UNIVERSITY OF BOTSWANA

DEPARTMENT OF LAW
LAW 543: PRIVATE INTERNATIONAL LAW CA 2
GROUP F

ISSUE 1 : JURISDICTION
In a tri-jurisdictional delict dispute where the wrongful act occurred in Namibia, the
Plaintiff resides in Botswana and the Defendant is domiciled in South Africa, which
court is competent to hear the delictual matter.

The general jurisdictional rule is that courts of Botswana have jurisdiction to hear
actions based on delict committed abroad if the Defendant is amenable to the
jurisdiction of the court by virtue of residence or domicile or otherwise. 1 This rule is
found and expanded in Rogaly v General imports Pty Ltd2 the Defendant was
domiciled in South Africa, he wrote a letter which was allegedly defamatory of the

1
J. Kiggundu, “Private International Law in Botswana: Cases and Materials” Bay Publishing, 2006
2
1948 (1) SA 1216 C
Plaintiff’s to a company in the United States. The Plaintiff sued in South Africa for
damages for defamation. The court held that it had jurisdiction as Herbestein J
stated that ‘the right to sue in this court is based upon the fact that the Defendant is
domiciled here.’’ Mc Kay v Phillips was mentioned in the above case which also
buttressed the general rule that Jurisdiction is based on the defendant’s residence or
domicile, and for the fact that

In relation to the facts in question the Defendant, Seloma Construction (Pty) Ltd is
domiciled in South Africa as such Botswana, does not have jurisdiction to try the
delictual matter moreover the delict did not occur in Botswana but Namibia.

The subsequent question, which country then has the jurisdiction between South
Africa and Namibia. According to the above mentioned jurisdictional rule and the
3
case of Rogaly v General imports Pty Ltd South Africa will be deemed to have
jurisdiction. It is also trite to point out that Namibia can assume jurisdiction as the
delict occurred there and company is temporarily resident there.
However, residence as an acceptable basis of jurisdiction is open to abuse and
undermines the legitimate expectation of parties as it encourages forum shopping.
Where the cause of action has little connection it is mitigated by application of the
doctrine of forum non conveniens. It is trite law that, our courts will recognize and
enforce a judgment rightfully obtained, thus, that will be an option to the courts of
Botswana to enforce and recognize a South African court judgment, rightfully
obtained.

ISSUE 2: CHOICE OF LAW

The wrongful claim for Thato’s death has been filed in the High Court of Botswana,
however, Botswana’s in the area of choice of law in delict is still very fluid therefore,
courts face a multi-jurisdictional dilemma, being, which law should apply in seeking
delictual damages for the loss of support, thus being, Namibia law, where the delict
occurred, South African law where the defendant is domiciled, or Botswana were the
harm is felt where the defendant is domiciled? There shall be evaluation of three
competing approaches to choice of law being, the English approach, American

3
Ibid
approach, and South African approach, in-order to determine the most equitable and
effective approach for resolving such cross-border disputes.

The English approach to choice of law in tort is traditionally governed by the

principle laid down in Phillips v Eyre4 which is the Double-actionability rule that states
that an act committed in a foreign country is actionable as a tort it ought to satisfy
two conditions. Firstly, it is actionable as a tort under English law and secondly, it is
not justifiable under the law of the place where the tort was committed. The practical
effect of the double actionability rule in the English approach is that it considers both
the Lex fori and lex loci delicti commissi as the plaintiff must have a cause of action
under the law of the place of the court and the law of the place where the delict
occurred5

While in Boys v Chaplin6 introduced flexibility for cases with a ‘closer connection’ an
exception to the English rule, the rule remains inherently rigid. The rigidity of the
framework has faced criticism for prioritizing procedural technicalities over
substantive justice. As noted by Crouse AJ in Burchell v Anglin,7 the rule’s
inflexibility often disadvantages plaintiffs in cross-border cases, allowing defendants
to evade liability by exploiting legal discrepancies.

In this present case, the widow’s claim in Botswana would depend on whether
wrongful death is recognized under both Botswana and Namibian law. Preminaliry
investigations revealed that the scaffold had been assembled in violation of
Namibian safety regulations and there is likelihood that accident may not be
recognized in Namibia as it was not in accordance with its regulation.

