UNIT 1: (incorporated outside of Lex loci actus- the law of Firstly, unilateral rules-

SA). the place where a They would use this rule

WHAT IS PIL:
particular act was that would come back to
Marriage – between an SA
Private International Law performed, or a refer to them. So for
& foreign national,
differs from Public transaction was concluded example a South African
marriage between SA
International Law. court will sit on a
nationals outside of SA. Lex loci celebrotionis- the
particular case, and if
Part of a national legal law of the place where the
Succession – testator or South Africa follows the
system (differs from wedding ceremony took
beneficiaries located unilateral rule, what will
country to country) forms place
outside SA. happen is that South
part of each countries Africa will apply a rule that
Lex loci contractus- the
national law. Each country The main question in applies to itself.
law of the place where the
has their own PIL rules – PIL = What legal
contract was concluded
which apply to a dispute system is applicable? It does not refer you to
with an international Lex loci delicti commissi- any different country, it
PIL in SA, is not the same makes sure that it
(foreign) element. the law of the place where
as in other urisdictions. confines you to one legal
the delict was committed
Regulates relationships PIL is known as confict of system with which you are
between private persons laws as traditional english CONFLICT METHODOLOGY: supposed to operate from.
persons - includes any name. Its known as choice
Once there is a case and • Start with the rule –
party involved in a private of law in USA.
the case involves a determine when the
law relationship.
LATIN TERMINOLOGY: foreign element, the court rule applies.
Public International Law that is ceased with the
Lex causae- the particular • It prescribes a
deals with relations action will not use its own
law which governs the specific legal
between states (involves internal law to apply to
issue in dispute system and
treaties). the case. It has to use a
Lex fori- the law of the conflict of law rule to prescribes when
WHY LEARN PIL: that legal system is
court/place where the determine which law will
Contractual agreements – case is heard (South be applicable to the case. applicable.
one party has their African law) • Do not look for a
There are 2 types of
principal place of business connecting Factor –
Lex loci domicilli- the law conflict of law rules used.
outside of SA These rules tell you
of the country of domicile
 that if this happens common conflict of law • Look for a • Bilateral conflict
then these rules rule is that a formal connecting factor rule – one
apply. validity of a marriage is (where the contract connecting factor /
determined by the lex was performed). multilateral conflict
• Preference for the
celebrationis (or the law of rule – more than
legal system from • In our law today we
the place where the one connecting
which they come. follow this position
marriage was celebrated). factor to be
– the most common
• There is a rule – The validity of the considered.
position in the
when does it apply / marriage is the main
world. The US still There are instances where
what is the scope of issue. The law of the place
works largely on a there is only one
the rule? where the marriage was
unilateral basis. connecting factor. For
celebrated is the
instance, in delict the law
connecting factor. For you • Do not exhibit a
of where the delict took
Secondly bilateral/ to be able to know the law preference for a
place applies. There will
multilateral rules- for the that determines whether particular legal
only be one connecting
court to determine the law the marriage is valid or system – any legal
factor which is the law of
that will be applicable in a invalid, once you have system in the world
that place. However, there
case, the court will first been able to identify the may be applied
are instances where
categorise the case into place where the marriage provided that the
theeres more than one
the main issue, and then was celebrated, then you connecting factor
connecting factor. It
also consider what we call can identify the law which points to that rule.
depends on how you
the connecting factor. The gives you the formal
• Principle of equality classify it. If for example
connecting factor is a validity of the marriage.
of legal systems there is a car and there is
“sign post”. So you will • Look at an accident caused due to
applied by
realise with a multilateral circumstances and the manufacturer making
application of
rule, the rule in itself does then determine a mistake when building
multilateral rules.
not itself tell you when what law applies – the car. It is because of
you must look at a law. how do the • Link factual that mistake of the
But it is when you are circumstances scenarios to a legal manufacturer that lead to
applying the law that it connect to a legal system – by using a the accident. The
will then take you to a system/link to a connecting factor. manufacturers shop is in
particular country. Ex: a legal system? Mpumulanga. The
accident takes place in • SA Legislation & legal system is Domicile and contract
Johannesburg. There is Constitution. indicated by the concluded electronically –
now more than one connecting factors. the law of the forum (lex
• International Legal
connecting factor because 4. (Imagine it is not SA fori) gives content to
Instruments.
1. The place where the law, you are not a interpretation. (Domicile
accident occurred is the • English PIL as a direct magician, you’re a Act and Electronic
connecting factor 2. The source of PIL. lawyer, so..) Find Communications and
place where the Transactions Act will give
• Considerations of out what the
manufacturer negligently content).
justice & Convenience. Content of the lex
manufactured the car is
causae is - expert The lex fori gives content
also a place of delict. STEPS IN A CHOICE OF evidence of lex to the concept of domicile.
There is therefore more LAW PROCESS: causae is presented Exception = nationality
than one connecting
to the court. determined by the lex
factor. In the instance 1. Determine whether
Application of patriae (law of
where you have more the local court has
foreign law cannot nationality).
than one connecting Jurisdiction – the
lead to a result that
factor, it leads to a local court must DOMICILE:
is against public
multilateral rule. have jurisdiction to
policy. The roman dutch law
hear the matter.
Countries generally go by Remember that we explains domicile to us
Expert Evidence (for
the multilateral/bilateral will assume that but it has its own
example from a legal
rule, not usually the this step is met. problems, no the
practitioner of foreign
unilateral rule. 2. Classify the legislative has enacted
law).
problem at hand the domicile act to cure
SOURCES OF PIL:
(what type of case Judicial Notice – the court the deficiencies of
• Case Law. is it?). can take judicial notice domicile under the CL.
3. Establish what the (cannot be outdated
• Roman-Dutch Authors. legislation or case law) The definition of domicile
lex causae is - is a bit vague. The
• Foreign Law & Foreign Look at the Submission of an act domicile act itself doesn’t
Case Law. connecting factors (hand copy of the act is define what is domicile.
(nexus) and given to the court) So, we look to case law to
• South African Authors.
determine which understand the definition.
Mason v Mason: of Choice and Assigned country of his or her with intention to
Domicile means “the Domicile choice. remain indefinitely.
place or the country which No timeframe for
A 'domicile of origin' is Section 1 of the Domicile
is considered by law to be physical residence
attributed to every person Act gives us factors that
a person’s permanent although easier to
at birth by the operation one needs to consider as
home”. It thus shows a prove intention if
of the law’. Domicile of far as Domicile of choice
nexus/relationship physically present
origin = acquired is concerned:
between a person and a for a reasonable
automatically at birth. The
particular • Over 18. period. Presence for
'domicile of origin' persists
place/jurisdiction. short duration with
until it is replaced by a • Must have the intention may be
Why is domicile important new domicile, a 'domicile required mental sufficient, although
for purposes of private of choice’. Domicile of capacity (in order to the court may
international law? origin is given to a person understand the consider the length
Marriage, Succession, at birth. It is also the place impllications of of physical
Contractual Capacity – with which the person is what they are presence to
matters of status/ most closely connected to. doing) determine intention
proprietary matters and In terms of section 3 of
• Physically present (animus manendi).
how a property needs to the Domicile Act, if a
in the place that Both requirements
be shared. Also relevant person abandons his/her
you are choosing to must coincide at
for the jurisdiction of the domicile of origin, it will
domicile. Ex: I want some point in time.
court (and international not automatically revive
to make SA my E.g., may first settle
jurisdiction). (Grindal v Grindal 1997)
domicile. I would at a place and only
Different types of This domicile of choice is need to be later form the
domicile: acquired by a person with physically present intention of residing
the legal capacity (age of in SA. I cannot be in there permanently.
Roman dutch law Once domicile is
majority) who freely and the UK and then
identifies 3- Domicile of established
voluntarily established say I want to make
Origin, Domicile of Choice, continued presence
their presence, on his or SA my domicile.
Domicile of Dependence is not requisite.
her own free volition,
establishes his or her Being physically
Under the Domicile Act, You must also be lawfully
presence in that particular present must be
theres 2 types = Domicile present in order to be
physically present. If you if the person is not pronouncement on the factors are important to
are not lawfully present, stationed in a particular this matter afterwards. determine whether a
you have not met that country, that soldier can person is domiciled in a
Originally foreign
particular requirement. – make that particular country or not.
diplomats, police officials,
illegal immigrants/aliens country to be his place of
public servants etc. were So we now turn to thee
cannot acquire domicile domicle. A person could also denied a domicile of factors that would enable
regardless of their acquire a domicile of choice in SA while one to say that the person
intention choice in SA = if final they were in the was able to establish
In Van Rensburg v and deliberate intention service of the foreign intention. As we said,
Ballinger the court held of abandoning previous government/business – residence is very
that a prohibited domicile However, now new approach. objective as we can easily
immigrant allowed openly surprisingly, in the case of Naville v Naville 1957 identify if someone is
by authorities to reside in McMillan v McMillan, the court decided that: A resident in a particular
SA could acquire a court went on to say that diplomat can acquire a country. However, issues
domicile of choice in SA if the solider is stationed domicile of choice in SA of intention is subjective.
(this principle means that at a particular country while still in the service of The phrase is “the devil
although this person is which is not his country of a foreign country (So you does not know the intent
supposed to be deported nationality, he cannot can argue that the of man”. The intention
out of the country, once make that place to be his rational in Naville v must be to remain for an
the authorities allow the domicile. This rational Naville should equally indefinite period, not
person to be going about being that they are not pass for the other permanently. Under RDL,
their business within the here by choice/voluntarily decisions in McMillan and permanency was made a
country, then the person but because they are in Baker.) requirement, but, if you
has acquired the right to instructed by a foreign look at the domicile act, it
authority hence no Essentially if you are to
make SA his right of replaces permanence with
animus. (So, the rationale take domicil, there are 2
domicile.) an indefinite period. It is
is that the soldier owes factors that are looked at:
argued that indefinite
There is confusion ito the allegiance to a particular 1. Residence in the
period is a lesser
position of soldiers- In the country. So, at any point country that you are in 2.
threshold than the
case of Baker v Baker, the in time he’s being paid by The animus manendi (the
permanancey rule. In the
court established that ito the different country.) intention to remain in the
case of Ley v Ley and
someone who is a soldier, There has been no further particular place). These 2
Eilon v Eilon; if you
contrast with the case of were married, it’s the Domicile of wife- RDL said You can only ever have
Sadiku v Sadiku, which is fathers domicile. If they that once youre married one domicile at any given
something that I weren’t married, it would you acquire the domicile time; you cannot have
encourage you to read, it be the domicile of the of your husband. more then one at any
establishes the point that, mother. However, with the However, under the given time.
in as much as we are exception of the domicile domicile act, that
Domicile of company-
talking about intention, act, it takes away this provision does not exist.
generally where the
the fact that somebody formulation, that for you followed domicile of
company is registered.
has the likelihood of to be able to identify the husband, can acquire own
But when dealing with
changing his intention, domicile of the child, you domicile of choice, retains
taxation, you deal with
does not necessarily need to be able to use domicile at time of
the residence of the
mean that that initial the place of closest marriage.
company. So residence is
intention can be revoked. connection to be your
Domicile of mentally ill where the company has
yardstick in determining
The fact that there can be person- domicile of its principal place of
the childs domicile.
circumstances which can dependance – domicile of business, or where it is
Although the act does not
affect somebody to curator now domicile of registered.
help us to know the
change his residence does place of closest
factors for the closest DOMICILE AS
not affect his intention. connection. (Domicile act
connection test, foresight CONNECTING FACTOR:
says we must use the
Intention to remain for proposes that one would
closest connection test) Connecting factor is a
indefinite period - ANIMUS have to look at residence,
nationality, property, past sign post that will guide
MANENDI. LEY v LEY’S MAIN PRINCIPES OF
experience of a child, past you to a particular case.
EXECUTORS, EILON v DOMICILE:
EILON. Need not exclude conduct of a child and A person's domicile will
then the residence and Everyone must have a
the possibility that you frequently determine
nationality of the relatives domicile at all times; even
will leave again in the which law governs his/her
to be guiding principles to if you are barely linked to
event of unforeseen family relations/ which
assist the court in one place; all natural
circumstances court has jurisdiction in
determining the country persons are assumed to
matters regarding his/her
Domicile of a child- under with which the child has have a domicile and there
status (as well as other
RDL, the child will acquire that closest connection. is never a time that you
matters).
the domicile of their do not have one.
parents. So if the parents
 A connecting factor law would govern the
connects a legal validity of the marriage. In
relationship with a legal other distinctions, they
system. The connecting draw a distinction
factor in an intestate between what they call
succession dispute in formal validity and
respect of movables is the essential validity of the
domicile of the deceased marriage. However,
at the time of death. UNIT 2: MARRIAGE AND something which is unique
CHILDREN to the SA system, owing
As a matter of general
from its RDL origin is that
principle, it is the lex fori MARRIAGE:
SA does not create that
that determined the
(Ex: somebody who is distinction between formal
domicile of the person.
from Zim falls in love with validity and essential
someone from Eswatini, validity. Our pre
but is domiciled in occupation is just testing
Mozambique. They end up whether the marriage was
getting married in London. valid or not valid. The
The come to settle in SA. reason why this rule is so
As they come to SA, the simple is because if you
guy gets a job. They want were to look at the
to get a divorce. Which jurisdictions that usually
law would govern whether give that distinction
this marriage was valid?) between a formal validity
and essential validity,
In SA, the general position what It would mean is that
is that, the validity of the first of all you would have
marriage is governed by to determine whether the
the lex loci celebrationis marriage is formally valid.
(the place where the And then you would have
ceremony took place/ to proceed further to ask if
marriage was concluded). the marriage is essentially
So in this example, the UK
valid. Usually, with marriage in Zim, for a where you would have So if they get officiated in
essential validity, you look somolian woman and a that. The first exception is the embassy, but the
at the persons personal South African man while in section 10 of the husband lives in the
law. This is, whether, they are all in their marriages act 1961 which Netherlands, wouldn’t the
according to the persons respective countries states if it is a marriage in domicile still be the
personal law (such as the online. Which place is the a foreign place between Netherlands?
capacity for marriage), place where the marriage SA citizens with an SA
The second exception ot
and Africa where custom was celebrated? officiant (domicile of
the general rule is iin the
plays an integral role. husband – governs
A 2nd contemporary issue instance where the place
Added to this, you would validity). (Say for example
is that we know in where they are having the
have to meet a double 2 south Africans marry in
practice that there are marriage has no form. For
barrel test. You would the Netherlands. Instead
instances where people example: 2 people fall in
have to ensure that there of going to a church, they
would contract customary love in a dessert. They
is a validity of both the go to the SA embassy in
marriage. The woman decide to marry in the
formal validity and the Netherlands where the
may be from Zim and pay dessert. In such a dessert,
essential validity. counsellor officiates the
lobola, and then there is a which law is the one which
wedding. Under such an
So, the SA perspective white wedding ceremony will govern the validity of
instance, although we
gives a simpler in SA. The question the marriage? 2 people of
have said that the validity
perspective, and just asks becomes, which of the 2 a particular faith, are not
of the marriage will be
to look at the place where places would constitute allowed to get married
determined by the law of
the marriage was the celebrationiss? Would pursuant to your religion.
the place where it was
celebrated in order to it be the white wedding or In such an instance, which
officiated, this is an
determine the marriages the way for lobola? The law will determine the
exception pursuant to
validity. RCMA does not make such validity of the marriage,
section 10 of the
a pronouncement. will such a marriage be
However, this comes to marriages act. NB that an
deemed to be married or
the question which has to The general rule is that embassy is seen as an
not?
do with the fact that, we the validity of the extension of the home
are in the 4IR, so, we can marriage is determined by country. In this case, the People in an instance just
easily say that there is an the law of the place of the validity of the marriage by mere agreement,
online marriage. The lex loci celbrationis, but will be determined by the would be deemed to be
pastor can officiate the there are exceptions to domicile of the husband.) valid. The real essence of
the lex loci celebrationis is they go to the high seas. DOCTRINE OF FRAUDEM once they apply the
to answer a simple The question would be, LEGIS: Which states doctrine, they would come
question which is, whether which law would govern “when a man or woman, to the conclusion that
the marriage is valid or the validity of such a one or both of whom were there was no capacity to
not? So when they find marriage? It will be where domiciled in the courts have that marriage and
themselves in that the ship is registered. area, had their marriage then they will incalidate
situation and the country deliberately solemnised the marriage.
