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CONTENTS
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STRUCTURE OF THE MODULE EXPLAINED vii
Part 1: Introduction to private international law 1
Study unit 1: Introduction 2

1.1 Definition of private international law 2
1.2 Example of a private international law matter 3
1.3 Steps in solving a private international law matter 3
1.3.1 Found jurisdiction of the court 3
1.3.2 Classification 4
1.3.3 Determining the connecting factor(s) 4
1.3.4 Determining the lex causae 4
1.3.5 Ascertainment of the content of the lex causae 4
1.4 Types of private international law rules 4
1.4.1 Unilateral conflict rules 4
1.4.2 Multilateral conflict rules 5
1.5 The history of private international law 5
1.5.1 Roman law 5
1.5.2 The fifth to tenth centuries AD 5
1.5.3 The origins of modern private international law principles: the eleventh and
twelfth centuries AD 6
1.5.4 The twelfth to sixteenth centuries: the theories of the statutists 6
1.5.5 The influence of the Roman-Dutch scholars 7
1.5.6 Developments in the nineteenth and twentieth centuries 7
1.5.7 Unification of private international law 8
1.5.8 Unification of substantive private law 9
1.6 Conclusion 10
Part 2: Theoretical principles of private international law 11
Study unit 2: Classification 12

2.1 Introduction 13
2.2 What is classification? 13
2.3 What is classified? 13
2.4 Why is classification necessary? 13
2.5 How is classification done? 13
2.5.1 Lex fori classification 13
2.5.2 Lex causae classification 13
2.5.3 Enlightened lex fori classification 14
LJU4804/1/2014-2015 (iii)
CONTENTS
2.5.4 Via media classification 14

2.6 An example of classification 14
2.7 Extinctive prescription and classification 16
2.7.1 The prescription rules of the lex causae are regarded as substantive according
to both the lex fori and the lex causae 17
2.7.2 The prescription rules of the lex causae are regarded as substantive according
to the lex causae but as procedural according to the lex fori 18
2.7.3 The prescription rules of the lex causae are regarded as procedural according
to the lex causae but as substantive according to the lex fori 19
2.7.4 The prescription rules of the lex causae are regarded as procedural in terms of
both the lex fori and the lex causae 19
2.8 Concluding remarks on classification methods 21
2.9 Self-evaluation questions 21
Study unit 3: Renvoi 22
3.1 Introduction 22
3.2 Forms of renvoi 23
3.2.1 Remission 23
3.2.2 Transmission 23
3.3 The three possible approaches to renvoi 24
3.3.1 No renvoi/rejection of renvoi 24
3.3.2 Partial renvoi approach 24
3.3.3 Total renvoi approach 25
3.4 What role can renvoi play? 26
3.5 Exclusion of renvoi 26
3.6 Conclusion 26
3.7 Self-evaluation question 27
Study unit 4: The incidental question 28
4.1 What is an incidental question? 28
4.2 The incidental question properly so called or true incidental question 28
4.3 The incidental question not properly so called 29
4.4 Conclusion 30
Study unit 5: Proof of foreign law, the exclusion of foreign law and changes in
foreign law 32
5.1 Introduction 32
5.2 Proof of foreign law 33
5.2.1 Foreign law a question of fact 33
5.2.2 Taking judicial notice of foreign law 33
5.2.3 Proving foreign law by means of expert evidence 33
5.2.4 Failure to prove the content of foreign law 34
5.3 Exclusion of foreign law 34
5.3.1 Foreign law in conflict with the Constitution 35
5.3.2 Exclusion of foreign law in legislation 35
5.3.3 The ascertained lex causae is in conflict with public policy 35
5.3.4 The parties acted in fraudem legis 35
5.3.5 The established foreign law relates to criminal law or tax law 36
5.3.6 Law of an unrecognised state 36
5.4 Changes in foreign law 36
5.5 Conclusion 37
Study unit 6: Recognition and enforcement of foreign judgements 38
6.1 Introduction 38
6.2 Recognition versus enforcement 39
(iv)
Contents
6.3 Requirements for recognition and enforcement 39

6.4 Grounds for international jurisdiction/competence 42
6.4.1 International jurisdiction/competence in claims sounding in money 42
6.4.2 International competence in judgments in respect of immovable property 43
6.4.3 International competence in respect of divorce orders 43
6.4.4 International competence in respect of maintenance orders 44
6.4.5 International competence in respect of custody orders 44
6.4.6 International competence in respect of adoption orders 45
6.5 Enforcement of foreign arbitral awards 45
6.6 Conclusion 45
6.7 Self-evaluation questions 45
Part 3: Substantive private international law 47
Study unit 7: Law of domicile 48

7.1 Introduction 48
7.2 What is domicile and how is it determined? 49
7.3 Domicile under the common law 49
7.3.1 Domicile of origin 49
7.3.2 Domicile of dependence 49
7.3.3 Domicile of choice 50
7.4 Domicile under the Domicile Act 3 of 1992 50
7.4.1 Domicile of choice 50
7.4.2 Assigned domicile: domicile of persons who cannot acquire a domicile of choice 50
7.4.3 No automatic revival of domicile of origin 51
7.5 Conclusion 51
Study unit 8: Family law 53
8.1 Introduction 54
8.2 Marriage law 54
8.2.1 Engagement contracts or espousals 54
8.2.2 Formal validity of marriage 55
8.2.3 Essential/material validity of a marriage 55
8.2.4 Personal consequences of marriage 57
8.2.5 Proprietary consequences of marriage 58
8.3 The position of children 65
8.3.1 Adoption, guardianship and custody 65
8.3.2 Legitimacy 65
8.3.3 Childrens Act 38 of 2005 66
8.3.4 Hague Convention on the Civil Aspects of International Child Abduction 66
8.3.5 Hague Convention on Intercountry Adoption 66
Study unit 9: Law of succession 67
9.1 Introduction 67
9.2 The unitary and scission principles in respect of the law of succession 68
9.3 Intestate succession 68
9.3.1 Movables 68
9.3.2 Immovables 68
9.4 Testate succession 68
9.4.1 Introduction 68
9.4.2 Formal validity of a will 68
9.4.3 Intrinsic/essential validity of a will 70
9.4.4 Capacity to make a will 70
LJU4804/1/2014-2015 (v)
CONTENTS
9.4.5 Capacity to take under a will 70

9.4.6 Interpretation of wills 71
9.4.7 Revocation of wills 71
Study unit 10: Law of contract 73
10.1 Introduction 73
10.2 Choosing the law applicable to an international contract the concept of
party autonomy 74
10.3 Determining the proper law of a contract in the absence of a choice by the
parties assigning a proper law to a contract 75
10.3.1 The subjective approach 75
10.3.2 The objective approach 76
10.4 Aspects of a contract not governed by the proper law 77
10.4.1 Introduction 77
10.4.2 Capacity to contract 77
10.4.3 Formalities of the contract 77
10.4.4 Mandatory rules and illegality 78
10.5 The problem of consensus 78
10.6 Renvoi excluded 78
10.7 Conclusion 78
Study unit 11: Law of delict 79
11.2 Potential legal systems applicable to an international delict 79
11.2.1 The lex fori 79
11.2.2 The lex loci delicti commissi 80
11.2.3 The proper law of the delict 80
11.3 The Rome II Regulation 80
11.4 Conclusion 81
Study unit 12: Law of propety 82
12.2 Immovables 82
12.3 Movables 83
12.3.1 General rule 83
12.3.2 Exceptions to the general rule 83
12.4 Conclusion 84
Part 4: Private international law and international commercial law 85
Study unit 13: International commercial law 86

13.2 The lex mercatoria 87
13.3 Instruments of the Hague Conference on Private International Law 87
13.4 UNIDROIT 87
13.5 UNCITRAL 88
13.6 ICC 88
13.7 Rome I Regulation 88
13.8 Conclusion 89
SELECT BIBLIOGRAPHY 90
(vi)
STRUCTURE OF THE MODULE EXPLAINED
Welcome to the module Private International Law (LJU4804). We hope that you will find
this module informative and interesting and we wish you all the best with your studies.
In the field of private international law, we are concerned with finding the legal sys-
tem applicable to a legal matter that contains a foreign element. By foreign element
we merely mean that the matter has a connection with a legal system other than the
legal system of the state in which the forum is situated. Examples would be a contract
concluded between a South African company and a foreign company or a marriage
concluded between a South African citizen and a foreign national. With increased glo-
balisation and the resulting increase in the movement of persons, capital, goods and
services across national borders, the subject of private international law is becoming
increasingly important.
This field of law goes by different names in different jurisdictions. We prefer the term
private international law, which is used in the civil law tradition and is increasingly
being utilised in international conventions and international instruments. The other term
for this field of law is conflict of laws and is mostly employed in common-law systems.
The structure of this module is as follows:
Part 1: Introduction to private international law
Study unit 1 Introduction
Part 2: Theoretical principles of private international law
Study unit 2 Classification
Study unit 3 Renvoi
Study unit 4 The incidental question
Study unit 5 Proof of foreign law, the exclusion of foreign law and changes in foreign
law
Study unit 6 Recognition and enforcement of foreign judgments
Part 3: Substantive private international law
Study unit 7 Law of domicile
Study unit 8 Family law
Study unit 9 Law of succession
Study unit 10 Law of contract
Study unit 11 Law of delict
Study unit 12 Law of property
Part 4: Private international law and international commercial law
Study unit 13 International commercial law
As you will see from the structure of the module, you will need to draw on your knowl-
edge of private law modules completed earlier in your LLB studies. South African family
law, law of succession, law of contract, law of delict and property law are the fields that
are most relevant to the study of private international law. We therefore assume that
you have mastered these private law modules.
To help you navigate through this study guide easily, the following section should be
studied.
LJU4804/1 (vii)
STRUCTURE OF THE MODULE EXPLAINED
Prescribed and recommended study material

A list of prescribed reading material is supplied at the beginning of each study unit.
This reading material may be obtained on the Unisa Library website under find course
material for LJU4804. The prescribed reading material should be obtained, read and
studied for examination purposes. It is just as important as the study guide and forms
part of your compulsory study material for this module.
Certain study units may also contain references to optional reading material. Although
the assignments and the examination will not contain questions on the optional reading
material, it is highly recommended that you consult these sources as they will explain
the work covered in the study unit in greater detail and may help you to understand
the study unit.
You will have to obtain the optional reading material yourself. Optional journal articles
may be obtained by accessing the Unisa Library website, clicking on find e-journals,
entering the journal name and following the link provided. Optional case law may also
be accessed via the Unisa Library website: click on e-resources, go to find subject
databases, select law and then click on Jutastat Publications.
Learning objectives
The learning objectives for a study unit are to be found under the section on the pre-
scribed study material. These objectives give you an indication of the knowledge you
will acquire by studying the specific study unit and should also serve as a check list when
you are preparing for assessment. After you have completed a study unit, you should
go back to the objectives and make sure you have mastered them all.
Activities, examples and feedback

Throughout this study guide you will notice that activities have been provided within the
study units to aid your comprehension of the content and to promote some formative
assessment. You will note that accompanying feedback to activities has been structured
in two ways. Sometimes it is provided as a demarcated section labelled as such follow-
ing each activity; in such cases the idea is not to spoon-feed you but rather to show you
how a typical answer should be structured.
In other instances the feedback/answers are structured in the form of guidelines rather
than a model answer. Occasionally, we include the potential mistakes/difficulties that
we have identified over the years as those most likely to be encountered by our students.
You will also sometimes be invited to offer suggestions regarding cases that could be
explained in a similar manner. This is part of the attempt made in the study guide for
LJU4804 to help you overcome the challenges we know you face as an ODL student.
Throughout the text you will also encounter a number of examples and questions which
have been strategically placed to illustrate to you how certain theoretical principles of
private international law can be interpreted by means of everyday examples. We trust
that these illustrations will help you to understand how the various topics discussed in
each study unit relate to the everyday legal context.
Self-evaluation questions
Self-evaluation questions are included at the end of certain units.
(viii)
PART 1
Introduction to private international law
In this part we will investigate the meaning of the term private international
law, the way a private international law matter is to be approached and how
the present-day rules of private international law developed over the centuries.
LJU4804/1 1
1 STUDY UNIT 1
1 Introduction
List of prescribed reading material for this unit:

None
List of optional reading material for this unit:

Forsyth Private International Law 710
Learning objectives
After studying this chapter, you should be able to:
provide a definition of private international law

describe the different steps in solving a private international law matter
distinguish between unilateral and multilateral rules of private international law
write a short essay on the history and development of private international law
Key concepts
Lex causae, classification, connecting factor, unilateral conflict rule, multilateral
conflict rule
1.1 DEFINITION OF PRIVATE INTERNATIONAL LAW

What comes to mind when you think of the concept of private international law? Which
terms or concepts must be included to render the definition of this concept complete?
Write a list of these terms or concepts.
Now visit the site http://www.wordle.net/create to create a wordle of the concepts you
have decided to keep. Remember to repeat a term in order to make it bigger. The more
you repeat it the bigger it will be. Now compare your wordle to the one below.
2
STUDY UNIT 1: Introduction
Does it have most of the terms and concepts included in our wordle? By looking at your
wordle, do you get an idea of what the concept of private international law entails? See
if your explanation contains the same elements as the following explanation.
The subject of private international law encompasses the rules that a (local) court ap-
plies in order to indicate the legal system applicable to a legal matter that contains a
foreign/international element. This applicable legal system is referred to as the lex causae.
Private international law is a branch of national law, each jurisdiction has its own
set of private international law rules. South African courts therefore apply the rules
of South African private international law.
In the field of private international law, we are concerned with establishing the lex
causae, which is the legal system applicable to the matter at hand.
The lex fori is the law of the forum, or the law of the court where the legal dispute
is instituted. For the purposes of South African private international law, the lex fori
is South African law.
ACTIVITY 1.1
Provide a detailed definition of private international law.
Feedback
Remember that the rules of private international law form part of the domestic
law and that each jurisdiction therefore has its own set of private international law
rules.
1.2 EXAMPLE OF A PRIVATE INTERNATIONAL LAW

MATTER
Suppose H (husband) and W (wife) marry in Scotland. At the time of the marriage, H
was a citizen of Spain and domiciled in France; and W a German citizen and domiciled
in Australia. After the conclusion of the marriage, the parties moved to South Africa
and both established a domicile there. Ten years later W filed an action for divorce in
a South African high court. Which legal system would govern the proprietary conse-
quences of the marriage?
We will now look at the steps in solving a private international law matter such as the
one in the example provided.
1.3 STEPS IN SOLVING A PRIVATE INTERNATIONAL LAW

MATTER
When faced with a private international law matter, we need to follow the five steps
given below to find the applicable legal system and solve the matter:
1.3.1 Found jurisdiction of the court

The court seized of the matter has to have jurisdiction to hear the case. Rules on the
jurisdiction of South African courts form the subject matter of Civil Procedure and
CGM4804/1 3
PART 1: INTRODUCTION TO PRIVATE INTERNATIONAL LAW
will not be repeated in this module. In the example above, the high court in whose
area of jurisdiction the defendant is domiciled will have jurisdiction to hear the matter.
1.3.2 Classification
The matter needs to be placed in the correct legal category. This is a vital step in de-
termining the applicable law and forms an important part of this module. Each legal
category has a specific private international law rule, which is why it is so important to
determine the correct legal category. We will elaborate on this topic at greater length in
study unit 2. With regard to the example above, the legal category (according to the lex fori
classification) is proprietary consequences of marriage. According to the rules of South
African private international law, proprietary consequences of marriage are governed
by the lex domicilii matrimonii (the law of the domicile of the marriage, interpreted as the
domicile of the husband at the time of the conclusion of the marriage to be discussed
in detail in study unit 8). Determining the correct legal category will allow you to find
the applicable rule of private international law. The relevant rule then points you to the
connecting factor, which is the next step in solving the matter.
1.3.3 Determining the connecting factor(s)

Once the legal category has been established, the relevant connecting factor(s), which
connect the legal matter to the relevant legal system, can be identified. In the example
above, the connecting factor is the domicile of the husband at the time of the marriage.
1.3.4 Determining the lex causae

The connecting factor points to the applicable law. In the example above, the lex causae
is the legal system of France.
1.3.5 Ascertainment of the content of the lex causae

Once the applicable law has been determined, the content thereof needs to be ascer-
tained in order for it to be applied to the matter at hand. See study unit 5 on the proof
of foreign law before a South African court.
1.4 TYPES OF PRIVATE INTERNATIONAL LAW RULES

All rules of private international law fall into one of two categories, namely multilateral
or unilateral rules of private international law/conflict rules.
1.4.1 Unilateral conflict rules

A unilateral conflict rule does not indicate which legal system is applicable but it does
provide when the legal system of which it forms part will apply.
An example of a unilateral conflict rule may be found in s 63(1) of the Insurance Act 27
of 1943. According to this subsection, when an owner of a domestic insurance policy
enforces his rights against the insurer in South Africa, South African law will be applied.
4
1.4.2 Multilateral conflict rules

A multilateral conflict rule contains two categories, namely a category and a connecting
factor. The connecting factor points to the applicable legal system. The conflict rule in
our example above is a classic example of a multilateral conflict rule: the legal category
is proprietary consequences of marriage and the connecting factor is the domicile of
the husband at the time of marriage.
You may consult Forsyth1 if you would like to read more on the distinction between
unilateral and multilateral conflict rules.
1.5 THE HISTORY OF PRIVATE INTERNATIONAL LAW

As with any field and any law subject, a basic knowledge of the history of private inter-
national law gives one a far better understanding of the way it functions.
1.5.1 Roman law

Unlike in many other law subjects, the origins of private international law principles
known to us today are not to be found in Roman law. Although Rome had become a
cosmopolitan city by the first century BC, the techniques for dealing with potential
private international law problems that were developed under Roman law differed vastly
from the modern approach.
If you think back to the module Origins of South African Law, you will remember that
the office of praetor peregrinus was instituted in Rome in 247 BC. The praetor peregrinus had
the task of administering justice in cases involving foreigners, and in such cases the ius
gentium, not the Roman ius civile, was applied. Once it was established that the ius gentium
applied to a matter, questions of private international law did not arise.
Furthermore, the Constitutio Antoniniana granted Roman citizenship to all inhabitants

of the Roman Empire from 212 AD onwards. Since the Roman Empire encompassed
such vast territories in the then known world, this edict greatly reduced the possible
occurrence of scenarios that could give rise to private international law questions.
The development of a system of private international law rules and principles requires
a respect by the local law for foreign legal institutions. During the Roman Republican
period, the Roman legal system had attained a level of sophistication that was without
parallel and the author Wolff remarked that the Romans mostly had no great regard
for other legal systems and therefore had no wish to develop a set of rules to determine
when foreign legal institutions should be applied in Rome.2
1.5.2 The fifth to tenth centuries AD

After the fall of the Western Roman Empire, a period of five centuries followed dur-
ing which the previous Roman territory was inhabited by different tribes, each with its
own set of laws. During this time, the personality principle applied. According to this
principle, each persons personal law that is the law of the tribe he or she belonged
to was applied in a matter involving the person, irrespective of the territory in which
1 Forsyth CF Private International Law 5 ed ( Juta Cape Town 2012) 710.

2 Wolff M Private International Law 2 ed (OUP London 1950) 20.
CGM4804/1 5
the person was. Forsyth3 points out that the personality principle is still evident in
modern private international law, albeit in a modified form. This is evidenced by the
fact that all private international law systems apply the lex domicilii or the lex patriae as
the governing law in matters involving status or family law.
During this period the professio iuris was also developed. This principle allowed parties
before or during a dispute to choose the law applicable to their dispute. This principle
constitutes the origin of the modern principle of party autonomy.
1.5.3 The origins of modern private international law principles: the

eleventh and twelfth centuries AD
This period witnessed the expansion of trade and commerce and the rise of several
large city-states in Northern Italy such as Bologna, Florence and Venice. Each city-state
developed its own laws and customs (called a statute) and so the personality principle of
the previous five centuries was replaced by territorial laws.
Question: The question often arose whether a right held under the laws of one state
would be recognised by the laws of another.
1.5.4 The twelfth to sixteenth centuries: the theories of the statutists

The statutists were primarily concerned with the extent of a certain statutes applica-
bility. They argued that a consideration of each statute itself would allow the judge
faced with a conflict case to determine the extent of that statutes applicability.4 If the
statute related to immovable property, it was a real statute and did not apply outside
the territory in which it was enacted with regard to immovable goods, the lex situs
was applied. If the statute applied to persons, it was a personal statute and applied
to all persons domiciled within the enacting authoritys territory, regardless of where
they found themselves at a particular time. The third category of statutes, the mixed
statutes, concerned the effect of juristic acts, that is rules determining when a contract
was validly concluded. The rule in this regard was that the statutes that governed were
the statutes of the place where the act was performed locus regit actum.
Statutists who preceded the father of private international law, Bartolus, include
Balduinus and Pierre de Belleperche. Forsyth explains Bartoluss vital contribution
as follows: His predecessors had treated the division of statutes simply as a means
of determining the range of application of the lex foris statutes. Bartolus realised that
it could be used multilaterally to determine whether a foreign statute would be applied
within the forum. Not only local but foreign statutes too, fell by nature into one of three
classes, and the theory could be used to determine the range of their applicability too.5
Two French statutists of the sixteenth century warrant mentioning. DArgentre argued
that statutes would only be applied extra-territorially in exceptional circumstances. For
example, where a person died and left immovable property in several states, DArgentre
would have argued that the lex situs of each immovable asset should govern its succes-
sion. Presently, this principle is still applied to succession of immovables. He developed
3 Forsyth Private International Law 33.

