dutch common law, there were three types: domicile of
origin, domicile of choice, and domicile of dependence. Under the
Domicile Act 3 of 1992 (current law), there are two types: domicile of
choice and assigned domicile.

Domicile of Origin

A domicile of origin is acquired automatically at birth by operation of law.

It is the place with which the person is most closely connected at birth –
typically, the domicile of the father (if the child is legitimate) or the
mother (if illegitimate). The domicile of origin persists until it is replaced
by a new domicile (a domicile of choice). However, section 3 of the
Domicile Act provides that if a person abandons their domicile of origin, it
will not automatically revive. See Grindal v Grindal 1997 (4) SA 137 for an
illustration of this principle.
Domicile of Choice

A domicile of choice is acquired by a person who: has legal capacity (over

18 years of age), has the required mental capacity (able to make a
rational choice), is physically present in the chosen place, has the
intention to remain indefinitely (animus manendi), and is lawfully present.

Physical presence requirement: There is no minimum time requirement for

physical presence. A short period of presence with the required intention
may be sufficient, although the court will consider the length of physical
presence as evidence of intention. It is easier to prove animus manendi if
you have been physically present for a reasonable period. Both
requirements (physical presence and intention) must coincide at some
point in time. You might first settle in a place and only later form the
intention to remain indefinitely – that is acceptable. Once domicile is
established, continued physical presence is not required.

Lawful presence: Illegal immigrants or aliens cannot acquire a domicile of

choice, regardless of their intention. However, in Van Rensburg v Ballinger
1950 4 SA 427 (T), a prohibited immigrant who was openly allowed by
authorities to reside in South Africa could acquire a domicile of choice
here.

Historical restrictions (now changed): Previously, soldiers, sailors of

foreign countries, diplomats, police officials, and public servants could not
acquire a domicile of choice in South Africa while in service of a foreign
government or business. The reasoning was that they were not here
voluntarily but because they were instructed by a foreign authority –
hence no genuine animus manendi. McMillan v McMillan 1943 TPD 343
represents this old approach. Baker v Baker 1945 AD 708 (obiter dictum)
suggested a person could acquire a domicile of choice in South Africa if
they had a final and deliberate intention of abandoning their previous
domicile. Naville v Naville 1957 1 SA 280 (C) changed the approach – a
diplomat can now acquire a domicile of choice in South Africa while still in
the service of a foreign country.
Animus manendi – the intention requirement: The required intention is to
remain for an indefinite period – not permanently. This is a crucial
distinction. The leading cases are Ley v Ley's Executors and Eilon v Eilon.
You do not need to exclude the possibility that you might leave again in
the event of unforeseen circumstances. A person can have the intention to
remain indefinitely while acknowledging that life might change. The
factors the court considers to determine animus manendi include: the
objective element of residence (the fact of living in the place), the
subjective element of intention to remain indefinitely, emotional
attachment to the country of origin, and the length of the period of
residence. See also Toumbis v Antonio and Erskine v Chinatex Oriental
Trading Co.

Memory Aid: "INDEFINITE not PERMANENT" – you can plan to stay forever,
but you only need to plan to stay for an unknown future period.

Domicile of Children

Under the old common law, a child took the domicile of the father (if the
parents were married) or the mother (if unmarried). This was called the
domicile of origin. The current position under the Domicile Act is the place
of closest connection. There is a rebuttable presumption that the parental
home is the child's domicile if the child lives with their parents most of the
time. A person who lacks the capacity to choose their own domicile, such
as a child, is domiciled at the place with which they are most closely
connected.

Domicile of Married Women (Historical and Current)

Under the old common law, a wife automatically followed the domicile of
her husband. This was called the domicile of dependence for married
women. Under the Domicile Act, a married woman can now acquire her
own domicile of choice independently of her husband. If she does not
acquire a new domicile, she retains the domicile she had at the time of
marriage.

Domicile of Mentally Ill Persons

Under the old common law, a mentally ill person had a domicile of
dependence – they followed the domicile of their curator. Under the
Domicile Act, the rule is now the place of closest connection.

Domicile of Companies

Under the new Companies Act, a company's domicile is its place of

registration (place of incorporation). Under the old law, it could also be the
place of principal business, but that is no longer the case.

Domicile as a Connecting Factor – The Role of Lex Fori

The lex fori determines what content must be given to a connecting factor.
This means that when a choice of law rule uses "domicile" as the
connecting factor, South African law decides what "domicile" means. The
authorities are Ex parte Jones: In re Jones v Jones 1984 4 SA 725 (W) and
Chinatex Oriental Trading Co v Erskine 1998 4 SA 1087 (C). The exception
is when nationality is used as a connecting factor (e.g., in some
succession matters), the lex patriae (law of the nationality) determines
the content.

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PART THREE: MARRIAGE AND PRIVATE INTERNATIONAL LAW

Why Marriage Needs PIL

The marriage relationship perfectly demonstrates why Private

International Law is necessary. People of different domiciles and
nationalities fall in love, travel, study abroad, and marry in countries that
are foreign to them. For example, Solomon (Ghanaian but domiciled in
South Africa) and Silandiso (Zimbabwean but domiciled in Mozambique)
meet as students at Oxford University in London and marry in the United
Kingdom. Or a Zimbabwean national domiciled in South Africa marries a
Namibian national domiciled in Namibia, and the marriage ceremony
takes place in eSwatini. Years later, when the couple falls out of love, the
validity of their marriage may be questioned before the courts of any
country – their country of nationality, their domicile, their residence, or
some other place entirely.

Modern complication: What if the marriage ceremony takes place online?

Where is the lex loci celebrationis for a virtual wedding? "White marriage"
versus traditional marriage raises the question: what is the lex
celebrationis?

Same-sex marriages: With the widespread recognition of same-sex unions,

this area of PIL has been significantly impacted.

The General Rule: Validity of Marriage is Tested by the Lex Loci

Celebrationis

The conflict rule is clear: the validity of marriage is governed by the law of
the place where the marriage was celebrated. The leading authority is
Seedat's Executors v The Master (Natal) 1917 AD 302, where Innes CJ
stated: "the general principle is that the validity of marriage is governed
by the law of the place where it was contracted."