SA does not bother itself
is not allowing them to elsewhere to escape some
with formal or essential However, this doctrine is
marry, just a mere essential requirements of
validity, however, there problematic because we
agreement such a the lex domicilii, being
are instances where say that the foundational
marriage would be the lex fori, they act in
courts are being called maxim in law is that the
deemed to be valid. Many fraudem legis and their
upon to make a devil does not even know
countries agree with this. marriage is tested by local
pronouncement so far as the intent of man. So, how
If such an instance was to law as lex domicilli.
the essential validity is will you prove that
come before the SA court,
concerned. With respect This basically says that another person went to a
the SA court would deem
to the essential validity, there are some instances different state all because
it as a validation to their
the law is the same as the where for example, 2 they were running away
marriage (there’s not
validity rule that we people want to marry but from SA law. It becomes a
enough case law though).
mentioned (that the the lady is 15 years old. bit of a subjective test,
The 3rd exception is where essential validity is She knows that she is too and it is difficult to prove
2 people get married on determined by the law of young to marry and have intent as far as the
board in the high seas. By the place where the a valid marriage. They doctrine is concerned. The
way of application of the marriage was celebrated). then elope to a different other problem is that
law, the high seas are place to celebrate their there could be an instance
There are also instances
deemed to be no mans marriage. This is an where only one person
where certain doctrines
land. Where, for example, example of fraus legis. has the intent.
also can affect the
there are 2 sailors who fall The requirement is that
operation of the general However to cater for the
in love and don’t get one or both of them must
rule that we are talking doctrines subjectiveness,
married in the 12 nautical be domiciled in SA. The
about. One of these usually when such a
miles, or even within the court will invoke the fraus
doctrines is known as the matter goes before the
exclusive economic zone, legis doctrine to invalidate
doctrine of fraudem legis. court, the court will have
they get married when their marriage. Thereafter,
to determine that the pass provided that it does and people go to Egypt PERSONAL
direct intent of why the not corrupt public morality and marry under CONSEQUENCES OF
people went to a different of SA. Egyptian- Jewish law. MARRIAGE:
state was because they Under that law, the Jewish
In looking at PP, there are The personal
wanted to circumvent the law permits an uncle to
things that it will go consequences of marriage
laws of SA. marry a niece. They then
against. The first is incest (i.e. the spouses’ personal
come to the UK and there
There doctrine could also (incest by way of SA law), rights and duties arising
was a amtrionial instance.
be invoked where there is the next is age (ex: you from the marriage) are
The court did not consider
incest etc. don’t have the capacity to governed by the lex
the fact that although the
enter into a marriage domicilii of each spouse at
The doctrine was validly English court ordinarily
because your too young), the time of the act in
invoked in Kassim v would have subscribed
lastly there is polygamy question. However, this
Ghumran – Minors eloped between a marriage
( a marriage that is broad common-law rule is
from Zimbabwe to Malawi. between an uncle and a
contracted under a subject to exception.
Kassim was only 15 & no niece, because it is not
system that is
consent from parents something that corrupts i) Name of wife:
polygamous will not be
received. Marriage tested the PP of the UK, they let
recongised in SA- but by A wifes assumption of her
by the local law as the lex the marriage pass.
way of constitution, if husbands surname upon
domicili (Zimbabwe). Although SA law generally
there is a religious or marriage is governed by
Where at least one or both will not allow an uncle to
cultural reason, you would the lex domicilii. But, its
parties domiciled in area marry a niece in SA, if you
still have a valid not really an issue
of the court = domicile do it elsewhere, the court
marriage). anymore as the wife does
applied because parties will likely not frown on the
arrangement. not need to take her
acted in fraudem legis. There can be an instance
husbands name.
where a marriage is
Public policy- With the pp Marriage has
invalid in SA, but, the (iii) Maintenance:
requirement in SA, if we consequences, there are
action is done elsewhere,
allow the law of another two categories. First is ITO roman dutch law,
and therefore, the court
country to be allowed to personal consequences, spousal maintenance is
will likely validate it
be given effect to in our second is proprietary governed by the lex
because it is not against
country, it will go against consequences. domicilii, yet s 2(3) of the
PP. Shenning v Shenning
our public morals. So, the Divorce Act 70 of 1979
(check the name)- A male
law of another state will
provides that a spouse, financial position fo the deeply mired in the public • In a divorce parties can
who has been habitually parties after marriage. It policy of the forum. choose to claim back
resident in South Africa for was impossible to donations that they have
(v) Claims for
at least one year, is separate the issue of made to one another
household expenses:
deemed, for purposes of maintenance fro other
• This is governed by the
divorce, to be domiciled in patrimonial effects of the Claim for household
LD at time of donation
South Africa. So, the lex dissoltuon. Therefore, the expenses: party who
(Powell v Powell)
fori (SA law) applies to maintenance of spouses contributed more to the
maintenance because the must also be governed by household may have a (viii) Contractual
act applies to divorce LDM if maintenance claim claim for household capacity:
issues. is linked to proprietary expenses should the
consequences. Considerations of
parties get a divorce. The
Exception: The lex commercial convenience
right of recourse of one
domicile matrimoni Thus, in effect, post- and the protection of third
spouse against the other,
applies if the maintenance divorce maintenance is parties require departure
for any expenses
claim is linked to governed by the lex fori. from the general rule, in
reasonably incurred for
propretarty [But, in Hassan v Hassan respect of a spouse’s
household necessities, is
consequences. The LDM is 1998 (D), where it was capacity to conclude
governed by the lex
from Scottish law, and held that maintenance commercial contracts:
domicilii at the time such
provided for maintenance after divorce is not a
expenses were incurred - Immovable property:
in the form of periodical personal consequence of
[Perrott-Humphrey v
payments and the division marriage Redistribution The lex situs governs.
Perrott-Humphrey 1967
of the estate. In the case orders form part of (where it is)
(W)].
dissolution of the proprietary consequences
marriage was granted, of marriage and the Note : Parties can change - Movable property:
and the maintence order matrimonial domicile domicile during their The lex loci contractus
and division of the estate should apply.] marriage – look to LD at governs.(where contract
was seen as acilalry relief. time expenses were
(iv) Grounds for was made)
The court had to incurred
determine if maintence divorce: Capacity to act of parties:
was payable- and if so, (vi) Donations inter governed by the Lex
Governed by the lex fori,
what amount, which was partes: Domicilli (No SCA decision
as divorce is an issue
dependant on the – different approaches)
Forsyth argues that the party who contributed domiciled in South Africa, • S9 – Divorce Act
lex domicili of person more to the household and they are going
• When a decree of
entering into contract - may have a claim for through the divorce act.
divorce is granted on the
but protection of third household expenses may
The fourth exception is ground of the irretrievable
parties & commercial have a claim should the
that if the act is the pp of break-down - court order
convenience may lead to parties get a divorce. LD
south Africa, we will avoid that the proprietary
lex loci contractus being of plaintiff at time of
the lex domicile rule and benefits of the 'marriage
used. incurring expenses is what
rather apply the pp rule. be forfeited by one party
governs a claim for
Exceptions to the general In SA law it is against the in favour of the other
household expenses
rule: law to chastise the wife, either wholly or in part.
Confirmed in the - Neels :
so we will envoke pp
Issues of commercial Domicile of the person • substantial' misconduct
instead of the lex domicile
convenience and who incurred the on the part of either of the
which would allow
protection of third parties. expenses - Perrott- parties, if the order is not
chastisement.
The reason for this Humphrey case Note : made the other party will
exception is that there can Parties can change NOTES FROM TEXTBOOK in relation to the other be
be an instance where a domicile during their unduly benefited.
marriage – look to LD at The common law does not
woman who knows that
time expenses were contain any unilateral • Length of the marriage,
under her domicile, she
incurred rules the circumstances that
does not have the
lead to the disintegration
capacity to enter into a Unilateral rules clearly
The third exception has to of the marriage and any
contract. The law that undermines the equality
do with an instance of substantial misconduct on
applies is the lex loci of legal systems as there
divorce. Court will look at the side of any of the
contractus. (So if she is more of a preference for
Lex Fori grounds for parties.
enters into a contract with another legal system
divorce (wide grounds for
a 3rd party, the lex PROPRIETRAY
divorce in South Africa). • Ex lege revocation of
contractus would rather CONSEQUENCES OF
(So it will be the South will = LDM
apply than the husbands MARRIAGE:
African law which is the
lex loci domicilli). • Forfeiture of marriage
lex fori, not the law of the There are 2 borad
The second exception is place where the act benefits;
categories. The first is
an issue of Claim for occurred). This is provided where theres no antenup
• Khan: Lex fori
household expenses: that these people are
contract. The second is are governed by the lex job in Durban (director of states that when it comes
when there is an antenup domicilii matrimonii, a company). No ANC. to immovable property, it
contract. which has been is governed by the place
There are certain features
interpreted by our courts where the immovable
NO ANTENUP CONTRACT: of this principle to take
to mean the law of the property is situated. (ex:
note of.
When there is no antenup domicile of the husband at prop in Namibia is
contract, the proprietary marriage [Frankel’s Estate Firstly, the domicile that governed by Namibian
consequences of the v The Master 1950 (A)/ we are talking about is the law/ prop in SA is
marriage is governed by Brown v Brown- both domicile at the point of governed by SA law).
the law of the husbands establishes the principle marriage. So, at the time Instead, the domicile of
domicile at the time of the that went it comes to the that they were married, the husband at the time of
marriage. The reason for proprietary consequences that is the domicile that matrimony governs. The
this is that historically, the of marriage, it is governed governs. There can be an reason for this is because
man would marry the by the law of the instance where at the where there is divorce/
woman and the woman husbands domicile). point of their marriage the debts, and the couple has
would move to where the husbands domicile was to share property, when it
Frankels: law of husbands
husband is. They would SA, but then they leave comes to the properties
domicile at the time of the
make this place their SA and go to the UK to situated in SA, one law is
marriage and not by the
home. So by extension of make the UK their governing that SA
law of the domicile which
this concept, this is the domicile together. This property. Then if there is
he intends to acquire
husbands domicile. Ex: change does not matter. another property in
immediately or within a
the man is a south The law that will govern is Namibia, it is governed by
reasonable time after the
African, he marries a still SA, because that was Namibian law. There are
marriage. At time of
woman from Lebanon and the husbands domicile at different sets of law that
marriage husbands LD =
they decide to stay in SA. the point of marriage. govern these properties.
Germany (out of
SA is the matrimonial To avoid lack of
community of property). Secondly, it governs all
home. In cases of predictability and
At that stage already property of the spouses,
proprietary consequences, uncertainty, we tend to
decided to move to JHB whether movable or
it is the law of SA that use the law of the
(to establish permanent immovable. This shows
would apply. husbands domicilim to
home there) based on you that there is a govern the movable and
The patrimonial promised of employment. deviation from the general immovable property.
consequences of marriage Husband then received a rule. The general rule
Thirdly, the matrimonial Further, if, when they are can be invoked to prevent by a particular country.
domicile determines the in the US, SA changes its the rule from occurring.) The formal validity of the
law applicable to the law, the law would still antenup is governred by
PP does not always work
proprietary consequences affect the proprietary the lex contractus (that’s
though, case law was of
of the marriage once and consequences of the if you want to find out if
the view that although
for all. This is what is marriage. (So, for the natenup contract
there has been a change
known as the principle of example, if there is an signed is valid). So it is
in the law, the new law
immutability. A change of amendment to a the law of the place where
should prevail over the old
domicile in the particular law, it would they entered into the
law.
subsistence of the still affect the marriage.) contract. The essential
marriage does not in any The case is the sperling validity of the antenup
However, there can be an
way affect the rule as case- LDM, even though contract is governed by
instance where public
stated. So even if the the law of the LDM was the husbands lex domiclli
policy can step in to
parties move away, it changed with at marriage. The formal
prevent the change from
does not affect that the retrospective effect. validity is governed by the
taking effect. (So for
rule applies at the time (retrospective changes are lex contractus (that is the
example, at the time of
that they were married. accepted). Married in East law of the place where it
the conclusion of the
The reason for this is so Germany (out of COP) , was entered into).
marriage, the law was
that the husband cannot law changed to marriage
that the estate would be However, the position of
disadvantage the wife. For in COP. You look at the
split equally between the law brings forth some
instance, the husbands LDM (law) as it currently
spouses 50/50. The law issues. The domicile act
domicile is in SA at the stands and apply that.
changes during the states that you can
point in time that they
subsistence of the WHERE THERE IS AN acquire domicile either by
were married, they then
marriage to now reflect ANTENUP CONTRACT: choice, or by assignment.
move to the US. Though
that the woman should There isn’t a domicile of
they have changed their Once the parties have na
only get 10% of the estate depednance. But if you
domicile to the US, still, antenup contract, it is still
and the man should get look at how the rule has
when it comes to the a contract. Once the
90% of the estate. This is beenformulated where
proprietary consequences, antenup is drafted there is
clearly unfair and there is no antenup
it will be governred by SA usually a choice of law
perpetuates inequality. contract, it is as if the wife
law. clause to say that the
Therefore, public policy is still dependant on the
contract will be governed husband. It seems
discriminatory because pronouncement of SECOND STEP: In an If the above 4 steps fail,
you focus on the male but marriage, which lead to instance where there is no you apply the law which is
not the female. Section 9 the enactment of the Civil antenup contract, or, closely connected to the
of the constitution looks at Unions Act. This provided there is no choice of law parties (this is what one
equality, and it means for same sex marriage. clause in an antenup school of thought says).
that such a formulation of So, the issue is, the law contract, the marriage will
Prof Forsyth: Another
the law contravenes the that applies to the be governed by the
school of thought says,
provisions of the equality proprietry consequences common domicile of the
where you still don’t have
clause. is the law of the hubsands parties at the time of
an answer after the 4
domicile. But if there is marriage.
The other problem is that steps, you apply the law
same sex marriage, there
if there is a position under THIRD STEP: If there is no of the place where the
is no defined “husband”.
the husbands law that common domicile, the law marriage was celebrated.
Which law applies to such
favours the woman, why of the common habitual
a union? Which of these positions
should we still have residents (where the
should we use? By way of
questions surrounding if SA scholars have tries to person is likely to stay) of
comparative
there is gender equality? formulate positions to the parties at the time of
jurisprudence, the
You cannot predict such cover for such issues. the marriage applies.
academic authors looked
an instance. There are many authors
FOURTH STEP: In case at law of Germany.
including niels/ fredricks/
We also know in Fourie v they do not have a Germany says that you
schoeman, etc, who have
minister of home affairs common habitual must apply the law that is
come up with ideas.
and others, the court had residence, apply the law closely connected to the
to make a pronouncement We apply these steps in a of the common nationality parties. In 2016, the EU
on the definition of cascading manner: of the parties at the time enacted a resolution to
marriage. The CC found of the marriage. (You can govern issues of
FIRST STEP: The
against the marriage be a national of one matrimonial property in
proprietary consequence
being deemed a unit country but be domiciled the European union. Their
of marriage is governed
between a man and a elsewhere.) position is that, the fifth
by the law chosen by the
woman to the exclusuion step is they favour the law
parties in an antenup FIFTH STEP: 2 school of
of others. So, the CC of the country that is
contract (choice of law thoughts
ordered parliament to give closely connected to the
clause)
effect to the parties.
So, because of the common law rule that the recitation (section 1 of the
problems with same sex domiciliary forum of the Divorce Act)
unions and equality, we parties alone was
At common law, the court
will use these steps. competent to issue a
applies its own laws (lex
decree of divorce. It was
fori) – considerations of
generally accepted that
public policy require a
the state most concerned
court to apply its own law
with the status of the
to divorce. (Holland v
parties alone had
Holland). For example:
authority to determine the
where a divorce action
status of their marital
goes before an SA court, it
relationship. Le Mesurier v
is the SA law that
Le Mesurier [1895] AC
determines the grounds of
517.
divorce.
However, statutory
Section 7 of the Divorce
jurisdiction is now
Act
grounded on both the
concepts of domicile and One of the considerations
ordinary residence of divorce is how to share
(section 2 of Divorce Act). property.
Divorce action (ito s1) Section 7 deals with the
PROPRIETRAY means an action by which division of the assets (and
CONSEQUENCES OF a decree of divorce or maintenance) of the
MARRIAGE: other relief connected spouses on divorce.
therewith is applied for,
Matrimonial actions: The Act in general, and
and includes inter alia
Prior to the applications for custody of the crucial section 7(3)(a)
implementation of the minor children of the in particular was enacted
Divorce Act, jurisdiction to marriage, or for payment with little thought whether
grant a decree of divorce of maintenance or edictal and, if so, how the Act
was based on the would apply where the
proprietary consequences which one of the spouses (4), (5) and (6), on Act 1 of 2024 with effect
of the marriage were has petitioned for divorce. application by one of the from 14 May 2024.]
governed by a law other parties to that marriage,
Section 7(3)(a): (4) An order under
than that of South Africa. in the absence of any
subsection (3) of (3A)
Since the legislature does agreement between them
shall not be granted
not seem to have borne in regarding the division of
(s 7(3)(a-b) and 7(4), it unless the court is
mind implications based their assets, order that
lays down certain satisfied that it is
on private international such assets, or such part
requirements that need to equitable and just by
law when reforming of the assets, of the other
be met by a party who reason of the fact that the
certain aspects of the party as the court may
goes before the court party in whose favour the
Divorce Act, uncertainty deem just, be transferred
asking for certain property order is granted,
exists with regard to to the first-mentioned
to be extended towards contributed directly or
whether section 7(3) of party.
them.) indirectly to the
the Divorce Act is
(3A) A court granting a maintenance or increase
intended to apply to (3) A court granting a decree of divorce in of the estate of the other
foreign marriages, and if decree of divorce in respect of a Muslim party during the
so, how the judicial respect of a marriage out marriage, may, subject to subsistence of the
discretion to effect a of community of property the provisions of marriage, either by the
redistribution is supposed — subsections (4), (5) and rendering of services, or
to be classified.