6
a new concept, that of the mixed statute, a statute that involved persons and things,
and treated such a statute as real rather than personal. He was therefore a territorialist.6
Dumoulin, on the other hand, preferred to regard a statute as personal rather than as
real. This view gave rise to the maxim mobilia sequuntur personam (movables follow the
person). Dumoulin also played an important role in the early development of choice
of law.
1.5.5 The influence of the Roman-Dutch scholars

During the seventeenth century, Roman-Dutch jurists made vital contributions to the
theory of private international law.
Ulrich Huber wrote the De Conflictu Legum and his theory may be summarised in three
maxims (Forsyth,7 quoting Daviess translation):
ii(i) The laws of every sovereign authority have force within the boundaries of its state,
and bind all subject to it, but not beyond.
i(ii) Those found within the boundaries of a sovereign authority, are held subject to
the authority, whether they are there permanently or temporarily.
(iii) Those who exercise sovereign authority so act from comity, that the laws of each
nation having been applied within its own boundaries should retain their effect
everywhere, so far as they do not prejudice the power or rights of another state or
its subjects.
By comity, Huber meant that states were under an international law obligation to apply
the rules of private international law.
Paul Voet (16191667) and Johannes Voet (16471713) warrant a mention with regard to
the concept of comity. They did not see comity as imposing an international law obliga-
tion upon a state to take notice of or enforce foreign laws, but rather as the recognition
of the inconvenience, injustice and confusion which would result if the laws of foreign
states were to be denied recognition in all circumstances. Comity therefore recognised
the fact that considerations of justice and humanity made it unwise for a state not to
apply foreign law in certain circumstances.8
Other important Roman-Dutch private international law scholars include Rodenburg

and Van der Keessel, who were both statutists.9
1.5.6 Developments in the nineteenth and twentieth centuries

During the nineteenth century, the statute theory was rejected. At the forefront of the
rejection of the statute theory were two German scholars, Von Wchter and Von Savigny.10
Von Wchter proposed that the lex fori should be applied, except in circumstances where
specific rules for the application of foreign law were enacted by the legislator.

CGM4804/1 7
According to Von Savigny, the question of which legal system should be applicable in a
private international law matter had to be answered by determining the natural seat
of the legal relationship, which could be found by logical analysis.11
The rejection of the statute theory meant that the solution to a private international law
problem was no longer sought by attempting to determine the range of application of
a specific rule (or statute) but instead by seeking the legal system in which the relevant
legal relationship had its most natural seat. The importance of Von Savignys contribu-
tion lies in the fact that his theory paved the way for finding the applicable legal system
through classification (finding the applicable legal category) and the determination of
the relevant connecting factor.12
The nineteenth century saw the rise of nationalism. The impact of nationalism on the
development of the rules of private international law may be found in the application
of the lex patriae (law of nationality) as the determinant of the personal law. Today,
several countries apply the lex patriae as the personal law; others apply the lex domicilii
(law of domicile). The universalist writer Mancini should be mentioned in this regard.
According to Mancini, states were under an international law obligation to apply the
lex patriae to personal law matters such as status, family matters and succession. Man-
cini and other universalist scholars argued in favour of the unification of all systems
of private international law and proposed that the lex patriae should be applied, subject
to certain exceptions.13
Notably, certain important private international law theories were developed in the
nineteenth and twentieth centuries in the Anglo-American legal tradition. Firstly, the
vested rights theory was supported by the English scholar Dicey and the American author
Beale. According to this theory, a right acquired under one legal system should be rec-
ognised and enforced by another legal system. In other words, all legal systems should
respect vested rights. Forsyth explains this theory as follows: In administering private
international law, a judge does not apply that foreign law extraterritorially, for he simply
protects rights already acquired under the foreign law. Thus in deciding, say, that the
matrimonial regime of a particular couple is French, the judge does not apply French
law, but simply determines what rights the parties already have and he protects those.14
The American scholar Currie developed the governmental interest theory. In terms of this
theory, a court faced with the application of the rules of two possible legal systems,
should analyse the underlying policies of each system. It should determine whether one
of the states has a reasonable interest in its rules being applied. If only one of the states
has an interest in the application of its rules, then the rules of that legal system should
be applied. If both states involved have an interest, then the lex fori should be applied.15
1.5.7 Unification of private international law

Under the influence of the universalists, movements towards the unification of private
international law rules began in the late nineteenth century. Most of this unification
was done by the Hague Conference on Private International Law. The first Hague
Conference was held in 1893 and conferences are still being held regularly. South Africa

8
became a member of the Hague Conference in 2002. Prominent examples of Hague

Conventions include the 1978 Hague Convention on the Law Applicable to Matrimonial
Property Regimes and the 2005 Hague Convention on Choice of Court Agreements.
The texts of all Hague Conventions may be accessed on the Hague Conferences website
(http://www.hcch.net).
Regional unification of private international law also started in the twentieth century
and is still gaining momentum. The most notable examples of regional unification of
private international law are taking place in the European Union.
1.5.8 Unification of substantive private law

During the twentieth century, several international organisations were founded that
began the process of compiling various international instruments that seek to unify
substantive private law across national borders. Most of this work has taken place in
the field of international commercial law.
In 1926, the Institute for the Unification of Private Law (UNIDROIT) was founded in
Rome as an auxiliary organ of the League of Nations. It was re-established in 1940 on
the basis of an international agreement, the UNIDROIT Statute. One of the influential
instruments compiled by UNIDROIT is the UNIDROIT Principles of International
Commercial Contracts (1994/2004/2010). More information may be obtained on UNI-
DROITs website, http://www.unidroit.org.
The United Nations Commission on International Trade Law (UNCITRAL) was es-
tablished in 1966. UNCITRAL has drafted numerous conventions unifying substantive
private law in the field of international trade. The most influential of these conventions
to date is the 1980 United Nations Convention on Contracts for the International Sale
of Goods (CISG). This convention currently has 76 contracting states. The CISG gov-
erns the formation of the contract and the rights and obligations of the buyer and seller
to an international sale of goods contract. More information on UNCITRALs other
conventions and projects may be obtained at http://www.uncitral.org.
ACTIVITY 1.2
Complete this table by providing details of the history and development of private law
under the following headings.
Active Description of activities

period during era
Roman law
Period following the fall of the

Western Roman Empire
Origins of modern PIL
Theories of the statutists
Influence of the Roman-

Dutch scholars
CGM4804/1 9
Modern PIL developments
Unification of private interna-

tional law
Unification of substantive pri-

vate law
Feedback
You
ou can easily fill in the required information from the preceding few pages.
We hope that this diagram will assist you in memorising and recalling the
most important historical developments in respect of the principles of private
international law.
law.
1.6 CONCLUSION
The field of private international law is becoming ever more important as globalisation
continues to expand. The movement of persons, goods and services across national
borders continues to increase and therefore there is a corresponding increase in the
number of private international law matters that arise.
International and regional harmonisation and unification of private international law rules
are desirable. To this end international dialogue on private international law should be
encouraged. A helpful tool in this regard is the website http://www.conflictoflaws.net,
which allows private international law scholars from all countries to keep abreast of
developments in the field internationally.
This is the end of Part 1. In this study unit we examined the concepts and terms which
make up the definition of private international law. We described the different steps in
solving matters involving conflict of laws, we further distinguished between unilateral
and multilateral rules of private international law. The study unit ended with a detailed
discussion of the history and development of private international law. Subsequent
discussions will build on what has been discussed so far. If you still feel uncomfort-
able with the content of study unit 1, it would be advisable to revisit it and attempt the
activities, which are meant to support your learning process.
In the next section, Part 2, we discuss the theoretical principles of private international
law.
ACTIVITY 1.3
Go to the website http://www.conflictoflaws.net and register for free e-mail updates
of international developments in the field of private international law.
10
PART 2
Theoretical principles of private international
law
In Part 2 we will unpack the theoretical principles of private international law that
you need to master before you can commence with your study of the substantive
rules of private international law.
LJU4804/1 11
2 STUDY UNIT 2
2 Classification
List of prescribed reading material for this unit:
Laconian Maritime Enterprises Ltd v Agromar Lineas Ltd 1986 (3) SA 509 (D)
Laurens v Von Hohne 1993 (2) SA 104 (W)
Society of Lloyds v Price, Society of Lloyds v Lee 2006 (5) SA 393 (SCA)
Optional reading material for this unit:
Anderson v The Master 1949 (4) SA 660 (E)

Kuhne & Nagel AG Zurich v APA Distributors (Pty) Ltd 1981 (3) SA 536 (W)
Juenger FK Choice of Law and Multistate Justice (Martinus Nijhoff Boston 1993).
Powell v Powell 1953 (4) SA 380 (W)
Society of Lloyds v Price; Society of Lloyds v Lee 2005 (3) SA 549 (T)
Society of Lloyds v Romahn 2006 (4) SA 23 (C)
Neels JL Via media classification in private international law 1994 Journal of
Contemporary Roman Dutch Law (THRHR) 687
Neels JL Classification as an argumentative device in international family law
2003 South African Law Journal 883
Neels JL Falconbridge in Africa: Classification and liberative prescription in private
international law a Canadian doctrine on safari in Southern Africa (hic sunt leones!);
or semper aliquid novi Africam adferre 2008 Journal of Private International Law 167
Learning objectives
After studying this unit, you should be able to:
explain what classification is

discuss the importance of classification in solving a private international law matter
distinguish between the lex fori, lex causae, enlightened lex fori and via media approaches
to classification
classify a legal fact by utilising the diagram designed for that purpose and select the
appropriate approach to be followed in a given set of facts
discuss the various permutations in respect of the classification of extinctive
prescription and be able to illustrate the scenarios and cite substantiating case law
12
STUDY UNIT 2: Classifi cation
Key concepts
Lex fori classification, enlightened lex fori classification, lex causae classification,
via media classification
2.1 INTRODUCTION
In study unit 1.2.2 we mentioned that classification is the second step in solving a
private international law matter. Can you remember what was discussed in the section
on classification? The first step is determining whether the court has jurisdiction to
hear the matter. However, we are not going to study the rules concerning jurisdiction
in this module, since this is done in the module Civil Procedure. For the purposes of
this module you may assume that the court has jurisdiction to hear the relevant matter.
2.2 WHAT IS CLASSIFICATION?

Classification entails placing a legal rule in the correct legal category.
2.3 WHAT IS CLASSIFIED?

It is important to note that rules of law are classified. This was confirmed in the case of
Laconian Maritime Enterprises Ltd v Agromar Lineas Ltd 1986 (3) SA 509 (D).16 The object
of classification is not a set of facts or a factual relation.
2.4 WHY IS CLASSIFICATION NECESSARY?

Once the relevant legal rule has been placed in the correct legal category, it is possible to
determine the relevant connecting factor(s) which in turn point to the applicable legal
system. Classification is therefore a vital step in solving a private international law matter.
2.5 HOW IS CLASSIFICATION DONE?

There are two basic classification techniques:
2.5.1 Lex fori classification

The legal categories of the lex fori (for our purposes, the lex fori is always South African
law) are employed to classify both the South African and the potentially applicable foreign
legal rule. Most South African cases decided before 1980 employed lex fori classification.
2.5.2 Lex causae classification

The categories employed for classification are those from which the potentially appli-
cable legal rule comes. In other words, a South African legal rule is classified in terms
of the categories of South African law and a possibly applicable rule of English law is
16 At 517J.
CGM4804/1 13
PART 2: THEORETICAL PRINCIPLES OF PRIVATE INTERNATIONAL LAW
classified in terms of English legal categories. Lex causae classification was employed in
the case of Anderson v The Master 1949 (4) SA 660 (E).
However, as you will see when we consider some examples of classification later in this
unit, lex fori or lex causae classification may not always provide a satisfactory solution.
Sometimes these classification techniques lead to gap, which means that no legal system
is found applicable (neither the lex fori nor the lex causae is found applicable) or to cumu-
lation, which means that both the lex fori and the lex causae are potentially applicable.
In order to overcome possible shortcomings in the pure lex fori or lex causae classifica-
tion, scholars have come up with two alternative approaches to classification, namely
the enlightened lex fori approach and the via media approach.
2.5.3 Enlightened lex fori classification

This approach to classification was introduced by the author Kahn-Freund.
Classification is done in terms of the categories of the lex fori, but the results of lex
causae classification are also considered and it is then decided whether the categories of
the lex fori should be developed in the light of the lex causae and on the basis of policy
considerations.
2.5.4 Via media classification

This approach was introduced by the Canadian author Falconbridge.
This approach entails classifying according to the lex fori and the lex causae and then
deciding between the results on the basis of policy considerations.
The via media approach to classification was endorsed in Laurens v Von Hhne 1993 (2)
SA 104 (W). Remember that this case forms part of your prescribed reading for this
study unit.
What is the difference between the enlightened lex fori approach and the via media
approach?
In the case of the enlightened lex fori approach, classification is still done in terms of
the categories of the lex fori, after considering the lex causae and deciding whether the
categories of the lex fori should be extended or developed in the light of the lex causae.
In terms of the via media approach, classification is done lege fori and lege causae, the results
are compared and a clear choice between the two is made.
2.6 AN EXAMPLE OF CLASSIFICATION

How is the theory of classification applied in practice?
It is recommended that you use the following diagram for classification purposes. This
diagram was developed by the author Neels.17
17 Neels JL Classification as an argumentative device in international family law 2003 South African
Law Journal 883.
14
SA PIL Rule Which

Rule
Rule Category (connecting system
applicable?
factor) applicable?
Explanatory note on the diagram used for classification

Rule: refers to the legal system (country) whose legal rule is to be classified
Category: refers to the legal category in which the legal rule is placed. When clas-
sification is done in terms of the LF, the categories of the LF are used; when clas-
sification is done in terms of the LC, the categories of the system from which the
rule hails are used.
SA PIL rule: What is the SA PIL rule (connecting factor) applicable to the category
as determined?
Which system applicable: Which countrys law is applicable in terms of the con-
necting factor?
Rule applicable? Is the legal rule that we are classifying applicable or not?
PS: If the same country is noted under rule and under which system appli-
cable then the answer under rule applicable is yes.
Let us illustrate the application of the diagram by utilising the facts of Powell v Powell
1953 (4) SA 380 (W).
In this case the question to be answered was in which legal category a donation between
a husband and wife fell, in order to determine which legal system was applicable to
its validity. The donation was made while the parties were domiciled in South Africa.
The lex domicilii matrimonii was English law. In terms of English law, donations between
spouses are regarded as a proprietary consequence of marriage. (According to South
African private international law, proprietary consequences of marriage are governed
by the lex domicilii matrimonii.) In terms of South African law, donations between spouses
are regarded as a personal consequence of marriage. (According to South African pri-
vate international law, personal consequences of marriage are governed by the law of
domicile of the relevant party at the relevant time.)
Lex fori classification
SA PIL Rule Which

Rule
applicable?
factor) applicable?
England Personal con- Domicile of SA No

sequences of relevant party
marriage
SA Personal con- Domicile of SA Yes

sequences of relevant party
marriage
CGM4804/1 15
Answer: Lex fori classification (utilising the legal categories of the lex fori) leads to
South African law being applicable to the validity of the donation between the spouses.
Lex causae classification
SA PIL Rule Which

Rule
applicable?
factor) applicable?
English Proprietary Matrimonial English Yes

consequences domicile
of marriage
SA Personal con- Domicile of SA Yes

sequences of the relevant
marriage person
Answer: Lex causae classification (utilising the legal categories of the legal system that
the rule forms part of, therefore SA legal categories for the SA rule and English legal
categories for the English rule) leads to cumulation: both relevant legal systems are
found applicable.
2.7 EXTINCTIVE PRESCRIPTION AND CLASSIFICATION

Question: The question of how extinctive prescription should be classified and which
legal system should govern extinctive prescription has been the object of numerous
decided cases. It is therefore necessary for us to make a detailed study of this topic.
In order to understand this discussion, it is very important to note that, according

to South African private international law rules (and those of most other countries),
procedural matters are governed by the lex fori and substantive law matters are
governed by the lex causae.
What is extinctive prescription? You should have come across this term in your stud-
ies by now, but let us refresh your memory. Extinctive prescription refers to certain
rights being extinguished or the enforcement thereof becoming barred by the lapse of
a certain period of time.
Question: In the cases that are relevant for our purposes, the question is whether a
claim based on breach of (an international) contract has become prescribed or not.
This question depends on how prescription is classified and consequently which legal
system is applicable to the question of prescription, since different periods of time are
required for prescription in different legal systems.
Furthermore, we must distinguish between two types of prescription rules. The first
type is called strong prescription rules. Strong prescription rules extinguish the remedy
and the underlying right (or debt) and form part of substantive law. Strong prescription
rules are therefore governed by the lex causae. The current South African Prescription
Act 68 of 1969 contains strong prescription rules.
16
On the other hand, weak prescription rules extinguish the remedy only and not the
underlying debt. In other words, weak prescription rules only bar the enforcement of
the debt. Weak prescription rules are regarded as being part of procedural law and are
governed by the lex fori. The previous South African Prescription Act contained weak
prescription rules.
Let us now study four possible scenarios which may arise in the context of extinctive
prescription.
Question: In all four of these scenarios; a South African court is faced with the ques-
tion whether a claim based on breach of contract is still enforceable after the lapse of
a certain period of time.
The proper law of the contract (lex causae) is a foreign legal system; but the lex fori is of
course South African law. It has to be decided whether prescription of the claim is to
be governed by South African law or by the lex causae.
2.7.1 The prescription rules of the lex causae are regarded as substantive
according to both the lex fori and the lex causae
These were the facts in the Kuhne & Nagel AG Zurich v APA Distributors (Pty) Ltd 1981 (3)
SA 536 (W) case. In this case the proper law of the contract (lex causae) was Swiss law.
The question was whether Swiss law or South African law should govern prescription.
SA PIL rule Which legal

Rule
applicable?
factor) applicable?
Swiss Substantive Lex causae Swiss Yes

law
SA Substantive Lex causae Swiss No

law
Answer: According to lex fori classification, Swiss law is applicable to the matter of
prescription.

Rule
applicable?
factor) applicable?
Swiss Substantive Lex causae Swiss Yes

law
SA Substantive Lex causae Swiss No

law
CGM4804/1 17
Answer: According to lex causae classification, Swiss law is applicable to prescription.

Lex fori classification and lex causae classification both render the same result.
2.7.2 The prescription rules of the lex causae are regarded as substantive
according to the lex causae but as procedural according to the lex fori
These were the facts in the case of Laurens NO v Von Hohne 1993 (2) SA 104 (W). You
are required to read this case and be able to provide a detailed case discussion.
The proper law of the contract (lex causae) was German law. The question was whether
German or South African prescription rules should be applied to determine whether
the claim had become prescribed or not.

Rule
applicable?
factor) applicable?
German Procedural Lex fori SA No
SA Substantive Lex causae German No
Answer: Lex fori classification leads to gap (no legal system is applicable).

Rule
applicable?
factor) applicable?
German Substantive Lex causae German Yes

law
SA Substantive Lex causae German No

law
Answer: In terms of lex causae classification, German law is applicable to prescription.
In the Laurens case, via media classification was employed to decide between lex fori and
lex causae classification. According to this approach, one makes a choice between lex fori
and lex causae classification based on policy grounds.
The judge chose lex causae classification. The policy considerations in favour of this
choice are:
Lex fori classification leads to gap.

Application of the lex causae to prescription promotes international harmony of deci-
sion. Most jurisdictions apply the lex causae to matters of prescription.
18
It accords with the legitimate expectations of the parties. They would expect that
the same legal system that governs their contract (the proper law of the contract
or the lex causae) would also govern prescription of a claim based on the contract.
2.7.3 The prescription rules of the lex causae are regarded as procedural
according to the lex causae but as substantive according to the lex
fori

Rule
applicable?
factor) applicable?
Lex fori Substantive Lex causae Proper law No

law
Lex causae Substantive Lex causae Proper law Yes

law
Answer: In terms of lex fori classification, the proper law or lex causae is applicable to
prescription.

Rule
applicable?
factor) applicable?
Lex fori Substantive Lex causae Proper law No

law
Lex causae Procedu ra l Lex fori Lex fori No

law
Answer: Lex causae classification leads to gap (no legal system applicable).
If one were to apply via media classification, one would choose lex fori classification, since
it provides an answer and does not lead to gap.
2.7.4 The prescription rules of the lex causae are regarded as procedural in
terms of both the lex fori and the lex causae
This set of facts have been encountered in several cases, for example Laconian Maritime
Enterprises Ltd v Agromar Lineas Ltd 1986 (3) SA 509 (D); Society of Lloyds v Price; Society of
Lloyds v Lee 2005 (3) SA 549 (T); Society of Lloyds v Romahn 2006 (4) SA 23 (C); Society of
Lloyds v Price; Society of Lloyds v Lee 2006 (5) SA 393 (SCA).
CGM4804/1 19
In all these cases the proper law of the contract was English law. English prescription
rules are regarded as procedural in terms of English law and South African law.

