Encyclopedia of Private International Law
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Encyclopedia of Private International Law

Edited by Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro de Miguel Asensio

The role and character of Private International Law has changed tremendously over the past decades. With the steady increase of global and regional inter-connectedness the practical significance of the discipline has grown. Equally, so has the number of legislative activities on the national, international and, most importantly, the European level. With a world-class editor team, 500 content items and authorship from almost 200 of the world’s foremost scholars, the Encyclopedia of Private International Law is the definitive reference work in the field. 57 different countries are represented by authors who shed light on the current state of Private International Law around the globe, providing unique insights into the discipline and how it is affected by globalization and increased regional integration. The Encyclopedia consists of three inter-linked pillars, enhanced by sophisticated search and cross-linking functionality. The first pillar consists of A-Z coverage of the scope and substance of Private International Law in the form of 247 entries. The second pillar comprises detailed overviews of the Private International Law regimes of 80 countries. The third pillar presents valuable, and often unique, English language translations of the national codifications and Private International Law provisions of those countries. This invaluable combination represents a powerful research tool and an indispensable reference resource.
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South Africa

I. Sources of private international law

The sources of South African private international law are doctrinal writing, legislation, international conventions and case-law.

1. Role of doctrinal writing

In this context, reference is often made to the ‘old authorities’, which refers to the 17th and 18th century Roman-Dutch writers, such as Christiaan Rodenburg, Johannes and Paulus Voet (→Voet, Paulus and Johannes), Ulrik Huber (→Huber, Ulrik) and Dionysius Van der Keessel. Though some private international law rules, principles and concepts have their origins in the medieval statutist theory, and the roots of a →connecting factor, such as domicilium, can be traced back to Justinian’s Corpus Iuris Civilis, it is the subsequent development of these rules, principles and concepts by the Roman-Dutch writers that forms the backbone of modern South African private international law.

The strong comparative approach adopted by the South African courts in resolving private international law cases has resulted in reference being made to contemporary scholarly writing on private international law, such as textbooks, journal articles and case comments, by South African as well as foreign scholars from comparable jurisdictions.

2. Major legislation

Statutes relating to private international law deal with specific areas or aspects of law, such as the Domicile Act of 3 March 1992 (Public Act No 3, available at <www.justice.gov.za>), reforming and/or enhancing the existing common law. Statutes also implement international conventions that South Africa has acceded to, for example, the Children’s Act of 8 June 2005 (Public Act No 38, available at <www.justice.gov.za>), which gives effect to the Hague Child Abduction Convention (Hague Convention of 25 October 1980 on the civil aspects of international child abduction, 1343 UNTS 89; →Child abduction). The common law and all statutes are subject to the scrutiny of the Constitution of the Republic of South Africa of 8 May and amended on 11 October 1996 by the Constitutional Assembly (Public Act No 108, available at <www.justice.gov.za>).

The Constitution has the potential to influence certain areas of private international law due to the horizontal application of the Bill of Rights, embodied in ch 2 of the Constitution. Section 8 determines that:

  1. the Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of the state;

  2. a provision of the Bill of Rights binds a natural or a juristic person if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right;

  3. when applying a provision of the Bill of Rights to a natural or juristic person in terms of sub-section (2), a court: (a) in order to give effect to a right in the Bill, must apply, or if necessary develop, the common law to the extent that legislation does not give effect to that right, and (b) may develop rules of the common law to limit the right, provided that the limitation is in accordance with s 36(1);

  4. a juristic person is entitled to the rights in the Bill of Rights to the extent required by the nature of the rights and the nature of that juristic person.

Section 36 sets out the parameters for the possible limitation of rights contained in the Bill of Rights:

  1. The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including –

    1. the nature of the right;

    2. the importance of the purpose of the limitation;

    3. the nature and extent of the limitation;

    4. the relation between the limitation and p. 1its purpose; and

    5. less restrictive means to achieve the purpose.