(a) entered into before the (6), on application by one the saving of expenses
Nonetheless, the commencement of the of the parties to that which would otherwise
applicability of section Matrimonial Property Act, marriage, in the absence have been incurred, or in
7(3)(a) has been argued in 1984, in terms of an of any agreement any other manner.
several cases where the antenuptial contract by between them regarding
Minimum
spouses, having married which community of the division of their
requirements:
while domiciled outside property, community of assets, order that such
South Africa (before the profit and loss and accrual assets, or such part of the a. Married out of
Matrimonial Property Act sharing in any form are assets, of the other party community of property in
88 of 1984 came into excluded, as the court may deem terms of ANC (s7(3))
force), have then acquired just, be transferred to the
a domicile locally, after may, subject to the first-mentioned party. [S b. Not subject to accrual
provisions of subsection 7(3A) inserted by s 4(a) of (s 7(3))
c. Marriage concluded equitable that we need to you can bring of Home Affairs and
before 1 Nov 1984 (or out indeed transfer part of the divorce proceedings Others [2023] ZACC 32
of COP in terms of the property of one spouse to under the divorce
Decided: 10 October 2023
Black Administration Act the other. act to ensure that
38 of 1927 –before 2 Dec certain properties Section 7(3)(a) has been
If non-compliance with
1988) (s 7(3)) are transferred to declared inconsistent with
requirements? No claim
you. the Constitution and
d. Contribution of one
The minimum invalid to the extent that
spouse to the other’s Legal Centre Trust v
requirements do not apply it fails to include
estate during the President of the
in respect of indigenous marriages concluded on or
marriage (this is from 7(4- Republic of South
marriages, although s 7(3) after the commencement
6)) Africa and Others
of the Divorce Act is of the Matrimonial
(2022) the CC ruled
* must meet all the applicable by virtue of s Property Act. CC held that
that Muslim marriages
requirements 8(4)(a) of the Recognition it is discriminatory (ito s 9
are to be legally
of Customary Marriages of the constitution).
Nb- s7(3-6) is one that the recognised and that
Act– see Gumede v Suspended for 24 months
courts would have to give certain sections of the
President of the Republic from 10 October 2023.
out of discretion. The Divorce Act and
of South Africa.
legislature didn’t want Marriage Act are Pending remedial
women to be Latest development in the declared legislation section 7(3)(a)
disadvantaged. Thus, a law: unconstitutional. is to be read as excluding
spouse married out of the words in strike-out
1. Muslim marriages 2. K.R.G v Minister of
community of property below; and which shall not
never used to be Home Affairs (HC)
who was able to bring affect the legal
considered, but, on ( 2022) section 7(3)
herself (or more rarely consequences of any act
the 14th of May (a) unconstitutional
himself) within the terms done or omission or fact
2024, an
of section 7(3)(a) or existing prior to this order
amendment was 3. Section 7(3)(a)
section 7(3A), might be relating to a marriage
made in the divorce Declaration of
able to gain a share of her concluded on or after 1
act by s 7(3)(A). If Unconstitutionality
erstwhile spouse estate. November 1984:
you are married
One would have to prove, EB (born S) v ER (born B)
under muslim or “7(3)(a) entered into
and the court would have and Others; KG v Minister
Islamic marriage, [before the
to see that it is just and
commencement of the by the death of a party to the commencement of the didn’t have an antenuptial
Matrimonial Property Act, the marriage, a court Matrimonial Property Act, contract. The parties
1984,] in terms of an may, subject mutatis 1984”.” petitioned to the court to
antenuptial contract by mutandis to the provisions transfer 50% of the assets
(If answering a q you
which community of of subsections 7(4), (5) of the husband was not
would have to go through
property, community of and (6) of the said Divorce successful. There clearly
this case. But then you
profit and loss and accrual Act, and on application by must be an antenuptial
would say, nevertheless,
sharing in any form are a surviving party to the contract before the
the HC in KRG v Min of
excluded;” marriage or by the powers of section 7(3)(a)
home affairs stated that
executor of the estate of a are engaged. In Milbourn v
Also, pending remedial the 3rd requirement is
deceased spouse to the Milbourn 1987 (W)
legislation, the courts’ unconstitutional. Further,
marriage as the case may
conclusions in both the Con Court indicated 2. There was an informal
be (hereinafter referred to
simultaneously decided that also when you look antenuptual contract. But
as the claimant), and in
matters CCT 158/22 and into the divorce act, that the courts still went to
the absence of agreement
CCT 364/21, the requirement of 1 Nov has uphold the requirement
between the claimant and
Matrimonial Property Act also been cancelled out.) that the antenuptual
the other spouse or the
is to be read as including, contract has been met. An
executor of the deceased The case laws have
as section 36A, the informal antenuptial
estate of the other spouse established some
following provision; and contract unregistered and
(hereinafter referred to as propositions:
which shall have no effect binding on the parties
the respondent), order
on the validity of 1. The parties were alone was sufficient for
that such assets, or such
deceased estate that has domiciled in England compliance with section
part of the assets, of the
been finally wound up by when they got married (so 7(3)(a): Lagase v Lagase
respondent as the court
the date hereof: the lex loci celebrationis 1992 (D).
may deem just, be
transferred to the and lex matrimony
“36 (1) Where a marriage 3. The legislature, perhaps
claimant. domicile is England). After
out of community of influenced by the Milbourn
they had married they
property as contemplated case has intervened with
(2) For purposes of came to SA and acquired
in paragraphs (a), (b) or section 7(9) of the Divorce
subsection (1), paragraph an SA domicile. The court
(c) of subsection 7(3) of Act. (The doctrine of
(a) of subsection 7(3) is to was of the view that,
the Divorce Act, 1979 (Act immutability is relevant. If
be read as excluding the though the parties were
70 of 1979) is dissolved perhaps the court availed
following words: “before domiciled in SA, they
itself to the law that S 7(9)“When a court Namibian law governs the met the antenuptual
governs the proprietary grants a decree of divorce proprietary consequences requirement. So, instead,
consequences of the in respect of a marriage of the marriage. She she invoked the
marriage, the woman the patrimonial knows that she will not be proprietary consequence
would have gotten consequences of which able to prove one of the s section which said that
something. But because are according to the rules 7(3) requirements. She the proprietary
the courts strictly followed of the South African realises that she can use s consequences are
the provisions of s 7(9) private international law 7(9) instead, which allows measured under the
the woman did not get governed by the law of a her to apply the foreign husbands domicile. The
anything). People criticse foreign state, the court law of Namibia instead, to woman was able to get a
this decision and say its shall have the same try and get the property. S share then.
unfair. This is due to the power as a competent 7(9) is an alternative route
In Hassan v Hassan the
fact that if you go by the court of the foreign state available)
case (check if this is the
proprietary consequences concerned would have
The court will likely not right court name) is also
of this marriage, this had at that time to order
unilaterally apply s 7(9) if an example where the
woman would have gotten that assets be transferred
it is not pleaded. courts had to characterise
something. But because from one spouse to the
the case as one that
she had brought the case other spouse”. It is problematic when you
governs the proprietary
to South Africa- due to are categorising a case.
This provision seems consequences of the
having acquired domicile Either you will bring it as a
designed to ensure that marriage, and because of
in South Africa- and per s divorce matter or you will
relief, if available under that, the court applied
2, SA courts can bring it as an issue of
the law governing the Scotland’s law.
adjudicate this case- it is proprietary consequences.
proprietary consequences
unfair to leave such a A divorce matter was what So although these cases
of the marriage, will be
woman empty handed). was sought in Milbourn. show they wanted
available to the party in
So, the divorce act was An order for proprietary something from the estate
the position of Milbourn.
amended. consequences was sought of the spouse, the parties
(So, for example, a in Lagase. don’t come under the
Section 7(9) provides that
woman tries to get divorce act, but rather,
if the SA court sits on a In Belle v Belle, she
property from her they come under the law
case, it has the realised if she as to go
husband, and they were governing the proprietary
competence to apply the under the divorce act,the
married in Namibia. consequences of the
foreign law to the case. marriage wouldn’t have
marriage to get something matrimonii, the Hassan v. Hassan,1998 it will envoke s 7 to allow
from the estate of the classification of an issue (D) for future maintenance of
spouse. into either the category of the spouse. So if you go
The view that there are
proprietary consequences under s 7(3), on the
Conflict between the aspects of the
or the category of divorce ground of contribution,
Categories of Divorce redistribution discretion
may be crucial for the you will get return for the
and Proprietary that are governed by the
parties concerned, since investment. However, the
Consequences lex fori and aspects that
different leges causae will court was of the opinion
are governed by the lex
It is often difficult to determine the outcome of that, the law that governs
domicilii matrimonii found
demarcate the boundaries the case, depending on the proprietary
support in the latest
of proprietary the category selected. consequences is Namibia.
reported case, Esterhuizen
consequences accurately And under Namibian law,
The view that the v. Esterhuizen. 1999 (C).
and precisely so as to the wowan would not get
redistribution discretion In Esterhuizen, the court
draw a watertight anything. So, under its
belongs to the category of had to apply both the lex
distinction between the own power, the court
divorce and should be fori, and the law
categories of proprietary evoked s 7 to cater for
governed by the lex fori applicable to the
consequences and divorce future maintenance. The
was adopted in two proprietary consequences
or as a hybrid court looks at the spirit of
different instances. of the marriage. If they
proprietary/divorce issue, s 7 to say that a spouse
applied the law applicable
governed partially by the Milbourn v. Milbourn should not be at a
to the proprietary
proper law of the disadvantage because of
Lagesse v. Lagesse consequences of the
proprietary consequences marriage.
marriage, the woman
of marriage and partially The view that the would not get anything. As considerations of
by the lex fori. redistribution discretion So, the court went on to reasonableness and
belongs to the category of evoke s 7, which shows fairness would in some
Since divorce issues are
patrimonial consequences the contribution of the cases indicate a
governed by the lex fori in
of marriage was adopted marriage to the other proprietary classification
South African PIL, (Holland
in other instances. Bell v. spouse. But then a and, in other instances,
v. Holland 1973 (1) SA 897
Bell distinction needs to be characterization as a
(T); s. 2(3) of the Divorce
Act 70 of 1979) and Haines v. Haines drawn between what you divorce issue, it is
proprietary consequences are getting by what you suggested that the
by the lex domicilii contribute. Nevertheless, claimant should be given
a choice between a claim Leferna v Leferna 2013
in terms of the lex fori (s SCA Neels and Fredricks
7(3) of the Divorce Act) “The proper law of the
and in terms of the proper proprietary consequences
law of the proprietary of marriage: Mauritian law
consequences of marriage in the South African
(s 7(9) of the Divorce Act. supreme court of appeal”
2015 TSAR 918
The claimant, in any
event, has the option of
instituting a claim in
terms of the proper law of
the proprietary
consequences of the
marriage by virtue of
section 7(9) (if indeed this
legal system makes
provision for redistribution
at divorce in the particular
circumstances.
Section 7(3) remains
relevant especially where
the proper law of the
proprietary consequences
of marriage does not
(sufficiently) provide for
redistribution at divorce
(as in the Esterhuizen
case, where the law of
Namibia was the proper
law).
 polygamous marriage to take the child to another of a marriage except if the
be ascribed a domicile. jurisdiction, or, where a courts orders otherwise.
However, with person wants to adopt a
IS CONSENT REQUIRED
polygamous marriage now child from a different
FOR RELOCATION:
being considered, we use jurisdiction, the question
domicile of origin. The is, would the person need If both parents hold full
position used to be that if permission from the other parental rights and
the child was born from a spouse? Which law would responsibilities in respect
legitimate marriage, the govern the instance? of a minor child, a parent
child could take the can only travel and/or
SA is a signatory to the
domicile of the father. But relocate to another
Hague convention on Civil
if the child was born from country with that child if
Aspects of International
parents not married, it the express written
TOPIC 3: CHILDREN: Child Abduction – Age 16
would take the domicile of permission from the other
Under the regime before the mother. However, with There can be internal parent has been acquired.
the domicile act, we had the domicile act, such movements, and then Pursuant to amendments
domicile of dependence. If dynamic is now not movements which are to the Immigration Act 13
you were a wife/child your relevant. international. of 2002 and Immigration
domicile would be of your Regulations promulgated
When somebody has an Section 18(3)(c)(iii) of the
husband or father. thereafter in May 2014,
order for maintenance, Children’s Act provides
specific requirements
The domicile act now uses custody, guardianship, that a parent of a child
have been set for minors
the law of closest adoption in respect of the must give or refuse any
traveling internationally
connection at birth. The child, before an SA court, consent required by law in
with a view to stop child
default position is the the SA law will apply (lex respect of the child,
abduction.
Rebuttable presumption – fori). More specifically the including consent to the
parents’ house is domicile by the Children’s Act child’s departure or If a parent is unreasonably
(parental home). removal from the withholding such consent,
Who qualifies as a child? –
Republic. The basic the parent who wants to
When polygamous Children’s Act – Age 18
principle is that both the travel and/or immigrate
marriage was not There are instances parents maintain with a minor child will
considered, it became where, maybe after guardianship of a child have to approach the High
difficult for a child under a divorce, a person wants to following the dissolution Court for relief.
In uncontested (i) a copy of a birth or legal guardianship in restrict this if the desire to
relocations, some certificate or passport respect of the child, if he relocate is genuine and
countries may containing the details of or she is the parent or reasonable, not because
nevertheless require a the parent or parents of legal guardian of the child; this is a right of the
Court Order to satisfy the child; or custodian parent, but due
their immigration to the fact that usually the
(ii) where applicable, a (vii) where applicable, a
authorities. best interests of the child
copy of an adoption order; copy of a death certificate
will not be served by
SOUTH AFRICAN of the deceased parent,
(iii) a letter of consent frustrating the custodian
REQUIREMENTS FOR parents or legal guardian
from the other parent or parent’s wish (see the
MINORS TRVELLING of the child.
parents, or legal guardian, case of Jackson v Jackson
INTERNATIONALLLY:
as the case may be, of the THE JURISPRUDENCE 2002 (2) SA 303 (SCA) at
Regulation 6(12)(B) (a) of child authorising such OF SOUTH AFRICAA 318E-I; F v F [2006] 1 All
Immigration Regulations, person to depart from or ABOUT RELOACTION: SA 571 (SCA).
2014 enter into the Republic
Why is SA pro granting Any such decision must
with the child he or she is
(One parent travelling emigration of the child? undoubtedly be subject to
travelling with;
with a minor) Even if you The court will consider a careful and appropriate
are married, you still need (iv) a copy of the what is in the best consideration of the best
consent from your spouse. passport, or identity card interests of the child, but interests of the child,
This is to prevent child in the case of South in addition to this, the which must entail a
abduction. African citizens, of the other factors must be consideration of the
parent or parents or legal considered as well. S 7 of nature and extent of
S(12B)(a) Where a parent contact possible with the
guardian of the child; the childrens act looks at
or parents, legal guardian non-custodian parent if
factors which will
or any other person is (v) the contact details of relocation is allowed. The
determine the childs best
travelling with a child who the parent or parents, or judge in Jackson v
interests. This is not the
is a South African citizen, legal guardian, of the Jackson, 2002 (2) SA 303
only factor.
such person must, upon child; (SCA), said (at paragraph
departure from or entry Where a custodian parent [19]):
(vi) a copy of a court order
into the Republic, wishes to emigrate or
granting full parental “The increasing numbers
produce- relocate with a child, the
responsibilities and rights of relocation disputes
court will be slow to
referred to in care, protection and well- see P v P (6743/2019) past relocation
psychological and legal being of a child, the [2019] ZAWCHC 174; judgements.
literature as also in South standard that the child’s [2020] 2 All SA 587
i. The critical
African jurisprudence and best interest is of (WCC). In other cases,
consideration: 'the best
that of other jurisdictions, paramount importance however, it may be far
interest of the child'
is a reflection of the must be applied. more difficult to discern
increasing trend of what course of action will The best interest concept
Section 7(1) highlights
geographical mobility best advance the child’s was applied in relocation
the factors that must,
particularly in relation to interests, and in such cases even prior to the
where relevant, be taken
work, coupled with a cases the parents’ introduction of the
into consideration in
higher rate of separation respective interests may Constitution or the
applying the standard of
or divorce after which come to the fore. Children’s Act. The
the best interests of the
former partners go their conventional position
child. What are the factors
different ways.” Listing favoured by our courts
that a court will
“Principles applicable to This does not imply has been that it is usually
consider in relocation
relocation of children”, the that the child’s best regarded to be in the best
applications?
learned judge said (at interest is the only interest of the child to
paragraph [20]): “Where a consideration or even Given the absence of stay with the custodial
custodial parent wishes to that it necessarily legislative guidelines to parent. The court in
emigrate, a court will not trumps all others (S v help courts in making Joubert v Joubert 2008 JOL
likely refuse leave for the M (Centre for Child Law their relocation 219229 (C) held that the
children to be taken out of As Amicus Curiae) judgements, which are primary caregiver usually
the country if the decision [2007] ZACC 18; 2008 largely value-based, it is has the right to have the
of the custodial parent is (3) SA 232 (CC) para crucial to give child with him/her.
shown to be bona fide 26). consideration to the
and reasonable.” Nevertheless, in F v F
factors that courts
In a case where the best 2006 3 SA 42 (SCA) it
normally take into
In accordance with s 28(2) interests of the child are was found that courts
account. The following is a
of the Constitution of the clear and are adverse to a should not easily assume
list of these factors
Republic of South Africa, parent’s interest in that the primary
stemming from a
section 9 of the Children’s performing a parenting caregiver’s proposals are
consideration of a few
Act provides that in all role, the former would, always compatible with
matters regarding the always have to prevail, the child’s welfare.