Rule
applicable?
factor) applicable?
English Procedu ra l Lex fori SA No

law
SA Substantive Lex causae English No

law
Answer: Lex fori classification leads to gap.
Rule Category SA PIL rule Which legal Rule

(connecting system applicable?
factor) applicable?
English Procedu ra l Lex fori SA No

law
SA Substantive Lex causae English No

law
Answer: Lex causae classification also leads to gap.
In essence we therefore have what Neels calls a double gap.18 How should this gap
be solved? The cases decided on this question have come up with different answers.
In the Laconian case it was found that the lex fori should govern prescription under
these circumstances. The Society of Lloyds v Price and Lee (T) case followed the decision
in Laconian.
Conversely, in the Society of Lloyds v Romahn case, the Cape High Court found that the
lex causae/proper law should govern the matter of prescription. The main reason for this
decision was that applying the lex causae to prescription accorded with the legitimate
expectations of the parties. In other words, the parties would expect that the same legal
system that applied to their contract (the proper law of the contract) would govern the
prescription of a claim based on the contract.
The Supreme Court of Appeal overturned the decision in Society of Lloyds v Price and
Lee. It was decided that the issue of prescription under these circumstances should be
governed by the legal system of closest and most real connection to the matter. The
18 Neels 2008 Journal of Private International Law 167.
20
court also found that there should be no bias in favour of applying the lex fori under
these circumstances. It was found that the lex causae or proper law should govern the
matter of prescription. Two main reasons were advanced in support of this decision.
Firstly, the lex causae was found to be the system of closest and most real connection to
the matter of prescription. Secondly, international harmony of decision requires the lex
causae to be applied in these circumstances, since prescription is classified as a substan-
tive issue by an increasing number of jurisdictions.
The author Neels19 suggests that a general rule should be formulated in South African
private international law to the effect that extinctive prescription is governed by the lex
causae/proper law. He gives the following reasons for this suggestion:
It will promote legal certainty with regard to the legal system applicable to
prescription.
It complies with the legitimate expectations of the parties.
The complex process of classification would not be necessary in this regard.
It will prevent arbitrary decisions in this regard.
It will prevent forum shopping. (Forum shopping refers to the phenomenon where
parties seek out the forum which would provide them with the outcome they want.)
It will promote international harmony of decision.
2.8 CONCLUDING REMARKS ON CLASSIFICATION

METHODS
Via media classification promotes individual fairness/justice (in each case the classifica-
tion method is chosen that would result in the most equitable decision) but it impacts
negatively upon legal certainty. Therefore, some authors advocate using the enlightened
lex fori approach instead of the via media approach, since the former possibly maintains
a better balance between individual fairness and legal certainty.
The author Juenger20 argues in favour of employing a teleological substantive law

approach to classification. In terms of this approach, a choice is made in favour of a
certain result, not merely in favour of the application of a certain legal system. Accord-
ing to Juenger, the judge should choose the applicable legal system by having regard to:
the closest connection to the issue and the parties involved

the quality of the relevant legal systems
the fairness of the effect of the application of a specific legal system in a specific case
2.9 SELF-EVALUATION QUESTIONS

Explain the difference between pure lex fori and enlightened lex fori classification
Which legal categories are utilised in lex causae classification?
Give a detailed description of the via media approach to classification with reference
to one relevant case.
19 Neels 2008 Journal of Private International Law 167.

20 Juenger FK Choice of Law and Multistate Justice (Martinus Nijhoff Boston 1993).
CGM4804/1 21
3 STUDY UNIT 3
3 Renvoi
Prescribed reading material for this unit

None
Optional reading material for this unit
Neels JL Die gedeeltelike uitsluiting van renvoi in resente wetgewing 1992 TSAR 739
Forsyth CF A modest defence of renvoi 2009 TSAR 135
Learning objectives
After studying this study unit, you should be able to:
explain the phenomenon of renvoi by means of an example

distinguish between the two possible forms of renvoi
list and explain the three different approaches to renvoi
recognise the different approaches to renvoi followed in a set of facts
list and explain the instances of the exclusion of renvoi in legislation
Key concepts
No renvoi approach, partial renvoi approach, full renvoi approach, transmission,
remission
3.1 INTRODUCTION
The term renvoi may be translated as a reference back. This phenomenon is best
explained by means of an example:
A, a female South African citizen, marries B, a male Mauritian citizen, in Mauritius.

At the time of conclusion of the marriage, A was domiciled in France and B in Mau-
ritius. A and B move to South Africa and establish a domicile there. A few years later,
A sues B for divorce in a South African court. During the divorce proceedings, the
question arises whether a valid marriage was concluded in the first place. In terms of
South African law, A was too young at the time of conclusion of the marriage to enter
into a marriage without the permission of her legal guardians. This question of capac-
ity to marry pertains to inherent or material validity of the marriage. According to the
rules of South African private international law, the inherent validity of a marriage is
22
STUDY UNIT 3: Renvoi
governed by the lex loci celebrationis the law of the place where the marriage ceremony
was concluded. South African private international law therefore points to the law of
Mauritius to determine the matter. However, according to the law of Mauritius, capac-
ity to marry (a matter falling under inherent validity of marriage) is governed by the
lex patriae of the relevant spouse. Mauritian private international law therefore points
to the application of South African law, which in turn points to Mauritian law, which
points back to South African law and so forth.
This referencing back, which may potentially be endless, is called renvoi.
At this stage it is important to distinguish between the terms whole law and internal law.
Whole law refers to all the legal rules of a country, including its rules of private interna-
tional law. Internal law refers to the legal rules of a country excluding its rules of private
international law.
3.2 FORMS OF RENVOI
3.2.1 Remission
The example mentioned under 3.1 is also an example of remission. Remission occurs
when the rules of private international law of the forum refer the matter to another
legal system; and the rules of private international law of the other legal system refer to
matter back to the referring legal system.
In other words:
PIL of SA Law of Mauritius applies: PIL of Mauritius SA Law applies; therefore:
SA Mauritius SA Mauritius and so on
3.2.2 Transmission
Transmission occurs when the rules of private international law of the forum refer the
matter to another legal system, which in turn refers the matter to a third legal system (in
other words, a forward reference). The rules of private international law of the third legal
system refer the matter back to the law of the first forum and there the cycle starts again.
In the example above, transmission would occur if the rules of private international law
of South Africa referred the question of capacity to marry to the law of Mauritius, the
law of Mauritius referred the question to the law of France and the private international
law of France referred to question back to South African law.
In other words:
PIL of SA Law of Mauritius applies: PIL of Mauritius Law of France applies: PIL
of France Law of SA applies; therefore:
SA Mauritius France SA Mauritius France etc
CGM4804/1 23
3.3 THE THREE POSSIBLE APPROACHES TO RENVOI
3.3.1 No renvoi/rejection of renvoi

According to this approach, when a forums rules of private international law refer to
the law of country X, it is regarded as a reference to country Xs internal law only. As
stated above, internal law refers to the law of a country excluding its rules of private
international law.
Examples:
Remission:
South African PIL refers to the application of the law of Mauritius. The rules of private
international law of Mauritius refer the matter to SA law, which refers the matter to
Mauritian law and so forth.
If a no renvoi approach is followed in South African law then the reference to Mauritian
law would only be a reference to its internal law. The South African court would there-
fore apply Mauritian internal law to the matter and would not consider the Mauritian
rules of private international law.
Transmission:
South African PIL refers to Mauritian law. Mauritian law refers to French law. French
law refers back to South African law.
If the no renvoi approach is followed by the South African forum, it would only refer
to Mauritian internal law and apply that to the matter at hand. It would not consider
Mauritian PIL.
3.3.2 Partial renvoi approach

In terms of this approach or theory, it is assumed that the lex causae (the legal system
indicated as the applicable law by South African PIL rules) follows a no renvoi ap-
proach. In other words, the South African forum would consider the whole law of the
lex causae (whole law refers to the internal law and private international law rules), but
would apply the internal law of the legal system to which the lex causaes rules of private
international law point.
In practical terms, it means that the forum will accept one reference forwards or back-
wards by the rules of PIL of the lex causae.
Examples:
Remission:
international law of Mauritius refer the matter to South African law, which refers the
matter to Mauritian law etc.
If a partial renvoi approach is followed by the South African court, it would apply South
African law to the matter at hand.
24
Why?
South African PIL refers to the law of Mauritius, Mauritian PIL refers to the applica-
tion of South African law. If one assumes that the lex causae (Mauritian law) follows a
no renvoi approach, then it means that only South African internal law will be referred
to and applied to the matter.
Transmission
If a partial renvoi approach is followed by the South African court, it will apply French
law to the matter at hand.
Why?
South African PIL refers to Mauritian law, including its PIL rules. However, accord-
ing to the partial renvoi theory, it is assumed that the lex causae, Mauritian law, follows
a no renvoi approach. Therefore it is assumed that Mauritian PIL only refers to French
internal law. French internal law is therefore applied, without looking at French PIL.
3.3.3 Total renvoi approach

It is not assumed that the lex causae follows a no renvoi approach. If a forum follows the
total renvoi approach, it considers the whole law of the lex causae, including its approach
to renvoi. If the lex causae also follows a total renvoi approach, then it would mean that
there would be infinite references forwards or backwards, and possibly no solution
would be found to the question of the applicable law.
Examples:
Remission:
international law of Mauritius refer the matter to South African law, which refers the
matter to Mauritian law and so forth.
If the South African forum follows the total renvoi approach, it would apply the whole
law of Mauritius. The rules of private international law of Mauritius refer the matter to
South African law and if Mauritian law follows a total renvoi approach, it would consider
South African internal law and private international law. The latter refers the matter
back to Mauritian law and this referring back will continue ad infinitum.
Transmission
If the South African forum follows the total renvoi approach, it will apply the whole law
of Mauritius. The private international law of Mauritius refers the matter to French law.
If Mauritian law follows a total renvoi approach, then it will also consider its rules of
PIL, which refer the matter to South African law. This cycle of reference from South
CGM4804/1 25
African law to Mauritian law to French law and back to South African law would also
continue ad infinitum if all the relevant legal systems follow a total renvoi approach.
3.4 WHAT ROLE CAN RENVOI PLAY?

Question: The question arises whether it would ever be desirable to apply renvoi? The
application of renvoi may be encouraged in two instances.
Firstly, it may be utilised as an instrument of policy to be employed if it would lead

to a more equitable result in a certain case. In particular circumstances, renvoi would
therefore serve as an escape mechanism from the rigidity of certain PIL rules which
could possibly lead to an unjust result. Let us look at an example in this regard:
In terms of South African private international law, formal validity of marriage is gov-
erned by the lex loci celebrationis the law of the place where the marriage was celebrated.
Suppose that the lex loci celebrationis of a marriage is country X and that the marriage in
question does not comply with the formal requirements of the law of country X. How-
ever, according to Xs rules of private international law, the formal validity of a marriage
is governed by the law of domicile of the parties, which is country Y. In terms of the
law of country Y, the marriage would be formally valid. Under these circumstances it
would be in line with policy and ensure a more equitable result to apply partial renvoi,
find the law of country Y applicable and therefore find the marriage formally valid.
Secondly, it may promote international harmony of decision to apply renvoi in certain

circumstances.
3.5 EXCLUSION OF RENVOI

Two pieces of South African legislation currently exclude the application of renvoi in
certain instances.
Section 4 of the Domicile Act 3 of 1992 excludes the application of renvoi where domicile
is used as a connecting factor. However, section 8(2)(a) of the Act provides that the Act
shall not affect any right, capacity, obligation or liability acquired, accrued or incurred
by virtue of the domicile which a person had at any time prior to the commencement
of this Act. It must be borne in mind that this Act is not retrospective and that renvoi
cases in which domicile is the connecting factor may therefore still present themselves.
The Law of Succession Amendment Act 43 of 1992 amended section 3bis of the Wills
Act (for more on this provision, see the section on Law of Succession) by substituting all
references to law with internal law. Section 3bis provides a list of systems in terms
of which the formal validity of a will may be tested. Renvoi is excluded in terms of the
testing systems for the formal validity of a will. Upon enactment, this amendment was
made retroactive to 1/1/1954.
Although not excluded by statute, renvoi will not be applied in the law of contract.
3.6 CONCLUSION
There is currently no case law authority for any single approach to renvoi under South
African law. Although renvoi is excluded by means of legislation in cases where domicile
26
is the relevant connecting factor and in applying the possible testing systems for formal
validity of wills as listed in the Wills Act, one cannot assume that a general no renvoi
approach is followed under South African law. It has been shown that the application
of renvoi may be in the interests of justice in certain circumstances.
3.7 SELF-EVALUATION QUESTION

South African law refers to the law of X. The law of X refers to the law of Y. The law
of Y refers to the law of Z. The law of Z refers to South African law. The laws of X and
Y reject renvoi but the law of Z applies total renvoi. Which legal system would a South
African court have to apply if it were to accept the partial renvoi theory?
CGM4804/1 27
4 STUDY UNIT 4
4 The incidental question

Neels JL External public policy, the incidental question properly so-called and the
recognition of foreign divorce orders 2010 TSAR 671
Optional reading material for this study unit

Dhansay and Others v Davids and Others 1991 (4) SA 200 (C)
Learning objectives
After studying this unit, you should be able to:
describe an incidental question

distinguish between an incidental question properly so-called (true incidental question)
and an incidental question not properly so-called
identify an incidental question in a set of facts
identify and discuss the possible legal systems applicable to an incidental question
provide a comprehensive discussion of the case of Phelan v Phelan 2007 (1) SA 483
(C) as discussed in the prescribed article
Key concepts
True incidental question; incidental question not properly so-called
4.1 WHAT IS AN INCIDENTAL QUESTION?

An incidental question arises in any case where it is necessary to settle a subsidiary
question in order to apply the relevant legal rule to the main question. The subsidiary
question needs to be answered before the main question can be decided, therefore it is
also referred to as a preliminary question.
4.2 THE INCIDENTAL QUESTION PROPERLY SO CALLED

OR TRUE INCIDENTAL QUESTION
If an incidental question arises in a matter where the main question is directed to a for-
eign legal system by the rules of private international law of the forum, we speak of an
incidental question properly so-called. In other words, an incidental question arising
28
STUDY UNIT 4: The incidental question
in a matter where a foreign lex causae is applicable to the main question is regarded as
a true incidental question.
Let us look at a possible example:
A died intestate and left movable property in South Africa. At the time of her death,
A was domiciled in Australia. A was survived by five children. Suppose that, in terms
of Australian law of intestate succession, only intramarital children qualify to inherit.
The main question arising from this set of facts is: who inherits As property? In terms
of South African PIL, intestate succession to movables is governed by the law of last
domicile (lex ultimi domicilii), therefore by the law of Australia.
The preliminary question arises: who are the intramarital children? Which legal system
should be applied to the question of determining the intramarital status of the children?
There are four possibly applicable legal systems to an incidental question properly so
called, namely:
(a) the internal lex fori (internal South African law)

(b) the legal system indicated by the private international law of the forum (in other
words, it must be asked: which legal system would be applicable to determine
legitimacy in terms of South African private international law?)
(c) the internal lex causae (the legal system applicable to the main question, Australian
law in the example above)
(d) the legal system indicated by the private international law of the lex causae (in other
words, the question is: which legal system would determine legitimacy in terms of
the private international law of Australia?)
An example of an incidental question that arose in an early South African judgment

(although not identified as such by the court) may be found in Seedats Executors v The
Master 1917 AD 302. In casu, the testator (Seedat) concluded two marriages in India in
terms of Muslim rites, the first while domiciled in India and the second while domiciled
in Natal. Four children were born out of the first marriage and six out of the second
marriage. Seedat executed a will in Natal, bequeathing his estate to executors in trust
to distribute in terms of Muslim law of succession. The main question concerned the
amount of estate duty payable and this depended on the legitimacy of the children. The
incidental question was the inherent validity of the marriage of the parents. The lex
causae of the main question was the law of India. The law of India was also applied to
the incidental question. However, as stated, the court was not aware that it was dealing
with an incidental question.
An incidental question properly so called recently arose in the decision of Phelan v Phelan
2007 (1) SA 483 (C). This decision is discussed in detail in your prescribed article for
this study unit.
4.3 THE INCIDENTAL QUESTION NOT PROPERLY SO

CALLED
An incidental question not properly so called refers to an incidental question that
arises in circumstances where the main question is governed by South African law, in
other words, in circumstances where the South African rules of private international
law find South African law to be the lex causae/applicable law.
CGM4804/1 29
In case of an incidental question not properly so called there are two possibly ap-
plicable legal systems in respect of the incidental question, namely:
(a) the internal law of the forum, which is also the lex causae; or
(b) the legal system indicated by the private international law of the forum (in respect
of the incidental question)
An incidental question not properly so called arose in Dhansay and Others v Davids
and Others 1991 (4) SA 200 (C). In this matter, the deceased left immovable property
in South Africa. The main question concerned the intestate succession of Dhansays
immovable property in South Africa. According to the rules of private international
law, the intestate succession of immovables is governed by the lex situs (law of the place
where the immovables are situated), which is South African law. An incidental question
arose as to the legitimacy of his children for purposes of inheriting the property. In
terms of South African law, the children were regarded as illegitimate, since their father
was married to their mother in a potentially polygamous marriage. (This judgment was
delivered before s 1(2) of the Intestate Succession Act came into force. In terms of this
provision, illegitimacy does not prevent intestate succession between blood relatives.)
However, the deceased and his children were domiciled in India at all relevant times
and in terms of Indian law the children were legitimate.
According to the rules of private international law, legitimacy is determined by the law
of domicile of the father at the time of birth of the child.
Instead of applying the legal system as indicated by the rules of private international
law, which would have rendered the children legitimate, the court opted to apply South
African internal law.
The Dhansay judgment was criticised by Neels.21 Neels points out that there were several
policy considerations which should have pointed to the application of the legal system
as indicated by the rules of private international law. These policy considerations are:
(a) South African public policy requires that children should be regarded as legitimate
rather than as illegitimate.
(b) This decision leads to the anomaly that the children are regarded as legitimate
for purposes of the succession of movables (governed by the law of last domicile,
namely Indian law) and as illegitimate for purposes of the succession of the im-
movables (governed by South African law as the lex situs).
(c) The application of South African law to the question of legitimacy leads to an
unfair result.
4.4 CONCLUSION
Forsyth22 concludes that one should follow a non-mechanical approach in deciding
which legal system to apply to an incidental question. The judge should be aware of
the fact that he is faced with an incidental question and consider the possibly applicable
legal systems and make the most appropriate finding in the circumstances. Forsyths
approach is supported in this regard.
21 Neels JL Die onegte insidentele vraag in n internasionaal erfregtelike geskil 1993 TSAR 760.
30
STUDY UNIT 4: The incidental question

Why is the incidental question in the case of Phelan v Phelan categorised as an incidental
question properly so called?
CGM4804/1 31
5 STUDY UNIT 5
Proof of foreign law, the exclusion of

5
foreign law and changes in foreign law
None
Harnischfeger Corporation and Another v Appleton and Another 1993 (4) SA 479 (W)
Standard Bank of South Africa Ltd and Another v Ocean Commodities Inc and Others 1983
(1) SA 276 (A)
Learning objectives
After completing this study unit, you should be able to:
explain under what circumstances judicial notice may be taken of foreign law
discuss how foreign law should be proved with reference to case law
explain what the consequences of the failure to prove foreign law are
list and discuss the instances in which the ascertained lex causae will be excluded
discuss the effect of subsequent changes in foreign law
5.1 INTRODUCTION
In this study unit we will be examining three matters. Firstly, once it has been established
that a foreign legal system is applicable to a certain matter, how should the content of
this foreign legal system be ascertained by the court? Or stated differently, how should
the content of the foreign law be proved? Secondly, we will look at instances where
foreign law will not be applied by a local forum. Lastly, we will look at the effect of
subsequent changes in the lex causae.
32
STUDY UNIT 5: Proof of foreign law, the exclusion of foreign law and changes in foreign law
5.2 PROOF OF FOREIGN LAW
5.2.1 Foreign law a question of fact

South Africa follows the English fact doctrine in respect of foreign law foreign
law is treated as a question of fact, not of law. Therefore, a party relying on foreign law
must plead it and prove it.
This principle was entrenched in numerous cases. Examples include Schlesinger v Com-
missioner for Inland Revenue 1964 (3) SA 389 (A) and Standard Bank of South Africa Ltd and
Another v Ocean Commodities Inc and Others 1983 (1) SA 276 (A).
5.2.2 Taking judicial notice of foreign law

Section 1(1) of the Law of Evidence Amendment Act 45 of 1988 allows a court to take
judicial notice of the law of a foreign state in so far as such law can be ascertained
readily and with sufficient certainty.
Question: The question arises: under what circumstances will foreign law be regarded
as capable of being ascertained readily and with sufficient clarity?
This question arose in Harnischfeger Corporation and Another v Appleton and Another 1993
(4) SA 479 (W). In this matter the judge refused to take judicial notice of the law of
Wisconsin of the 1960s because there were not sufficient authoritative sources on this
law available to him.
In the matter of Hassan v Hassan 1998 (2) SA 589 (D), the judge took judicial notice of
a Scottish statute.
Forsyth23 points out that a party seeking to rely on foreign law still has to plead it, even
in instances where it is proved by judicial notice.
Section 1(2) of the Law of Evidence Amendment Act provides that neither party is pre-
cluded by section 1(1) from adducing evidence of the substance of a foreign legal rule.
Our courts frequently take judicial notice of English law, the law of Commonwealth
countries and the law of neighbouring states.
5.2.3 Proving foreign law by means of expert evidence

If it is not possible to take judicial notice of foreign law, it will have to be proved by
means of expert evidence before it will be applied by a local forum.
Who qualifies to give expert evidence on a foreign legal system? Differing decisions
exist in this regard.
In Atlantic Harvesters of Namibia (Pty) Ltd v Unterweser Reederei GmbH 1986 (4) SA 865
(C), the judge suggested that only the evidence of a lawyer practising in the relevant
foreign jurisdiction would be acceptable. Several authors have criticised this finding.
Forsyth24 regards this dictum as impractical (since it would often be very difficult to