Why this rule is distinctive: This rule marks Roman-Dutch PIL as different
from the English rule and the rules prevailing in many other countries.
Many legal systems draw a distinction between essential validity
(governed by the personal law – either lex patriae or lex domicilii) – which
covers matters like capacity to marry, prohibited degrees of relationship,
and genuine consent – and formal validity (governed by the lex loci
celebrationis) – which covers whether the correct ceremonies and
formalities were followed. Deciding whether a particular rule relates to
formal or essential validity is difficult. South African law avoids this entire
classification problem by using the lex loci celebrationis for both.

Advantages of the South African rule: It is clear and simple – the place of
celebration is readily ascertainable. It is easy to apply – no need for
complex classification questions. It reduces "limping marriages" – a
marriage is either valid everywhere or invalid everywhere.

The problem with the double-barrelled test: Legal systems that distinguish
between essential and formal validity apply a double-barrelled test: a
marriage must be essentially valid under the personal law and formally
valid under the lex loci celebrationis. This creates more opportunities for
marriages to be declared invalid.

Exceptions to the General Rule

Exception 1: Section 10 of the Marriage Act 1961

This provision allows persons in South Africa's diplomatic and consular

services to be authorised to solemnise marriages in the countries where
they are stationed. The requirements for a Section 10 marriage are: only
marriages between South African citizens domiciled in the Republic, must
be solemnised in accordance with the Marriage Act 1961, and the
marriage is deemed for all purposes to have been celebrated in the
province where the husband is domiciled.

Recognition outside South Africa: Such marriages will generally not be

recognised outside South Africa because they do not comply with the lex
loci celebrationis of the host country. Most countries require compliance
with local formalities for marriages performed within their territory.
Couples who wish their marriage to be internationally recognised should
celebrate their marriage in accordance with the local form as well.

Exception 2: Where There is No Local Form or the Local Form is

Inappropriate

What happens when a couple finds themselves in a place with no

established legal order to solemnise a marriage? Think of a desert island,
or a place where the only available form is polygamous when the couple
wants a monogamous marriage.
English law solution: English law recognises a "common law marriage" in
such cases – where the man and woman take each other as husband and
wife, per verba de praesenti (using present words of consent). This
creates an immediate and binding marital relationship, as opposed to per
verba de futuro (a promise of future marriage).

Other Western legal systems: Such marriages are also upheld in Belgium,
Germany, France, and Italy.

Professor Kahn's submission: South African law should extend recognition

to marriages celebrated in Christian form, or if that form is not available or
inappropriate, by simple agreement. This suggestion has considerable
merit. Historically, prior to the Council of Trent, marriage was constituted
by the consent of the man and woman alone. In Friesland, consent alone,
without state or church intervention, constituted a valid marriage.

Exception 3: Marriages Aboard a Ship on the High Seas

Almost all legal systems regard marriages performed on a ship on the

High Seas as governed by the law of the flag of the ship – generally
understood to be the law of the port where the ship is registered.

Essential (Intrinsic/Inherent) Validity of Marriage

Roman-Dutch authority and case law support the view that essential
validity (including the capacity to marry) is determined solely by the law
of the place where the marriage is celebrated. South Africa does not
distinguish between essential and formal validity.

The Doctrine of Fraus Legis (Evasion of the Law)

Even though the lex loci celebrationis is the general rule, the lex domicilii
is not entirely excluded. The fraus legis doctrine provides a check.
The rule: When a man or woman (or both) who are domiciled in the court's
area deliberately have their marriage solemnised elsewhere to escape
some essential requirement of their domiciliary law (which is also the lex
fori), they act in fraudem legis. Their marriage will then be tested by the
local law as the lex domicilii.

Recognition of the doctrine: The fraus legis rule is widely recognised in

many legal systems, including French and German law. It is accepted by
old authorities, academic writers, and decided cases.

Why the doctrine is needed: Where a legal system tests essential validity
by the lex domicilii, there is little need for a separate evasion doctrine. But
where (as in South Africa) the lex loci celebrationis alone governs, parties
could too easily evade their domiciliary restrictions by travelling
elsewhere to marry. Hence the need for fraus legis.

Limits of the doctrine: The doctrine always voids marriages – it never

upholds them. But our law's policy favours upholding marriage wherever
possible. The operation of the doctrine introduces uncertainty – proof of
evasive intent is difficult and unpredictable. For these reasons, the
doctrine should be used sparingly; its use should not be extended.

What constitutes evasive intent? The precise nature of the defrauding

intent is uncertain. There is little authority on whether both parties need
the evasive intent. It is perhaps implicit in the old authorities that the
person whose domiciliary law is being evaded should have the evasive
intent. In marriage cases where one party is evasive and the other
innocent, it seems harsh to strike the marriage down against the innocent
party.

The evasive intent required should be dolus directus – the purpose of

celebrating elsewhere must have been to evade the domiciliary law.
Convenience, preferences of relatives, or foresight of the possibility that a
domiciliary incapacity will not apply in the chosen locus (without more) do
not constitute evasion.
Example: A marriage between an uncle and niece may be valid under the
lex loci celebrationis but invalid in South Africa. If the parties, domiciled in
South Africa, go to a country where such marriage is permitted for the
sole purpose of evading the prohibition and then return home after the
ceremony, South African courts will deem their union invalid under the
fraus legis doctrine.

Case illustration: Kassim v Ghumran and Another 1981 Zimbabwe LR 227.

Ghumran and Kassim eloped from Zimbabwe to Malawi to marry. Kassim
was only 15 years old. Under Zimbabwean law (Kassim's domiciliary law),
her parents' consent was required for marriage, and that consent had
been refused. The couple was tricked into returning to Zimbabwe.
Ghumran was arrested for abduction. Kassim's father sought an order
declaring the Malawian marriage void. Pittman J decided the case on the
basis of fraus legis, not on the lex loci celebrationis. He held that where
one or both parties were domiciled in the court's area and deliberately
solemnised their marriage elsewhere to escape an essential requirement
of the lex domicilii (which was also the lex fori), they acted in fraudem
legis, and their marriage is tested by the local law as the lex domicilii. He
also held that it is not necessary that the parties intend to return to
Zimbabwe once their evasion is complete.