Various factors are taken the only factor to be taken badly researched and (c) (this includes removal
into consideration in into consideration or the unstructured. As a result, from South Africa), ‘give
evaluating what is in the sole determinant of the her application was due consideration to any
best interests of the child, exercise of the court's dismissed. views and wishes
such as the necessity to discretion. The best expressed by the child,
(iii) The interest of the
protect a particular family interest principle is the bearing in mind the child’s
relocating parent
unit of which that child is paramount consideration age, maturity and stage of
a part, and the within a hierarchy or (iv) The interests of the development’.
advantages and concatenation of factors non-relocating parent
HG v CG 2010 3 SA 352
disadvantages that the but is not usually the only
(v) The relationship (ECP)
move will have for the factor receiving
child (whether or not consideration in matters between the child(ren)
International Child
he/she will experience concerning children.” and parents
Abduction
trauma if taken away from (vi) The gendered
Cunningham v International child
one parent). nature of the roles
Pretorius 31187/08 abduction is a ‘global and
In B v M 2006 3 All SA 109 2008 ZAGPHC 258 within the post-divorce
growing phenomenon’.
(W) the court held the family B v M 2006 3 All
International child
J.B v R.E (9202 / 2022) SA 109 (W)
following in regard to the abduction is when a child
[2023] ZAWCHC 3
best interest principle: FvF is taken across an
(ii) The purpose of international border
“A child's best interest is (vii) The views of the
relocating without the consent of the
the pre-eminent child other parent or legal
consideration among all The reason for relocation
Section 10 of the guardian. It’s a global
other considerations. must be genuine,
Children’s Act issue that affects children
Nevertheless, the reasonable, and bona fide,
and their families.
legislature did not intend and must not serve purely In terms of section 31(1)
the best interests of the to frustrate the access International child
(a) of the Children’s Act, a
child to be the sole or rights of the other parent: abduction is an escalating
person holding parental
exclusive aspect to be F v F 2006 3 SA 42 (SCA) global issue that demands
responsibilities and rights
considered because it did the court determined that urgent attention and
must, before taking a
not prescribe that the the mother’s plan to coordinated international
decision on a matter inter
child's best interests are relocate to England was efforts.
alia listed in section 18(3)
The issue of international SA is a dualist state. This came into full operation, focuses on the expeditious
child abductions which is means that once you have the Hague Convention Act return of the child, it does
governed by the Hague an international was entirely repealed and recognize certain
Convention on the Civil convention in the country, international abductions is exceptions where the
Aspects of International it first needs to be now dealt with in terms of return may not be
Child Abduction. It was domesticated into law (i.e Chapter 17 of the mandated. However, it’s
concluded on 25 October a specific legislation Children’s Act important to note that the
1980. The Hague needs to be enacted to Hague Child Abduction is
In an instance where you
Convention on the Civil give effect to the not concerned with the
are able to prove that the
Aspects of International international obligation in merits of any underlying
parent has abducted a
Child Abduction came into the convention). So when child custody disputes.
child from one country to
force on 1 December SA ratified the Hague
the other, this is where The convention is
1983. Convention, it enacted
the convention as a predicated on the
There are currently 103 South Africa has been an remedial measure comes assumption that the
contracting states to the active participant in into paly, to ensure that abduction of a child will
convention. There are 12 addressing this challenge the child is transferred or generally be prejudicial to
African countries who are through its ratification of returned back to the his or her welfare and
contracting states to the the Hague Convention on country where he was that, in the vast majority
Convention: Botswana, the Civil Aspects of abducted from. of cases, it will be in the
Burkina Faso, Cabo Verde, International Child bests of the child to return
The HC provides a legal
Gabon, Guinea, Lesotho, Abduction (HC) on July 16, him or her to the state of
framework for the prompt
Morocco, Seychelles, 1995. habitual residence”.
return of abducted
South Africa, Tunisia,
This Convention was children to their country of See also Central Authority
Zambia, Zimbabwe. (so
incorporated in South habitual residence. The v H [2007] ZASCA 88;
you need to be a
African law through the Convention aims to 2008 (1) SA (SCA)
contracting party in order
enactment of Hague protect children from the
to enforce the convention) Ex: The convention
Convention on Civil harmful effects of
(you need to know these obligates every
Aspects of International wrongful removal or
countries are contracting contracting state to create
Child Abduction Act 72 of retention across
parties, he wont tell you) what is known as a central
1996. However, once the international borders.
authority. So SA has
Children’s Act 38 of 2005 While the HC primarily
created a central
authority, headed by the a) to secure the prompt demonstrating the child’s Central Authority for the
chief family advocate. So return of children significant connection to Republic of SA and SC v
the parents will go to the wrongfully removed to or that place. SC [2022] ZAGPJHC 700
central authority to report retained in any
The South African courts Article 4
the abduction. The central Contracting State; and
have determined that
authority will have to The Convention shall
b) to ensure that rights of habitual residence is not
confirm that the apply to any child who
custody and of access solely based on time
requirements of child was habitually resident in
under the law of one spent in a country but also
abduction have been met. a Contracting State
Contracting State are on the child’s level of
If it has been met, it will immediately before any
effectively respected in integration into their
communicate to the breach of custody or
the other Contracting environment. For example
central authority access rights. The
States. it has been held that
established in the other Convention shall cease to
subjective intent and
state. If the other party in HABITUAL RESIDENCE apply when the child
settled purpose are key
the other state refuses to in INTERNATIONAL attains the age of 16
factors in determining
give the child back, then CHILD ABDUCTION years.
habitual residence
there will be an action CASES:
against that particular The convention ceases to
The case law in South
parent in the state that Both parties have to operate after the child
Africa has evolved to
they are in. establish the onus of attains 16. They will now
adopt a child-centric
habitual residence. (both apply internal law instead
perspective in
IMPORTANT the abducting party and of the Hague convention.
ascertaining habitual
PROVISIONS OF THE the seeking party)
residence, as seen in Article 12
CONVENTION:
The determination of notable cases such as:
Article 1 (speaks about Where a child has been
habitual residence is a
Central Authority v TK wrongfully removed or
the prompt return of the fact-specific inquiry,
[2015 (5) SA 408 (GJ)]; retained in terms of Article
child) (the court must do it where the essence of a
within 6 weeks) 3 and, at the date of the
‘stable territorial link’ is Central Authority v ER
commencement of the
established either by the [2014 JDR 0297 (GNP)]
The objects of the present proceedings before the
duration of the child’s
Convention are – judicial or administrative
residence in a place or
authority of the
through evidence
Contracting State where another State, it may stay institution or other body In considering the
the child is, a period of the proceedings or which opposes its return circumstances referred to
less than one year has dismiss the application for establishes that – in this Article, the judicial
elapsed from the date of the return of the child. and administrative
a) the person, institution
the wrongful removal or authorities shall take into
The court often imposes or other body having the
retention, the authority account the information
strict conditions on the care of the person of the
concerned shall order the relating to the social
order to return regarding child was not actually
return of the child background of the child
the support and welfare of exercising the custody
forthwith. provided by the Central
the child: Pennello v rights at the time of
Authority or other
The judicial or Pennello and Another removal or retention, or
competent authority of
administrative [2003] ZASCA 147; 2004 had consented to or
the child's habitual
authority, even where (3) SA 117 (SCA) para 62. subsequently acquiesced
residence.
the proceedings have in the removal or
One of the ways in which
been commenced after retention; or There should have been
the removal or retention
the expiration of the no acquiescence by the
of a child is rendered b) there is a grave risk
period of 1 year person seeking return
wrongful is through that his or her return
referred to in the (Smith v Smith 2002 3 SA
removal or retention in would expose the child to
preceding paragraph, 845 A) and the views of
breach of a custody order physical or psychological
shall also order the the child, if of sufficient
made by the court of harm or otherwise place
return of the child, age and maturity, shall be
habitual residence: Article the child in an intolerable
unless it is considered (article 13).
3 situation.
demonstrated that the
See also MB v LC and
child is now settled in Article 13 The judicial or
Another (21586/2023)
its new environment. administrative authority
Notwithstanding the [2024] ZAWCHC 61
may also refuse to order
This defence will be raised provisions of the
the return of the child if it The authorities may only
by the abducting parent. preceding Article, the
finds that the child objects refuse to return the child
judicial or administrative
Where the judicial or to being returned and has in limited circumstances.
authority of the requested
administrative authority in attained an age and These include proof of a
State is not bound to
the requested State has degree of maturity at “grave risk” that return
order the return of the
reason to believe that the which it is appropriate to would cause “physical or
child if the person,
child has been taken to take account of its views. psychological harm … or
place the child in an upheld in Sonderup v Ad Hoc Central Authority which judicial proceedings
intolerable situation”. Tondelli, [2000] ZACC 26; for South Africa v DM were instituted in a High
2001 (1) SA 1171 (CC); (18862/2023) [2024] Court, except where
The words “grave risk”
2001 (2) BCLR 152 (CC) , ZAWCHC 170 exceptional circumstances
imported that there had to
this will seldom provide a make this impossible.
be a “serious and well- REGULATIONS RELATING
defence.
founded reason why the TO CHILDREN’S COURTS The Hague Convention on
situation of the child be Must read cases AND INTERNATIONAL the Protection of Children
intolerable”: WS v LS 2000 CHILD ABDUCTION IN and Co-operation in
The Ad Hoc Central
(4) SA 104 (C) at 112I- TERMS OF THE respect of Intercountry
Authority for the Republic
113G In that case, it was CHILDREN’S ACT, 2005 Adoption
of SA and Another v Koch
“clearly intolerable for a
N.O. and Another [2023] 15. Application for return It was adopted on 29 May
child under the age of one
ZACC 37 of child to the Republic 1993 and entered into
year to be parted from its
force on 1st May 1995.
mother”: at 113B. LD v Central Authority (3) An application as
[2022 (3) SA 96 (SCA) provided for in It has entered into force in
The onus of establishing
subregulation (1) must be 103 countries, although
these circumstances Central Authority for the
submitted to the Central there are 106 contracting
naturally falls on the party Central Republic of South
Authority of the Republic, states.
resisting the order: Smith Africa and Another v C
who must, within 48 hours
v Smith 2001 (3) SA 845 (20/18381) [2020] It entered into force in
of receipt thereof, forward
(A) at 851A ZAGPJHC 236; 2021 (2) SA South Africa on 1st
it to the Central Authority
471 (GJ) December 2003.
Article 20 of the country to which
Central Authority for the the child has been taken. Fitzpatrick v Minister of
Also, article 20 allowing
Republic of South Africa v Social Welfare and
refusal if this is contrary 23. Expeditious handling
Ashmore (10839/14) Pensions 2000 (3) SA 139
to the requested State’s of proceedings
[2015] ZAKZDHC (C); Minister for Welfare
“fundamental principles …
(1) Proceedings for the and Population
relating to human rights Central Authority of the
return of a child under the Development v Fitzpatrick
and fundamental Republic of South Africa v
Hague Convention must [2000] ZACC 6; 2000 (7)
freedoms”. Since the Engelenhoven [Case No.
be completed within six BCLR 713 (CC)
compliance of the Act with 43352/2021 ZAGPPHC
weeks from the date on
the constitution has been 699]
Following Fitzpatrick case, African children by According to section 25 of adoption is in the child's
and acknowledging the foreigners. The the Children’s Act, best interests;
insufficient protection Constitutional court
“[w]hen application is The principle of
afforded to children reasoned that an absolute
made in terms of section subsidiarity plays a crucial
involved in intercountry prohibition on adoptions
24 [guardianship role in The Hague
adoptions, in 2003 the by foreigners was contrary
application] by a non- Convention on Protection
South African government to the best interests of the
South African citizen for of Children and Co-
ratified the Convention. child because it deprived
guardianship of a child, operation in Respect of
Various efforts have been the court of the flexibility
the application must be Intercountry Adoption
made by the government needed when assessing
regarded as an inter- (1993) (HCCH 1993
to comply with the what is in the best
country adoption for the Adoption Convention). It
standards of the interests of each child.
purposes of the Hague ensures that intercountry
Convention, the most
As far as the scope of the Convention on Inter- adoption is used only
significant being its
Children’s Act is country Adoption and when a suitable
incorporation in the
concerned, article 2(2) of Chapter 16 of this Act”. placement in the child's
national law through
the Convention states that country of origin is not
chapter 16 of the Article 4
its standards apply only to available. (Ex: there are
Children’s Act 38 of 2005:
adoptions “which create a An adoption within the children in zim tha can be
sections 254 to 273 of the
permanent parent-child scope of the Convention adopted. There is an SA
Children’s Act
relationship”. South Africa shall take place only if the family who want to adopt
Following, the Fitzpatrick has taken a slightly competent authorities of the Zim children. Art 4
decision in 2000, different approach. The the State of origin- says that before the
intercountry adoptions Children’s Act extends the central authority of
have become legal in application of the a) have established that Zimbabwe can order for
South Africa. In this case, intercountry adoption the child is adoptable; the adoption of those Zim
the Constitutional Court standards to guardianship b) have determined, after children to go to SA, they
confirmed a finding of applications with a foreign possibilities for placement must satisfy a
unconstitutionality element, although these of the child within the requirement. The
pertaining to section 18(4) applications do not give State of origin have been requirement is that there
(f) of the Child Care Act 74 rise to a permanent child- given due consideration, is no family in Zim that is
of 1983 which prohibited parent relationship that an intercountry willing to adopt those
the adoption of South children. Only then can
there be an inter country according to the as required by article 4(2)
adoption.) Children’s Act. The same and (3) of the Convention.
A second aspect required
definition of adoptability
Subsidiarity in the Hague by the Convention is that According to section
applies for national as well
Adoption Convention the consent to adoption 233(6), the consent must
as international purposes.
be informed and obtained be given in the presence
The principle is explicitly Therefore, a child
without coercion, payment of a presiding officer of
stated in Article 4(b) of adoptable internationally
or compensation of any the children’s court.
the Convention, which is a child whose situation
kind: Article 4c.
requires that: meets at least one of the Section 233(8) provides
criteria set in section The consents to that the consents
Domestic Adoption First – 230(3): intercountry adoptions (including that of the
Authorities must first
must be obtained from the child) can be withdrawn
consider placing the child (a) the child is an orphan
parents of the child, or within 60 days.
with a family in their own and has no guardian or
any other person holding
country. caregiver who is willing to (Parent-child relationship
the guardianship of the
adopt the child; ordinarily is different to a
Intercountry Adoption as a child.
guardian- child
Last Resort – Only when a (b) the whereabouts of the
Section 233(1) requires relationship. Article 2
child cannot be placed in child's parent or guardian
that a child give consent if merely deals with a parent
a suitable family in their cannot be established;
ten years or older. The child relationship, one of
country of origin should
(c) the child has been consent of a child below permanency.
intercountry adoption be
abandoned; the age of ten is also Nevertheless, if you look
considered.
necessary if the child is of at the children’s act, it
(d) the child’s parent or
Best Interests of the Child an age, and has the places a guardian child
guardian has abused or
– Any adoption decision maturity and stage of relationship under
deliberately neglected the
must prioritize the child’s development which adoption.)
child, or has allowed the
welfare and ensure that enable him or her to
child to be abused or Must read cases
intercountry adoption is a understand the
deliberately neglected; or
legitimate alternative consequences of the AD and Another v DW and
rather than a first option. (e) the child is in need of a consent. This ensures the Others] 2006 (6) SA 51
permanent alternative participation of the child (W)
The adoptability of the in the process of adoption,
placement.
child will be established
AD and DD v DW and Intestate succession to died. She had a car, furniture The lex situs governs in
others Case CCT movables is governed by the and immovable property in respect of immovables: In
48/07[2007] ZACC 27 law of the country of the South Africa. In terms of respect of immovable
T K and Another v L K and deceased’s last domicile (the which legal system will her property, capacity to make a
Others (2022/17006) lex ultimi domicilii): furniture and immovable will is subjected to the lex
[2023] ZAGPJHC 1268 property in South Africa be situs.