CGM4804/1 33
find a practising lawyer of the foreign jurisdiction willing to provide expert evidence)
and unnecessary (local experts are often able to provide the necessary evidence).
The evidence of persons with a law degree from a university in the relevant foreign
country has often been accepted. An example of a case that accepted such evidence is
Hulscher v Voorschotkas voor Zuid-Afrika 1908 TS 542.
Another form of expert evidence on the content of a foreign legal system utilised in
our courts in the past was an affidavit from a practitioner in the foreign country. A
notable case in which this form of evidence was found acceptable is Ex parte Spinazze
and Another NNO 1985 (3) SA 650 (A).
In any particular case the court has a discretion to admit or exclude evidence, based on
the circumstances of the case.
5.2.4 Failure to prove the content of foreign law

Question: The question remains to be answered: what is the position if a foreign
legal system is found to be the law applicable to a certain matter, but the content of the
said foreign law is not proved to the satisfaction of the court?
There is a large amount of case law authority to show that it is then presumed that the
relevant foreign law is the same as the lex fori and that the latter is therefore applied.
It must be borne is mind that the precedent system does not apply in respect of find-
ings concerning the content of foreign law as pointed out, foreign law is treated as a
question of fact, not of law.
5.3 EXCLUSION OF FOREIGN LAW

In most circumstances, once the applicable law or lex causae has been established in
terms of the rules of private international law, it will be applied to the matter at hand.
This established foreign law will normally be applied even if it involves the recognition
of a foreign institution or rule unknown to our legal system.
Can you think of any circumstances under which the forum will not apply the estab-
lished lex causae?
Your answer should have included these instances:
when the relevant provisions of the lex causae are in conflict with the Constitution
when a statutory provision indicates that it contains the mandatory rules to be applied
when the lex causae is in conflict with public policy
when the parties acted in fraudem legis
when the established foreign law relates to criminal law or tax law
when the established foreign law is that of a non-recognised state
Each of these will now be discussed.
34
5.3.1 Foreign law in conflict with the Constitution

Section 2 of the South African Constitution provides that it is the supreme law of the
Republic and any law or conduct inconsistent with it is invalid.
If the ascertained foreign law is in conflict with the Constitution, it will not be applied
by a South African court.
5.3.2 Exclusion of foreign law in legislation

Several South African statutes contain provisions directing that the statute has to be
applied in the relevant circumstances. In other words, if the criteria for application of
the statute are met, the statute applies to the exclusion of a possible foreign lex causae.
Such statutes contain mandatory rules of the forum. We will mention a few examples.
Section 4(1) of the National Credit Act 34 of 2005 provides that this Act applies
to every credit agreement between parties dealing at arms length and made within,
or having an effect within, the Republic.
Section 2 of the Prevention of Illegal Eviction from and Unlawful Occupation
of Land Act (PIE) 19 of 1998 provides that this Act applies in respect of all land
throughout the Republic.
Section 5(1)(a) of the Consumer Protection Act 68 of 2008 determined that it
applies to every (consumer) transaction occurring within the Republic, subject to
a list of exceptions mentioned in sections 5(2)(4).
5.3.3 The ascertained lex causae is in conflict with public policy

A foreign lex causae will only be excluded if it is found to be against external or inter-
national public policy; it will not be excluded if it is found merely to be against internal
public policy. Internal public policy refers to the policy considerations applicable in
cases governed by the lex fori.
Exclusion of foreign law based on the fact that it is against public policy may possibly
arise in any area of law. For example, the public policy of the forum rejects incestuous
marriages and marriages entered into without the consent of one of the parties. Con-
tracts contra bonos mores will not be upheld.
In the past, foreign polygamous marriages were regarded as against the public policy
of the forum. The matter is discussed in detail in study unit 8.
5.3.4 The parties acted in fraudem legis

If persons seek to evade certain provisions of the normally applicable legal system and
act in a manner intended to create (fraudulent) connecting factors with another legal
system, the normally applicable legal system will be applied.
An area of law in which there are several examples of the operation of the doctrine of
fraus legis is marriage law. In these instances, the parties get married elsewhere in order
to evade provisions of the lex fori.
The parties must have evasive intent for the doctrine to find application.
CGM4804/1 35
An example is found in the Zimbabwean case of Kassim v Ghumran and Another (1981
Zimbabwe LR 227). In this matter Kassim and Ghumran went through a marriage
ceremony in Malawi. They married there to evade the provision of Zimbabwean law
(Kassim was domiciled in Zimbabwe) requiring that Kassim, who was only fifteen at
the time of conclusion of the marriage, had to obtain her parents consent to enter into
marriage. Kassims father brought an application in the Zimbabwe High Court for an
order declaring the marriage void. The judge decided the matter on the basis of fraus
legis and found that where one or both of the parties were domiciled in the area of the
court and had their marriage deliberately solemnized elsewhere to escape an essential
requirement of the lex domicilii (being the lex fori), they acted in fraudem legis and their
marriage was tested by the local law as the lex domicilii (at 287).
Forsyth points out that, although the doctrine of fraus legis forms part of our law, the
extent of its operation is not entirely clear.25 Authors are divided on the question whether
it should only be applied if the law evaded is the lex fori or whether it should also be
applied where the evaded legal system is a foreign legal system.
Forsyth argues that, where the doctrine operates to exclude the lex causae, the evaded
law should be applied.26
5.3.5 The established foreign law relates to criminal law or tax law
South African courts will not enforce foreign revenue or penal (criminal) laws of a
foreign state. The reason for the exclusion of foreign criminal law relates to the fact
that criminal laws only have territorial application, meaning that they only apply in the
territory in which they were promulgated.
The reason for not enforcing foreign revenue laws is not quite clear, since there is no
fundamental principle of our law which absolutely requires the exclusion of foreign
revenue law,27 but our courts have upheld this exclusion up till now.
5.3.6 Law of an unrecognised state

It was found in the decision of Standard Bank of SA Ltd and Another v Ocean Commodities
Inc and Others 1980 (2) SA 175 (T) that our courts will not recognise the laws of an
unrecognised state.28
However, Forsyth refers to Sperling v Sperling 1975 (3) SA 707 (A) in which East Ger-
man matrimonial laws were applied even though East Germany was not recognised
by South Africa.
5.4 CHANGES IN FOREIGN LAW

It is a well-known fact that law changes constantly. This is true of all legal systems. In
several instances, laws of countries undergo drastic changes, a salient example is our
own legal system and the changes brought about by the adoption of our Constitution.
Another example would be changes in legal systems after the fall of the USSR.

28 at 181 C.
36
The question is: if a foreign legal system is found to be applicable, at which point
should the content of the legal system be established? For example, it may happen that
at the time of H and Ws marriage, the default position under the law of matrimonial
domicile was that marriages were in community of property. (As you will see in study
unit 8, proprietary consequences of marriage are governed by the law of matrimonial
domicile.) Later the position under that legal system may change to marriages being
out of community of property by operation of law. If H and W get divorced after the
changes were effected, what is the position in respect of the proprietary consequences
of their marriage?
The principle in our law, as advocated by the authors and supported by our courts, is
as follows: changes in the foreign law which occur before the (local) judge makes his
decision are to be taken into account, just as a judge in the foreign jurisdiction would
take subsequent changes to that legal system into account.
This question came before the Appeal Court in the case of Sperling v Sperling 1975 (3)
SA 707 (A). We will discuss this case in study unit 8.
ACTIVITY 5.1
Search for examples of foreign law that would be excluded from application on grounds
of conflict with our public policy.
5.5 CONCLUSION
Foreign law is a question of fact and the party who wishes to rely on it needs to plead
and prove it before the court. Section 1(1) of the Law of Evidence Amendment Act
makes this task much easier if the foreign law can be ascertained readily and with
sufficient certainty. If this is not the case, the content of foreign law will have to be
proved by means of expert evidence. There are several instances in which a local court
will not apply foreign law, the most notable instance being when the foreign law is in
conflict with the Constitution.
CGM4804/1 37
6 STUDY UNIT 6
Recognition and enforcement of foreign

6
judgements

None
Jones v Krok 1995 (1) SA 677 (A)

Purser v Sales 2001 (3) SA 445 (SCA)
Richman v Ben-Tovim 2007 (2) SA 283 (SCA)
Learning objectives
distinguish between recognition and enforcement

list the requirements for recognition and enforcement of foreign judgments with
reference to relevant case law
discuss the grounds for international competence for claims sounding in money,
for judgments in respect of immovable property, for foreign divorce orders, for
maintenance orders, for custody orders and for adoption orders
discuss the position in respect of the recognition and enforcement of foreign arbitral
awards
Key concepts
Recognition, enforcement, international competence
6.1 INTRODUCTION
It may happen that a plaintiff obtains a judgment against a defendant in one jurisdiction,
but that the defendant or his assets are located in another jurisdiction. The judgment
can therefore not be enforced in the jurisdiction that handed it down in the first place.
In general, most jurisdictions would recognise and enforce a judgment handed down
in another jurisdiction, provided certain conditions were met. In this study unit we
38
STUDY UNIT 6: Recognition and enforcement of foreign judgements
are going to discuss the requirements and grounds for recognition and enforcement of
foreign judgments.
6.2 RECOGNITION VERSUS ENFORCEMENT

Recognition of a judgment means that the South African court will accept that the judgment
has the legal effect which the court handing down the judgment intended it to have.
Enforcement of a judgment means that the South African court gives effect to the judgment
as if it were a judgment of the South African court.
Recognition of a judgment is a prerequisite for its enforcement.
6.3 REQUIREMENTS FOR RECOGNITION AND

ENFORCEMENT
There are four requirements that must be met before a judgment will be recognised by
a South African court (and enforced if necessary). These requirements were set out by
the Supreme Court of Appeal in Jones v Krok 1995 (1) SA 677 (A) and have been cited
numerous times, more recently in the matter of Purser v Sales 2001 (3) SA 445 (SCA).
The four requirements are:
(a) The international court had international jurisdiction/competence to decide

the case. There are various grounds for international jurisdiction, depending on
the type of matter. We will look at these grounds later in this study unit.
Note that whether or not a foreign court had international jurisdiction is to be
determined on the basis of South African law (private international law). It was
stated in Reiss Engineering Co Ltd v Isamcor (Pty) Ltd 1983 (1) SA 1033 (W) that the
fact that the foreign court may have had jurisdiction in terms of its own law does
not entitle its judgment to be recognised and enforced in South Africa. It must have
had jurisdiction according to the principles recognised by our law with reference
to the jurisdiction of foreign courts (at 1037H). This dictum was approved in Purser
v Sales 2001 (3) SA 445 (SCA).
(b) The judgment of the foreign court must have been final and conclusive. However,
the fact that a judgment is appealable does not affect its finality. In cases where
an appeal is pending, the court has a discretion whether to enforce the judgment
(see Jones v Krok at 692D).
(c) The recognition and enforcement of the judgment must not be against public
policy. For example, the recognition and enforcement may be against public policy
if rules of natural justice were not observed, if it was obtained fraudulently or if it
involves the enforcement of a foreign criminal or tax law.
(d) The judgment must not be in contravention of s 1 of the Protection of Businesses
Act 99 of 1978. The most relevant provisions read as follows:
S1
(1) Notwithstanding anything to the contrary contained in any law or other legal rule,
and except with the permission of the Minister of Economic Affairs
(a) no judgement, order, direction, arbitration award, interrogatory, commission
rogatoire, letters of request or any other request delivered, given or issued or
CGM4804/1 39
emanating from outside the Republic in connection with any civil proceedings
and arising from any act or transaction contemplated in subsection (3), shall
be enforced in the Republic;
(b) ...
(2)
(3) In the application of subsection (1)(a) an act or transaction shall be an act or trans-
action which took place at any time, whether before or after the commencement of
this Act, and is connected with the mining, production, importation, exportation,
refinement, possession, use or sale of or ownership to any matter or material, of
whatever nature, whether within, outside, into or from the Republic.
1A Prohibition of recognition or enforcement of certain judgments:

(1) No judgment delivered by a court outside the Republic, arising from any act or
transaction referred to in section 1(3) and directing the payment of multiple or
punitive damages shall be recognized or enforced in the Republic, irrespective
of whether or not the Minister has in terms of section 1 granted his consent as
contemplated in that section.
(2) In this section and in section 1B multiple or punitive damages means that part
of the amount awarded as damages which exceeds the amount determined by the
court as compensation for the damage or loss actually sustained by the person to
whom the damages have been awarded.
1D Prohibition of recognition or enforcement of certain judgments, orders,

directions, arbitration awards, interrogatories, commissions rogatoire,
letters of request or other requests
No judgment, order, direction, arbitration award, interrogatory, commission rogatoire,
letters of request or any other request delivered, given or issued outside the Republic
or emanating from outside the Republic and which arises from any act or transaction
referred to in subsection (3) of section 1 shall be recognized or enforced in the Repub-
lic, irrespective of whether or not the Minister has given his consent in terms of that
section, if such judgment, order, direction, arbitration award, interrogatory, commis-
sion rogatoire, letters of request or other request is connected with any liability which
arises from any bodily injury of any person resulting directly or indirectly from the
consumption or use of or exposure to any natural resource of the Republic, whether
unprocessed or partially processed or wholly processed, or any product containing or
processed from any such natural resource, unless the same liability would have arisen
under the law of the Republic, as it existed at the time of the occurrence of the event
which gave rise to the liability.
1E Conduct of person against whom judgment was delivered in foreign

country which shall not be regarded as submission by such person to
jurisdiction of such court, and circumstances relating to such person
which shall not be regarded as having conferred jurisdiction on such
court
(1) For the purposes of determining the question whether or not a judgment delivered
by a court in a foreign country relating to any act or transaction referred to in
section 1(3) can be recognized or enforced in the Republic
(a) the person against whom the judgment was given shall not be regarded as having
submitted to the jurisdiction of that court by reason only of the fact that he
appeared, whether conditionally or otherwise, in the proceedings in question
40
or of the fact that he took any steps in connection with such proceedings for
the following purposes, or any one or more of them, namely
ii(i) to contest the jurisdiction of that court;
i(ii) to apply for the dismissal of the action in question or for the setting aside
of the writ or summons in those proceedings on the ground that the court
did not have the required jurisdiction;
(iii) to protect or to obtain the release of any property attached for the purpose
of such proceedings, or threatened with attachment in those proceedings;
(iv) to apply to the court not to exercise its jurisdiction, if it was a case
where that court had a discretion to decide whether or not to exercise its
jurisdiction;
i(v) to apply to such court for the dismissal of, or a stay of, the proceedings
on the ground that the matter should be referred to arbitration or to a
court in another country for a decision;
(vi) to institute review proceedings in connection with, or to lodge an appeal
against, any order made in the proceedings mentioned in paragraphs (i)
to (v);
(b) it shall not be regarded that such court had jurisdiction in respect of the
person against whom such judgment was given merely on the ground of the
fact that such person did business within the area of that court, unless such
person, at the time when the events occurred which gave rise to the relevant
proceedings, conducted a permanent business establishment within that area.
(2) Where the person against whom judgment was delivered by a court in a foreign
country in respect of any act or transaction referred to in section 1(3), entered ap-
pearance in the proceedings in which such judgment was given in order to defend
the action on the merits thereof or took any other step in such proceedings in
order to defend the action on the merits thereof, such entry of appearance and
such step shall not be regarded as a submission to the jurisdiction of the court if
in terms of the law governing such court and the proceedings conducted therein,
such person was not entitled to contest the jurisdiction of the court unless he
entered such appearance or took such step, as the case may be, in order to defend
the action on the merits thereof.
1G Application of sections 1D, 1E and 1F
The provisions of sections 1D, 1E and 1F shall apply in respect of any judgment, order,
direction, arbitration award, interrogatory, commission rogatoire, letters of request or
other request, as the case may be, irrespective of whether it was or is delivered, given
or issued before or after the commencement of the Protection of Businesses Amend-
ment Act, 1987.
CGM4804/1 41
6.4 GROUNDS FOR INTERNATIONAL

JURISDICTION/COMPETENCE
6.4.1 International jurisdiction/competence in claims sounding in money
(a) Residence of the defendant within the area of the foreign courts jurisdiction
If the defendant is ordinarily resident in the area of the foreign courts jurisdiction, it is
widely accepted as a ground establishing international competence in claims sounding
in money.
Residence in the foreign courts area of jurisdiction was accepted as a ground establish-
ing international jurisdiction in an obiter dictum by the Supreme Court of Appeal in Purser
v Sales 2001 (2) SA 445 (A) (at 451A).
(b) Where the defendant has submitted to the jurisdiction of the foreign court
In theory, there are two forms of submission: submission by conduct and submission
by agreement.
However, there are no reported cases in which submission by conduct was accepted as
a ground establishing international competence.
Parties may enter into an agreement to submit their disputes to a certain court which
may not otherwise have had jurisdiction. This agreement normally takes the form of
a submission to jurisdiction clause contained in a contract between the parties. If the
validity of the submission clause has to be determined, the question arises as to which
legal system should be applied to determine its validity. Should the lex fori be applied,
or the proper law of the contract? In the matter of Blanchard, Krasner & French v Evans
2002 (4) SA 144 (T) it was found that the proper law of the contract should govern the
question of the validity of the submission to jurisdiction clause as well.
It must be borne in mind that a choice of proper law in a contract does not amount to
a choice of the proper laws courts as well: a choice of proper law cannot be construed
as a submission to the jurisdiction of that countrys courts. See in this regard Reiss
Engineering Co Ltd v Isamcor (Pty) Ltd 1983 (1) SA 1033 (W).
(c) Where the defendant is present in the jurisdiction of the foreign court at the
time of commencement of the action
In the case of Richman v Ben-Tovim 2007 (2) SA 283 (A), the Supreme Court of Appeal
approved the following words of the author Pollak: A foreign court has jurisdiction
to entertain an action for a judgment sounding in money against a defendant who is a
natural person if at the time of commencement of the action the defendant is physically
present within the state to which the court belongs.29
(d) Where the defendant is domiciled in the foreign courts jurisdiction at the
time of commencement of the action
Opinion is divided on whether domicile (without the domiciliary also being resident
or present within the area of jurisdiction of the court) constitutes a ground for inter-
national competence in claims sounding in money.
In a few early judgments delivered by Chief Justice Kotze in the 1890s, he found
domicile to be a ground establishing international competence. The author Pollak
also regards domicile in the jurisdiction of the foreign court as a ground establishing
international competence.
29 Para 7 of the judgment.
42
In the matter of Foord v Foord 1924 WLD 81 it was found that it was very doubtful whether
domicile apart from residence or presence within the territory confers jurisdiction.30
However, in Bisonboard Ltd v Braun Woodworking Machinery (Pty) Ltd 1991 (1) SA 482 (A),
the Supreme Court of Appeal pronounced, albeit in an obiter dictum, that there was no
justification for the doubt expressed over domicile as a ground conferring competence.
In the Bisonboard decision, the reference was to internal competence. However, in the
matter of Purser v Sales the Supreme Court of Appeal approved of domicile as a ground
establishing international competence but once again in an obiter dictum.
There is therefore no clear-cut authority on this question. Forsyth31 criticises domicile

as a factor establishing international competence on the grounds of effectiveness. He
states that it may often happen that a person is legally domiciled in a jurisdiction that
he is seldom or never present in and that a court in that jurisdiction would not be able
to render an effective judgment over such a person.
(e) Statutory enforcement of foreign judgments: Enforcement of Foreign Civil

Judgments Act 32 of 1988
In terms of this law, certain courts in certain designated countries may register judg-
ments with the local court. After such registration, the foreign judgment has the effect
of a judgment of the registering (local) court and can be enforced by the local court.
6.4.2 International competence in judgments in respect of immovable

property
A foreign court will have international jurisdiction/competence in a matter concerning
immovable property if the said property is situated in the area of jurisdiction of the
(foreign) court.
6.4.3 International competence in respect of divorce orders

Under the common law, a foreign court was only regarded as having international
jurisdiction in respect of a divorce order if the parties were domiciled within the juris-
diction of the foreign court at the time of commencement of the divorce proceedings.
One exception to this rule was recognised: If the divorce decree was not issued by the
domiciliary court, but would be recognised by the domiciliary court, then it will be
recognised by a local court. This exception was regarded as part of South African law
in the matter of Guggenheim v Rosenbaum 1961 (4) SA 21 (W) (at 31H32H).
Currently, however, the rules regarding international competence in respect of divorce

orders are contained in section 13 of the Divorce Act 70 of 1979, which reads as follows:
(1) The validity of a divorce order or an order for the annulment of a marriage or
for judicial separation granted in a court of a foreign country or territory shall
be recognised by a court in the Republic if, on the date on which the order was
granted, either party to the marriage
(a) was domiciled in the country or territory concerned, whether according to
South African law or according to the law of that country or territory;
(b) was ordinarily resident in that country or territory; or
(c) was a national of that country or territory.
30 Page 88 of the judgment.