The Principle of Public Policy

When the result of applying the lex loci celebrationis would be repugnant
to the moral principles of the court, the court will refuse recognition to the
marriage. The result must not merely be different from or unknown to the
lex fori; it must offend fundamentally the moral principles of that court.
Because marriage is a fundamental institution of society, public policy will
raise its head here.

Incestuous unions: Old authorities are clear that incestuous unions are
"revolting" and will be denied recognition, even if valid under the lex loci
celebrationis. The difficulty is determining how closely related the parties
can be before the union is "too revolting." The consensus is that the union
of siblings (half-blood or full-blood) and the union of any blood relatives in
the direct line (parent-child, grandparent-grandchild) fall beyond the line
and are void. Marriages between collaterals more distantly related than
brother and sister (e.g., uncle and niece), and marriages between affines
(in-laws), are upheld if valid under the lex loci. See Cheni v Cheni 1965 P
85, [1962] 3 All ER 873.

Youthful marriages: In Banubhai v Chief Immigration Officer (1913), 34

NLR 251 at 266-267, the court was unwilling to recognise the marriage of
a child of 9 for the purpose of determining his domicile. Although there is
no clear authority, such youthful marriages will be treated as void,
regardless of the position under the lex loci.

Lack of consent: Where there was no consent – whether because it was

not required, or through fraud, duress, or error – the marriage will not be
upheld, even if it is valid under the lex loci.

Polygamous Marriages – A Changed Landscape

Definition: Polygamous marriages are those "celebrated under tenets

which do not forbid the plurality of spouses, whether or not one party has
in fact a plurality of spouses."

Historical position: For many years, polygamous marriages were

considered contra bonos mores and not recognised in South Africa, except
where statute made specific provision. This policy of non-recognition was
profoundly problematic because polygamy is a social reality in South
Africa and around the world. To deny any matrimonial relief to the "wife"
of a potentially polygamous marriage that has been de facto monogamous
throughout its course seemed harsh and unjust.

The constitutional transformation: Following South Africa's constitutional

transformation, the policy of non-recognition has itself been transformed.
The courts (including the Constitutional Court) first made plain that de
facto monogamous marriages will now generally be recognised. More
recently, an actually polygamous marriage was recognised by the
Constitutional Court. Specific legislation has been passed to cover
customary unions: the Recognition of Customary Marriages Act 120 of
1998. The same may follow for Islamic marriages.
The new approach to public policy: In Hassam v Jacobs NO and Others,
Nkabinde J stated: "the content of public policy must now be determined
with reference to the founding values underlying our constitutional
democracy, including human dignity and equality, in contrast to the rigidly
exclusive approach that was based on the values and beliefs of a limited
sector of society as evidenced by the remarks in [earlier cases]."

The Consequences of Marriage – A Twofold Classification

In the civil law tradition, the legal consequences of marriage are divided
into two categories: personal consequences and proprietary
consequences.

Personal consequences regulate the personal relations of the parties to

each other. They form the invariable consequences of marriage and
generally cannot be displaced by antenuptial contracts. Examples include:
duty of support, duty of co-habitation, duty of fidelity and respect, a wife
may take her husband's surname, retain her maiden name, or use a
double-barrelled surname, donations between the parties, legal
transactions between husband and wife, and the effect of marriage on
legal capacity to contract, to acquire and alienate property, to sue and be
sued.

Proprietary consequences concern the property rights of the spouses

arising from the marriage. Examples include: whether the marriage is in
community of property or out of community, whether a regime of partial
community is established, the validity of ante-nuptial or post-nuptial
contracts, the effect of insolvency, voluntary or judicial separation, and
the division of a joint estate upon divorce.

The Personal Consequences of Marriage – The Governing Law

The central rule: Where the personal consequences of marriage are in

issue, the domiciliary law of the spouses at the time the act or transaction
in dispute was performed governs.
The problem of different domiciles: Now that husbands and wives may
have different domiciles (under the Domicile Act 3 of 1992), the question
arises: which law applies when those domiciles are different?
Unfortunately, the Domicile Act makes no provision for this situation, as it
did not arise under the common law. Professor Kahn's solution is that the
domicile of the spouse which is more closely connected with the act or
transaction in dispute should apply. This issue typically arises in cases
involving the validity of a transaction between one spouse and a third
party. In such cases, it is the domicile of the party whose act is in dispute
that should govern.

Exceptions to the general rule:

First, considerations of commercial convenience and the protection of

third parties mean that, on occasion, the lex loci contractus rather than
the lex domicilii will be used to determine a married woman's contractual
capacity. For example, a married woman travels to a place where the
incapacity that exists under her domiciliary law does not exist. She enters
into contracts there with persons who have no reason to know of her
incapacity. It would be unjust to allow her to later raise that incapacity as
a defence. Shopkeepers cannot be expected to investigate the domicile of
every customer before extending credit.

Second, where the transaction relates only to the spouses inter se and
does not concern third parties directly, the lex domicilii governs. For
example, if the right of recourse of one spouse against the other for the
cost of household necessaries is in issue, the lex domicilii of the party who
incurred the expenses will govern.

Third, whether an act constitutes a ground for divorce is determined for

persons domiciled in South Africa by South African law, which is the lex
fori – not by the law of the place where the act occurred (if at the time
they were domiciled there).

Fourth, the domicile of the spouses is subject to the public policy of the
forum. For example, where under a foreign lex domicilii, a husband is
entitled to chastise his wife, this would contravene South Africa's public
policy. In this case, the governing law will be the lex fori.
The Proprietary Consequences of Marriage

Where There is No Antenuptial Contract

The rule, clearly established by a number of Appellate Division decisions,

is that where there is no antenuptial contract, the proprietary
consequences of the marriage are governed by the husband's domiciliary
law at the time of the marriage.

In Brown v Brown 1921 AD 478, Innes CJ said: "It is a clear rule of law that
the rights of spouses in regard to property must be regarded as regulated
once and for all by the law of the domicile at marriage" – that is, at the
time of the marriage.