Estate Baker v Estate Baker
distributed?
(1908); In the Intestate Estate Under testate succession, the
of Warren (1908) 29 NLR Answer: The furniture in main focus will be
160; In re Intestate Estate of terms of Kenyan law (the lex determining whether a will
Fletcher (1908) 29 NLR 192 ultimi domicilii) and her is valid or not.
immovable property in terms
Immovables: The law in this regard is
of South African law (the lex
primarily found in section
Intestate succession to situs).
3bis of the Wills Act 7 of
immovables is governed by
Testate succession 1953, which is based on the
the law of the country where
Hague Convention on the
the immovable property is This is succession where there
Conflict of Laws Relating to
TOPIC 4: SUCCESSION: situated (the lex situs). is a valid will.
the Form of Testamentary
Private international law of These rules apply to Testamentary capacity Dispositions of 1961.
succession in South Africa complete and to partial
The capacity to make a will The convention entered into
intestate succession.
Intestate succession disposing of movable force on 5 January 1964.
(meaning there’s a part of the
property, testamentary
It is when a person dies property governed by a will Section 3bis was inserted in
capacity (for instance the
without a will or making a and another part which is not) the Wills Act 7 of 1953 by s 2
competent age or mental
valid will. In that case, we of the Wills Amendment Act
Example: Koshkosh died illness to be able to execute a
need to determine which law 41 of 1965.
leaving a will in which she will) is governed by the lex
will help to determine who bequeathed her car to domicilii at the time of A South African court may
inherits the estate left behind. Azigizah. Koshkosh was execution of the will as far as nevertheless refer to the
Movables: domiciled in Kenya when she movables are concerned. convention in the
interpretation of s 3bis: see Movables: The formal validity execution and at death See section 3bis (1)(a)(i)-(iii):
Tomlinson v Zwirchmayr of a will in respect of suffices.
i. the lex loci actus
1998 2 SA 840 (T) 847-850 movables is governed by the
Ex parte Blenner-Hassett 1931 (the internal law of
 You need to look at the lex loci actus (the law of the NLR 585; Re Eliashof’s the state or
formal validity of the place where the will was Estate 1903 territory in which
will either under executed) (Ex parte Heymann the will was
In both cases (movables and
common law, or, under 1935 WLD 100) executed;
immovables) the will has to
statue. ii. the lex domicilii at
or the lex domiclii (the law of comply with the formalities of
the time of
Formal validity of a will domicile of the deceased): only one of the mentioned
execution of the
under common law legal systems to be formally
lex domicilii at the time of will;
valid in terms of South
There are two kinds of will execution of the will or at the iii. the lex ultimi
African (private international)
under the common law time of death. domicilii;
law.
iv. the law of habitual
(1) if the deceased was a Thus, at common law, the residence at the
The basic statutory rule
South African citizen formal validity of a will in time of execution
who executed a will respect of movables in In all other cases (that is: of the will;
not in written form (eg governed by the lex loci actus, where the two circumstances v. the law of habitual
an oral will or one on lex ultimi domcilii or the lex referred to in section 3bis (4) residence at the
video or DVD); domicilii at the time of the are not present) wills have to time of death;
(2) if the deceased died execution of the will. comply with the formalities of vi. the lex patriae (the
before 4 December at least one of the following law of nationality
Immovables: The formal
1970 (the date when legal systems to be valid in or citizenship) at
validity of a will in respect of
section 3bis entered terms of South African the time of
immovables is governed by
into force). (private international) law. execution of the
the lex situs or
(Sir says s 3bis is an example will;
In both these cases the
the lex loci actus of multilateral rules, where vii. the lex ultimae
common law applies.
you have a whole list of patriae (the law of
and possibly the lex domicilii: connecting factors that you
The common-law rules are the nationality or
both the lex domicilii at can look at).
following:
 citizenship at the Mozambique, while she was extra systems to be provided the crew for the
time of death). domiciled and habitually applicable. flight. E was a national of
resident in Botswana. She was Namibia but domiciled and
If a will is valid in terms of The inclusion in the
a national of France at all habitually resident in South
any of these “testing alternative of the law with
relevant times. Which legal Africa at all relevant times.
systems”, then the will is which the vessel or aircraft is
system(s) govern(s) the formal All his property, movable and
regarded as being formally most closely connected deals
validity of her will? immovable, is situated in
valid. both with flags of
South Africa. Which legal
Will executed on board of a inconvenience and the
In respect of immovable system(s) govern(s) the formal
vessel or aircraft problems which arise when
property, the lex situs must validity of E’s will?
two or more legal systems
be added to this list: s 3bis (l) For particular situations and
operate in the flag state – in (from the outset you see that it
(b) for specific types of clauses
such cases, the alternative is a will and that it is after
extra-legal systems are added
In so far as a will bequeaths allows the law of the port of 1977, so it rules out the part
to these discussed above.
immovable property, the registration to be applied. where its governed by
formalities of that will have to For the situation that a will is Flags of inconvenience is common law and it also rules
comply with either one of the executed on board of a vessel where a vessel, let say, is out the possibility of a will.
systems in the list above or or aircraft, these are the lex owned and operated by South You will need to indicate in
the lex situs. Thus, the lex libri siti (the law of the Africans, but is registered in the test what it is not. (for the
situs is not the sole legal country where the vessel or Singapore. rest of the answer, go to the
system that is relevant here. aircraft was registered) at the recording on your phone at
Example: During 2001, E
time of the execution of the 29:15 on 12 March).
Example: E died in executed a will on board of an
will and the law of the country
Switzerland during 2005, aeroplane owned by Air WILLS:
with which the vessel or
while she was domiciled in France, while it was at the
aircraft otherwise had the Power of appointment
Germany and habitually airport in Addis Ababa
closest connection at that
resident in Austria. She left a (Ethiopia). The aeroplane was A testator (the donor) may in
time. section 3bis (1)(e).
will in which she bequeathed leased to Kenyan Airways for his will grant to the donee the
her movable and immovable The ship or aeroplane need daily flights between power to appoint by will the
property in South Africa. The not be in motion for the Mombassa (Kenya) and Addis person (appointee) who shall
will was executed in Ababa. Kenyan Airways
succeed to certain property If this first step fails, then you to its own testing legal the law of Afghanistan,
after the death of the done. move on to the second step, systems. The 2nd will is still a Kosovo and China. Will 2 is
which is: will. A 1st person makes will 1 formally valid in terms of the
Since the donor and donee
and tells B that if B is also law of South Africa, Namibia
may die domiciled in different b. Determine whether the
making his own will which is and China but it is formally
countries the question arises, second will (Will 2) is
will 2, he’s supposed to give invalid in terms of the legal
under which law it is to be formally valid
the property to somebody in a systems of Ghana,
determined whether a power according to the lex
particular way. Afghanistan and Kosovo. Is
was validly exercised in the locu actus of the first
the execution of the power of
donee’s will or not. will. Question 1
appointment by Thiago (the
General rule NB: It is irrelevant whether Lionel’s will (“will 1”) appointment of a final
will 1 is valid in terms of its granted the power of beneficiary under the usufruct
To ascertain whether the constituted by Lionel)
lex loci actus. appointment of a final
power of appointment formally valid?
beneficiary under a usufruct to
exercised by the donee was If a power of appointment is
Thiago. Thiago executed this
formally valid, there are two conferred in a first will, which Approach
power in his will (“will 2”).
steps to follow: is executed in another will, the Compartmentalization of the
The legal systems applicable
execution of the power of facts
a. Determine whether the to the formal validity of will 1
appointment in the second
second will (Will 2) is are the law of South Africa, Will 1
will be formally valid
formally valid Namibia and Ghana. South
according to its own legal Applicable legal systems:
according to its own Africa is inter alia the lex
systems, and if it is also valid South Africa, Namibia and
testing systems. ultimi domicilii, Namibia is
by the lex loci actus of the Ghana (testing systems for
the lex ultimae patriae and
If it is formally valid first will. So we are saying Will 1) In reality, Will 1 is
Ghana is the lex loci actus.
according to its own testing that in determining if the formally valid in terms of
Will 1 is formally valid in
systems, then it means that the exercise of the power of the South African law Will 1 is
terms of the law of South
exercise of the power of 2nd person to the 3rd person formally invalid in terms of
Africa but not in terms of the
appointment by the donee was was formally valid, you test it the law of Namibia and
law of Namibia or Ghana. The
formally valid. by looking at whether the 2nd Ghana. Lex loci actus for Will
legal systems applicable to the
will in itself is valid according 1 is Ghana
formal validity of will 2 are
Will 2 Question 2: execution of the power of formally invalid in terms of
Cristiano’s will (“will 1”) appointment by Mateo (the the law of South Africa,
Applicable legal systems:
granted the power of appointment of a final Panama, Mozambique,
Afghanistan, Kosovo and
appointment of a final beneficiary under the Eswatini and Zimbabwe
China (testing systems for
beneficiary under a fideicommissum set up by
Will 2) In reality, Will 2 is Applying the rule: first step
fideicommissum to Mateo. Cristiano) formally valid?
formally valid in terms of the Determine whether will 2 is
Mateo executed this power in
law of South Africa, Namibia Approach formally according to its own
his will (“will 2”). The legal
and China Will 2 is formally Compartmentalization of testing system. Will 2 is
systems applicable to the
invalid in terms of the law of the facts formally valid in terms of the
formal validity of will 1 are
Ghana, Afghanistan and law of Mongolia. This is not
the law of South Africa, Will 1
Kosovo. one of the testing systems for
Panama and Mongolia. South
Applicable legal systems: Will 2. This means that Will 2
Applying the rule: first step Africa is inter alia the lex
South Africa, Panama and is formally invalid as it does
ultimi domicilii, Panama is the
Determine whether will 2 is Mongolia (testing systems for not comply with the
lex ultimae patriae and
formally according to its own Will 1) In reality, Will 1 is formalities of the laws of any
Mongolia is the lex loci actus.
testing system. Since will 2 is formally valid in terms of the of its testing system
Will 1 is formally valid in
formally valid in terms of the laws of Panama and Mongolia (Mozambique, Eswatini and
terms of the law of Panama
law of China, which is one of Will 1 is formally invalid in Zimbabwe). Thus, we move
and Mongolia but not in terms
the testing systems for Will 2, terms of the law of South on to step 2.
of the law of South Africa.
then it means that Will 2 is The legal systems applicable Africa Lex loci actus for Will
Step 2
formally valid as it complies to the formal validity of will 2 1 is Mongolia
with the formalities of the law are the law of Mozambique, Determine whether Will 2 is
Will 2
of China. In effect, the Eswatini and Zimbabwe. Will formally valid according to
execution of the power of 2 is formally invalid in terms Applicable legal systems: the lex loci actus of Will 1.
appointment will therefore of the legal systems of South Mozambique, Eswatini and The execution of the power of
also be formally valid. Thus, Africa, Panama, Mozambique, Zimbabwe (testing systems appointment in will 2 may be
we need not even move on to Eswatini and Zimbabwe but it for Will 2) In reality, Will 2 is formally valid on its own if it
step 2. We end our enquiry at is formally valid in terms of formally valid in terms of the complies with the lex loci
step 1. the law of Mongolia. Is the law of Mongolia Will 2 is actus of will 1.
From the question, the lex loci formally valid in terms of the laws of South Africa Will 1 is formalities of the laws of any
actus of Will 1 is Mongolia. law of South Africa but not in formally invalid in terms of of its testing system
Also, from the facts, will 2 is terms of the law of Algeria or the law of Algeria and Egypt (Singapore, Switzerland and
formally valid in terms of the Egypt. The legal systems Lex loci actus for Will 1 is Portugal).
laws of Mongolia. Will 2 applicable to the formal Egypt
Thus, we move on to step 2.
(including the execution of the validity of will 2 are the law
Will 2
power of appointment) is of Singapore, Switzerland and Step 2
indeed valid in terms of the Portugal. Will 2 is formally Applicable legal systems:
lex loci actus of will 1 (the invalid in terms of the legal Determine whether Will 2 is
Singapore, Switzerland and
law of Mongolia) and systems of Egypt, Singapore, formally valid according to
Portugal (testing systems for
accordingly the execution of Switzerland and Portugal but the lex loci actus of Will 1.
Will 2) In reality, Will 2 is
the power of appointment is it is formally valid in terms of formally valid in terms of the The execution of the power of
formally valid. The remainder the law of South Africa and law of South Africa and appointment in will 2 may be
of Mateo’s will is still invalid. Algeria. Is the execution of Algeria Will 2 is formally formally valid on its own if it
the power of appointment by invalid in terms of the law of complies with the lex loci
Question 3
Zandile (the appointment of a Egypt, Singapore, Switzerland actus of will 1.
Nkunzi’s will (“will 1”) final beneficiary under the and Portugal
granted the power of trust founded by Nkunzi) From the question, the lex loci
formally valid? Applying the rule: first step actus of Will 1 is Egypt. From
appointment of a final
beneficiary under a trust to the facts, will 2 is formally
Approach Determine whether will 2 is
Zandile. Zandile executed this valid in terms of the laws of
Compartmentalization of formally according to its own
power in his will (“will 2”). South Africa and Algeria. This
the facts testing system.
The legal systems applicable means that there is no
to the formal validity of will 1 Will 1 Will 2 is formally valid in congruence.
are the law of South Africa, terms of the law of South
Applicable legal systems: Will 2 (including the
Algeria and Egypt. South Africa and Algeria. This is not
South Africa, Algeria and execution of the power of
Africa is inter alia the lex one of the testing systems for
Egypt (testing systems for appointment) is, thus, invalid
ultimi domicilii, Algeria is the Will 2. This means that Will 2
Will 1) In reality, Will 1 is in terms of the lex loci actus
lex ultimae patriae and Egypt is formally invalid as it does
formally valid in terms of the of will 1 (the law of Egypt)
is the lex loci actus. Will 1 is not comply with the
and accordingly, the execution
of the power of appointment is A revocatory clause in a will General rule EXAMPLES:
formally invalid. is formally valid in terms of
A provision in a later will Example 1 Samuel left two
section 3 bis (l)(a)-(c) if it
REVOCATION OF WILLS: (will 2) that revokes (part of) wills. He was domiciled in
complies with:
an earlier will (will 1) of the South Africa when he
(13 March vn)
- the lex loci actus (the law of same testator will not only be executed the wills but he was
In internal South African law, the place where the will was valid if it complies with the domiciled in Mauritius at the
revocation of a will may take executed), formalities of one of the legal time of his death. Samuel was
place systems governing formal the owner of immovable
- the lex domicilii (the law of
validity as they apply to will property situated in South
(i) by a testamentary domicile) of the testator at the
2, but also if it complies with Africa. The first will (“will
provision; time of execution of the will,
one of the legal systems 1”) bequeathed the immovable
(ii) by means of the mentioned in section 3bis (1) property to his first wife,
- the lex ultimi domicilii (the
forms of (a)-(c) as they apply to will 1 Angela. The second will
law of domicile at death),
revocation provided (the revoked part (“will 2”) expressly revoked
mentioned in - the law of habitual residence of) will 1 is valid in terms of the first will and bequeathed
section 2A of the at the time of execution of the that legal system. the immovable property to his
Wills Act 7 of will or side-chick, Mary. In terms of
1953; or In other words, the revocation
- the law of habitual residence South African law, the
(iii) ex lege clause in will 2 shall be valid
at the time of death, intestate heirs are Adetayo and
if
As a starting point, for a Fula. In terms of the law of
- the lex patriae (the law of 1. it (revocation clause) is Mauritius, Farida and Gloria
revocation clause to be
nationality) at the time of valid in terms of any of the are the intestate heirs. The
deemed to be formally valid it
execution of the will and legal systems that will make legal systems applicable to the
needs to be valid ito its own
testing system. If this fails, we - the lex ultimae patriae (the will 2 to be valid. Or formal validity of will 1 are
test whether it complied w the law of nationality at death). Nigeria, Mali, Mauritius,
2. if it complies with any of Lesotho and South Africa. The
first testing system which
In respect of immovable the legal systems that will law of Mali is the lex loci
makes will 1 valid.
property, the lex situs (the make will 1 to be valid actus and the law of Nigeria is
By testamentary provision law of the place where the (Provided that the revoked the lex patriae at the time of
property is situated). part is valid).
execution. Will 1 is formally primarily applicable legal revocatory clause is therefore Abraham left two wills. The
valid in terms of the law of systems formally valid but the first will (“will 1”) bequeathed
Nigeria, Mali and Mauritius remainder of will 2 is still his estate to his wife, Sarah.
Application of the general rule
but not in terms of the law of invalid. The second will (“will 2”)
Step 1
Lesotho or South Africa. Will expressly revoked the first
In answering the question
2 is formally invalid in terms If it is valid according to its will and bequeathed his estate
directly (who inherits the
of all the primarily applicable own primary applicable legal to his son, Isaac. The intestate
immovable property):
legal systems but it is formally systems From the question, it heirs are Jacob and Essau. The
valid in terms of the law of is invalid, thus Will 2 is The effect of the revocatory legal systems applicable to the
Nigeria. Who inherits invalid following the first clause in respect of movables formal validity of will 1 are
Samuel’s immovable property step. is governed by the lex Spain, France, Morocco and
in South Africa? domicilii at the time of Belgium. Will 1 is formally
Step 2 valid in terms of the law of
execution of the will.