CGM4804/1 43
6.4.4 International competence in respect of maintenance orders

Technically speaking, a maintenance order is a periodical money claim between two
persons and in theory the law relating to claims sounding in money applies to determine
international competence. However, in terms of the law of many countries a maintenance
order is variable by the court that made it and therefore a maintenance order providing
for payment of maintenance in the future does not comply with the requirement that
it should be final and conclusive.
There are two acts that apply to the recognition and enforcement of foreign mainte-
nance orders.
The Reciprocal Enforcement of Maintenance Orders Act 80 of 1963 makes provision

for the automatic registration of a foreign maintenance order in the local maintenance
court. In order for the foreign maintenance order to be registered, the foreign country
in which the court handing down the judgment was situated must have been designated
as a country to which the Act applies by the Minister by means of a notice to this effect
in the Government Gazette. Furthermore, proper diplomatic channels must have been used
to transfer a certified copy of the order from the proclaimed country to the Minister of
Justice and from there to the maintenance court.
Section 6 of the Act provides that, once an order has been registered with the local
maintenance court, it is deemed to be an order made by the local maintenance court
(where the order has been registered).
Section 4 of the Act makes provision for the confirmation of provisional maintenance
orders made by courts in proclaimed countries. After an enquiry by the local main-
tenance court, the order may be confirmed and is deemed to be an order of the local
maintenance court.
A large number of countries have been designated by the Minister in terms of section
2 of this Act, for example the United Kingdom, Mauritius, New Zealand, Nigeria,
Singapore, Zambia, and Swaziland.
6.4.5 International competence in respect of custody orders

The general rule in this regard is that international competence in respect of custody
orders will be determined by the domicile of the parties at the time of making the order.
The domiciliary court does not have exclusive jurisdiction in custody matters. In the
matter of Zorbas v Zorbas 1987 (3) SA 436 (W) it was found that ordinary residence or
presence in the area of jurisdiction of the court making the custody order also establishes
international jurisdiction/competence for custody orders.
However, custody orders are often not final, and therefore they may be denied recogni-
tion on the grounds that they do not meet the requirement of finality.
It must always be borne in mind that the best interests of the child are the paramount
consideration. This principle is entrenched in s 28(2) of the Constitution and states
that a childs best interests are of paramount importance in every matter concerning
the child.
44
6.4.6 International competence in respect of adoption orders

Adoption changes the status of the child and therefore the general rule applies that
the court of the childs domicile at the time when an order is made has international
jurisdiction in respect of such order.
In Board of Executors v Vitt 1989 (4) SA 480 (C) it was held that the requirement of in-
ternational jurisdiction in respect of an adoption order is also satisfied if the adoption
order is regarded as valid in terms of the lex adoptionis the law of the place where the
adoption took place.
Once again, however, the best interests of the child are of paramount importance.
6.5 ENFORCEMENT OF FOREIGN ARBITRAL AWARDS

Foreign arbitral awards are enforced in terms of the Recognition and Enforcement of
Foreign Arbitral Awards Act 40 of 1977. This Act is based on the New York Conven-
tion on the Recognition and Enforcement of Foreign Arbitral Awards of 1958, to which
South Africa is a contracting party.
In terms of the Act, parties seeking to enforce a foreign arbitration award may apply
to the relevant division of the South African High Court to have the award made an
order of the court and enforced.
The court may refuse to grant such an application if
the court is satisfied that the enforcement of the award will be against public policy; or
where the rules of natural justice were not adhered to and the defendant did not
receive notice of the proceedings before the arbitration tribunal or the defendant
was not afforded the opportunity to present his case; or
the award was not final.
6.6 CONCLUSION
It is important to bear in mind that in the context of South Africa, international jurisdic-
tion or competence is determined by the rules of South African private international law.
6.7 SELF-EVALUATION QUESTIONS

List and discuss the grounds for international competence in claims sounding in
money.
What does s 13 of the Divorce Act require for international competence in respect
of divorce orders?
Under what circumstances may a South African court refuse to enforce a foreign
arbitral award?
LJU4804/1 45
PART 3
Substantive private international law
In this part we will study the specific private international law rules for the dif-
ferent private law subjects. We will examine the principles relating to domicile,
since domicile is a very important connecting factor in private international
law. Then we will look at the private international law principles applicable to
international family law matters, succession, international contracts and delicts
and international property matters.
CGM4804/1 47
7 STUDY UNIT 7
7 Law of domicile
Prescribed study material for this unit:

Domicile Act 3 of 1992
Optional study material for this unit:

Learning objectives
After completing this study unit you should be able to:
list and discuss the types of domicile under common law

list and discuss the types of domicile in terms of the Domicile Act 3 of 1992
determine a persons domicile from a set of facts provided
Key concepts
Domicile of choice, assigned domicile, domicile of origin
7.1 INTRODUCTION
Domicile is an important connecting factor in South African private international law.
When we deal with the various private international law rules in the coming chapters,
you will see how many conflict rules employ domicile as a connecting factor.
Under the common law, three types of domicile existed, namely domicile of choice,
domicile of origin and domicile of dependence.
Currently, however, South African rules relating to domicile are found in the Domicile
Act 3 of 1992. This Act came into force on 1 August 1992. In terms of the Act, only
two types of domicile exist, namely domicile of choice and assigned domicile (for those
persons who cannot choose their domicile).
In this study unit we will examine the common-law rules relating to domicile briefly
and the rules contained in the Domicile Act in detail.
48
STUDY UNIT 7: Law of domicile
7.2 WHAT IS DOMICILE AND HOW IS IT DETERMINED?

The concept of domicile is not defined in the Domicile Act. A good description is found
in Mason v Mason (1885) 4 EDC 330 where it was stated that domicile means the place
or country which is considered by law to be a persons permanent home (at 330).
It is generally agreed that the lex fori gives meaning to a connecting factor. Therefore,
the lex fori will determine where a person is domiciled. This rule was established in the
case of Ex Parte Jones: In re Jones v Jones 1984 (4) SA 725 (W). In this matter a woman was
domiciled in England according to South African law, but domiciled in South Africa
according to English law. The court applied South African law to the question of her
domicile and found that she was domiciled in England.
The rule that domicile is determined by the lex fori was subsequently confirmed in the case
of Bisonboard Ltd v K Braun Woodworking Machinery (Pty) Ltd 1991 (1) SA 482 (A) (at 501F).
7.3 DOMICILE UNDER THE COMMON LAW
7.3.1 Domicile of origin

The general rule is that a persons domicile of origin is the domicile of his/her father
at the time of his/her birth; if the person is illegitimate, his/her domicile of origin will
be the domicile of his/her mother at the time of the persons birth.
Revival of domicile of origin?

The doctrine of revival of domicile of origin forms part of English common law. In
terms of this doctrine, the domicile of origin can play a gap-filling role in cases where
a person acquired a domicile of choice, but cast off the domicile of choice without estab-
lishing a new domicile of choice. In such cases the persons domicile of origin revives.
In the case of Ex Parte Donelly 1915 WLD 29, it was found that the doctrine of revival
of domicile of origin is part of South African law.
7.3.2 Domicile of dependence

Domicile of dependence is the domicile assigned by law to persons who are not of full
capacity, and therefore dependent upon others. The domicile assigned to such a person
is the domicile of the person upon whom the propositus is dependent.
Three classes existed under this category of domicile, namely minors; married women
and mentally incapable persons.
Until the abolishment of the domicile of dependence by the Domicile Act, married
women took the domicile of their husband.
A minor took as his/her domicile of dependence the domicile of his/her father if le-
gitimate; or the domicile of his/her mother if illegitimate.
It was widely accepted that the mentally incapable minor took the domicile of his/
her natural guardian, and upon reaching age of majority at 21, continued to take the
domicile of the guardian. If an independent person became mentally incapable, it was
CGM4804/1 49
PART 3: SUBSTANTIVE PRIVATE INTERNATIONAL LAW
agreed by most commentators that he or she retains the domicile he or she had before
becoming mentally incapable.
7.3.3 Domicile of choice

Under the common law, a person over the age of 21, or a person younger than 21 who
has the status of a major, may acquire a domicile of choice.
Bear in mind that under common law a married woman could not establish a domicile
of choice.
7.4 DOMICILE UNDER THE DOMICILE ACT 3 OF 1992

It is important to note that the Domicile Act alters the common law position in respect
of domicile with effect from 1 August 1992. Two types of domicile exist in terms of
the Act, namely domicile of choice and assigned domicile.
7.4.1 Domicile of choice

In terms of s 1(1) of the Act, every person over the age of 18 years, and every person
under the age of 18 who has the status of a major, shall be competent to acquire a
domicile of choice, regardless of such a persons sex or marital status. However, a per-
son who does not have the mental capacity to make a rational choice cannot acquire a
domicile of choice.
Note that s 1(1) of the Act therefore abolishes the domicile of dependence.
Section 1(2) of the Act sets out the requirements for establishing a domicile of choice.
A domicile of choice shall be acquired by a person:
when he/she is lawfully present at a particular place

and has the intention to settle there for an indefinite period.
In the matter of Chinatex Oriental Trading v Eskine 1998 (4) SA 1087 (C), both requirements
for the establishment of a domicile of choice were analysed by the court. In respect
of the requirement of physical presence, the court held that this requires more than a
mere visit and the longer a person was settled in a particular territory, the greater the
chances of a court finding him domiciled there. In respect of the second requirement,
the court held that the intention to settle for an indefinite period does not require that
a person has the intention to settle there permanently. The court held that the person
had to display a state of mind which was consistent with the intention of remaining
indefinitely, which intention did not have to be irrevocable in order to show that a
domicile of choice had been acquired (at 1094BC).
7.4.2 Assigned domicile: domicile of persons who cannot acquire a

domicile of choice
Section 2 of the Domicile Act sets out the rules in respect of the domicile of persons
who cannot acquire a domicile of choice. These persons fall in two categories: children
(under 18 years of age) and persons over the age of 18 who do not have the mental
capacity to effect a choice of domicile.
50
STUDY UNIT 7: Law of domicile
Section 2(1) contains the general rule in respect of assigned domicile and states that a
person not capable of acquiring a domicile of choice as contemplated in section 1 shall
be domiciled at the place with which he is most closely connected.
According to s 2(2), if a child has his home with his parents or with one of them in
the normal course of events, it shall be presumed that the parental home concerned it
the childs domicile unless the contrary is shown.
Section 2(3) directs that, in this section, child refers to a person under the age of 18
years, but excludes persons who have the status of a minor by law. Parents include
adoptive parents of a child as well as the parents of a child who are not married to
each other.
It is important to note that, under the Act, the common-law domicile of dependence in
respect of children and persons mentally incapable of choosing a domicile is replaced
with the place of closest connection principle. In the case of persons under the age
of 18, the law of closest connection is assumed to be the parental home.
7.4.3 No automatic revival of domicile of origin

Section 3(1) of the Domicile Act provides that no person shall lose his domicile until
he has acquired another domicile, whether by choice or by operation of law.
There is therefore no need for the domicile of origin to revive in terms of the position
under the Act. A person will remain domiciled in one place until a new domicile has been
established. In other words, in terms of the Act, the doctrine of persistence of the last
domicile (as opposed to the doctrine of revival of the domicile of origin) is adhered to.32
The matter of Grindal v Grindal 1997 (4) SA 137 (C) illustrates the working of the Domicile
Act in this regard. The domicile of the applicant was at issue in this matter. The appli-
cants domicile of origin was South Africa. She emigrated to Australia after marrying
the respondent and established a domicile of choice there. When the marriage broke
down irretrievably, the applicant moved to England for a short period of time, with
the intention of returning to South Africa. She did not establish a domicile of choice in
England. The court found the applicant to be domiciled in Australia. The court stated
that the doctrine of the revival of the domicile of origin was no longer part of South
African law. A persons previous domicile persists until she acquires a new domicile.
7.5 CONCLUSION
With the coming into effect of the Domicile Act on 1 August 1992, the common law
rules on domicile were changed drastically. The most important change brought about
by the Act is arguably the abolishment of the category of domicile of dependence. In
the case of married women, the Act provides for them to choose their own domicile.
In the case of persons who cannot choose a domicile, namely children and the mentally
incapable, the Act provides that their domicile is the place of closest connection. This
eradicates the problems associated with the domicile of dependence under the common
law where it often happened that these persons were held to be domiciled in a territory
they had no real ties to.
CGM4804/1 51

Mr A, a South African citizen, emigrates from South Africa to England and establishes a
domicile of choice in London. Two years later, he is retrenched from his job in London.
He leaves England and moves to New York, in the United States, where he intends to
stay for a short while only. He plans to return to South Africa. While living in New
York, where is Mr A domiciled? Discuss the position under common law and under
the Domicile Act of 1992.
52
8 STUDY UNIT 8
8 Family law
Prescribed study material for this unit
Esterhuizen v Esterhuizen 1999 (1) SA 492

Neels JL and Wethmar-Lemmer M Constitutional values and the proprietary
consequences of marriage in private international law: Introducing the lex causae
proprietatis matrimonii 2008-3 Journal of South African Law (TSAR) 587596
Sadiku v Sadiku Case no 30498/06 (unreported)
Schoeman E The connecting factor for the proprietary consequences of marriage
2001-1 Journal of South African Law (TSAR) 7281
Optional study material for this unit
Frankels Estate v The Master 1950 (1) SA 220 (A)

Sperling v Sperling 1975 (3) SA 707 (A)
Learning objectives
list and discuss the possible legal systems applicable to espousals

discuss the law applicable to formal validity of a marriage as well as the exception
to the rule
discuss the rule in respect of essential validity of a marriage and the possible exceptions
to the rule
list possible personal consequences of a marriage and discuss the rule as well as
exceptions to the rule in this regard
provide a detailed discussion of the private international law rule and related principles
in respect of proprietary consequences of marriage as well as its need for reform
discuss the relevant private international law principles in respect of antenuptial
contracts
provide a detailed discussion of the redistribution of assets upon divorce
discuss the position of children in private international law
CGM4804/1 53
Key concepts
Lex loci celebrationis, lex domicilii matrimonii
8.1 INTRODUCTION
The field of family law and private international law comprises two main subsections,
namely private international law and the law of marriage and the position of children
in private international law.
Under the law of marriage, one needs to investigate the rules in respect of formal va-
lidity of marriage, material validity of marriage, personal consequences of marriage,
proprietary consequences of marriage and antenuptial contracts.
Matters relating to children in private international law include guardianship, custody

and adoption.
In our modern, globalised world, it is by no means unusual for married couples or

families to emigrate from and immigrate to several countries during the course of the
marriage. This brings about the need to determine the applicable law in respect of vari-
ous aspects concerning marriage and children.
8.2 MARRIAGE LAW
8.2.1 Engagement contracts or espousals

Before two people can enter into a marriage, it goes without saying that they have to
agree to marry. If this agreement also called an espousal, is breached, certain legal
consequences may follow.
Question: The question may arise: which legal system governs an espousal?
There is as yet no definitive answer to this question in South African private interna-
tional law. In the case of Guggenheim v Rosenbaum (2)33 the judge regarded an espousal
as an ordinary commercial contract and determined the proper law of the contract in
the ordinary way.34 The author Forsyth supports the application of the proper law to
an espousal.35
Other suggestions in respect of the applicable law include the lex fori, the law of the
place of the breach and the personal law of the defendant.
It is also possible that the rules for choice of law in delict may come into play, since the
breach of an espousal often involves an element of contumelia.
33 1961 (4) SA 21 (W).

34 See study unit 10 below for the principles in respect of determining the proper law of the contract.
54
STUDY UNIT 8: Family law
8.2.2 Formal validity of marriage
8.2.2.1 What is formal validity?

Formal validity of a marriage relates to compliance with formalities such as the recogni-
tion of the marriage officer and the signing of the marriage register. These requirements
are contained in the Marriage Act 25 of 1961.
8.2.2.2 The rule

The formal validity of a marriage is governed by the lex loci celebrationis the law of the
place where the marriage was celebrated.
Authority for this rule may be found in Ngqobela v Sihele (1893) 10 SC 356, Seedats Execu-
tors v The Master (Natal) 1917 AD 302 and Ochberg v Ochbergs Estate 1941 CPD 15.
8.2.2.3 Statutory exception to the rule: Section 10(1) of the Marriage Act 25 of 1961
Section 10(1) of the Marriage Act provides that a foreign marriage between two South
African citizens domiciled in the Republic at the date of the marriage will be valid in
South Africa even if it did not meet the formal requirements of the place of celebra-
tion, provided
(a) it was solemnised by a person appointed as a South African marriage officer for
that country, and
(b) it complied with the formalities set out in the Marriage Act.
According to section 10(2) of the Act, such a marriage will be regarded as having been
solemnised in the province of the Republic in which the husband was domiciled at the
date of marriage.
8.2.3 Essential/material validity of a marriage
8.2.3.1 What is material validity?

Material validity of the marriage refers to whether parties to a marriage are legally
capable of marrying each other. This is known as capacity to marry. Capacity to
marry includes matters such as whether the parties fall within the prohibited degrees
of consanguinity (too closely related by blood), whether they have reached the age of
consent to marry and so forth.
8.2.3.2 The rule

Material validity of a marriage is also governed by the law of marriage celebration the
lex loci celebrationis.
Authority for this rule may be found in the case of Friedman v Friedmans Executors and
Others (1922) 43 NLR 259.
However, there are two exceptions to this general rule.
CGM4804/1 55
8.2.3.3 The exceptions to the rule
(i) Doctrine of fraus legis
When a man and a woman, one or both of whom were domiciled in the courts area of
jurisdiction, deliberately have their marriage solemnised elsewhere to escape an essential
requirement of the lex domicilii (which is the lex fori), they are held to act in fraudem legis
and the essential validity of their marriage is tested by the local law as the lex domicilii.
This doctrine was upheld in the case of Pretorius v Pretorius 1948 (4) SA 144 (O).
The requirements for fraus legis are:
(1) At least one of the parties to the marriage must be domiciled within the jurisdic-
tion of the court seized of the matter at the date of marriage.
(2) The parties must have married elsewhere in order to avoid the provisions of the
lex fori.
(3) The parties must have had evasive intent.
The Zimbabwean case of Kassim v Ghumran and Another 36 provides a good illustration
of the application of this doctrine. In this matter, Kassim and Ghumran eloped from
Zimbabwe to Malawi in order to marry. Kassim was only fifteen years of age, and un-
der the law of Zimbabwe (the law of Kassims domicile) she needed the consent of her
parents to marry. Her parents did not give the necessary consent. Upon their return to
Zimbabwe, Ghumran was arrested and charged with abduction and Kassims father
sought an order declaring the marriage void. The court applied the doctrine of fraus legis,
applied the law of Zimbabwe to the material validity of the marriage and consequently
found the marriage invalid.
(ii) Principle of public policy
If the application of the lex loci celebrationis is in conflict with the principles of public policy
of the forum, the forum will not recognise the law of the place of celebration of the
marriage. For instance, a South African court will not recognise an incestuous marriage.
For many years, (foreign) polygamous marriages were regarded as contrary to South
African public policy and therefore not recognised as valid. See, in this regard, Seedats
Executors v The Master (Natal) 1917 AD 302.
With the dawn of the constitutional dispensation in South Africa, this rule in respect
of polygamous marriages was also reformed. Firstly, the courts recognised de facto mo-
nogamous marriages see Ryland v Edros 1997 (2) SA 690 (C).
Finally, in the case of Hassam v Jacobs NO and Others 2009 (5) SA 572 (CC), polygamous
marriages were recognised by the Constitutional Court. Although this case did not
have a foreign element, this approach should extend to future conflicts cases involving
foreign polygamous marriages.
36 1981 Zimbabwe LR 227.
56
8.2.4 Personal consequences of marriage
8.2.4.1 What qualify as personal consequences of marriage?

Personal consequences of marriage concern the personal rights and duties of the spouse
that flow from the marital relationship. They include the right and duty of support; the
effect of marriage on the legal capacity of the parties such as the capacity to contract,
to acquire and alienate property, to sue and be sued; legal transactions between husband
and wife for instance the capacity of spouses to contract with, make donations to and
sue each other.37
8.2.4.2 The rule

Personal consequences of marriage are determined by the lex domicilii of the spouses at
the date of the transaction.
If the spouses have different domiciles, the domicile of the spouse which is more closely
connected with the act or transaction in dispute governs.
Often the issue at stake is the validity of a transaction between one spouse and a third
party. In such cases, the law of domicile of the spouse whose act is in dispute should apply.
8.2.4.3 Application of the rule

The general rule applies to the right of one spouse against another for the cost of
household necessaries. The lex domicilii also determines whether spouses can sue each
other in delict.
In the case of Perrott-Humphrey v Perrott-Humphrey 1967 (3) SA 304 (W), it was found that
the lex domicilii of the relevant spouse at the time of incurring the household expenses
governs a claim in this regard.
In respect of donations between spouses, it was decided in the case of Powell v Powell
1953 (4) SA 304 that a donation is governed by the lex domicilii of the spouses at the time
when the donation was made.
Note that section 22 of the Matrimonial Property Act 88 of 1984 revoked the common
law prohibition of donations between spouses. Section 22 provides that no transac-
tion effected before or after the commencement of this Act is void or voidable merely
because it amounts to a donation between spouses.
8.2.4.4 Exceptions to the rule
(i) Maintenance: s 2(3) of the Divorce Act

The general private international law rule in this regard would be that the lex domicilii
governs maintenance.
However, s 2(3) of the Divorce Act 70 of 1979 provides that, if a court has jurisdiction
over a divorce matter, it applies the law as if the parties were domiciled in the area of
37 Kahn The Law of husband and Wife 623.
CGM4804/1 57
jurisdiction of the court. Therefore, according to s 2(3), the court will apply the lex fori
to maintenance.
(ii) Contractual capacity

A persons contractual capacity in terms of transactions relating to immovables is de-
termined by the lex situs.
Conflicting judgments exist in respect of the law applicable to determining contractual

capacity in transactions relating to movables. In the case of Kent v Salmon 1910 TPD 637,
contractual capacity was found to be governed by the lex loci contractus (the law of the
place of conclusion of the contract). In the matter of Guggenheim v Rosenbaum 1961 (4) SA
21 (W) it was stated that there are two possible legal systems applicable to contractual
capacity, namely the lex loci contractus or the lex domicilii. However, in the Guggenheim case,
preference was given to the lex domicilii.
8.2.5 Proprietary consequences of marriage
8.2.5.1 What is included under proprietary consequences of marriage?