In Frankel's Estate and Another v The Master and Another 1950 (1) SA
220, after an extensive review of the old authorities and debate, a
unanimous bench concluded that in the absence of an express agreement,
the law of the husband's domicile at marriage prevailed. In Sperling v
Sperling, the court did not doubt the correctness of this rule.

Two important aspects of the rule:

First, the law selected by this rule applies to all property of the spouses,
whether acquired before or after marriage (see Sperling v Sperling at
716H and Union Government v Larkan 1915 CPD 681 at 685), and
whether movable or immovable (see Chiwell v Carlyon 1897 14 SC 61).
This implies a considerable deviation from the rule that immovables are
governed by the lex situs. The well-known predominance of the lex situs
over immovables is based on the fact that the lex situs alone will be able
to determine the fate of particular immovable property. If the law of the
husband's domicile ordains community of property but the lex situs of
certain land allegedly in the community denies this, it will be the lex situs
which prevails.
Second, the matrimonial domicile determines the law applicable to the
proprietary consequences of the marriage, once and for all. This is called
the principle of immutability. Once the proprietary regime is determined
by the matrimonial domicile, it cannot be changed during the subsistence
of the marriage. The advantage of the immutability principle is that it
ensures that the husband cannot disadvantage his spouse by shifting his
domicile to a place where the wife's proprietary position is weaker. The
parties know where they stand and they know that their proprietary
regime is fixed and secure.

In accordance with general principle, changes in the matrimonial

domiciliary law intended to affect marriages solemnized before the
change will be effective, even if the parties have since changed their
domicile (see Sperling v Sperling). Public policy will be an overriding check
in such cases, but some relatively drastic changes in matrimonial regime
have not been held to be contrary to public policy. In the Sperling case, a
change of matrimonial property regime from out of community of property
to a community of property acquired after marriage was held not contrary
to public policy.

The fact that the parties, when they married, intended to assume a new
domicile, and in fact did so, does not affect the applicability of the
matrimonial domicile (see Frankel's Estate v The Master).

Where There is an Antenuptial Contract

The proprietary rights of the parties may be regulated by an antenuptial

contract.

Formal validity: The formal validity of a written antenuptial contract

entered into by prospective spouses outside the Republic will be valid
inter partes if it conforms to the lex contractus, or in the alternative, the
proper law of the contract, whether the subject matter concerns movables
or immovables.

Essential validity: The essential validity of the antenuptial contract

affecting either movables or immovables will be determined by the
husband's lex domicilii at marriage. The validity of a choice of law clause
in an antenuptial contract will be determined by the law of the
matrimonial domicile.

The Impact of Constitutional Values

The Domicile Act 3 of 1992, granting wives the capacity to acquire

domiciles separate from their husbands, has not affected this rule.
However, the rule that the law of the husband's domicile at the time of
marriage determines the proprietary consequences of marriage does on
its face fall foul of the equality clause of the Constitution of the Republic of
South Africa, section 9, which enshrines equality and outlaws unfair
discrimination on the grounds of, inter alia, gender or sex. The South
African Law Commission Report on Domicile Project of 1990 recommended
that there be no change in the existing law. But this rule, although not yet
found to be unconstitutional, has become highly problematical on
constitutional grounds. The rule breaches the principle of gender equality.
It is impossible to apply in the context of same-sex unions.

In Fourie and Another v Minister of Home Affairs and Others, the

Constitutional Court held that provisions of South African law that
established marriage as "union of one man with one woman, to the
exclusion, while it lasts, of all others" amounted to a breach of section
9(3) as being unfair discrimination on the grounds of sexual orientation.
Subsequently, Parliament enacted the Civil Unions Act 17 of 2006, which
provided for same-sex marriage.

The problem, however, is how can one apply the conflict rule "the
proprietary consequences of marriage are governed by the law of the
husband's domicile" when there may be no husband or there may be two
husbands? To have a special rule for same-sex unions will be contrary to
the equality principle. So what will be required is a complete reform of the
choice of law rule governing the proprietary consequences of marriage,
not only for same-sex unions but for all unions. Perhaps the appropriate
connecting factor, if it is not to discriminate, will be one that both parties
have in common. Where the parties have the same domicile, nationality or
habitual residence, it is easy to contrive an appropriate rule. But there will
always be a couple that do not have a common connecting factor.
Alternatives to the existing rule (where there is no antenuptial contract or
where there is an antenuptial contract but the parties did not choose any
law): Several scholars have suggested reform, but there has not been any
legislative reform yet. The scholars include Stoll and Visser ("Aspects of
the Reform of German (and South African) Private International Family
Law" 1989 De Jure 330), Schoeman ("The South African conflict rule for
proprietary consequences of marriage: Learning from the German
experience" 2004 TSAR 115), Neels ("The revocation of wills in South
African private international law" 2007 ICLQ 613), Neels and Wethmar-
Lemmer ("Constitutional Values and the Proprietary consequences of
Marriage in private international law" 2008 TSAR 587), Neels and
Fredericks ("The proper law of the proprietary consequences of marriage:
Mauritian law in the South African supreme court of appeal" 2015 TSAR
918), and Neels ("Law applicable to the proprietary consequences of
marriage in South Africa - the influence of German PIL" in Hugo and
Mollers (eds) Transnational Impacts on law: Perspectives from South Africa
and Germany (2017) 115-130). See also the cases Sadiku v Sadiku
(30498/06) 2007 ZAGHPC 1, AS v CS 2011 2 SA 360 (WCC), and Lenferna
v Lenferna (120/13) [2013] ZASCA 204.

A communis opinio doctoris seems to have developed among scholars of

South African private international law on the rule to replace the common
law, at least in respect of the following four steps:

Step 1: The proprietary consequences of marriage are governed by the

law chosen by the parties in an antenuptial contract.

Step 2: In the absence of an antenuptial contract or in the absence of a

choice of law in an antenuptial contract, the proprietary consequences of
marriage are governed by the law of the country of the common domicile
of the parties at the time of the marriage.

Step 3: If they do not have such a common domicile, the law of the
common habitual residence of the parties at the time of the marriage
applies.