  2. Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights.

The Bill of Rights contains an equality clause (s 9 of the Constitution), which has given rise to litigation and law reform in some areas of South African law, for example, the legalization of →same-sex marriage. This, in turn, will necessitate the reform of certain private international law rules to take account of these changes and/or to comply with the Constitution. For example, the current choice-of-law rule for proprietary consequences of marriage, referring exclusively to the domicile of the husband at the time of marriage, must be reformed: it clearly infringes the principle of gender equality in the Constitution and cannot be applied to marriages where there is no identifiable husband (see further below).

3. International conventions

South Africa has ratified the New York Convention (New York Convention of 10 June 1958 on the recognition and enforcement of foreign arbitral awards, 330 UNTS 3; →Arbitration, recognition of awards) and has acceded to a number of Hague Conventions, namely the Hague Child Abduction Convention (→Child abduction), the Hague Adoption Convention (Hague Convention of 29 May 1993 on protection of children and co-operation in respect of intercountry adoption, 1870 UNTS 167; 32 ILM 1134; →Adoption), the Hague Testamentary Dispositions Convention (Hague Convention of 5 October 1961 on the conflicts of laws relating to the form of testamentary dispositions, 510 UNTS 175; →Succession), the Hague Evidence Convention (Hague Convention of 18 March 1970 on the taking of evidence abroad in civil or commercial matters, 847 UNTS 241; →Evidence, procurement of) and the Hague Legalisation Convention (Hague Convention of 5 October 1961 abolishing the requirement of legalisation for foreign public documents, 527 UNTS 189; →Legalization of public documents). South Africa has not adopted the →CISG (United Nations Convention of 11 April 1980 on Contracts for the International Sale of Goods, 1489 UNTS 3).

4. Role of case-law

Case-law plays an important part in the development of private international law. South Africa adheres to a precedent system (lower courts are bound by the decisions of higher courts) with the Constitutional Court as the final court of appeal for all matters. The case-law exhibits a strong historical and comparative approach to contemporary private international law issues. In this regard, comparative reference has been, and still is, often made to English law, no doubt because of South Africa’s history as a British colony, the close professional and academic links with the →United Kingdom and the common English language. However, South African judges have also looked further afield to other Western legal systems – in Ex parte Spinazze and Another NNO (1985 (3) SA 650 (A)), apart from Anglo-common law systems, reference was made to Dutch law, French law and German law. With the United Kingdom’s participation in EU Regulations on private international law, there is the potential for increased comparative reference to EU law via English law, as well as direct comparative reference to EU law.

II. History of private international law

South African law is an uncodified legal system, shaped by continental civil law, English common law and African customary law to form a hybrid (mixed) system of law. As a result of the establishment of a refreshment station at the Cape of Good Hope by the Dutch Vereenigde Geoctroyeerde Oost-Indische Compagnie (VOC) in 1652, Roman-Dutch law became the common law of South Africa. During the British occupations of the Cape (1795–1803 and 1806–1910) and the subsequent period of the Union of South Africa (1910–1961), Roman-Dutch law remained the common law of South Africa. However, English law found its way into South African law through reference to English sources and law practitioners who had received their legal training in England. Certain areas of domestic law, notably the law of civil procedure and evidence, as well as commercial law, were heavily influenced by English law.

English law also had a marked influence on private international law, since judges and practitioners, attracted to the technique and theory employed by English courts in conflicts cases, started to rely quite heavily on Anglo-common law conceptions of private international law. p. 1Ironically, these Anglo-common law conceptions of private international law were heavily influenced by civilian doctrine: nineteenth and early 20th century English and Scottish case-law, often referred to in South African courts, contained ample reference to 17th and 18th century Roman-Dutch authorities. In many cases the English and Scottish courts had developed Roman-Dutch concepts further, for example, the enduring and tenacious character of the domicile of origin developed within the context of an expanding British Empire in an attempt to keep all its subjects, wherever they ventured, within the common law fold.