Proprietary consequences of marriage include whether the marriage is in or out of com-
munity of property, the validity of antenuptial or postnuptial contracts and the division
of the estate upon divorce.
8.2.5.2 The rule and the need for reform of the rule
The rule is that proprietary consequences of marriage are governed by the lex domicilii
matrimonii the law of matrimonial domicile. Authority for this rule may be found in
the cases of Frankels Estate and Another v The Master and Another 1950 (1) SA 220 (A) and
Sperling v Sperling 1975 (3) SA 707 (A).
The lex domicilii matrimonii is interpreted as the domicile of the husband at the time of
conclusion of the marriage. It has been argued that the reason for this interpretation
stems from the time when a wife automatically took her husbands domicile upon mar-
riage. It was argued that this rule prevents a husband from changing his domicile after
marriage to secure a property advantage at the expense of his wife.
However, this rule is untenable under our current Constitutional dispensation. Firstly,
the Domicile Act 3 of 1992 abolished the wifes domicile of dependence, so the main
ratio for the rule has fallen away.
Secondly, section 9(3) of the Constitution prohibits discrimination on the basis of

gender rendering the current conflict rule in this regard unconstitutional. However,
it has not formally been struck down by the Constitutional Court. Read the case of
Sadiku v Sadiku (on your list of prescribed reading for this study unit) in this regard. In
this case the judge questioned whether the current conflict rule is acceptable under the
new Constitutional dispensation, but failed to decide on the matter.
Thirdly, it would be impossible to apply this rule to civil unions as provided for in terms
of the Civil Union Act 17 of 2006.
58
Question: The question remains: what are workable alternatives to the current rule?
Study the articles by Schoeman and Neels and Wethmar-Lemmer which are prescribed
for this study unit in this regard.
You should be able to construct your own argument on this question, with reference
to the prescribed readings.
8.2.5.3 The principle of immutability

South Africa adheres to the doctrine of immutability in respect of the legal system
applicable to proprietary consequences of marriage. In terms of the doctrine of immu-
tability, the matrimonial domicile remains unchanged despite any subsequent change
in domicile of the parties.
Early authority for the application of the doctrine of immutability may be found in the
case of Brown v Brown 1921 AD 478. In this case it was found that the rights of spouses
in regard to property must be regarded as regulated once and for all by the law of the
domicile of marriage (at 482).
Subsequently, the application of the doctrine of immutability has been confirmed in

many cases, including Frankels Estate and Sperling.
8.2.5.4 Unitary principle

The unitary principle is adhered to in respect of the law applicable to proprietary con-
sequences of marriage. Proprietary consequences in respect of movable and immovable
goods are governed by the lex domicilii matrimonii.
8.2.5.5 Intended matrimonial domicile as a possible connecting factor?

In the case of Frankels Estate & Another v The Master & Another 1950 (1) SA 220 (A), the
husband and wife married in Czechoslovakia in 1933. The husband was domiciled in
Germany at time of marriage and wife in Czechoslovakia. At time of marriage parties
intended to establish a permanent home in Johannesburg (South Africa). They moved
to Johannesburg four months after the marriage. Thereafter they moved to Durban
and lived there until 1948, when the husband died. The parties did not conclude an
antenuptial contract. In terms of the law of Germany their marriage would be out
of community of property. The applicants argued that the proprietary consequences
of marriage are governed by the law of intended domicile (South African law). The re-
spondents argued that the applicable legal system is that of the domicile of the husband
at the time of marriage (German law).
Question: The question posed was therefore whether the intention of the parties to
establish a new domicile immediately after the marriage changed the legal system ap-
plicable to the proprietary consequences of their marriage?
It was found that intended matrimonial domicile does not constitute an alternative
connecting factor for the law applicable to proprietary consequences of marriage. Ger-
man law (the lex domicilii matrimonii) was applied to the proprietary consequences of the
parties marriage.
CGM4804/1 59
In the case of Sadiku v Sadiku (mentioned above) the judge followed the Frankel decision
in this regard and refused to apply the law of intended matrimonial domicile to the
proprietary consequences of the parties marriage.
8.2.5.6 The effect of changes in the law of matrimonial domicile

Question The question is what effect a change in the law of matrimonial domicile
has on the law applicable to proprietary consequences of a marriage concluded before
the changes were effected?
The locus classicus in this regard is Sperling v Sperling 1975 (3) SA 707 (A). The plaintiff and
defendant were German nationals and domiciled in East Germany at the time of mar-
riage. They married in 1954 and moved to West Germany in 1955. In 1957 they settled
in Johannesburg and established a domicile there. At the time of their marriage, the
German Civil Code stated that marriages were out of community of property. In 1965
legislation was enacted in Germany with retroactive force having the effect of subject-
ing property acquired during the marriage to community of property.
Question: The question to be decided upon was whether the law of Germany as
it was at the time of marriage governed the proprietary consequences of marriage or
whether the 1965 amendment should be applicable?
It was found that when the South African rule of private international law prescribes
that the proprietary consequences of a foreign marriage must be determined in accord-
ance with the law of the matrimonial domicile, that reference should, in general, be to
the whole of the lex causae, including its transitional law (721 DE).
Therefore, the law of Germany as altered by the 1965 legislation was applied to the
proprietary consequences of the parties marriage.
8.2.5.7 The South African matrimonial property regime

The Matrimonial Property Act 88 of 1984 provides for three possible marital property
regimes in South Africa. The default matrimonial property regime (in the absence of
an antenuptial contract) is in community of property. Parties may also (by concluding
an antenuptial contract to this effect) choose a complete separation of property regime
or an out-of-community-of-property regime with the accrual system.
In terms of s 21 of the Matrimonial Property Act, parties may apply to a court for leave
to change their matrimonial property regime. If the court is satisfied that:
(a) there are sound reasons for the proposed change;

(b) sufficient notice of the change has been given to all the spouses creditors, and
(c) no other person will be prejudiced by the proposed change the court may grant
permission for the proposed change and authorise the parties to conclude a notarial
contract (postnuptial contract) effecting the change in matrimonial property regime.
In terms of the principles of private international law, the lex domicilii matrimonii governs
the question whether parties are allowed to change their matrimonial property regime
or not. However, in the early case of Union Government v Larkan38 it was found that, even
if the matrimonial domicile permits postnuptial contracts, the parties are not permitted
38 1916 AD 212.
60
to enter into such a contract if the law of current domicile of the parties (the lex fori)
does not allow for it. This decision has been highly criticised.
8.2.5.8 Antenuptial contracts
(i) Essential validity

According to the author Kahn39 the essential validity of an antenuptial contract is
governed by the lex domicilii matrimonii in the case of movables, and by the lex situs in
the case of immovables.
Forsyth submits that the lex domicilii matrimonii should govern the essential validity of
antenuptial contracts in respect of both movable and immovable property.40 This is in
keeping with the unitary principle.
(ii) Formal validity

In the matter of Ex parte Spinazze and Another NNO41 is was found that formal validity
of an antenuptial contract may be governed by the lex loci contractus or by the proper law
of the contract.
For an antenuptial contract to be valid against third parties, section 87(2) of the Deeds
Registries Act 47 of 1937 requires that where an antenuptial contract is executed outside
South Africa, it needs to be attested by a notary or, alternatively, comply with the formal
requirements of the lex loci contractus. In addition, such a contract must be registered in
a South African deeds registry within six months of its execution.
The registration requirement may cause parties hardship. Suppose a husband and wife,
both domiciled in France, execute an antenuptial contract in Paris and marry there.
Five years later they acquire a domicile in South Africa. The registration requirement
of section 87(2) has the effect that their antenuptial contract is not valid against third
parties. However, in the most recent cases decided on s 87(2), namely Ex parte Van
Borselen et uxor 42 and Ex parte Taylor et uxor43 the section was interpreted as applying only
to cases where the husband was domiciled in South Africa at the time of the marriage.
8.2.5.9 Redistribution of assets upon divorce
(i) Divorce actions governed by the lex fori

Divorce matters are governed by the lex fori. Divorce matters include the grounds for
divorce, as well as maintenance.
Authority for this rule may be found in the case of Holland v Holland.44 Statutory author-
ity for this rule of private international law may also be found in s 2(3) of the Divorce
Act discussed under 8.2.4.4 above.
39 Kahn The Law of Husband and Wife 635.

41 1985 (3) SA 650 (A).
42 1942 TPD 206.
43 1949 (2) SA 254 (C).
44 1973 (1) SA 897 (T).
CGM4804/1 61
(ii) Classification of a redistribution order

Most authors agree and there is much case law authority in support of this that an
order for redistribution of assets upon divorce is classified as a proprietary consequence
of marriage and is governed by the lex domicilii matrimonii.
However, there are a few authors, most notably Kahn, who classify redistribution of
assets as a divorce matter to be governed by the lex fori.
(iii) Redistribution orders in South African law

Redistribution of assets is dealt with in s 7 of the Divorce Act 70 of 1979, which reads
as follows:
7 Division of assets and maintenance of parties

(1) A court granting a decree of divorce may in accordance with a written agreement
between the parties make an order with regard to the division of the assets of the
parties or the payment of maintenance by the one party to the other.
(2) In the absence of an order made in terms of subsection (1) with regard to the pay-
ment of maintenance by the one party to the other, the court may, having regard
to the existing or prospective means of each of the parties, their respective earn-
ing capacities, financial needs and obligations, the age of each of the parties, the
duration of the marriage, the standard of living of the parties prior to the divorce,
their conduct in so far as it may be relevant to the break-down of the marriage,
an order in terms of subsection (3) and any other factor which in the opinion of
the court should be taken into account, make an order which the court finds just
in respect of the payment of maintenance by the one party to the other for any
period until the death or remarriage of the party in whose favour the order is given,
whichever event may first occur.
(3) A court granting a decree of divorce in respect of a marriage out of community
of property
(a) entered into before the commencement of the Matrimonial Property Act, 1984,
in terms of an antenuptial contract by which community of property, com-
munity of profit and loss and accrual sharing in any form are excluded; or
(b) entered into before the commencement of the Marriage and Matrimonial
Property Law Amendment Act, 1988, in terms of section 22(6) of the Black
Administration Act, 1927 (Act 38 of 1927), as it existed immediately prior to its
repeal by the said Marriage and Matrimonial Property Law Amendment Act,
1988, may, subject to the provisions of subsections (4), (5) and (6), on applica-
tion by one of the parties to that marriage, in the absence of any agreement
between them regarding the division of their assets, order that such assets,
or such part of the assets, of the other party as the court may deem just be
transferred to the first-mentioned party.
(4) An order under subsection (3) shall not be granted unless the court is satisfied
that it is equitable and just by reason of the fact that the party in whose favour the
order is granted, contributed directly or indirectly to the maintenance or increase
of the estate of the other party during the subsistence of the marriage, either by
the rendering of services, or the saving of expenses which would have otherwise
have been incurred, or in any other manner.
(5) In the determination of the assets or part of the assets to be transferred as con-
templated in subsection (3) the court shall, apart from any direct or indirect
contribution made by the party concerned to the maintenance or increase of the
estate of the other party as contemplated in subsection (4), also take into account
62
(a) the existing means and obligations of the parties, including any obligation that
a husband to a marriage as contemplated in subsection (3)(b) of this section
may have in terms of section 22(7) of the Black Administration Act, 1927 (Act
38 of 1927);
(b) any donation made by one party to the other during the subsistence of the
marriage, or which is owing and enforceable in terms of the antenuptial con-
tract concerned;
(c) any order which the court grants under section 9 of this Act or under any other
law which affects the patrimonial position of the parties; and
(d) any other factor which should in the opinion of the court be taken into account.
(6) A court granting an order under subsection (3) may, on application by the party
against whom the order is granted, order that satisfaction of the order be deferred
on such conditions, including conditions relating to the furnishing of security,
the payment of interest, the payment of instalments, and the delivery or transfer
of specified assets, as the court may deem just.
(7) (a) In the determination of the patrimonial benefits to which the parties to any
divorce action may be entitled, the pension interest of a party shall, subject
to paragraphs (b) and (c), be deemed to be part of his assets.
(b) The amount so deemed to be part of a partys assets, shall be reduced by any
amount of his pension interest which, by virtue of paragraph (a), in a previous
divorce
i(i) was paid over or awarded to another party; or
(ii) for the purposes of an agreement contemplated in subsection (1), was
accounted in favour of another party.
(c) Paragraph (a) shall not apply to a divorce action in respect of a marriage out
of community of property entered into on or after 1 November 1984 in terms
of an antenuptial contract by which community of property, community of
profit and loss and the accrual system are excluded.
(8) Notwithstanding the provisions of any other law or of the rules of any pension fund-
(a) the court granting a decree of divorce in respect of a member of such a fund,
may make an order that
i(i) any part of the pension interest of that member which, by virtue of
subsection (7), is due or assigned to the other party to the divorce ac-
tion concerned, shall be paid by that fund to that other party when any
pension benefits accrue in respect of that member;
(ii) the registrar of the court in question forthwith notify the fund concerned
that an endorsement be made in the records of that fund that that part of
the pension interest concerned is so payable to that other party and that
the administrator of the pension fund furnish proof of such endorse-
ment to the registrar, in writing, within one month of receipt of such
notification;
(b) any law which applies in relation to the reduction, assignment, transfer, cession,
pledge, hypothecation or attachment of the pension benefits, or any right in
respect thereof, in that fund, shall apply mutatis mutandis with regard to the
right of that other party in respect of that part of the pension interest concerned.
(9) When a court grants a decree of divorce in respect of a marriage the patrimonial
consequences of which are according to the rules of the South African private
international law governed by the law of a foreign state, the court shall have the
same power as a competent court of the foreign state concerned would have had at
that time to order that assets be transferred from one spouse to the other spouse.
CGM4804/1 63
(iv) May a party to a marriage with a foreign lex domicilii matrimonii rely
on s 7(3) to obtain a redistribution of assets?
It must be borne in mind that subsection 7(9) was only added by Divorce Amendment
Act 44 of 1992. Even after the enactment of s 7(9), it may be that the foreign lex domicilii
matrimonii does not make provision for redistribution and therefore a party may wish
to rely on s 7(3).
Question: The question therefore remains: may a party to marriage with a foreign
matrimonial domicile rely on section 7(3) to effect a redistribution of assets upon divorce
in a South African High Court?
The answer to this question depends largely upon how redistribution of assets is classified.
If it is classified as a divorce matter, the lex fori would apply and therefore section 7(3) may be
relied on provided that the requirements for such an order (as set out in section 7) are met.
The author Kahn argued that a redistribution order may be classified as a divorce matter.
In the case of Lagesse v Lagesse45 it seems as though a redistribution order was also classified
as a divorce matter. The husband and wife married in Mauritius, where the husband was
also domiciled at the time of marriage. The parties did not enter into a notarially executed
antenuptial contract but stated to the marriage officer that they wished their marriage
to be governed by the Status of Married Women Ordinance of 1949, which had the
effect of excluding community of property. The marriage officer made a note to this
effect. Upon instituting an action for divorce in a South African High Court, the wife
applied for a redistribution order in terms of section 7(3) of the (South African) Divorce
Act. The judge looked at whether the requirements of section 7(3) had been met and
held that nothing in the wording of section 7 indicated that a narrow interpretation
should be given to the requirement of an ante-nuptial contract. The judge found
that the requirements for the application of section 7(3) had been met and ordered a
redistribution of assets. In a contrary interpretation, however, in the case of Milbourn v
Milbourn46 the requirement of the existence of an antenuptial contract was given a very
strict interpretation. In this matter, the parties were married in England while they were
both domiciled there. They did not conclude an antenuptial contract, but in terms of
English law their marriage was out of community of property (by operation of law).
The parties emigrated to South Africa and Mrs Milbourn instituted divorce proceed-
ings in a South African High Court. She also applied for redistribution of assets in
terms of s 7(3) of the Divorce Act. However, the court found that one of the essential
requirements of s 7(3), namely a notarially executed antenuptial contract, was not met
and the order was not granted.
If, on the other hand, a redistribution of assets is classified as a proprietary consequence

of marriage, then the lex domicilii matrimonii would govern redistribution and a party to
a marriage with a foreign matrimonial domicile would not be able to rely on s 7(3). In
the case of Bell v Bell 47 the parties were married in England while domiciled there. They
emigrated to South Africa and some years later the wife instituted divorce proceedings
in a South African High Court. She also claimed redistribution of assets, but based her
claim on sections 23 and 24 of the English Matrimonial Causes Act of 1973. The court
held that a redistribution of assets is indeed a proprietary consequence of marriage and
is governed by the lex domicilii matrimonii, which was English law in this case. The court
therefore granted the redistribution order.
45 1992 (1) SA 173 (D).

46 1987 (3) SA 62 (W).
47 1991 (4) SA 195 (W).
64
Thirdly, authority exists for the argument that a redistribution of assets upon divorce
has two aspects. The first is a maintenance aspect (to provide for future maintenance
of a spouse), which is a divorce matter and is governed by the lex fori. In this regard
the spouse has a claim for redistribution to provide for future maintenance in terms
of section 7(3), if the requirements of the article are met. Secondly, redistribution of
assets has a proprietary aspect in so far as it attempts to remunerate a spouse for past
contributions. Redistribution of assets for past contributions is governed by the law of
matrimonial domicile and a party to a marriage with a foreign matrimonial domicile
cannot rely on s 7(3) for redistribution in respect of past contributions. This argument
was followed in the case of Esterhuizen v Esterhuizen one of your prescribed cases. Read
this case carefully. You should be able to provide a detailed case analysis of this case.
(iv) Redistribution under s 7(9)

Section 7(9) is only available to parties to a marriage, the proprietary consequences of
which are governed by a foreign matrimonial domicile. Note that section 7(9) does not
require the marriage to be out of community of property. Upon instituting an action
for divorce, any party to a marriage whose proprietary consequences are not governed
by South African law can apply for a redistribution of assets in terms of section 7(9),
provided that the lex domicilii matrimonii makes provision for such redistribution. The
South African court then applies the law of matrimonial domicile and has the same
redistribution powers as a court in the jurisdiction of the matrimonial domicile would
have to order redistribution of assets from one spouse to another.
8.3 THE POSITION OF CHILDREN
8.3.1 Adoption, guardianship and custody

If a South African court has jurisdiction to make any of the above orders, it will apply
the lex fori.
8.3.2 Legitimacy
Since legitimacy is a matter concerning a persons status, it will be determined by the
persons domicile. In terms of the common law, a persons status of legitimacy was gov-
erned by his or her domicile of origin. However, the domicile of origin was abolished
and in terms of the Domicile Act of 1992 status of legitimacy will be determined by the
childs place of closest connection at the time of birth. There is a rebuttable presump-
tion that this will be the childs parental home.
However, under the new constitutional dispensation, discriminating against a person

on the basis of illegitimacy is not easily tolerated. Even though the status of the ex-
tramarital child has not formally been abolished, differentiation or discrimination on
this ground would have to be justified to survive constitutional scrutiny. There has also
been a tendency to remove the consequences of the status of illegitimacy by means of
legislation. For instance, section 1(2) of the Intestate Succession Act 81 of 1987 expressly
states that the fact that a child has been born out of wedlock has no effect on his or her
ability to inherit the intestate estate of a blood relation.
CGM4804/1 65
8.3.3 Childrens Act 38 of 2005

We will not go into detail here in respect of the Childrens Act.
From a private international law perspective, it may be relevant when one parent wishes
to emigrate from South Africa with a child and the other parent refuses to give consent.
Under such circumstances, the parent wishing to emigrate will have to bring an applica-
tion in terms of s 18 of the Childrens Act. Several factors will be taken into account,
the most important being the best interests of the child (as entrenched in s 28(2) of the
Constitution). Section 7 of the Childrens Act provides a list of factors to be taken into
consideration to determine the best interests of the child in any situation.
8.3.4 Hague Convention on the Civil Aspects of International Child

Abduction
This Convention is applicable to cases where a child under 16 years of age is abducted
or a person with custody over such child is kept away from the child.
A person with custody over a child may apply in terms of the Convention to have a
child returned to the country he or she was removed from without the permission of
the applicant.
Defences against returning a child to the country he or she was removed from without
the necessary permission include: (a) where a year has elapsed since the removal and
the child is settled in his or her new environment or (b) there is a grave risk of physical
or psychological harm to the child if the child is returned.
8.3.5 Hague Convention on Intercountry Adoption

In terms of this Convention, the competent authorities in both countries need to
approve the inter-country adoption.
The competent authorities in the donor country need to ensure that the parents of the
child consented to the adoption and that no remuneration was paid for the adoption.
The competent authorities in the receiving country have to ensure that the adopting
parent(s) are eligible and suited to adopt.