Step 4: If they do not have such a common habitual residence, the law of
the common nationality of the parties at the time of the marriage applies.
The authors differ in respect of the final step of the rule (step 5).
According to one group of authors (Stoll and Visser 335; Neels (2007) 619-
620; Neels and Wethmar-Lemmer 588; also see the Fourie case (SCA) 315
n 112; and Collins (ed) II Dicey, Morris and Collins on the Conflict of Laws
(2012) 1465-1466), if the parties do not have a common domicile,
habitual residence or nationality at the time of the marriage, the law of
the country to which both spouses are most closely connected at the time
of the marriage applies. The other authors (including Schoeman "The
connecting factor for proprietary consequences of marriage" 2001 TSAR
72; Schoeman "The South African conflict rule for proprietary
consequences of marriage: learning from the German experience" 2004
TSAR 115; and Schoeman "The South African conflict rule for proprietary
consequences of marriages: the need for reform" 2004 IPRax 65)
tentatively suggest that, if the parties do not have a common domicile,
residence or nationality at the time of the marriage, the law of the country
where the marriage was concluded must be applied (see also Forsyth 302;
cf Schulze 661).

On the one hand, the place of the conclusion of the marriage may be
totally unrelated to the parties. On the other hand, the law of closest
connection will be difficult to determine if there is no common domicile,
habitual residence or nationality. But in some instances the facts of the
particular case may clearly indicate a certain decision. According to
Forsyth, the law of the closest connection is more of a guesswork and
would clearly be unpredictable. He rather recommends the lex loci
celebrationis which might operate in a fortuitous or arbitrary manner but it
would still be clear. The majority of South African authors support the
application of the law of the country of closest connection rather than the
lex loci celebrationis as the ultimate step. German private international
law (on which all current South African proposals are based) also utilizes
the law of closest connection. The same solution is found in the Hague
Convention on the Law Applicable to Matrimonial Property Regimes of
1978, and in the recently published European Commission Council
Regulation (EU) 2016/1103 of 24 June 2016 implementing enhanced
cooperation in the area of jurisdiction, applicable law and the recognition
and enforcement of decisions in matters of matrimonial property regimes.
Article 26 of that Regulation provides that in the absence of a choice-of-
law agreement, the law applicable to the matrimonial property regime
shall be the law of the State of the spouses' first common habitual
residence after the conclusion of the marriage, or failing that, of the
spouses' common nationality at the time of the conclusion of the
marriage, or failing that, with which the spouses jointly have the closest
connection at the time of the conclusion of the marriage, taking into
account all the circumstances.

As the proposed models for the reform of South African private

international law use connecting factors other than domicile, the common
law term "lex domicilii matrimonii" is no longer appropriate to refer to the
legal system governing the proprietary consequences of marriage.
Consequently, Neels and Wethmar-Lemmer propose the use of the term
lex causae proprietatis matrimonii or the proper law of the proprietary
consequences of marriage. In the Lenferna case, the Supreme Court of
Appeal employed the notion "the proper law of marriage". According to
Neels and Fredericks, the use of the notion of the proper law in this
context is welcomed, but the concept should be reformulated as "the
proper law of the proprietary consequences of marriage", as other aspects
of marriage (for instance, formal validity, material validity and personal
consequences) may indeed be governed by a variety of other legal
systems.

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PART FOUR: CHILDREN AND PRIVATE INTERNATIONAL LAW

Domicile of Children

In private international law, domicile is a person's "permanent home" as

determined by law. For children, the rules differ between the historical
common law and the modern Domicile Act 3 of 1992.

Common law (domicile of origin): Under the common law, every child is
assigned a "domicile of origin" at birth. A legitimate child automatically
takes the domicile of their father at the time of birth, while an illegitimate
child takes the domicile of their mother. This rule is purely legal and has
nothing to do with where the child was actually born.
Domicile Act 1992 (closest connection): The 1992 Act replaced the
common-law concept of "domicile of dependence" with the principle of
"closest connection". A person who lacks the capacity to choose their own
domicile, such as a child, is domiciled at the place with which they are
most closely connected. To make determining this connection easier, the
Act provides a rebuttable presumption: if a child lives with their parents
(or one of them) in the normal course of events, the parental home is
presumed to be the child's domicile. This presumption can be challenged
if it is shown that the child is more closely connected to another place.

The Seedat Case and Polygamous Marriages

The case of Estate Seedat v R (and Seedat's Executors v The Master) is a

historical landmark regarding the status of children from marriages that
were not legally recognised. The case concerned the legitimacy of children
born from a polygamous marriage. Under the old law, polygamous
marriages were not recognised, and children from such unions were
considered illegitimate, which affected their succession rights. The case
illustrated the harsh consequences of the non-recognition of polygamous
marriages and contributed to the eventual reform of the law.

Child Abduction and Relocation

Relocation is well known to be among the most difficult issues that courts
have to deal with in family law matters. The consequences of relocation to
another province or country impact on families, especially where ex-
spouses or partners have children and share contact with them. Decisions
by primary caregiving parents to relocate after divorce, thereby causing
disruption to the non-primary caregivers' right of contact with children or,
where both parents have joint care, the denial of the other's parental
rights and responsibilities to care, can give rise to cases which deal with
relocation disputes.

Unfortunately, the Children's Act does not make provisions for consent
procedures for relocation. However, it is clear from section 18 of the Act
that if a parent wishes to relocate outside of South Africa, the consent of
both parents is needed. Section 18(3)(c)(iii) of the Children's Act provides
that a parent of a child must give or refuse any consent required by law in
respect of the child, including consent to the child's departure or removal
from the Republic. The basic principle is that both parents maintain
guardianship of a child following the dissolution of a marriage except if the
court orders otherwise.

Is consent required for relocation? If both parents hold full parental rights
and responsibilities in respect of a minor child, a parent can only travel
and/or relocate to another country with that child if the express written
permission from the other parent has been acquired. Pursuant to
amendments to the Immigration Act 13 of 2002 and Immigration
Regulations promulgated thereafter in May 2014, specific requirements
have been set for minors travelling internationally with a view to stop
child abduction.

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PART FIVE: SUCCESSION AND PRIVATE INTERNATIONAL LAW

Intestate Succession – Fundamental Principles

Intestate succession occurs when a person dies without leaving a valid

will. In such cases, private international law must determine which legal
system (the lex causae) governs the distribution of the estate among
heirs. South African law handles this by dividing the estate into two
distinct categories, applying the unitary principle to movables and the
scission principle to immovables.