Answer 1
As will 2 is formally invalid Spain, France and Morocco
In respect of immovables, the but not in terms of the law of
Will 1 in terms of all the legal
lex situs governs. In the Belgium. Will 2 is formally
systems primarily applicable
Applicable legal systems: instant question, these legal valid in terms of the law of the
to formal validity, the
Nigeria, Mali, Mauritius, systems are South African place where it was executed
revocatory clause can only be
Lesotho and South Africa law, the revocatory clause has but not in terms of any of the
held to be formally valid if it
(these are testing systems for the intended effect to revoke other systems applicable to its
is such in terms of any of the
Will 1) Formally valid: the first will. The intestate formal validity. In addition, it
legal systems mentioned in
Nigeria, Mali and Mauritius heirs will therefore inherit. is valid in terms of the law of
section 3bis(l)(a)-(c) that are
Formally invalid: Lesotho or The lex situs governs the Belgium. Is the revocatory
applicable to the formal
South Africa intestate succession of clause in will 2 valid?
validity of will 1, provided
immovables. South African
Will 2 will 1 is valid in terms of that Answer
law is therefore applicable and
specific system. From the
It does not give you the Adetayo and Fula will inherit
question, both the first will Will 1 Applicable legal
applicable legal systems the immovable property.
and the revocatory clause in systems: Spain, France,
Formally valid: Nigeria. Morocco and Belgium (these
will 2 are valid in terms of the Example 2:
Formally invalid: all the are testing systems for Will 1)
law of Nigeria. The
Formally valid: Spain, France bequeathed his estate to his for witnesses (eg their would have been valid in
and Morocco niece, Thato. The second will minimum age) are for the terms of the common law
(“will 2”) expressly revoked purposes of section 3bis to be remains valid irrespective of
Formally invalid: Belgium
the first will and bequeathed regarded as formal the provisions of article 3bis:
Will 2 his estate to his new requirements. The same “The provisions of this section
girlfriend, Vanessa. The applies to requirements for shall not affect the validity of
It does not give you the intestate heirs are Rutendo testators of a certain age, a will which but for such
applicable legal systems and Nosipho. The legal nationality or other personal provisions would be valid”.
Formally valid: Lex loci actus systems applicable to the qualifications to observe
and Belgium Changes in foreign legal
formal validity of will 1 are special formalities in the
system
Formally invalid: any of the South Africa, Malawi, execution of a will.
other systems applicable to its Lesotho and Zambia. Will 1 is It was decided in Sperling v
Section 3bis (2) “Any
formal validity formally valid in terms of the Sperling 1975 3 SA 707 (A)
requirement of the internal
law of South Africa, Malawi that changes in a foreign legal
Application of the general rule law of any other state or
and Lesotho but not in terms system should be applied by a
territory in terms of which a
If it is valid according to its of the law of Zambia. Will 2 is South African court.
testator of a particular age or
own primary applicable legal formally invalid in terms of all According to Kahn, this
nationality or having any
systems From the question, it the primarily applicable legal principle should, in the
other personal qualification is
is valid according to the lex systems but it is formally context of the formal validity
to observe special formalities
loci actus. This is one of the valid in terms of the law of of wills, only apply if the
in the execution of a will, or a
testing systems of Will 2. Zambia. Who inherits outcome thereof is the
witness to a will is to possess
Thus, Will 2 is formally valid Rowan’s estate? validation of the will.
certain qualifications, shall be
following the first step. There Other ancillary issues: construed as a requirement Interpretation of wills
is no need to invoke the relating to form only”.
second step. Requirements for witnesses; A will should be interpreted
extra formalities required Common law remains according to the express or
Solve example 3 and make it for certain testators applicable tacit intention of the testator.
available in our next class. An express provision could
Provisions in a legal system Section 3bis states in
Example 3: Rowan left two read: “This will must be
that articulate requirements subsection (5) that a will that
wills. The first will (“will 1”) interpreted in terms of South
African law”. A tacit intention In respect of movables, the determined according to respect of movables and
may be clear from the use of inherent validity and effect of internal South African law. immovables
terminology peculiar to a a will is governed by the lex
Van der Merwe, Rowland and LDM Discriminatory??
certain legal system. ultimi domicilii;
Cronje: in all cases the lex
other forms of ex lege
If no intention is clear, the will In respect of immovables, this ultimi domicilii of the testator
revocation, not necessarily
should be interpreted in is governed by the lex situs. should govern in respect of
related to marriage (eg birth of
accordance with the lex movables and the lex situs in
For rectification, See Evelyn- a child) and all these should
domicilii at the time of respect of immovables.
Wright v Pierrepoint 1987 2 ideally be governed by the
execution. This applies to both
SA 113 (E): rectification in Revocation by destruction same legal system. Neels
movables and immovables.
respect of movables is submit that all forms of ex
According to Neels, Forsyth
According to Schoeman, the governed by the lex ultimi lege revocation should be
and Kahn, revocation by
lex situs may apply in respect domicilii. governed by: the lex domicilii
destruction, in respect of its
of immovable property at the relevant time (eg the
Capacity to inherit inherent validity and effect as
“should the lex domicilii time of marriage or birth of a
well as its formal validity,
produce a result which is The capacity to inherit should, child) in respect of movables
should be governed by the lex
illegal or impossible to give according to Forsyth, be and the lex situs in respect of
domicilii at the time of the
effect to by the lex situs”. governed by the lex domicilii immovables.
alleged revocation in respect
of the beneficiary at the time
Inherent validity and effect of of movables and by the lex Practice question
of execution of the will of the
wills situs in respect of
deceased; and by the lex situs Delilah died leaving movable
immovables.
Issues such as disinheritance, in respect of immovables. and immovable property in
the existence of a right to a Revocation ex lege South Africa. She left a will in
Neels, as far as the time
legitimate portion, a ius which she bequeathed her
question is concerned, the In Pitluk v Gavendo 1955 2
relictae, the effect of undue movable property to Judas.
moment of the deceased’s SA 573 (T), ex lege
influence, duress and mistake, Judas negligently caused
death should prevail as this is revocation by marriage, was
the validity of conditions, Delilah’s death in a motor car
also the instant that capacity held to be governed by the lex
rectification, etc. accident. Delilah was a
to inherit is usually domicile matrimonii, both in
passenger in Judas’ car. The
will was executed in
Amsterdam (the Netherlands),
while Delilah was domiciled
and habitually resident in the
United Kingdom. Delilah was
domiciled and habitually
resident in Zimbabwe at her
death. At all relevant times,
Delilah was a citizen of Iran.
Judas was domiciled in
Mozambique and habitually
resident in Senegal at the time
of the execution of Delilah’s
will. He was domiciled and
habitually resident in Japan at
the time of Delilah’s death.
Which legal systems govern:
(a) Delilah’s testamentary
capacity; (b) the interpretation
of Delilah’s will if no
intention in this regard is clear
from the will; (c) the inherent
validity of a condition in
Delilah’s will; (d) Judah’s
capacity to inherit; (e) the
intestate succession to
Delilah’s immovables in
South Africa?
 marriage Katlego was as the legal minimum age for issue back & forth between
domiciled & habitually marriage is 14. However each other
resident in SA while Thandi according to the PIL of
Example: PIL rules of SA
was domiciled & habitually Mauritius the lex domicili of
refer to law of country
resident in Kenya. After the husband at the time of
Mauritius (lex causae) while
marriage Thandi & Katlego marriage determines the
Mauritian PIL refers the
TOPIC 6: RENVOI decide to live in South Africa validity of the marriage,
matter back to SA law
& make it their permanent which is SA. Thus, PIL of
o Renovi (somethings been home. The parties live in SA Mauritius refers back to the Two countries refer to each
given to you and you give it for 4 years until their marriage law of SA. In terms of SA law, other’s legal systems
back to the sender) relationship irretrievably marriage would not be
breaks down. The parties regarded as valid, as no girl Remission creates infinite
If you want to determine the reference
formal validity of the separate, but do not obtain a under 15 can marry without
marriage you look at the lex divorce. 2 years later Thandi the necessary permission (s From one legal system to
loci celebrationis- which for meets Bradley who she wishes 26(1) of Marriages Act) another
example in SA. If we say that to marry & now wants to
This theoretical infinite Transmission
the SA legal system is know whether she needs to
reference from one legal
applicable, are we referring to obtain a divorce from Katlego. o Possible for transmission to
system to another prevents the
the SA domestic law or the The need to obtain a divorce = occur for example if:
selection of the lex causae &
PIL of SA. It’s the PIL. depends on whether her
is the problem of renvoi Example: according to SA PIL
marriage to Katlego was
The nature of the problem: valid? TYPES OF RENVOI the law is governed by LLC
(Mauritius) but according to
A Zimbabwean national According to SA PIL the o Two types of renvoi PIL of Mauritius that
Thandi, who is 14 years old, marriage is governed by the
Transmission nationality of party whose
goes on holiday to Australia lex loci celebrationis which is capacity is in question
where she meets a SA national Mauritius. The internal Remission determines the validity of the
Katlego, who is 21 years old. (domestic law) of Mauritius marriage (Zimbabwe)
They fall in love & decide to regards the marriage between Where there are two legal
get married 4 months later in Thandi & Katlego to be valid systems that keep sending the
Mauritius. At the time of the
Where one country’s legal SA is the forum. SA is faced ((((Sir did not go through the regarded as valid since it is
system refers to the next with a marriage situation. SA’s following in class: Question valid in terms of the internal
which refers to the next PIL rules are leading it to of renvoi only arises if a law of Mauritius
Mauiritus. With a reject renvoi reference to the lex causae
Can also be infinite – where o Problem:
approach, SA merely applies (e.g. Mauritius) is interpreted
one country’s legal system
the internal laws of Mauritius. to mean the domestic (internal Ø In absence of international
refers to the next which refers
It wouldn’t even bother to law) of the lex causae & the convention, or regional
to the next which refers to the
think if Mauritius has PIL PIL rules of the lex causae convention = no uniformity.
next & so on
laws to think of.
o If there is no reference to the o The no-renvoi approach has
Problem: don’t know which
With remission- theres an PIL rules of the lex causae been adopted by statute in a
legal system to apply, how do
expectation that the second number of countries
we choose a legal system from Ø Then there can be no
country would take you back
the chain? remission or transmission to Ø Brazil, Greece, Hungary,
to the forum. However when
another legal system Italy, Syria & Egypt amongst
APPROACHES TO the court applies the no renvoi
approach, the PIL rules of SA others.
RENVOI o No-renvoi approach is based
stop at Mauritius without on assertion that o Internal law of Mauritius
o 3 approaches to renvoi considering Mauritiuses own will apply
PIL rules. Ø Reference to the lex causae
1. Reject renvoi (no-renvoi)
in a conflict rule excludes the Ø There will be no further
2. Partial renvoi However, with transmission conflict rules of the lex causae enquiry – PIL rule of
ordinarily the 2nd country Mauritius will not be looked
3. Total renvoi would take you to a 3rd o If the no renvoi approach is
country, however, with no followed in our example Ø In instances where renvoi is
1. Reject renvoi
renvoi, when SA takes you to rejected the country of first
Ø SA court will only apply the
The reference of the first Mauritius, and Mauriitus reference applies
internal law of Mauritius &
country which is the lex fori, points you to Croatia, you still make no enquiry into the PIL Ø Thus in our example you
is to the internal law of the 2nd only apply the internal law of rules of Mauritius will only take the country of
country, without recourse to Mauritius. first reference into account
the PIL rules of the country. Ø Thus: marriage between
(Mauritius)))))
Thandi & Katlego would be
2. Partial renvoi Transmission: F SA à Mauritius à SA (the F Mauritius à SA (the matter
matter would end here & SA would end here & SA internal
o Partial renvoi We are in the court of SA. SA
internal law would apply). law would apply)
pil law takes us to Mauritius.
You only move one step and
Mauritius PIL rules says to Ø There would be no onward o However, if both lex fori &
don’t go further than that. You
apply the law of Zimbabwe. reference from South African lex causae apply partial renvoi
stop at your first station. If for
Once you go to Zim they say law there will be no uniformity
example SA PIL rule says that
you should apply Kenya. But
you apply the law of the place o This restriction to one Ø To illustrate: if SA applied
partial renvoi shows that the
where the marriage was onward reference by the lex partial renvoi = SA à
internal law of Zim will be
celebrated, and you get to the causae’s PIL rules Mauritius à SA (SA internal
applied.
place where the marriage is law would apply)
Ø Based on the assumption
celebrated, that is your first (didn’t go through the
that the lex causae adopts the Ø While if Mauritius applied
step. In you moving to your following in class:
no-renvoi approach partial renvoi = Mauritius à
second step, you are going to
Ø Accepts there may be SA à Mauritius (Mauritian
apply the internal law of that Ø This means that the lex
onward reference by lex internal law would apply)
second step, and not the PIL causae if faced with the same
causae but asserts that there
of the second country. matter would reach the same o Partial renvoi is generally
can only be 1 such onward
decision (namely the legal accepted in France, Belgium
Ex: SA PIL rules moves you reference
system to which its PIL rules & Germany
to Mauritius. Mauiritus also
o Example: refers)
considers its PIL rules and Ex parte Low
says that the formal validity of Ø If SA court adopted the F This would lead to
the marriage is determined by Ex parte Low: inherent
partial renvoi approach: uniformity of decision
the woman, which is SA law. validity of will
matter would be referred to
You don’t go beyond this step. o For example, if the court of
Mauritian law (by SA’s PIL Mangan, an Irish- born British
You apply the SA law. You Mauritius adopted the no-
rules) & the reference back to subject. After a presumably
don’t see what the PIL rules of renvoi approach
SA law by the Mauritian PIL profitable peregrination
SA are, you just stop at its rules will also be accepted, Ø It would apply the legal through what was then
internal laws. (This is but the matter would end there system of first reference: Rhodesia, had spent the later
remission w partial renvoi) part of his life in the Belgian
Congo. The issue raised Ø = Reject renvoi Ø Only one reference will be The problem is that there is no
included the validity of his considered end = can be infinite.
o Alternative application of
will in which he disposed of
two approaches Ø PIL rules of Mauritius will Which legal system will you
movables situated in South
be considered & the country then apply? The court would
Rhodesia (ie Zimbabwe). Ø Seems like Russel J
to which such PIL rules refers have to decide the applicable
Roman Dutch conflict rules followed a partial renvoi in
internal law will apply legal system on the basis of
tested this by the law of the the end (CCF)
policy considerations
testator’s domicile. But it was o Apply the legal system of
unclear whether he was still F Did not apply PIL of Ireland
the second reference WHY IS THE DOCTRINE
domiciled in Ireland or – only applied internal law of
OF RENVOI
whether he has acquired Ireland Ø So follow chain & apply
IMPORTANT?
domicile in the Belgian second legal system referred
F Assumed that Congo would
Congo. Russell J said however to So that you can have a
apply no-renvoi approach
this did not matter, for if he uniformity of judgements that
Ø Ie, you apply the legal
was domiciled in Ireland the F Considered PIL rules of lex say the same thing. You want
systems to which the PIL rules
common law rules would have causae (Congo) which pointed to prevent forum shopping as
of the lex causae points
applied while if he was toward Ireland far as possible. A plaintiff who
domiciled in the Belgian Ø Example: PIL rules of has a number of courts, he
Ø Main focus is how the would go to the court which
Congo, the law of Belgian Mauritius (lex causae) points
international courts have he would get the best benefit.
Congo would have referred to to SA
applied renvoi & what they This is an issue due to
the law of his nationality use it for Ø You will therefore apply the
(Irish law); so either way Irish fairness.
internal law of SA if partial
law would have applied. This Ø It is mainly applied by To solve any problems posed
renvoi is applied))
amounted to partial renvoi English courts – very fond of by renvoi the court could as
(CCF). it & they will apply it in more [Link] renvoi Professor Khan puts it simply
family law orientated matters apply the internal law of the
o SR à Congo à Ireland The total renvoi may lead us
o Internal law of SA will to a country of no return. You lex causae. However, as long
Ø = Partial renvoi apply follow the chain until the end. as international harmony
remains a primary goal of PIL
o R à Ireland
law renvoi cannot simply be Issue of forum shopping & that country meaning that you  Formal & material
rejected conflicting but competent wouldn’t have to use the PIL validity of wills
judgements rules of that particular  Formal & material
o Example:
country.(If the court in the validity of marriages
o Therefore according to
If SA court rejected renvoi & application of choice of law  Legitimacy of children
Forsyth: If renvoi can advance
simply applied internal rules finds that a question
the goal of uniformity of
Mauritian law (internal law of before the court should be
decisions then it must be
lex causae), SA court would decided in accordance with a
seriously considered (useful
clearly come to decision foreign state because of the
where it leads to international
different to that of Mauritian persons domicile of a foreign
harmony)
court (which also rejected state, the court shall decide it
renvoi) facing the same matter Renvoi can be used as a in accordance with that
policy instrument which can: foreign state law. So for
To illustrate – if SA court example if someone is a
rejected renvoi & applied the Ø Be applied when it leads to Zimbabwean domicile, you
internal law of Mauritius (to a fair result use Zimbabwe’s internal law,
which SA PIL points) the you don’t use Zims PiL law.)