In Phillips v Eyre, the court held that a tort must be actionable under both the forum
and the foreign law for a claim to succeed. If the foreign law does not recognize the
tort, the claim may fail even if negligence is clear. However, the Private International
Law (Miscellaneous Provisions) Act 1995 abolished this double actionability rule for

4
(1870) LR 6 QB 1
5
Burchell v Anglin 2010 (3) SA 48 (ECG)
6
1971 AC 356
7
2010 (3) SA 48 (ECG) par 116
most torts, favoring instead the application of the law of the place where the tort
occurred.

Next we have The American approach, the courts as seen in Babcock v Jackson8,
departs from the rigid lex loci delicti rule by adopting a more flexible, policy-sensitive
method. Courts consider factors like the place of injury, the domicile of the parties,
and the center of the parties’ relationship. This “centre of gravity” or “most significant
relationship” test allows for the application of the law of the jurisdiction with the
strongest connection to the dispute. The court in Babcock emphasized that tort
issues need not always be governed by the law of the place where the injury
occurred, especially where broader policy interests are at stake. Similarly, in Burchell
v Anglin, Crouse AJ criticized the strict application of traditional rules like double
actionability, arguing that such rigidity often prioritizes technicalities over justice and
allows defendants to avoid accountability simply because of jurisdictional gaps.

Applied to the present case, Namibia’s status as the place of injury and negligent
conduct would be balanced against Botswana’s interest in welfare of its citizen and
South Africa’s oversight of Seloma. In relation to the issue of whether the accident
amounts to a delict the courts are likely to apply the Namibian law as it has the
strongest connection as it had an established conduct which the Saloma Company
did not follow (according to facts the scaffold assembled was in violation of Namibian
Safety Regulation). As to the other issues of whether such as quantum of damages
the Botswana law is likely to apply as it is the jurisdiction with the strongest
connection, the plaintiff is domiciled there and that’s where the loss is felt.

The South Africa’s approach on one hand is shaped by the case of Burchell v
Anglin9, where the court rejected rigid adherence to doctrines such as lex loci delicti
and double actionability due to their potential to yield unjust outcomes in cross-
border disputes. Instead, the court endorsed a more flexible, justice-oriented
framework. In Burchell, Crouse AJ emphasized that choice of law the court must
identify the jurisdiction with the strongest connection to both the delict and the
parties, ensuring the chosen law aligns with South African public policy and
constitutional values. This "sufficient link" approach prioritizes contextual fairness
8
191 NY 2nd Edition 279 1963 2
9
2010 (3) SA 48 (ECG) par 116
over formality, allowing for a more principled and humane resolution of complex
international disputes.

Crouse AJ, states that, a balancing test should apply to determine the jurisdiction
with the most significant relationship between the parties and the delict. In this case
being South Africa, Namibia and Botswana. The relationship each of the parties and
the delict have with South Africa is that the defendant is domiciled , whereas,
Namibia is where the delict occurred, and Botswana is were the loss is experienced
(interes in the widow’s welfare. Forsyth also emphasize that , the lex loci delicti must
be taken as a primary connecting factor and may be deviated from only where it is
“uncertain or prima facie irrelevant”.10 By prioritizing Namibia’s lex loci delicti while
reserving the right to apply Botswana law for fairness, the court balances legal
certainty with equity as the connecting factor is the place where the delict was
committed.11As a result, the strongest connection is Namibia. Namibia’s relationship
to the parties and the delict is more significant than the relationship of South Africa.

Therefore, this results in the Namibian law to undergo constitutional scrutiny in

Botswana before application as the foreign choice of law in the Botswana High
Court.
Botswana’s constitutional guarantees of dignity and family protection. If Namibian
remedies are inadequate, Botswana law could prevail. Ultimately, while Botswana
law cannot override Namibian law in the strict sense, a flexible approach to choice of
law could permit the court to prioritize Botswana’s interest in protecting its residents
and ensuring access to justice. This would require a departure from rigid
territorialism and an embrace of public policy-sensitive principles that better reflect
the realities of justice and cross-border harm.

This approach emphasis on justice and constitutional safeguards offers a principled

middle ground. Nonetheless Postponing constitutional review until after a law has
been selected risks inefficiency, as courts may need to restart the choice-of-law
process if the selected law is later deemed unconstitutional. Additionally, the heavy

10
Forsyth, “Private International Law”, 4th Edition, 2003 327.
11
Crouse AJ Burchell v Anglin, par 116
reliance on judicial discretion can lead to inconsistent outcomes, depending on how
different judges interpret notions of "strongest connection" or "public policy."