Movables: The Unitary Principle (Lex Ultimi Domicilii)

For all movable property (such as cash, shares, or jewellery), the

applicable legal system is the law of the last domicile of the deceased (lex
ultimi domicilii). This is known as the unitary principle. The law treats the
entire movable estate as a single unit to ensure that it is distributed
according to one law, regardless of where the individual items are
physically located at the time of death. You must not confuse the last
domicile with the place of death. Domicile is a legal link to a "permanent
home," whereas the place of death may be entirely accidental (e.g., a
person domiciled in South Africa who dies while on holiday in London).

Bona vacantia (unclaimed property): If the lex ultimi domicilii provides no

heirs, a dispute may arise as to whether the property is forfeit to the state
of domicile or the state where the property is situated (lex situs). These
claims should be resolved through proper characterization of whether the
state is claiming as an "heir" or via a "sovereign right" (ius regale).

Immovables: The Scission Principle (Lex Situs)

For immovable property (land and buildings), the applicable legal system
is the law of the place where the property is situated (lex situs). This is
called the scission principle – the deceased's immovable estate is split up
according to the location of each property, and each piece is distributed
according to the law of its own situs.

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PART SIX: DELICT AND PRIVATE INTERNATIONAL LAW

The Challenge of "Locus Delicti" in Product Liability

The traditional rule for delictual claims is the lex loci delicti commissi – the
law of the place where the wrong was committed. However, in product
liability cases, the "place of the wrong" is often uncertain. The problem is
this: if a product is negligently designed in Country A, manufactured in
Country B, and causes an injury to a consumer in Country C, which
country is the locus delicti?

The sources compare this to an ancient legal puzzle: "What if an arrow is

let loose in one territory and kills in another?" In the modern context, the
"arrow" is a defective product moving through global supply chains.
Lessons from the Thalidomide Case

The thalidomide tragedy is discussed through the landmark case Distillers

Co (Biochemicals) Ltd v Thompson. The facts were that the drug was
manufactured in England but sold and distributed in New South Wales,
Australia, where it caused harm. The court applied a "substance of the
tort" test. It held that the "gist" of the wrongful act was not the
manufacture itself, but the negligent failure to warn the consumer of the
drug's risks in the place where it was sold. Therefore, the cause of action
was held to arise in New South Wales.

Proposed Solutions for Modern Technology

Modern technology and global supply chains require flexibility in

determining the locus delicti. Various solutions have been proposed,
including the place of damage test (where the injury actually occurred),
the place of conduct test (where the negligent act was performed), and
the "substance of the tort" test (looking at the most significant elements
of the wrong). The thalidomide case demonstrates that courts often look
to where the failure to warn occurred, as that is where the consumer was
entitled to protection.

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PART SEVEN: THE INCIDENTAL QUESTION

The Incidental Question Properly So-Called

A "true" incidental question exists only when specific conditions are met.
First, there must be two issues in the dispute, each governed by different
conflict rules that point to different legal systems. Second, the conflict
rules of the forum (lex fori) and the legal system governing the main issue
(lex causae) must differ. Specifically, one issue is directed to one legal
system by the forum's law, but to a different system by the law governing
the main issue.
Example from the source: The source uses a hypothetical involving a
national of "Utopia" who dies intestate, domiciled in "Hades," leaving
securities in a South African bank. The main question is: who inherits the
securities? South African PIL refers this to the law of the last domicile –
Hades law (the lex causae). The incidental question is: is the claimant (W)
the valid wife of the deceased? South African PIL (lex fori) would test the
marriage by the lex loci celebrationis, while Hades law might test it by the
lex patriae. If these two conflict rules point to different legal systems, a
true incidental question arises.

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PART EIGHT: THE RECOGNITION AND ENFORCEMENT OF FOREIGN

JUDGMENTS

When Recognition and Enforcement Are Necessary

A plaintiff often institutes legal proceedings in one jurisdiction and

successfully obtains a judgment. However, the legal victory can prove
hollow in several common transnational scenarios.

First, the absconding defendant: a plaintiff may obtain a favorable

judgment in a country (e.g., France), only to discover that the defendant
has fled or absconded to another country (e.g., South Africa) to escape
the reach of the rendering court.

Second, the problem of brutum fulmen: if the defendant has moved

themselves and their assets to a different jurisdiction, the original
judgment becomes a brutum fulmen – defined in the glossary as
"insensible or ineffective thunder". It is meaningless because the court
that pronounced it no longer has the physical power or control to enforce
the order against the defendant's person or property.

Third, displaced assets: this issue frequently affects corporations. A

company may have a place of business and be subject to the jurisdiction
of one court, but keep the majority of its assets located in various other
countries.

The remedy is that legal systems worldwide widely accept that a

judgment rendered by the courts of one country may be recognized and
enforced elsewhere, provided specific conditions are met.

Rationales for Recognition and Enforcement

Several practical and theoretical reasons explain why a local court would
choose to give effect to a foreign sovereign's judicial act. These include
the exigencies of international trade and commerce, the desire to avoid
unjust enrichment of judgment debtors who flee jurisdictions, the principle
of comity between nations, and the need to provide a remedy where
justice would otherwise be defeated.

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PART NINE: PROPERTY AND PRIVATE INTERNATIONAL LAW

Classification of Property

The legal framework for the transfer and ownership of property depends
primarily on whether the property is classified as corporeal (tangible) or
incorporeal (intangible), and whether it is movable or immovable.

Transfer of Ownership of Corporeal Property

The requirements for the transfer of ownership vary across legal systems,
but private international law uses specific connecting factors to select the
governing law (lex causae).
Immovable property (land and buildings): The lex rei sitae (the law of the
place where the property is situated) dominates all questions regarding
immovables. This system determines the capacity to transfer or acquire
rights, the formal validity of the transfer, and the intrinsic validity of the
transaction. Because only the local authorities (like a Registrar of Deeds)
can effectively change title records, the lex situs is the only legal system
that can provide an effective judgment regarding ownership.