African customary law exists alongside the Western component of South African law and this often gives rise to internal conflict of laws. There may even be conflicts between different indigenous tribes’ laws. These types of internal conflicts will not be further explored here; suffice to say that it often raises interesting constitutional issues in respect of gender equality.

III. Administration of private international law

1. Special courts

There are no special courts for the administration of private international law. The majority of private international law disputes are heard by the superior courts: the High Courts have jurisdiction in civil claims exceeding South African Rand 100,000. The lower courts (called Magistrates’ Courts) have jurisdiction in civil cases involving less than R 100,000, but certain matters are excluded from the jurisdiction of Magistrates’ Courts – most importantly, matters relating to divorce (→Divorce and personal separation) and wills.

2. Application of foreign law

South African courts apply foreign law when such law is indicated by its choice-of-law rules. At common law, foreign law is regarded as a matter of fact and must be pleaded and proved by expert evidence (Schlessinger v Commissioner for Inland Revenue 1964 (3) SA 389 (A); →Foreign law, application and ascertainment). Failure to prove the relevant foreign law to the satisfaction of the court does not result in the dismissal of the action or absolution from the instance. Instead, the →lex fori is applied in accordance with the presumption that the foreign law is identical to the lex fori.

The common law position has been altered significantly by the Law of Evidence Amendment Act of 15 April 1988 (Public Act No 45, available at <www.justice.gov.za>). Section 1(1) of the Law of Evidence Amendment Act determines that: ‘Any court may take judicial notice of the law of a foreign state . . . in so far as such law can be ascertained readily and with sufficient certainty.’ However, this does not preclude a party ‘from adducing evidence of the substance of a legal rule [of a foreign state] . . . which is in issue in the proceedings concerned’ (s 1(2) of the Law of Evidence Amendment Act). For the application of s 1(1) of the Law of Evidence Amendment Act in practice and the meaning of ‘ascertained readily and with sufficient certainty’, see Harnischfeger Corporation and Another v Appleton and Another (1993 (4) SA 479 (W)).

Foreign law may be refused application if the result of such application would be repugnant to South African public policy (→Public policy (ordre public)), for example, giving effect to incestuous marriages or recognizing foreign judgments obtained in contravention of the rules of natural justice.

IV. Basic principles of jurisdiction

The jurisdiction of the South African courts is a mix of common law and statute law. While the High Courts (which deal with most private international law matters) were created by statute, their jurisdiction is derived from the common law. This is supplemented by legislation in certain areas (for example, s 7 of the Admiralty Jurisdiction Regulation Act of 8 September 1983 (Public Act No 105, available at <www.gov.za>)), which amends the common law rules of jurisdiction.

Generally speaking, South African courts will not assume jurisdiction in a conflicts matter unless there is a sufficiently strong connection between the forum and the parties or the facts of the case. Two doctrines inform the assumption of jurisdiction by modern-day South African courts. The first, according to which actions are divided into three classes – actiones in rem, actiones in personam and actiones mixta (partly in rem and partly in personam) – serves to identify the appropriate rationes jurisdictionis (jurisdictional grounds/connecting factors), such as domicilium, the situs of property, etc. In addition, the doctrine of effectiveness, which originates from the maxim actor sequitur forum p. 1rei (→Jurisdiction, foundations), requires the court to consider whether it can grant an effective judgment before it assumes jurisdiction (Gallo Africa Ltd and Others v Sting Music (Pty) Ltd and Others [2010] ZASCA 96; 2010 (6) SA 329 (SCA)).

The most important jurisdictional grounds/connecting factors (rationes jurisdictionis) for the assumption of jurisdiction in conflicts matters are domicile, residence (→Domicile, habitual residence and establishment), the cause of action (for example, the place where a contract was entered into or to be performed or the place where a delict was committed) and submission to the jurisdiction of the court (→Choice of forum and submission to jurisdiction). There are no statutory definitions of these rationes jurisdictionis – they are subject to interpretation by the courts. Whether a litigant is an incola or a peregrinus depends on whether that person is domiciled or resident within the jurisdictional area of a particular court.