Conclusively, given the complex tri-jurisdictional nature of the case, Namibian law
should be applied primarily to determine liability, as it is the lex loci delicti and the
place where the negligent conduct occurred. Nonetheless, the South African
approach allows room for judicial discretion to ensure that this application aligns with
constitutional values and public policy considerations. Where Namibian law provides
inadequate remedies or is incompatible with Botswana’s constitutional principles
particularly the protection of human dignity, access to justice, and family welfare
Botswana law may be selectively applied, especially in determining the quantum of
damages. Therefore, the South African model’s flexible and justice-oriented
methodology ensures a balanced resolution, accommodating both legal certainty and
equitable outcomes in cross-border delictual disputes.

RECOMMENDATIONS
Strengthening international framework could help harmonize laws governing delictual
claims, leading to smoother cross-border legal processes and easier recognition and
enforcement of judgments. At the regional level, the SADC Protocol on Legal
Affairs12 and the AU Model Law on Cross-Border Cooperation, advocate for greater
judicial cooperation and legal integration. These instruments endorse justice systems
that are both procedurally efficient and substantively fair, reflecting the increasing
regional mobility and interdependence in Southern Africa. In light of these
developments, the traditional rule of lex loci delicti should be viewed as a default
starting point that courts may depart from when broader policy considerations so
warrant.

At the global level, the Hague Conference on Private International Law reflect a
movement toward greater flexibility. The Hague Principles on Choice of Law in
International Commercial Contracts emphasize contextualism and party autonomy in
resolving transnational legal disputes13. The European Union’s Rome II Regulation

12
SADC, ‘Protocol on Legal Affairs’ (2001); African Union Commission, Model Law on Cross-Border Cooperation
(2017)
13
Hague Conference on Private International Law, Hague Principles on Choice of Law in International
Commercial Contracts (2015); Convention on the Law Applicable to Traffic Accidents (1971)
(EC No. 864/2007), applies lex loci delicti as the general rule but allows for an
exception where the tort is “manifestly more closely connected” to another state 14.
Similarly, the U.S. Restatement (Second) of Conflict of Laws adopts the “most
significant relationship” test, which weighs multiple factors such as place of injury,
the domiciles of the parties, and the forum state’s interest in resolving the dispute. 15
These modern, context-sensitive approaches provide a useful roadmap for Southern
African jurisdictions seeking to revise their frameworks in alignment with evolving
global norms. In conclusion, Botswana, shall introduce a clearer legislative
provisions in relation to delictual matters with foreign elements to reduce ambiguity.
Adopting a “most significant relationship” model would empower courts to apply the
law of the state most meaningfully connected to the dispute, balancing fairness,
predictability, and international legal harmony.

BIBLIOGRAPHY
Case Law
1. Babcock v Jackson191 NY 2nd Edition 279 1963 2
2. Burchell v Anglin 2010 (3) SA 48 (ECG)
3. Phillips v Eyre(1870) LR 6 QB 1
4. Rogaly v General imports Pty Ltd 1948 (1) SA 1216 C

Books and Articles

1. Christopher Forsyth, “Private International Law”, 4th Edition, 2003 327.

14
Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law
applicable to non-contractual obligations (Rome II) [2007] OJ L199/40
15
Restatement (Second) of Conflict of Laws (1971)
 2. Frank E Marx, Obiter 2011, Nelson Mandela Metropolitan University, Port
Elizebeth.
3. John Kiggundu, “Private International Law in Botswana: Cases and Materials”
Bay Publishing, 2006
4. Richard Oppong, Private International Law in Commonwealth Africa (CUP
2013)

Conventions
1. Hague Conference on Private International Law, Hague Principles on Choice
of Law in International Commercial Contracts (2015); Convention on the Law
Applicable to Traffic Accidents (1971)
2. Regulation (EC) No 864/2007 of the European Parliament and of the Council
of 11 July 2007 on the law applicable to non-contractual obligations (Rome II)
[2007] OJ L199/40

Legislation
1. Private International Law (Miscellaneous Provisions) Act 1995