Movable property (goods and chattels): While historical Roman-Dutch law

relied on the maxim mobilia sequuntur personam (movables follow the
person's domicile), the modern rule is that the lex situs is the primary
governing law for the transfer of ownership of individual movables inter
vivos. The essential validity of a transfer (i.e., whether ownership actually
passed) is determined by the lex situs at the time of the transfer. South
African law follows a "facultative" approach to the form of the transfer,
meaning it will be upheld if it complies with either the lex rei sitae or the
lex loci actus (the law of the place where the act of transfer occurred).
This modern position was clearly recognised in Standard Bank of SA Ltd v
Ocean Commodities Inc, where Corbett JA accepted that disputes
concerning ownership of movable property should be governed by the lex
situs. Further support is found in lower court decisions such as Ultisol and
Bominflot in the Cape courts.

Owner and Property in Different Countries

If the owner is located in one country but the property is in another, the
lex situs (the law of the place where the property is) generally prevails
over the owner's lex domicilii regarding individual transfers. This is
because the lex situs reflects the practical realities of control and meets
the natural expectations of parties involved in commerce.

Property Moving Between Countries

When property is sold in one jurisdiction and then moved to another, the
law must account for the change in location.
Reservation of title: If a seller reserves ownership (title) in Country A
(where it is valid) and the goods are moved to Country B (where such a
clause might be invalid), the court first asks if the reservation was
effective under the lex situs at the time of the sale. If it was, the court
then determines if that title remains effective or is displaced under the
new lex situs. The current lex situs is generally paramount in determining
who currently owns the goods. In Bominflot Ltd v Kien Hung Shipping Co
Ltd, Taiwanese companies disputed ownership of shipping containers
located in South Africa. The court applied the current lex situs (South
African law) and upheld the reservation of title because South African
internal law recognizes such clauses.

Professor Neels has proposed that the proprietary effect of a reservation

of title clause should once and for all be governed by the lex situs at the
time of the conclusion of the contract. This approach aims to fix the
governing law at a specific moment in time to avoid the uncertainty
caused by property moving between different jurisdictions.

Property in transit (res in transitu): If goods are being moved through

several countries and their exact location at the time of a disputed
transfer is unknown or casual, the lex situs is unworkable. In such cases,
the lex loci expeditionis (the law of the place of dispatch) is the preferred
governing system because it is certain and definitely linked to the goods.
The lex domicilii of the transferor and the proper law of the contract are
generally rejected because they fail to differentiate between the personal
obligations of contract and the real rights of property. For goods on ships,
the law of the flag may play a role. If the goods are seized or sold in
execution in a country they are passing through, the lex situs of that
specific country reasserts itself.

Statutory exception – Sea Transport Documents Act 65 of 2000: While the

common law prefers the law of the place of dispatch, this Act acts as a
significant statutory exception in South African law. Under this Act, the lex
fori (South African law) is mandatorily applied to the transport documents
and the underlying rights if the bill of lading was issued in South Africa, if
the goods are addressed to a South African destination, or if the goods are
landed, delivered, or discharged in South Africa.

Stolen or Illegally Exported Cultural Property

The modern rule in private international law is that the lex situs is the
primary law governing the transfer of ownership and the creation of real
rights in corporeal movables. Under this rule, if a movable is stolen in
Country A, taken to Country B, and then sold or possessed in a way that
transfers title under the laws of Country B, that new title is generally
recognized by other courts.

The case of Winkworth v Christie illustrates this. Works of art were stolen
in England and taken to Italy, where they were sold to an innocent third
party. Under Italian law (lex situs), the purchaser acquired good title. The
English court applied the lex situs at the time of the transfer (Italian law)
rather than the law of the place where the theft occurred or where the
original owner was located. The court suggested that the doctrine of
renvoi might provide an "escape": if Italian law, as the lex situs, would
itself refer the question of title back to English law, the court would follow
that reference to ensure international harmony.

For stolen cultural goods, the problem arises when the law of the country
of origin (lex loci originis, such as Iran) considers the removal of the item
illegal and maintains the state's ownership, but the law of the place where
the item is currently held (lex situs, such as France) allows for the
acquisition of title through long-term possession (acquisitive prescription).
In Iran v Berend, a limestone relief fragment was sold in New York to
Berend. Iran sought an injunction to stop a subsequent resale. Berend
argued she had obtained title under the French Code (lex situs) due to 30
years of possession. The proposal mentioned is that an exception to the
lex situs should apply in favour of the Iranian law (lex loci originis),
prioritizing the protection of national cultural heritage over the
commercial certainty provided by the lex situs rule.

Notable cultural property exceptions include Autocephalous Greek

Orthodox Church of Cyprus v Goldberg and Feldman Fine Arts Inc, where
the court favored the "law of destination" in a scenario where cultural
property was seized before reaching its final destination. The application
of any foreign lex causae (including a lex situs that validates the
possession of stolen art) is always subject to the overriding check of public
policy. If the enforcement of a foreign title to stolen cultural property is
considered fundamentally offensive to the values of the forum, the court
may refuse to recognize it.
Incorporeal Rights

The treatment of incorporeal property (intangible rights) in private

international law involves attributing a fictional physical location to these
rights to determine the applicable legal system.

Characterization: movable vs. immovable: Incorporeal property has no

physical locality, but for legal purposes, a fictional locality is attributed to
it. The general rule is that an incorporeal right is classified as movable or
immovable based on the nature of the corporeal thing (res) to which the
right pertains. The lex rei sitae (the law of the place where the thing is
situated) determines whether the incorporeal right is characterized as
movable or immovable. A mortgage bond has a variable classification. It is
a movable when viewed as an acknowledgment of a personal obligation to
pay debt, but it is an immovable when viewed as an instrument of title to
a real right in land. In the case of Lief NO v Dettmann, the Appellate
Division confirmed this varying classification, and the lex situs of the land
should determine this characterization.

Pledges, hypotheses, and real rights: The creation of rights in a thing is

heavily dominated by the location of that thing. The authorities agree that
the lex rei sitae governs the creation of real rights, such as pledges, in the
res. Historically, J. Voet argued that hypotheses over movables should be
governed by the lex domicilii of the debtor. However, modern decided
cases prefer the lex rei sitae. This preference is particularly strong when it
coincides with the lex fori, as it allows for the protection of local creditors.