Mr and Mrs Smith got married in the Netherlands in January 1980. Both parties were
domiciled in the Netherlands at the time of entering into the marriage. The parties
entered into an antenuptial contract excluding all forms of community of property.
In 1982 they immigrated to South Africa and established a domicile in Johannesburg.
Mr Smith continued to work as a legal adviser to a large international company, while
Mrs Smith stayed at home to raise the two children born of the marriage. In 1989 Mrs
Smith instituted divorce proceedings in a South African High Court. She also wished
to institute a claim for a redistribution of assets in terms of section 7(3) of the Divorce
Act. Advise Mrs Smith on her chances of succeeding in obtaining a redistribution order.
66
9 STUDY UNIT 9
9 Law of succession
Prescribed reading material for this study unit
Neels JL Private International Law of Succession in South Africa 2006 Journal of

South African Law (TSAR) 705720
Wills Act 7 of 1953, s 3bis
Neels JL Revocation of Wills in South African Private International Law 2007

ICLQ 613
Pitluk v Gavendo 1955 (2) SA 573 (T)
Tomlinson v Zwirchmayer 1998 (2) SA 840 (T)
Learning objectives
explain the unitary and scission principles in relation to the law of succession
identify the legal systems applicable to intestate succession of movables and immovables
provide a detailed discussion of all principles relating to formal validity of wills
discuss the legal systems applicable to determining the intrinsic validity of a will
discuss the principles in respect of testamentary capacity and capacity to inherit
discuss interpretation of wills
list and discuss the various means of revocation of wills and the applicable legal
systems
Key concepts
Unitary principle, scission principle, intestate succession, testate succession, lex
ultimi domicilii, lex situs, lex loci actus, revocation, power of appointment
9.1 INTRODUCTION
It often happens that a person dies leaving behind immovable and movable property in
various countries. If the deceased left a will, it will have to be determined which legal
system is to be applied to establish its intrinsic and formal validity. If the deceased died
intestate, the rules of private international law of succession would have to be employed
to determine which legal system governed the distribution of his or her assets.
CGM4804/1 67
We will analyse all the relevant rules in this regard. Note that the prescribed article by
Neels provides many helpful examples of the application of the various rules that we
will set out below.
9.2 THE UNITARY AND SCISSION PRINCIPLES IN RESPECT

OF THE LAW OF SUCCESSION
The unitary principle is applicable to the distribution of movables of a deceased. This
means that a single legal system is applicable to the distribution of the movables estate
of a deceased, irrespective of where the movables are situated.
On the other hand, the scission principle applies in respect of immovables. The distri-
bution of immovables is determined by the lex situs of each immovable.
9.3 INTESTATE SUCCESSION
9.3.1 Movables
The lex ultimi domicilii (the law of the last domicile) of the deceased governs the intestate
distribution of his or her movables. Authority for this rule may be found in the case of
Estate Baker v Estate Baker (1908) 25 SC 234.
9.3.2 Immovables
The lex situs of each immovable is applied to determine its intestate distribution. Author-
ity for this rule is to be found in the case of Eilon v Eilon 1965 (1) SA 703 (A).
9.4 TESTATE SUCCESSION
9.4.1 Introduction
The rules of testate succession will only be applicable once it has been established that
a valid will is in existence. A will needs to be formally and intrinsically valid and the
testator must have the necessary capacity to make a valid will. We need to investigate the
private international law principles in respect of determining the formal and intrinsic
validity of a will as well as in respect of testamentary capacity.
9.4.2 Formal validity of a will
(i) General
The rules in this regard are primarily found in section 3bis of the Wills Act. You need
to study this provision in detail. Section 3bis is based on the Hague Convention on the
Conflicts of Laws Relating to the Form of Testamentary Dispositions of 1961. You will
see that the formal validity of a will can be tested by many different laws. The reason for
this is that the policy of in favorem testatoris is followed our law favours an outcome where
a will should not be found invalid because of noncompliance with technical or formal
requirements; hence many different systems may be applied to find a will formally valid.
68
STUDY UNIT 9: Law of succession
The common law rules in respect of formal validity still remain valid, since section 3bis
(4) of the Wills Act provides that the Act does not apply in respect of formal validity
of a will where (a) the deceased was a South African citizen who executed a will not in
written form (an oral will or a DVD); or (b) the deceased died before 4 December 1970.
(ii) The common law position

The common law rules in respect of formal validity of wills will be applicable under
the circumstances as provided for by section 3bis (4).
Under common law, the formal validity of a will disposing of movables is determined
by the lex loci actus the place of execution of the will. In the alternative, its formal
validity may be determined by the lex domicilii. However, it is not certain whether this
should be the lex domicilii of the testator at the time of execution or at the time of death.
According to modern writers, either should suffice.
The formal validity of testamentary dispositions relating to immovables may be governed

by either the lex loci actus or the lex situs.
(iii) Section 3bis (1)(a) of the Wills Act

According to this provision, a will is regarded as formally valid if it complies with any
one (or more) of the following legal systems:
the lex loci actus of the will

the lex domicilii of the testator at the time of execution of the will
the lex ultimi domicilii (law of last domicile) of the testator
law of the place of habitual residence of the testator at the time of execution of the will
the law of the place of habitual residence of the testator at the time of death of the
testator
lex patriae (law of nationality) of the testator at the time of execution of the will
lex ultimae patriae (law of nationality of the testator at the time of death)
(iv) Additional testing ground in respect of immovables: section 3bis (1)

(b)
According to section 3bis (1)(b), the formal validity of a will disposing of movables may
also be tested in terms of the lex situs.
It is important to note that the lex situs constitutes an additional testing ground for
formal validity of a will disposing of immovables; it does not replace the legal systems
mentioned in section 3bis (1)(a). This was confirmed in the case of Tomlinson v Zwirchmayer
1998 (2) SA 840 (T).
(v) Formal validity of a power of appointment: section 3bis (1)(c)

This section provides an additional testing system for the formal validity of a power
of appointment. A testator can grant a power of appointment of a final beneficiary of,
for example a trust, in his will. In terms of section 3bis (1)(c), the formal validity of the
exercise of the power of appointment may also be tested in terms of the lex loci actus of
the will in which the power of appointment was granted.
Refer to pp 711713 of the prescribed article for examples of the operation of this section.
CGM4804/1 69
(vi) Formal validity of revocation of wills: section 3bis (1)(d)

This section provides an additional ground for testing the formal validity of a revocation
clause. If a revocation clause is formally valid in terms of the legal system under which
the revoked will was valid (provided that it is one of the testing systems for formal
validity of the revoked will as enunciated in section 3bis (1)(a)(c), then the revocation
clause is regarded as formally valid.
Refer to pp 713714 of the prescribed article for examples of the operation of this section.
(vii) Formal validity of a will executed on board a vessel or aircraft:

section 3bis (1)(e)
Additional testing systems for the formal validity of a will executed on board a vessel
or aircraft are: the law of the country where the vessel or aircraft was registered at the
time of execution of the will and the law of the country with which the vessel or aircraft
otherwise had the closest connection at the time of execution of the will.
9.4.3 Intrinsic/essential validity of a will

Intrinsic validity of a will includes matters such as the effect of undue influence, duress
and mistake; the validity of conditions and rectification.
The intrinsic validity of testamentary dispositions relating to movables is governed

by the lex ultimi domicilii, and the intrinsic validity of those relating to immovables is
governed by the lex situs. These principles were confirmed in the case of Evelyn-Wright
v Pierrepont and Another NNO.48
9.4.4 Capacity to make a will

In the opinion of most South African writers, capacity to make a will disposing of
movables is governed by the lex domicilii of the testator at the time of execution of the
will. The lex situs governs testamentary capacity to dispose of immovables.
9.4.5 Capacity to take under a will

There is no consensus or conclusive authority in South African private international
law in respect of the legal system governing a persons capacity to inherit.
According to Forsyth, capacity to inherit movables is governed by the lex domicilii of

the beneficiary at the time of execution of the will, and capacity to inherit immovables
is governed by the lex situs.49
However, there are other authors who argue that capacity to inherit movables should
be governed by the lex ultimi domicilii of the testator, and capacity to inherit immovables
by the lex situs.
48 1987 (2) SA 113 (E).

70
STUDY UNIT 9: Law of succession
9.4.6 Interpretation of wills

Where the intention of the testator is not clear from the will, rules of construction or
interpretation need to be employed.
Question: The question is: which legal system should be resorted to in this regard?
It is widely accepted that the will should be interpreted in terms of the lex domicilii of
the testator at the time of its execution in respect of both movables and immovables.
However, if interpretation in terms of the lex domicilii would lead to the creation of
rights in immovable property unknown or unlawful under the lex situs 50 then the lex
situs will apply to the interpretation of the provisions relating to immovables.
9.4.7 Revocation of wills

Firstly, a will can be revoked by means of a testamentary provision to that effect in a
subsequent will. The formal validity of such a revocation clause is governed by section
3bis of the Wills Act. Intrinsic validity of a revocation is determined by the lex domicilii at
the time of execution in respect of movables, and by the lex situs in respect of immovables.
Secondly, a will can be revoked by operation of law (ex lege). Ex lege revocation by mar-
riage, which does not form part of South African domestic law, was held to be governed
by the lex domicilii matrimonii in respect of both movables and immovables. Authority
for this rule may be found in the case of Pitluk v Gavendo.51 The classification of ex lege
revocation by marriage as a proprietary consequence of marriage is open to criticism.
It may be argued that it should preferably be classified as a succession issue.52 Another
form of ex lege revocation is ex lege revocation by divorce. This form of revocation is
governed by the law of domicile of the testator at the time of divorce in respect of
movables, and the lex situs in respect of immovables.
Lastly, revocation can take place by means of destruction. Revocation by destruction is

governed by the lex domicilii at the time of the alleged destruction in respect of movables
and the lex situs in respect of immovables.
ACTIVITY 9.1
Mrs X executed two wills during her lifetime. She died in Italy and left movable
property in South Africa. She was a citizen of Germany and she was domiciled and
habitually resident in South Africa at all relevant times. The first will bequeathed all
her assets to E. The will was executed in France. The second will bequeathed all
her assets to F. It also expressly revoked the first will. The second will was executed
in Italy. According to the law of intestate succession of Germany, G would be the
intestate heir. According to the law of intestate succession of France, H would be the
intestate heir. According to the law of intestate succession of Italy, R would be the
intestate heir. According to the law of intestate succession of South Africa, P would
be the intestate heir.
(1) Which legal systems govern the formal validity of the first will? Provide a list of
the three relevant countries (eg Italy).

51 1955 (2) SA 573 (T).
52 See the prescribed article by Neels, at 719.
CGM4804/1 71
(2) Which legal systems govern the formal validity of the second will? Provide a list
of the three relevant countries (eg France).
(3) Assume that the first will is formally valid in terms of the lex patriae and the
lex ultimae patriae only and assume that the bequest to F in the second will is
formally invalid in terms of all the relevant legal systems. Furthermore, assume
that the revocation in the second will is valid in terms of the law of France (only).
Who inherits Mrs Xs movables? Provide a reason for your answer.
(4) Assume that the first will is formally valid in terms of the lex patriae and the
lex ultimae patriae only and assume that the bequest to F in the second will is
formally invalid in terms of all the relevant legal systems. Furthermore, assume
that the revocation in the second will is valid in terms of the law of Germany
(only). Who inherits Mrs Xs movables? Provide a reason for your answer.
Feedback
You will find the answer to these questions in section 3bis
3bis of the Wills Act. The
testing systems for formal validity of a will are to be found in section 3bis
3bis (1)(a).
Section 3bis
3bis (1)(d) of the Wills Act provides that, in addition to the testing systems
in subsection (1)(a), a revocation clause will be valid if it is valid in terms of the
same legal system in terms of which the revoked will was valid.
72
10 STUDY UNIT 10
10 Law of contract

Fredericks EA The Proper Law of a Documentary Letter of Credit (Part 1) 2003 SA
Merc LJ 6373
Laconian Maritime Enterprises Ltd v Agromar Lineas 1986 (3) SA 509 (D)
Improvair (Cape) (Pty) Ltd v Establissements Neu 1983 (2) SA 138 (C)
Neels JL and Fredericks EA Revision of the Rome Convention on the Law Applicable
to Contractual Obligations (1980): Perspectives from international commercial and
financial law 2006 TSAR 121
Standard Bank v Efroiken and Newman 1924 AD 171
Learning objectives
discuss the principles relating to party autonomy

provide a list of relevant connecting factors for determining the proper law of the
contract
provide a detailed discussion of the subjective and objective approaches to determining
the proper law of the contract
discuss the private international law principles in respect of contractual matters not
governed by the proper law
Key concepts
Party autonomy, proper law, subjective approach, objective approach
10.1 INTRODUCTION
It is common knowledge that contracts between contracting parties from different
countries are concluded every day and that the number of international contracts are
constantly on the increase in the light of continued globalisation. It is important to
determine which legal system is applicable to such an international contract.
CGM4804/1 73
The law that governs a contract is termed the proper law of the contract. The proper
law of the contract is either the law chosen by the parties to govern their contract or
in the absence of a choice effected by the parties the legal system assigned by the
court as the proper law of the contract.
In this study unit we will look at the concept of party autonomy as well as the methods
for determining the proper law of the contract in the absence of a valid choice by the
parties.
10.2 CHOOSING THE LAW APPLICABLE TO AN

INTERNATIONAL CONTRACT THE CONCEPT OF
PARTY AUTONOMY
The freedom of parties to choose the governing law of their contract is most important
in international contract law. This freedom to choose the law applicable to a contract
is called party autonomy. Most legal systems acknowledge the concept of party au-
tonomy. However, the scope of party autonomy may differ from one legal system to
another. Confirmation of the recognition of the principle of party autonomy in our
law may be found in the case of Laconian Maritime Enterprises Ltd v Agromar Lineas 1986
(3) SA 509 (D).
It is important to note that parties cannot exclude or vary the effect of mandatory rules
of the forum by means of a choice of law clause. Mandatory rules of the forum include
legislation that protects the economically weaker party to a contract such as labour
and consumer protection legislation.
Often parties to international contracts wish to choose a neutral legal system to govern
their contract. For instance, a German buyer and an American seller may conclude an
international sales contract and wish to choose English law as the governing law of
their contract.
Question: Is the choice of an unrelated legal system permissible?
The answer to this question would depend upon the scope of party autonomy under
the applicable rules of private international law. However, parties may not choose an
unrelated legal system with the intent to evade the provisions of the otherwise applicable
legal system this would amount to fraus legis (an action in fraud of the law).
Question: Another question is whether parties may choose an international instru-

ment to govern their international contract, for example by inserting a choice of law
clause in favour of the United Nations Convention on Contracts for the International
Sale of Goods.53
Once again, this depends upon the scope of party autonomy under the relevant rules.
There is no clear authority on this question in South African law. The authors Neels and
Fredericks are of the opinion that it would be permissible under South African private
international law.54 The main issue in this regard is whether a choice of law rules of the
forum allows the choice of a non-national law as the proper law of a contract or not.
53 See study unit 13 below for a more detailed discussion of this Convention.
54 Neels and Fredericks 2006 TSAR 121.
74
STUDY UNIT 10: Law of contract
Parties may choose a legal system to govern their contract by express choice by means
of inserting a choice of law clause into their contract. The validity of a choice of law
clause will be determined by the rules of private international law of the forum.
Furthermore, even though parties do not insert a choice of law clause in their contract,
it is possible that their choice may be inferred from other aspects of the contract or the
surrounding circumstances. In such circumstances, we speak of the parties making a
tacit choice of law. There is case law authority in support of the possibility of parties
effecting a tacit choice of law. This possibility was accepted in the cases of Guggenheim
v Rosenbaum (2) 1961 (4) SA 21 (W) and Ex Parte Spinazze 1985 (3) 633 (A). Factors from
which a tacit choice in favour of a specific legal system may be inferred include: a ref-
erence to an Act of Parliament of a particular country; the use of the technical terms
of a specific legal system and the choice of a seat of arbitration in a specific country.
10.3 DETERMINING THE PROPER LAW OF A CONTRACT

IN THE ABSENCE OF A CHOICE BY THE PARTIES
ASSIGNING A PROPER LAW TO A CONTRACT
When the parties have reached no agreement as to the law applicable to a contract, it
is the task of the court to assign a proper law to the contract. Authority exists in South
African law for two approaches in this regard.
10.3.1 The subjective approach

The subjective approach is termed the presumed intention theory. In terms of this
approach, the court tries to determine what the intention of the parties concerning the
choice of an appropriate law would have been, had they applied their minds to the is-
sue. The court therefore assigns an intention to the parties. The original proponent of
this approach was the English author Dicey.
The locus classicus for this approach is the case of Standard Bank v Efroiken and Newman.55
In this case it was found that the proper law of the contract is what ought, reading
the contract by the light of the subject-matter and of the surrounding circumstances,
to be presumed to have been the intention of the parties.56 The subjective approach
was endorsed in the case of Guggenheim v Rosenbaum (2).57
This subjective approach has not been emphatically rejected by the Supreme Court of
Appeal, although many judges have expressed themselves in favour of the objective
approach (to be discussed below).
In the older cases the general rule followed in assigning the proper law to a contract
was that the lex loci contractus governs unless the contract is to be performed in a country
other than that of the lex loci contractus, in which case the lex loci solutionis (law of place
of performance) governs. In the early cases this rule was justified on the basis that it
accords with the presumed intention of the parties.
In most later cases, however, in order to assign an intention to the parties, the court
considers all the relevant connecting factors, such as the place where the contract was
55 1924 AD 171.
56 At 185.
57 1961 (4) SA 21 (W).
CGM4804/1 75
concluded, the flag of a ship, the place where the company is registered, where the par-
ties are domiciled, where performance of the contract has to take place and the seat of
arbitration.
10.3.2 The objective approach

In terms of this approach the proper law of the contract is determined by having recourse
to the legal system which has the closest and most real connection with the contract.
The English writer Westlake is the father of the objective approach.
English courts followed the subjective approach to determining the proper law until
the decision in Bonython v Commonwealth of Australia 1951 AC 201. In this case the court
followed Westlakes objective approach.
In determining the law of closest and most real connection to the contract, the court
takes all the relevant connecting factors into account. See the prescribed article by
Fredericks as contained in your reading list for a list of possible connecting factors. It
is important to note that the court weighs the importance of every connecting factor
one single connecting factor may weigh more than three others together. The evalu-
ation is therefore qualitative rather than quantitative.
One of the most important connecting factors is the place of performance (locus solutionis).
However, contracts often have to be performed in more than one jurisdiction. Take
the example of an international sales contract. A German company (A) sells laptops to
a South African company (B). Payment for the goods has to be made to As banking
account in Berlin (Germany) and delivery of the goods has to take place at Bs offices
in Johannesburg. Clearly there are two places of performance here. How does one
determine the proper law of the contract? Two approaches have been followed under
these circumstances. The first is the Scission principle. In terms of this approach, each
performance has its own proper law. One applies the law of the place of performance
that did not take place or is defective. In other words, if payment did not take place, the
contract would be governed by German law, and if delivery did not take place, South
African law would be applied. Support for this approach may be found in the case of
Laconian Maritime Enterprises Ltd v Agromar Lineas 1986 (3) SA 509 (D). The second or
alternative approach is the unitary principle. In terms of this approach one proper law
is identified for the whole contract. In order to determine which one of the places of
performance is most important, one looks at the other connecting factors. Support
for this approach is to be found in several more recent cases, most notably the case of
Improvair (Cape) (Pty) Ltd v Establissements Neu 1983 (2) SA 138 (C).
If it is still not possible to choose between the two leges loci solutionis, then one of three
solutions have been proposed. Firstly, the author Van Rooyen proposed that the scission
principle be followed in such cases. Secondly, it was proposed in an obiter dictum in the
Laconian case that the lex loci solutionis in respect of payment should be applied. Thirdly,
in the case of Maschinen Frommer GmbH & Co KG v Trisave Engineering & Machinery Sup-
plies (Pty) Ltd 2003 (6) SA 69 (K) it was proposed that the lex loci solutionis in respect of
delivery of the goods should be applied.
76
STUDY UNIT 10: Law of contract
10.4 ASPECTS OF A CONTRACT NOT GOVERNED BY THE

PROPER LAW
10.4.1 Introduction
The proper law of the contract will govern most, but not all aspects of the contract. The
following are aspects of an international contract that are not governed by the proper law.
10.4.2 Capacity to contract

Question: The question as to which legal system should determine a partys contrac-
tual capacity is fairly complicated.
It cannot be determined by the proper law, since if one of the parties lacks contractual
capacity, no contract would come into essence and hence there would be no proper law.
A persons contractual capacity in terms of transactions relating to immovables is de-

termined by the lex situs.
Conflicting judgments exist in respect of the law applicable to determining contractual

capacity in transactions relating to movables. In the case of Kent v Salmon 1910 TPD 637,
contractual capacity was found to be governed by the lex loci contractus (the law of the
place of conclusion of the contract). In the matter of Guggenheim v Rosenbaum 1961 (4) SA
21 (W) it was stated that there are two possible legal systems applicable to contractual
capacity, namely the lex loci contractus or the lex domicilii. However, in the Guggenheim case,
preference was given to the lex domicilii.
The approach followed in Scottish law has much to commend it. A distinction is
made between commercial and non-commercial contracts. Contractual capacity to
conclude commercial contracts is determined by the lex loci contractus and contractual
capacity for non-commercial contracts is determined by the lex domicilii.
The author Kahn proposed that a person should be held to have capacity to contract
if he had capacity under his domiciliary law or under the lex loci contractus or under the
proper law.
10.4.3 Formalities of the contract

Under the common law formalities of contracts in respect of immovables were governed
by the lex situs; and the formal validity of contracts relating to movables was governed
by the lex loci contractus.
However, the place of conclusion of the contract has lost much of its significance in
the light of modern electronic contracting practices.
In the case of Ex Parte Spinazze 1985 (3) SA 651 (A) it was decided that a facultative ap-
proach should be followed in respect of formal validity of contracts. A contract should
be found formally valid if it complies with the formal requirements of either the lex loci
contractus or the proper law of the contract.
The formal validity of contracts relating to immovables may also be governed by the
lex situs.
CGM4804/1 77
10.4.4 Mandatory rules and illegality

The general rule is that illegality of a contract is governed by the proper law of the
contract. If a contract is illegal under the proper law of the contract, even though it may
be legal under the lex fori, the forum will not enforce the contract.
However, it may happen that a contract is legal in terms of the proper law thereof, but
illegal under the lex fori. Should the forum enforce such a contract or not? One needs to
distinguish between contracts that are illegal in terms of internal public policy, which
may be enforced, and contracts that are flagrantly against the external public policy of
the forum. The latter will not be enforced by the forum.
10.5 THE PROBLEM OF CONSENSUS

One cannot apply the proper law of the contract to determine whether the parties reached
the necessary consensus for a contract to come into essence. If no contract has come
into being there is no proper law. In such cases, one applies the putative proper law
to determine whether the necessary consensus was reached. The putative proper law is
the law which would be the proper law of the contract if it did in fact come into being.
10.6 RENVOI EXCLUDED

It is important to note that renvoi is not applied in the private international law of contract.
10.7 CONCLUSION
In conclusion, it is very important that you have a ready knowledge of the relevant con-
necting factors employed to determine the proper law of a contract.