Ø Be used as an escape
marriage would be regarded
mechanism from sometimes S 3bis of the Wills Act refers
as valid
rigid PIL rules to the internal law of any of
While if a Mauritian court those applicable legal
Instances in which renvoi
rejected renvoi & applied the systems. So you just refer to
cannot be applied
internal law of SA (to which the internal law.
Mauritian PIL points) the S 4 of the Domicile Act – if
marriage would be regarded you are dealing w a case and Renvoi does not apply to
as invalid the connecting factor of the contracts.
conflict of law rules uses RENVOI IN ENGLISH
Result: the outcome of the
domicile as a connecting COURTS
proceedings would differ
factor. So you don’t apply the
solely based on where such
PIL rules of that country you When is it applied:
proceedings are instituted
just apply the internal law of
 Henry a national of Utopia be determined whether a valid But which legal system
dies leaving money in a bank marriage between Celeste & governs the incidental
account in SA. At the time of Henry was concluded to question? Do we apply the
his death he is domiciled in establish if she is in fact PIL rules of SA or of Hades
Hades. Henry’s spouse & therefore (the lex causae).
entitled to the money in his
According to the PIL rules of What is the incidental
account (according to the law
RSA the law of lex ultimi question?
of Hades).
domicilii governs the intestate
Ø Preliminary
succession of movables From this scenario two
question/initial
making Hades (his domicile at questions arise:
question/1st question that
the time of death) the law
1. The question of must be answered before
applicable to the succession of
TOPIC 7: INCIDENTAL intestate succession – you can answer the main
the money in his bank
QUESTIONS does Celeste inherit question
account. According to the law
Henry’s money? (The
Theres instances when a court of Hades the surviving spouse Ø As seen in our example
main question)
is faces with an action but is the sole intestate heir (if – was the marriage
before it can make a there are no dependents). 2. The validity of the between Celeste &
determination on the main Since the law of Hades is the marriage between Henry validly
issue, It has to determine a applicable law that makes it Henry & Celeste – was concluded?
side issue. For example a the lex causae. A woman the marriage between
succession issue where a named Celeste claims that she Henry & Celeste
woman goes to court and that is entitled to the money in validly concluded? There are 2 types of
she wants assets. We first need Henry’s bank account on (the incidental incidental questions
to make a determination of account of a marriage question)
ceremony which she Ø 1. Incidental question
what your status was. If you We know that the main properly so-called
were married, it becomes concluded with Henry in
England. question above – is governed
important to succession. If by the LUD (the law of F SA PIL refers the
you were validly married is However before Celeste can Hades) according to SA PIL main question to
the incidental question. inherit Henry’s money, it must rules. foreign law
 F As in our example, 2. That must be solved before The first point is that you are to the main issue on marriage.
SA PIL refers the the main question can be dealing w 2 main issues. Ex: The main issue is succession.
main question to answered issue 1 is marriage and issue 2 The PIL rules says that issue
the law of Hades is succession. The conflict of succession is governed by
Ie the solution to the
(foreign law) rules that applies to determine the law of Hades. In terms of
incidental question must be
the validity of marriage is Hades PIL rules, to determine
Ø 2. Incidental question sine qua non for the solution
different from the conflict the validity of the marriage, its
not properly so-called to the main problem
rules that determines the determined by the nationality
F SA PIL refers the An issue of marriage has its validity of a will. of the husband. So if we use
main question to own conflict of law rules to SA law to determine the
The second point relates to
SA law apply. And untilwe determine validity of the marriage, it
that there are instances where
the validity of the marriage, may be different than if we
The distinguishing factor the conflict rules of the forum
we cnat go on to determine used the Hades PIL rules
between the 2 has to do with on the subject, is different
the issue of succession. determining the validity of the
the choice between the from the conflict rules of the
marriage. SA law tells us that
internal which has to do with Theres certain necessary applicable law to the main
it is where the marriage is
the lex fori, and then, one that questions that have to be issue. For example: In SA the
celebrated. So in our
has to do with applying the present for us to have a real conflict rules that determines
circumstances it would be
legal system referred to by the instance of an incidental the validity of a marriage is
England. But if the main issue
PIL rules of a forum. questions which are: the lex loci celebrationis. But
is Hades, the PIL rules of
then, if you look at the PIL
Two requirements for 1. 2 issues exist in the Hades, says that the validity of
rules of Hades, they may
existence of valid incidental dispute, governed by the marriage is different.
determine that the rule will be
problem different conflict rules. determined by the nationality (Once you see this element
And this points to of the husband. So, you may play out, you know you are
1. There must be another
different legal systems. determine that the PIL rules of dealing with an incidental
question or problem that is
2. The conflict rules of the forum, can be different on question. If you have an
governed by another legal
the lex fori and the the subject of marriage, can be instance where the PIL rules
system other than the lex
applicable legal different to the PIL of the on both marriage and
causae
systems referred to applicable law that is applied succession are the same, you
differ.
will not have an incidental option which is the PIL rules (including its conflict Ø Judge has the discretion
question). of the country that is rules) to choose any approach
applicable to the main issue. on grounds of fairness
Four possible approaches to Ø Thus in our example –
resolving the incidental lex causae (of the main Ø As you can see the
question question’s) conflict rule approach applied by the
o Lex causae approaches
determines the validity court has a substantial
Once you ascertain that
Ø Internal law of X – of the marriage impact on the main
there’s an incidental question
internal law of Hades to question
that you have to deal with, the
answer the question of
following options are
the marriage’s validity o Lex fori approaches
available to you:
(which would render the Approaches followed by the
Ø Internal SA law – the
o (1) Apply the internal law marriage invalid) court
internal law of South
of the country governing
Ø Legal system referred to Africa would render the o Authors in favour of the lex
the main question (ex:
by PIL of X – legal marriage valid fori approach
Hades)
system referred to by the
Ø Legal system referred to Ø Emphasize the public
o (2) The PIL rules of the PIL law of Hades
by SA PIL – SA PIL policy of the forum &
country that governs the namely Utopia (which
refers to English law & the internal coherence of
main issue (ex: Hades) would render the
English law regards the the law of the forum
marriage invalid)
o (3)apply the internal law of marriage as valid
o Authors in favour of the lex
SA to determine the
o Forsyth causae
incideeintal question
o Decided cases in common
Ø Suggests that a non- Ø Believe that legal
o (4) apply the PIL of the law (although scarce) &
mechanical approach system governing main
forum which is SA to many of the foreign writers
should be followed question should also
determine the incidental
Ø Favour approach of apply to incidental
question Ø The judge should be
resolving incidental question, as it is most
aware of the problem &
However according to case question by application closely connected to
the competing conflict
law, we mostly use the 2nd of the lex causae particular case &
rules
 because international will inherit Henry’s incidental question may If he was not validly divorced
harmony of decision is property not always work from the first wife, he could
paramount consideration not have validly married the
o Application of lex causae or F Because it may be
in this regard second
lex fori approaches to difficult to
incidental question would determine what the Inherent validity of Australian
bring about very different main question is & marriage: main question
o However, most
results what the incidental governed by LLC = Australian
contemporary common law
question is law
authors are of the opinion Ø Namely validity or
that: invalidity NB: Phelan v Phelan Court decided: incidental
question governed by PIL of
Ø There can be no general Ø If, however, application Facts:
lex causae (Australian PIL)
or prior solution to the of lex fori & lex causae
Mr. Phelan married the 1st Ms. which did not recognize the
problem of the brought about the same
Phelan (In Italy) & then got divorce in the DR.
incidental question & result then the problem
divorced from her in the
each case or category of posed by the incidental Decision:
Dominican Republic because
case must be considered question would not arise
there was no possibility of Australian PIL: divorce is not
in light of relevant
Ø Thus important that divorce in Italian or Irish law recognised in DR, parties thus
policy objectives &
policy considerations at the time. not validly married, still
practicalities of
are taken into account married to first wife
outcomes He then got married to the 2nd
when determining the
Ms Phelan in Australia. (SA PIL: same outcome)
Application of approaches legal system applicable
to the incidental The main question – whether Detailed facts:
o The approach applied by
question the Australian marriage was a
the court can either render o Plaintiff (Ms Karen Therese
valid marriage?
the marriage valid or F Must consider the Phelan) instituted action
invalid facts of the case & Incidental question: whether against defendant (Mr
possible unfairness he was validly divorced from Paschal Mary Phelan) for
Ø This in turn will impact
first wife? divorce & custody of three
whether or not Celeste Ø Furthermore, applying
lex causae to the
 children & maintenance for obtained a divorce from her the Dominican divorce Australian Family Law Act,
herself & the children in that country on 16 April orders. 1975: parties were at no
1996 relevant stage ordinarily
o Defendant denied that the Decision
resident or domiciled in
parties were legally married o Thereafter the plaintiff &
o No finding was made in Dominican Republic & they
the defendant underwent a
o Plaintiff was previously respect of the plaintiff’s were citizens of Ireland
ceremony of marriage in
married to Paul Sweeney in Dominican divorce (these are the requirements)
Australia on 29 June 1996
Italy & defendant was
o Validity of the defendant’s o The divorce also did not
previously married to Marie o The ordinary residence of
divorce in the Dominican comply with the common-
Phelan, also in Italy the plaintiff & the defendant
Republic had to be law criteria of reciprocity or
at the time of the
o Defendant & Marie Phelan determined a real & substantial
commencement of their
were Irish citizens & connection
relationship & the time of o Court decided, with
domiciled in Ireland.
their seeking divorces in the reference to Australian o The court therefore found
o In August 1993 the plaintiff Dominican Republic & at private international law that the subsequent
obtained a divorce from the time of the ceremony of marriage in Australia was
marriage which the parties o Applied – the legal system invalid
Paul Sweeney in the
underwent in Australia, was indicated by the reference
Dominican Republic. The
rules of the lex causae Criticism
relationship between the the Republic of Ireland
defendant & Marie Phelan o Court in applying the o Irish law: no possibility of
o The inherent validity of the
broke down & the recognition rules of divorce
Australian marriage had to
defendant & plaintiff began Australian PIL found that
be determined with o Parties also could not
a relationship. the Dominican divorce of
reference to the lex loci divorce in another country
celebrationis = the law of defendant was not
o At the time divorce was not whose divorce order would
New South Wales, recognisable under
recognised in Ireland. have been recognised
Australia. Australian law
Defendant then commenced
o This is in conflict with
proceedings against his wife o Divorce did not comply
o The validity of the freedom of association
Marie Phelan in the with requirements for
marriage, naturally, (Constitution), thus in
Dominican Republic & recognition in S 104(3) of
depended on the validity of
 conflict with external public Dhansay could inherit his tested against the lex (anytime a q is asked of you,
policy immovable property in SA? domicilii of their father take note of the main q.)
(Indian law) they would
o Thus we should recognise o Like their father the Public policy has a negative
have been found to be
the divorce order of the DR children of Dhansay were and positive function.
legitimate & would have
on grounds of the positive domiciled in India.
inherited Negative function- contract is
role of public policy
o In SA they were regarded as valid according to applicable
Ø SA PIL: would have
o Other policy considerations illegitimate as their father law, but according to the
referred the issue of
was married to their mother forum, it would infringe the
legitimacy to LD of
in potentially polygamous public policy of the forum, it
father at time of child’s
o This decision clearly marriage is therefore invalid. This is a
birth (Indian law)
illustrates role that policy negative function of pp.
Main question (the law of
considerations should play
intestate succession of Positive function- contract
in determining answer to
immovable property) was Decision: may be invalid according to
incidental question
governed by the lex situs = SA applicable law of the contract,
o The court however applied
law but SA will go ahead and
the lex situs & internal law
enforce it because it will
NB: Dhansay v Davids Incidental question = issue of of the forum.
otherwise be against SA’s PP.
legitimacy
o Case illustrates that courts o Therefore law of SA (Ex: the contract of marriage
are not always aware that Ø Before 1988: only applied as the lex situs – Mr is concluded online, and the
there is incidental question legitimate children Dhansay’s brother Ebrahim law of the country says its
within the facts according to SA internal Dhansay his intestate heir in invalid. SA will then say it
law could inherit thus SA (in the absence of will be against SA’s public
Ø Court focused on main Dhansay’s children children) inherited his policy so we should enforce
question could not inherit immovable property. it).

Ø Incidental question = o Court was not aware of the Phelan v Phelan: criticism
o Main question – Whether legitimacy of Dhansay’s incidental question (issue of
The wife of the previous
internal heirs of Omar children, if the legitimacy) & thus followed
marriage is irish, divorce is
incidental question were internal SA law
not allowed. Because of this, This is to the effect that the reasonable expectations from
the had to go to dominica to defendant has sought a the parties, in their mind, the
have divorce proceedings take divroce order in Dominica. marriage that the defendant
place. Going by res judiciata, let the entered into is dead and gone,
litigation come to an end. If which is why the ife is
Prof Neels criticises this
the people already have a comfortably in the new
because he says that the laws
divorce order, you cannot say marriage. By this concept let
of Ireland already prevent the
that the divorce that they us bury the old dead marriage
couple from having their
entered into was invalid and and keep to the existing one
divorce. Australian PIL rules
because of that the marriage instead. Thus the Australian
says that their divorce is not
that they entered into was marriage would have be
recognised. If SA had envoked
invalid. entered into as valid.
the positive function of PP, it
could have argued freedom of Prof Neels also raises the
association. Freedom of reasonable expectation of the
association is 1 of the parties. According to him, the
fundamental rights in the couple had been married for
BOR. People should therefore more than 10 years, and had
determine who they marry. children. Its reasonably
But if an SA court says that expected that you are married
the divorce is invalid, and to this person. For the court to
therefore their marriage that say that the divorce in
occurred in Australia is Dominica was invlaid was
invalid, it means that the SA against the reasonable
court is infirnigning of expectation of the parties.
freedom of association.
Shultz makes the critique that
Another critique by prof neels one has to bury dead
has to do with the marriages and look forward to
consideration of the doctrine future marriages. In other
of estoppel and res judicata. words, flowing from the
 there’s an express choice of where they are from non- labour legislation cannot be
law clause, you end the member states) ousted.
enquiry. The parties can
• CISG – is applicable • Please take note & read up
choose an unrelated legal
whenever the contract at hand on when the National Credit
system. But if you were trying
falls within its scope and the Act & Consumer Protection
to choose an unrelated legal
parties have not excluded its Act applies – its important to
system because you were
application. remember that when these acts
attempting to avoiding a
TOPIC 8: CONTRACTS are [Link] they will be
mandatory law that would • Parties can also elect model
applied to the contract.
When 2 international parties have been applicable to your law such as the UNIDROIT
enter into a contract together, contract, the court will in that Principles of International • If South African rules
they would likely have a case bypass the choice of law Commercial Contracts provide greater protection, it
choice of law clause. But in rule and apply the mandatory (UPICC) - soft law instrument can be applied instead.
the case that they don’t, which rule that would have been (not binding) which parties
applicable. STEP 2 (KINDA): TACIT
law needs to be applied in may elect to govern their
AGREEMNENT
such a contract. agreement.
• Parties do not have to choose
the law of a country but there • Where parties have not
NB- renvoi is not applicable Parties cannot exclude any
are popular choices for expressly chosen a legal
in contractual situations legislation that protects the
example English law is system to govern their
because when it comes to economically weakerparty
popular choice for shipping agreement the court will look
contracts, our starting point is • The courts have to apply at whether the parties tacitly
dealing with what the actual agreements.
legislation that protects the elected a legal system to
intentions of the parties are. • Parties can choose economically weaker party, govern their agreement.
In a test scenario, you have international agreements such even if a foreign legal system
to go through each of the as The United Nations The court will infer that theres
is chosen as the applicable
steps when analysing a Convention on Contracts for a tacit choice of law from 2
law.
question in contract. the International Sale of instances- either the
Goods (CISG), 1980 to • The Consumer Protection provisions themselves, or, the
The 1st step is determining if Act, National Credit Act and circumstances surrounding the
there has been an express govern their agreement (even
contract.
agreement by the parties. If
Certain factors the court looks relationship with FNB that is the parties may choose that will still expect us to go
at: the form of the contract/ flowing from the contract that the court of Zim will handle through this second step)
certain clauses that may be I have with the foreign the dispute, however, the
STEP 3:
present in the contract (ex: company? In this instance, choice of law clause is that the
where the contract has written one tacit choice of law could UK law will apply. So the Zim If there is no agreement
ubuntu somewhere, it can be be that, if the choice of law in court will apply the UK law) (express or tacit) the law of
implied that its SA), contract 1 is governed by the the closest connection applies.