Cession of incorporeal rights: Cession involves the transfer of an

intangible right from one party to another. Case law suggests a split in the
governing law: the lex loci actus (the law of the place where the cession
occurred) governs the formal validity of the transfer, while the intrinsic
validity (effect) is governed by the lex domicilii of the debtor. Whether a
specific right is even capable of being ceded is determined by the lex
situs. The author suggests that much of this artifice could be avoided by
applying the "proper law of the cession" – the law with which the
transaction is most closely connected – especially to govern capacity and
intrinsic validity.
Incorporeal rights with no physical res: When a right (like a "right of
action" or a "book debt") does not relate to a physical object, it is
generally characterized as a movable. These rights are considered to be
situated where the debtor resides or is domiciled. This is because it is the
place where performance is due and where the debtor can be effectively
sued. In Nahrungsmittel GmbH v Otto, the court held that the only
attribute of locality for such rights is the place where the debtor resides.
While the court did not expressly reject lex domicilii, the focus on
residence provides a more tangible link. Similarly, in MV Snow Delta, the
rights of a charterer were held to be situated where the shipowner (the
debtor) resided.

Intellectual Property as a Special Category

Intellectual property rights, such as patents and copyrights, occupy a

unique position in private international law due to their nature as
territorial monopolies. In South African private international law,
intellectual property rights are classified as incorporeal immovables. This
classification arises because these rights are viewed as exclusive local
monopolies created by the statutory grant of a specific state. Because
they are legal creations tied to the sovereignty of the granting state, they
are considered to have no physical presence and are instead assigned a
fictional locality (situs) in the jurisdiction that created them.

Because they are classified as immovables, all legal issues touching upon
the existence, validity, and transfer of intellectual property rights are
governed by the lex rei sitae (the law of the place where the right is
situated). These rights have no extra-territorial operation – a patent
granted in South Africa does not exist as a legal right in another country
unless a corresponding grant is made by that foreign sovereign. Because
the lex rei sitae and the lex fori almost always coincide in these disputes,
choice of law issues are rare, as the court simply applies its own domestic
statutes to the local monopoly.

The Supreme Court of Appeal recently reaffirmed these strict territorial

principles in Gallo Africa Ltd v Sting Music (Pty) Ltd. The plaintiffs owned
the copyright to the musical "Umoja" and alleged that the defendants had
infringed upon those rights in 19 different countries. The SCA held that
copyright is an incorporeal immovable. Following the doctrine of
effectiveness, the court determined that South African courts lacked
jurisdiction to adjudicate infringements of copyright that occurred outside
of South African borders. To obtain relief, the plaintiffs were required to
institute separate legal actions in each of the 19 jurisdictions where the
alleged infringements took place.

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PART TEN: CONTRACT AND PRIVATE INTERNATIONAL LAW

Contractual Capacity

Contractual capacity refers to a person's legal ability to enter into a valid

and binding agreement. In other words, it is the competence of a natural
person to create enforceable rights and obligations through a contract.
Even if two parties reach consensus and comply with all other
requirements for a valid contract, no enforceable agreement comes into
existence if one of them lacks contractual capacity.

In general, the law presumes that most adult persons have full contractual
capacity. However, this capacity can be limited or removed in certain
circumstances where the law seeks to protect individuals who are not fully
able to understand or control the legal consequences of their actions.
These limitations ensure fairness and prevent exploitation.

Several factors may affect contractual capacity. Age is a primary factor –

minors (persons under the age of 18 in South African law) have limited
capacity. They usually cannot bind themselves without assistance from a
guardian, unless the law recognises exceptions (such as necessaries or
emancipation). Mental illness or cognitive impairment: a person who is
mentally ill or lacks the ability to understand the nature and
consequences of a contract may be deemed incapable of contracting.
Prodigality (or curatorship due to wasteful behaviour): a person declared
prodigal may have a curator appointed to manage their affairs, limiting
their ability to contract freely. Intoxication: in extreme cases, a person so
intoxicated that they cannot understand their actions may lack capacity at
the time of contracting. Marital status (historically more relevant): in some
systems, marriage affected capacity, particularly under older marital
property regimes, although modern South African law has largely removed
these restrictions.

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PART ELEVEN: EXCLUSION OF FOREIGN LAW AND PUBLIC POLICY

Statutory Exclusion

The exclusion of foreign law is an important qualification in Private

International Law, because although courts often apply a foreign legal
system (the lex causae) to resolve disputes with a foreign element, there
are situations where this will not be permitted. In such cases, the court will
instead apply its own law, namely the lex fori (the law of the forum). The
exclusion of foreign law typically arises in two main ways: through
statutory exclusion and through the operation of public policy.

The first and most straightforward basis for exclusion is statutory law.
Legislation may either expressly or tacitly exclude the application of
foreign law. Where this occurs, the court has no discretion – it must apply
South African law. This reflects the principle that certain rules are
considered so important by the legislature that they must apply regardless
of any foreign element in the case. In these instances, Private
International Law rules pointing to a foreign legal system are effectively
overridden, and the lex fori automatically applies.

Statutory exclusion can take two forms. The first is express exclusion,
which occurs when legislation clearly states that South African law must
apply. These are often referred to as mandatory rules or scope rules,
because they define the scope of the legislation and make it clear that
foreign law is not to be applied. In such situations, the legislature has
deliberately removed the possibility of applying the lex causae. Courts are
therefore bound to apply the relevant South African statute, regardless of
where the transaction took place or which legal system would ordinarily
govern the matter under conflict of law rules.
The second form is tacit or implied exclusion, where the legislation does
not explicitly state that foreign law is excluded, but such exclusion can be
inferred from the purpose, structure, or nature of the statute. A key
example of this is the Constitution, which embodies fundamental values
that must override any contrary foreign law.

Public Policy Exclusion

When the result of applying the lex causae would be repugnant to the
fundamental moral principles of the forum, the court will refuse to apply
that foreign law and will instead apply the lex fori. This is a judicial, not
legislative, exclusion. The public policy exception is applied sparingly – the
foreign law must offend a deep-rooted conception of good morals, not
merely differ from South African law.

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