The managing directors of Company A (a French company) and Company B (a South
African company) conclude a contract while attending a conference in London. In
terms of the contract, Company B purchased office furniture from Company A to be
delivered to Bs place of business in Johannesburg. Payment had to be made into As
banking account in Paris, France. The office furniture was delivered but B failed to
pay the purchase price. A institutes a claim against B in a South African High Court.
No choice of law clause was inserted into the contract. How would the court go about
determining the proper law of the contract?
78
STUDY UNIT 11: Law of delict
11 STUDY UNIT 11
11 Law of delict
Prescribed study material for this unit

Burchell v Anglin 2010 (3) SA ECG 48

Learning objectives
discuss the various possibilities in respect of legal systems applicable to an international

delict
provide a comprehensive case discussion of the Burchell case
discuss the rules contained in the Rome II Regulation
Key concepts
Lex loci delicti commissi, proper law of the delict
11.1 INTRODUCTION
Until recently, there was no relevant South African case law that provided direction
on the South African approach to international delicts. In 2010 a case was decided in
which support was expressed for applying the proper law of the delict. It was not a
judgment by the Supreme Court of Appeal, so it remains important to take note of the
other possible private international law rules in this regard.
11.2 POTENTIAL LEGAL SYSTEMS APPLICABLE TO AN

INTERNATIONAL DELICT
11.2.1 The lex fori

The author Von Savigny proposed the application of the law of the forum where an
action is brought to an international delict. The application of the lex fori may be criti-
CGM4804/1 79
cised on the grounds that it will encourage forum shopping (the search for the most
advantageous forum).
11.2.2 The lex loci delicti commissi

Support for the application of the law of the place where the delict was committed
may be found in the writings of several Roman-Dutch scholars, most notably Van der
Keessel and Van Bynkershoek.
Several points of critique may be raised against application of the law of the place where
the delict was committed. The place may be purely fortuitous, for example in the case
of an air disaster where an aeroplane plunges into the ocean somewhere. Secondly,
several acts perpetrated in various jurisdictions may be involved, leading to uncertainty
in respect of the determination of the lex loci delicti commissi. An example here is where
a harmful pharmaceutical product is manufactured in one country, sold in another
country and causes harm in a third country. Which of these countries would be the lex
loci delicti commissi?
However, the lex loci delicti is applied in Canada and Australia.
11.2.3 The proper law of the delict

Application of the proper law of the delict was proposed by the author Morris. It is fol-
lowed in the United States and entails determining and applying the legal system with
which the delict has the closest connection based on policy grounds.
It seems as though the court applied the proper law of the delict in the decision of Burchell
v Anglin (your prescribed reading for this study unit). This case concerned a cross-border
defamation claim. The plaintiff, the proprietor of a game reserve and hunting safari
business in South Africa, alleged that the defendant made defamatory statements about
him to a booking agent in Nebraska, USA, and this resulted in a substantial decrease in
bookings and financial loss to the plaintiff. The question arose whether South African
law or American law should be applied to the claim. The court found that the lex loci delicti
was Nebraskan law (para 118). However, Crouse AJ stated that doubt exists whether
the application of a single formula, such as the lex loci delicti, leads to adequate results
(para 119) and questioned whether the lex loci delicti is a sufficient test to achieve justice
between the parties (para 120). Crouse AJ argued that internationally, a balancing
test is used to determine the jurisdiction with the most significant relationship to the
parties and the delict, and then the law of that jurisdiction is applied (para 122). The
court decided to follow this approach and found that Nebraskan law was the law of the
most significant relationship with the parties and the delict (para 125).
11.3 THE ROME II REGULATION

As part of its project of harmonising and unifying choice of law rules across the Eu-
ropean Union the EU has adopted the Rome II Regulation on the Law Applicable to
Non-Contractual Obligations.58 According to article 4(1) of the Regulation, the law
applicable to a non-contractual obligation arising out of a tort/delict shall be the law
of the country in which the damage occurs, irrespective of the country in which the
58 Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007.
80
STUDY UNIT 11: Law of delict
event giving rise to the damage occurred and irrespective of the country or countries
in which the indirect consequences of that event occur. In other words, one can say
that the general rule is that the lex damni governs. However, article 4(3) provides that,
where it is clear from all the circumstances of the case that the tort/delict is manifestly
more closely connected with another country, the law of that other country shall apply.
11.4 CONCLUSION
The Burchell decision does not provide conclusive authority that the proper law of the
delict approach will be followed in South Africa in future. Forsyth recommends that
the lex loci delicti commissi rule should be followed where possible, but should be displaced
if it is clear that the delict is more closely connected to another legal system.59
CGM4804/1 81
12 STUDY UNIT 12
12 Law of propety
Prescribed reading material for this study unit:

None
Optional reading material for this study unit:

Neels JL The proprietary effect of reservation-of-title clauses in private international
law 2006 SA Merc LJ 66
Learning objectives
discuss the legal system applicable to determining whether a thing is movable or

immovable
discuss the general rules in respect of the legal system applicable to movables and
immovables
list and discuss the exceptions to the general rule in respect of the law applicable
to movables
12.1 INTRODUCTION
International property matters include questions in respect of ownership the transfer
of ownership and prescription; questions relating to limited real rights and questions
regarding non-corporeal things for instance the transfer of shares in a company.
It is important to note that rules determining whether a thing is movable or immovable

may differ from one jurisdiction to the next. The lex situs determines whether a thing
is classified as movable or immovable.
12.2 IMMOVABLES
The general rule is that the transfer of ownership in respect of immovables is governed
by the lex situs.
The exception to this rule is matrimonial property which is governed by the law of
matrimonial domicile.
82
STUDY UNIT 12: Law of propety
12.3 MOVABLES
12.3.1 General rule

The Roman-Dutch maxim mobilia personam sequuntur (movable goods follow the person)
has found application in South African law. According to this fiction, a persons mov-
able goods are regarded as being situated in his or her place of domicile. Therefore, the
transfer of movables used to be governed by the lex domicilii of the owner. However,
we see a move towards the application of the lex situs to the transfer of movables. Case
law authority for the application of the lex situs in this regard may be found, inter alia, in
the case of Macard Stein & Co v Port Marine Contractors (Pty) Ltd 1995 (3) SA 663 (A). In
Bominflot v Kien Hung Shipping 2004 (2) SA 556 (C) it was stated that ownership matters in
respect of movables are governed by the lex situs at the time of the relevant transaction.
12.3.2 Exceptions to the general rule
12.3.2.1 Transfer of goods in transit

There are no South African case law decisions to date on the law applicable to goods
in transit (res in transitu). It may happen that goods pass through a number of different
countries on the way to their destination and ownership of these goods may be trans-
ferred while the situs of these goods is casual or unknown.
Question The question therefore arises: which legal system should govern the valid-
ity of the transfer?
Application of the lex situs is not advisable, since the location of the goods at a certain
point in time is purely fortuitous. Secondly, often such transfer takes place while the
goods are on the high seas (sea outside territorial waters), and the high seas do not
have a lex situs.
One option would be to apply the law of the place of destination (lex loci destinationis)
to the transfer. As soon as the goods reach their destination, the lex loci destinationis will
become the lex situs of the goods. However, the destination of the goods may change
under way. It is therefore not certain that the goods will reach their original destination.
Another option is the application of the law of the place of dispatch (lex loci expeditionis).
It has the advantage of legal certainty. This suggestion is also supported by various
academic authors.
12.3.2.2 Reservation of title clauses

A reservation of title clause is a clause inserted into a contract in terms of which the
title to goods is reserved. The difficulty in this regard is that such clauses are regarded
as valid in certain jurisdictions and invalid in others. It may happen that goods are sold
under a reservation of title clause while in one country and then exported to another
country, where reservation of title clauses may be invalid.
Question: The question arises which legal system should be applied to determine the
validity of the reservation clause.
CGM4804/1 83
The lex situs should be applied, but should it be the lex situs of the goods at the time of
conclusion of the contract or at the time of delivery of the goods or the lex situs at the
time of attachment of the goods (in order to found or confirm jurisdiction in the case
of a dispute over the ownership of the goods)?
This is a very complicated matter. The author Neels suggests that the proprietary effect
of a reservation of title clause should be governed by the lex situs of the goods at the
time of conclusion of the contract.60 If you would like to know more about reservation
of title clauses, you are encouraged to read Professor Neelss article on this topic as
referenced under your optional reading material for this module.
12.3.2.3 Sea Transport Documents Act 65 of 2000

Section 2 of this Act provides that the lex fori (South African law) applies to the exclu-
sion of another possibly applicable legal system to the transfer of movables if the bill of
lading in respect of the goods is issued in South Africa, if the goods are addressed to a
destination in South Africa or if the goods are delivered in South Africa.
12.4 CONCLUSION
There are several other matters pertaining to property and private international law.
These matters include the law applicable to incorporeal movable and immovable prop-
erty, and the transfer of negotiable instruments and trusts under private international
law. We do not deal with these matters in this module. However, you are welcome to
read the Forsyth chapter included in your optional reading list for this study unit.

Which legal system do you propose should be applied to the transfer of goods in transit?
Give reasons for your answer.
60 Neels 2006 SA Merc LJ 66 74.
84
PART 4
Private international law and
international commercial law
CGM4804/1 85
13 STUDY UNIT 13
13 International commercial law
Prescribed reading material for this study unit:
Wethmar-Lemmer When could a South African court be expected to apply the

United Nations Convention on Contracts for the International Sale of Goods
(CISG)? 2008 De Jure 419
Optional reading material for this study unit:
Bonomi A The Rome I Regulation on the Law Applicable to Contractual Obligations

2008 Yearbook of Private International Law 165
Eiselen S Adoption of the Vienna Convention for the Sale of Goods in South
Africa 1999 SALJ 323
Michaels R The true lex mercatoria: Law beyond the state 2007 Indiana Journal of
Global Legal Studies 447
Wethmar-Lemmer M The development of the modern lex mercatoria: A historical
perspective 2005 Fundamina 183
Wethmar-Lemmer M The debate on the existence of the lex mercatoria (2006) 1
Codicillus 23
Learning objectives
provide a definition of the lex mercatoria

provide a short overview of the institutions, their main work and most influential
documents as discussed in this study unit
provide a detailed discussion of article 1(1)(b) of the CISG and engage with the
prescribed article on this point
13.1 INTRODUCTION
The field of international commercial law is a very broad field and a field that is
becoming increasingly important. We cannot even touch on all the important aspects
of international commercial law in this study unit. However, we are going to look at
a few international commercial instruments that have important private international
law implications.
86
STUDY UNIT 13: International commercial law
13.2 THE LEX MERCATORIA

Several definitions of the lex mercatoria or the law merchant have been proposed. One
can describe it as a constantly evolving, distinguishable body of rules comprising all
the tenets governing international commerce, whether in the form of written codes,
customs or trade usages.
A large body of literature exists on the lex mercatoria. The question whether it does in-
deed exist has been widely debated. You may refer to the relevant articles included your
optional reading list if you want to find out more about the lex mercatoria.
If one supports the view that a lex mercatoria does exist, then all international conven-
tions and other instruments of the Hague Conference on Private International Law,
the instruments drafted by UNIDROIT, the instruments compiled by the International
Chamber of Commerce and all the instruments and conventions drafted by UNCITRAL
would, inter alia, form part of the lex mercatoria.
13.3 INSTRUMENTS OF THE HAGUE CONFERENCE ON

PRIVATE INTERNATIONAL LAW
The Hague Conference on Private International Law drafts international conventions and
other documents on private international law. South Africa is a member of the Hague
Conference. Examples of Hague Conventions include the 1955 Hague Convention on
the Law Applicable to International Sales of Goods and the 2005 Hague Convention
on Choice of Court Agreements. Another important instrument drafted by a special
working group of the Hague Conference is the Hague Principles on Choice of Law in
International Contracts. All the conventions and other documents of the Hague Con-
ference may be accessed at http://www.hcch.net.
13.4 UNIDROIT
UNIDROIT is the French acronym for the Institute for Unification of Private Law
based in Rome. It was established 1926 as an auxiliary organ of League of Nations and
re-established in 1940 on the basis of a multilateral agreement, namely the UNIDROIT
Statute. Membership of UNIDROIT is limited to states acceding to the Statute.
The best-known instrument drafted by this Institute is the UNIDROIT Principles of

International Commercial Contracts. These Principles are non-binding in nature. They
may be applied when the parties have agreed that their contract be governed by general
principles of law, the lex mercatoria or the like. The Principles contain a comprehen-
sive set of substantive law provisions designed for governing international commercial
contracts.
They are divided into chapters covering, inter alia, the formation, validity and interpreta-
tion of the contract and the rights and obligations of the parties.
If you would like to read more about UNIDROIT, you can visit its website at
http://www.unidroit.org.
CGM4804/1 87
PART 4: PRIVATE INTERNATIONAL LAW AND INTERNATIONAL COMMERCIAL LAW
13.5 UNCITRAL
The acronym UNCITRAL stands for the United Nations Commission on International
Trade Law. It was established in 1966 by the United Nations General Assembly with
the objective of promoting progressive harmonisation and unification of the law of
international trade by preparing conventions, model laws and standard trade terms.
One of the most influential conventions drafted by UNCITRAL is the United Nations
Convention on Contracts for the International Sale of Goods (CISG). It currently has 79
member states representative of all legal traditions. It governs the formation of a contract
for the international sale of goods as well as the rights and obligations of the parties.
Even though South Africa is currently not a contracting state, most of its largest trading
partners are. South Africa therefore needs to take cognisance of this Convention. Your
prescribed article for this study unit investigates when the CISG would be applied by
a South African court.
Numerous other UNCITRAL conventions have been adopted. In addition, UNCI-

TRAL has drafted many model laws and rules. You can visit the UNCITRAL website
at http://www.uncitral.org to learn more about UNCITRALs activities and instruments.
13.6 ICC
The International Chamber of Commerce was founded in 1919 with the mandate of
promoting trade and investment, open markets for goods and services and the free flow
of capital. It has expanded to become a world business organisation with thousands of
member companies in more than 130 states.
The work of ICC is carried out by different commissions that compile voluntary codes
on various topics relevant to international business. Parties to business transactions
include these codes in their contracts of their own volition.
The best-known ICC instrument is arguably the ICC Incoterms: these are standard
trade definitions most commonly used in international sales contracts. The latest ver-
sion is the ICC Incoterms 2010. Incoterms govern the method of delivery of the goods,
provide information on the modes of transport used for goods and specify the method
employed to calculate the price of the goods.
If you would like to learn more about the ICC and its instruments, you can visit their
website at http://www.iccwbo.org.
13.7 ROME I REGULATION

Since the EU remains South Africas largest trading partner, it is important that we take
cognisance of the Rome Regulation on the Law Applicable to Contractual Obligations,
or Rome I Regulation. If a court in an EU member state has to determine the proper law
of a contract, it will apply the principles contained in the Rome I Regulation. Article 3
of the Regulation gives recognition to the principle of party autonomy. Article 4 of the
Regulation contains provisions in respect of the proper law of a contract in the absence
of a choice by the parties. Article 4(1)(b) provides that a contract for the sale of goods
shall be governed by the law of the country where the seller has his habitual residence.
Article 4(3) states that, where it is clear from all the circumstances of the case that the
88
STUDY UNIT 13: International commercial law
contract is manifestly more closely connected with a country other than that indicated
in paragraphs (1) or (2), the law of that country shall apply.
If you would like to read more about the Rome I Regulation, you can consult Bonomis
article contained in the optional reading list.
13.8 CONCLUSION
This study unit aimed to provide you with a broad outline of various important institu-
tions and instruments in international commercial law. It should be clear to you that the
rules of private international law play an important role in international commercial law.
ACTIVITY 13.1
Should the phrase the rules of private international law in article 1(1)(b) of the CISG
be interpreted as referring to private international law of contracting states only?
Feedback
Refer to your prescribed article for a complete discussion of the interpretation of
article 1(1)(b) of the CISG.
CGM4804/1 89
SELECT BIBLIOGRAPHY
Fawcett JJ and Carruthers JM Cheshire, North and Fawcetts Private International Law 14th
ed (Oxford University Press Oxford 2008)
Forsyth CF Private International Law 5 ed (Juta Cape Town 2012)
Fredericks EA The Proper Law of a Documentary Letter of Credit (Part 1) 2003 SA
Merc LJ 6373
Hahlo HR and Kahn E The South African Law of Husband and Wife 4th ed (Juta Cape
Town 1975)
Juenger FK Choice of Law and Multistate Justice (Martinus Nijhoff Boston 1993)
Lord Collins of Mapesbury Dicey, Morris and Collins on the Conflict of Laws 5th ed (Sweet
& Maxwell London 2012)
Neels JL Via media classification in private international law 1994 Journal of Contemporary
Roman Dutch Law (THRHR) 687
Neels JL Classification as an argumentative device in international family law 2003
South African Law Journal 883
Neels JL Private International Law of Succession in South Africa 2006 Journal of South
African Law (TSAR) 705720
Neels JL Falconbridge in Africa: Classification and liberative prescription in private
international law a Canadian doctrine on safari in Southern Africa (hic sunt leo-
nes!); or semper aliquid novi Africam adferre 2008 Journal of Private International Law 167
Neels JL External public policy, the incidental question properly so-called and the
recognition of foreign divorce orders 2010 TSAR 671
Neels JL and Wethmar-Lemmer M Constitutional values and the proprietary con-
sequences of marriage in private international law: Introducing the lex causae
proprietatis matrimonii 2008-3 Journal of South African Law (TSAR) 587596
Schoeman E The connecting factor for the proprietary consequences of marriage
2001-1 Journal of South African Law (TSAR) 7281
Wethmar-Lemmer When could a South African court be expected to apply the United
Nations Convention on Contracts for the International Sale of Goods (CISG)?
2008 De Jure 419
Wolff M Private International Law 2 ed (OUP London 1950)
90

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STRUCTURE OF THE MODULE EXPLAINED vii

Part 1: Introduction to private international law 1

Study unit 1: Introduction 2

Part 2: Theoretical principles of private international law 11

Study unit 2: Classification 12

2.5.4 Via media classification 14

6.3 Requirements for recognition and enforcement 39

Part 3: Substantive private international law 47

Study unit 7: Law of domicile 48

9.4.5 Capacity to take under a will 70

Part 4: Private international law and international commercial law 85

Study unit 13: International commercial law 86

Prescribed and recommended study material

Activities, examples and feedback

List of prescribed reading material for this unit:

List of optional reading material for this unit:

provide a definition of private international law

1.1 DEFINITION OF PRIVATE INTERNATIONAL LAW

1.2 EXAMPLE OF A PRIVATE INTERNATIONAL LAW

1.3 STEPS IN SOLVING A PRIVATE INTERNATIONAL LAW

1.3.1 Found jurisdiction of the court

1.3.3 Determining the connecting factor(s)

1.3.4 Determining the lex causae

1.3.5 Ascertainment of the content of the lex causae

1.4 TYPES OF PRIVATE INTERNATIONAL LAW RULES

1.4.1 Unilateral conflict rules

1.4.2 Multilateral conflict rules

1.5 THE HISTORY OF PRIVATE INTERNATIONAL LAW

1.5.1 Roman law

Furthermore, the Constitutio Antoniniana granted Roman citizenship to all inhabitants

1.5.2 The fifth to tenth centuries AD

1 Forsyth CF Private International Law 5 ed ( Juta Cape Town 2012) 710.

1.5.3 The origins of modern private international law principles: the

1.5.4 The twelfth to sixteenth centuries: the theories of the statutists

3 Forsyth Private International Law 33.

1.5.5 The influence of the Roman-Dutch scholars

Other important Roman-Dutch private international law scholars include Rodenburg

1.5.6 Developments in the nineteenth and twentieth centuries

6 Forsyth Private International Law 40.

1.5.7 Unification of private international law

11 Forsyth Private International Law 48.

became a member of the Hague Conference in 2002. Prominent examples of Hague

1.5.8 Unification of substantive private law

Active Description of activities

Period following the fall of the

Origins of modern PIL

Theories of the statutists

Influence of the Roman-

Modern PIL developments

Unification of private interna-

Unification of substantive pri-

List of prescribed reading material for this unit:

Optional reading material for this unit:

Anderson v The Master 1949 (4) SA 660 (E)

explain what classification is

2.2 WHAT IS CLASSIFICATION?

2.3 WHAT IS CLASSIFIED?

2.4 WHY IS CLASSIFICATION NECESSARY?

2.5 HOW IS CLASSIFICATION DONE?

2.5.1 Lex fori classification