However sometimes, where
references to legislation law of the UK (and FNB is
we see a choice of court the lex causae (proper law).
aware of this), then although
There can be an issue where clause it may be a tacit
the contract with FNB didn’t • But what is meant by the
the contract is a subcontract. indication that we would want
choose an applicable legal legal system of closest
(ex: yourself and a foreign to apply the law of the forum
system, the law applicable to connection?
company. FNB is supposed to which is handling the dispute.
the main contract can be
guarantee the contract that (In this case Zim court sits, so Theres 2 approaches by the
inferred to be the one that
you have entered into with Zim law governs) courts:
governs the legal system
this foreign company. You
between myself and FNB. Benedit driven company ltd v Approach 1: Called the
have 1 foreign contract with
Gouws : the parties had wighing approach. They count
the foreign company for the So the legal principle is: The
chosen a habitual tribunal, but all the factors that are
supply of laptops. Based on court will infer that the law
the court was of the view that applicable to the case and then
this contract, in the case of applicable to the main
the choice of a localised give weight to the factor that
any dispute, the law of UK contract is also applicable to
habitual tribunal is not an they think is more important.
will be applicable. Based on the subsidiary contract
indication of the parties
the contract, in case of All connecting factors would
Choice of court clause: choice of law or the country
anything, FNB will pay the be put together. Ex: one
where the habitual institution
foreign company if anything There can also be an instance connecting factor takes us to
is.
happens. If there is a dispute where a choice of court clause US/SA/Germany, so all these
between myself and FNB, we can be a tacit indicator of the (Sir says he will not give us a connecting factors are
don’t have a legal system choice of law of that forum. question where the parties important, because you weigh
governing our relationship. have a tacit agreement, but he the factors that you have
What legal system governs the (The difference between this
and a choice of law clause is- together.
Each factor carries a certain This is integral because theres the US, then we have 2 places not effected or was in some
weight but 1. lex loci two places of performance in of performance. This takes us way defective
solutionis is most weighty a typical contract scenario: the to the next step which is the 2
UNITARY PRINCIPLE:
then first is the law of the place approaches from case law to
where the contract si supposed answer the above questions • Authority - Improvair;
2. the law of the place of
to be done (ex: you enter into namely, Kleynhans
arbitration.
a contract with Amazon to be
The scission principle & • There is one proper law for
Approach 2: delivered in SA, the residence
where they have to deliver the whole contract (you should
The unitary principle.
lex loci solutionis (begin with goods is one place of not separate it, the entire
the law of the place where the performance but the place you SCISSION PRINCIPLE: contract should be governed
contract was performed or have to pay your money is by one legal system)
Authority - Standard Bank
supposed to be performed) where you pay.) so it’s the pay and Laconian (didn’t go • Consider all the connecting
UNLESS substantially closer point and the delivery point through) factors (set out by Neels &
connected to another legal which are locations. Fredericks in their article) to
Each performance has its own
system that is different to the The lex loci solutionis is the find one legal system which is
applicable law. The place of
place than where the contract most important factor whether closely connected to the facts.
the payment should have one
was performed. you look at the first or second legal system, and the place of • Usually one of the lex loci
This was shown in the approach. In a test scenario the delivery should have its solutionis – in our example
Standard Bank case. indicate this as part of your own legal system Germany would CLEARLY
answer. be the legal system of closest
(It says don’t count the If the place of performance &
If the place where the connection because it is the
factors, your starting point place of delivery differ = the
performance should take place place of payment & delivery.
should be the lex loci you have two separate places
solutionis unless the (such as delivery, or of performance. So which of • However if the place of
exception). performance, or payment is to the two will you choose? payment & delivery differed
take place is all happening in the decision may not be as
So how do we determine the 1 country, theres no problem. You look at the law of the
clear cut.
law of the place of the lex loci Where delivery must be in place where performance was
solutionis? SA, and payment must be in
• If still unclear, after factors try to try to infer a tacit - Contracts Involving a it while on holiday in Rome;
are considered and no closest agreement from the facts). Bill of Exchange: the Italian law does not apply;
connection then there are 3 These are usually
• STEP 3: Law of Closest • deemed sent to the place
different views: governed by the lex
Connection. where B is normally resident;
fori (Bills of Exchange
choose one of these three
• 2 Approaches = 1. LLS the Act). • contract concluded in SA, no
approaches: (they all have
place of arbitration 2. LLS or matter where it is being read
equal priority) Bill of Exchange: any
legal system of closest from.
document that transfers an
• Van Rooyen: apply the connection.
amount of money such as • Determining factor = the
scission principle (you divide
• Regardless of approach most (cheque). addressee’s usual place of
the contract into 2, the one for
important factor = lex loci business or habitual residence.
payment and delivery and ask Contracts involving bill of
solutionis.
which one id defective, then lading – Governed by the Sea Labour contracts:
you apply the law of where it • LLS = place of performance Transport Documents Act (lex
is defective) fori). Where the actual work is
= delivery or payment?
performed in SA = the labour
• Laconian case (obiter • Scission = place of defective Electronic contracts: contract is governed by the lex
dictum) (went through): apply performance. fori(South Africa).
The law applicable to
the lex loci solutionis in
• Unitary = look at all electronic contracts = the • What if the work executed
respect of payment
connecting factors, if not clear place of conclusion (where it outside SA?
• Maschinen case (went apply scission, place of was deemed to be accepted)
through): apply the lex loci • lex loci solutionis = is either
payment or place of delivery
• “A data message must be the place of work or place of
solutionis in respect of (all have equal weight).
regarded as having been payment.
delivery.
SPECIFIC CONTRACTS received at the addressee’s
SUMMARY: usual place of business or Kleinhans case (went
AND THE LAW
habitual residence.” through)- says the place of
APPLICABLE:
• STEP 1: Express Agreement. payment.
Specific contracts and the law • Example: A sent B an
• STEP 2: Tacit Agreement Prof Mpedi suggests that in
that will apply: acceptance email and B opens
(because of criticism do not line with Rome I Regulation =
place where the work is own specific rules to be a valid transfer of involved. For example:
carried out. where you would see ownership. the man died intestate.
that there has been a The person is
(ENDED 26 MARCH) • The rules governing
transfer of ownership. domiciled in Sierre
the transfer of
For instance, SA uses Leone. The property is
ownership in PIL is
the abstract system of situated in SA. The
simple. Immovables
property. This means intesetate heirs are
and knowing whether
that there can be a citizens of Namibia,
there has been a valid
valid transfer of but domiciled in
UNIT 12: PROPERTY transfer of ownership
property without the Zimbabwe. The only
is governed by the lex
INTRODUCTION: requirement that the connecting factor to
situs. The elx situs also
underlying contract is the property is that the
• There could be a governs all the other
valid. In comparison, property is situated in
scenario where there is ancillary issues that
the English law goes SA. It has no
a person in one has to do with that
through the coastal relationship with either
country who wants to immovable property.
system which says that the deceased, or the
transfer property, but So, for example
you will need a valid heirs. In such a
that property is in whether the person had
underlying contract situation, if you looked
another country, or the capacity to acquire/
before there can be a at the PIL, it has no
even the other person create/ transfer the
valid transfer of relationship
themselves is in property. It has been
property. In whatsoever with the
another country. What criticised. But judges
switserland they have property and so far, as
legal system will be still uphold this
a combination of both the parties are
applicable to this method. The criticism
the costal and abstract concerned.
situation? comes from the fact
system where you
that there can be a • The lower court
• Tranfer of ownership need a valid
situation where there is decisions keep
is a substantive matter. underlying contract, as
no nexus/relationship pointing to the lex
It is a substantive well as a valid delivery
between the lex situs situs (the place where
matter because those of the goods for there
and the parties the property is situated
countries have their
 at the time of the There are instances where such an agreement for same with English law
transfer). there can be exceptions to goods that have to be paid which will consider it to
the lex situs- there can be in instalments, they could be valid. Because there is
• There can however be
a more expansive to the have an agreement with a a disperaty (between
an instance where the
lex situs rule. clause which says registration and non-
property has to move
ownership of the property registration), the question
from one country to RESERVATION/
will pass after you have becomes what is the
the other. Ex: you buy RETENTION OF
paid the last transaction. question which governs in
something online from TITLE CLAUSES:
Although the party is in this secenorio.
Amazon and the
Reservation of title clauses possession of the gods but
product would have to There are 3 instances
happens where one retains is not the owner of the
be sent from USA, to applicable to the conflict
ownership until a certain goods, the reservation of
south Africa. So the of law rules that governs
condition is met title clause will be which
question is would the when there is a reservation
(ownership remains with legal system governs a
change in the of title clause;
the seller and only passes reservation of a title clause
movement of where
when the last instalment is that might be in a cross 1. The lex situs at the
the position of the
paid). For example: you border contract. The time of the sale/ the
rules affects the rule?
want to buy a car. The real reason why it is important lex situs at the time of
The courts have made
owner delivered the car to is because of its the agreement
this unclear.
you. The title to the car substantive nature. 2. The lex situs at the
• Essential validity of remains with the owner Different countries have time of the transfer of
the transfer of until such time the person different regulations about ownership (because
ownership is governed finishes paying off the car. the title clause. For the dispute can occur
by the lex situs at the instance if you go to after the transfer of
Where the person has Switzerland reservation of
time of transfer. ownership has been
possession or control of title clause needs to be done)
• Formal validity – must the property in question specifically registered 3. The lex situs as the
be valid in terms of but the title to the property separately from the property changes.
either the lex situs or is not with the person, contract. In South Africa it Because there can be
the lex loci actus. when parties enter into is by mere agreement, the an instance where the
 property changes from Zimbabwe to get to SA. TRANSPORT The moment where you can
one country to another. Malawi is therefore the place DOCUMENTS ACT: prove is something stolen /
of dispatch, and South Africa illegally exported cultural
Proposal by Prof Neels: lex The exception to the
is the place of destination. goods, apply the Lex loci
situs at time of contract exception comes in when the
originis (meaning the law of
conclusion (reservation takes Neels favours the lex loci contract is governed by the
the place where that cutural
place at a specific moment in expeditionis because the Sea Transport Documents Act
property originates)
time). destination may be uncertain 65 of 2000.
or it may never be reached. Iran v Berend:
These 3+1 (view from Neels) Lex fori (Sea Transport
It’s connection with the goods
rule is what occurs. Documents Act) is applicable Fragment of a limestone relief
is only potential. However, the
in the following circumstances sold at a New York auction to
RES IN TRANSITU: lex loci expeditionis cannot be
(therefore you will not apply Berend. Berend then sought to
an absolute rule.
The general rule is that the the law of the place of resell it at an auction, but Iran
validity of the transfer of (when you meet this q in the dispatch or the place of was granted an injunction to
ownership is governed by the exam, its either law) destination) SA law is prevent the sale. English
lex situs. However, where applicable: confict laws - Berend obtained
The goods may no longer be
goods are in transit, there is an title when the fragment was in
in transit because it may have 1. Bill of lading issued in
exception. Because the goods France (lex situs) according to
been seized or sold in SA
are in transit from one place to French Code – she would’ve
execution (then the lex situs 2. Goods addressed to
another, one may not know obtained ownership on the
applies). South African
where the goods are. basis that she possessed the
destination
Transfer of a ship’s bunker oil: item for more than 30 years.
Theres 2 possibilities, either 3. Goods landed,
use the lex loci expeditionis Ship in harbor is governed by delivered or Exception to lex situs should
(the law of the place of the lex situs (Ultisol), Ship on discharged in SA. apply & Iranian law should be
dispatch), or, the lex loci open seas is governed by the applied – which would
STOLEN OR ILLEGALLY
destinationis (the law of the lex libri siti. demand return of the
EXPORTED CULTURAL
place of destination). Ex: a fragment.
EXCEPTION TO RES IN PROPERTY:
good is dispatched in Malawi,
TRANSITU – THE SEA
it has to go through Zambia,
INCORPOREAL RIGHTS then use it to govern that Nahrungsmittell GmbH v jurisdictions where the
THAT RELATE TO incorporeal right that is Otto– seemed to favour infringements took place.
PROPERTY: coming out of the substantive residence of debtor (but did
issue. not reject the lex domicilii).
Usually incorporeal right is
regarded as movable or Creation of Pledges – lex situs INTELLECTUAL
immovable depending on the governs. PROPERTY:
res to which such property
Hypothec – lex situs Patent & Copyright –
relates.
governed by the lex situs.
Cession – formal validity is
At times a mortgage bond has
governed by the lex loci actus, Gallo Africa v Sting Music
been classified as movable
intrinsic validity (effect) of the (SCA): (sir didn’t go through
(classified as movable since
cession is governed by the lex this)
essential characteristic is a
domicilii of the debtor.
personal obligation or Owners of copyright in certain
Forsyth makes the point that
immovable. musical and literary works,
in the alternative we can apply
alleged defendants had
Lief No v Dettmann - Lex the proper law.
infringed the plaintiffs’
situs of the of the immovable
Incorporeal rights which do copyright in “Umjoja” in
property (land) determines the
not relate to any res (property) some 19 countries across the
characterization of the
(for example: the right to world and sought appropriate
mortgage bond. (Say there is a
bring an action against relief.
property in Zambia. Theres a
somebody)= generally
mortgage bond. Is it movable Court held copyright =
considered to be movables.
or immovable? You have to incorporeal immovable and
Which are governed by the lex
classify it as movable or that SA courts lacked
domicilii (or law of the place
immovable first.) jurisdiction to deal with such
of the residence against which
foreign infringements. The
So, when we look at an that right lies- the debtor. So
plaintiffs would have to seek
incorporeal right, we look at you will apply the law of the
relief in each of the 19
the aw that attaches to the person who you have that
main issue in question and right against)
 the foreign law which the Additionally SA public policy External PP- jus cogens, there
conflict of law rule they are could prevent a foreign law are certain matters where there
pointing to. that should have been is universal positions against
applicable to a situation. Such something. For example,
Under what instance would
as in Bell v Bell= the wife genocide/ incest. So when
the SA court not apply the
depended on the lex domicile dealing with a matter dealing
foreign law that the conflict of
matrimony to govern the with external pp there is a
law rule is pointing to?
properitary consequences of general proclamation that the
1. If there is an express the marriage. The LDM was world wide stance is that they
statutory provision on the law of England and they are against the thing. If the
that particular matter, should apply the law of foreign law that is applicable
regardless of what the England. The husband brought to that case contradicts that
TOPIC 13: EXCLUSION foreign law is, the SA a defense stating that external public policy, the SA
OF FOREIGN LAW: court will have to application of s 23 and 24 of court will not apply the
PUBLIC POLICY apply that law. For the Matrimonial Causes Act of foreign law but will apply its
example, the NCA or England in that point in time, own law to the matter.
There are instances where one the CPA. violates certain SA public
will be compelled to apply the Internal PP- this has to do
2. Where there is a tacit policy. Therefore the court
foreign law. Such as the lex with SA public policy. There
expression that one should not adhere to what the
loci celbrationis being can be a matter where pp is
would have to uphold wife is saying. The court was
Mozambique. So not against public morals, and
what the constitution of the view that that foreign
Mozambique law applies. an instance where it is against
says. So SA law will law did not in any way
Once the conflict of law rule public morals. In an instance
then apply. contravene any public policy
points you to a foreign law where ther is a matter of
3. Where the Electronic in South Africa, and so the
which is not South African, public policy that is not
Communciations and court still applied section 23
the court will be obedient in against public morals the court
Transactions Act is and 24 of the Act.
applying that foreign law. will not exclude the foreign
applicable, that is
We have external PP and law if that foreign law is not
There are situations were where you have to use
internal PP. against the internal public
court would have to not apply the act’s provisions
policy. (Ex: its against
specifically.
Ghanian public morals to be example is lesbians contract a
LGBTQIA. With what such a marriage in Ghana, and then
position, which is peculiar to seek to invoke the validity of
Ghana, it is not bad in any the marriage in SA. It is
other country that you go to. It against Ghana’s law to have a
is something that is unique to lesbian marriage, but SA
Ghana. So when the foreign courts will likely allow the
laws position on that matter is marriage to be valid, by
against whatever the position invoking its own PP. It will
in SA, but the SA position is invoke its pp to render the
not against SA morals, under marriage valid. The opposite
that instance, the SA court is true via the negative
will not exclude the law. function. In an instance where
the marriage would have been
Theres internal PP that SA
valid under a foreign law, but
courts will upheld, but this is
SA will invoke its PP to make
not one that touches on
it invalid. This is what
morality. Because it is one that
happened in the case of
is an internal PP but not
Phelan v Phelan, which was
against SA morals, the SA
critiqued by Prof Neels.
court will still apply the
Where he would have thought
foreign law.
that the SA courts would have
There can be an instance invoked the positive function
where PP has a positive and of PP to validate hat marriage.
negative function. Positive
function means that an issue
where the foreign law would
have rendered something
invalid, under SA law PP they
would render it valid. An