In relation to claims sounding in money, assumption of jurisdiction is based on a combination of rationes jurisdictionis (focusing on whether the plaintiff and/or defendant are incolae or peregrine and whether there has been submission to jurisdiction), as well as attachment of property to found jurisdiction in some instances (see Christopher F Forsyth, Private International Law (5th edn, Juta 2012) 221).

In respect of both movable and immovable property, the court of the situs of the property (forum rei sitae) has almost exclusive jurisdiction over any claims in respect of such property (→Immovable property). There are some limited exceptions where a court has control over the defendant and is able to exercise jurisdiction in personam – it may, for example, order the defendant to transfer ownership of immovable property. Submission to the jurisdiction of a South African court does not seem to be possible in respect of title to foreign immovable property; in relation to foreign movable property, it should depend on whether the South African court can give an effective judgment.

For incorporeal property, the situs of the property is crucial for jurisdictional purposes and it varies with the particular type of property concerned. For example, the situs of an ordinary (unsecured) debt (obligation to pay money) is the place where the debtor resides, while the situs of shares is normally the place where the company is registered, although the forum rei sitae does not have exclusive jurisdiction if another court has jurisdiction over the defendant.

In relation to the granting of interdicts (both prohibitory and mandatory), a court may assume jurisdiction over an incola, regardless of whether the targeted act is to be performed or restrained within its area of jurisdiction. If the respondent is a peregrinus, the targeted act must be one performed or restrained within the court’s area of jurisdiction.

Jurisdiction in matters affecting private law status is mainly based on residence or domicile. Of these, divorce jurisdiction is one of the most important areas, and it is governed by statute. Section 2(1) of the Divorce Act of 8 June 1979 (Public Act No 70, available at <www.acts.co.za>) determines that:

  1. A court shall have jurisdiction in a divorce action if the parties are or either of the parties is –

  2. domiciled in the area of jurisdiction of the court on the date on which the action is instituted; or

  3. ordinarily resident in the area of jurisdiction of the court on the said date and have or has been ordinarily resident in the Republic for a period of not less than one year immediately prior to that date.

According to s 1(1) of the Divorce Act, a divorce action includes ‘an application pendente lite for an interdict or for the interim custody of, or access to, a minor child of the →marriage concerned or for the payment of maintenance’ or an application for a contribution towards costs. The court that grants the divorce may also make an order for the payment of maintenance by one party to the other (s 7(1) and (2) of the Divorce Act).

In recent times, the Constitution has had a direct impact on the assumption of jurisdiction in conflicts cases. The doctrine of arrest of peregrini ad fundandam jurisdictionem, which in effect deprived an individual of his or her freedom in order to found jurisdiction, was struck down by the Supreme Court of Appeal as unconstitutional in Bid Industrial Holdings (Pty) Ltd v Strang and Others ([2007] SCA 144; 2008 (3) SA 355 (SCA)). This may open the door for the introduction of a →forum non conveniens doctrine. For example, where a foreign defendant was served while present in South Africa, but not arrested (arrest ad fundandam jurisdictionem p. 1having been abolished), the suitability of the South African court as the appropriate forum to hear the matter may have to be determined in accordance with a →forum non conveniens-type inquiry. Though, as yet, there exists no doctrine of forum non conveniens proper in South Africa, the existence of a →lis alibi pendens exception, as well as the adoption of the English doctrine of forum non conveniens in Admiralty cases (through s 7(1)(a) of the Admiralty Jurisdiction Regulation Act), may contain the seeds for a wider application of such a doctrine.

V. Basic principles of choice of law

1. Obligations

a) Contracts

A contract is generally governed by its proper law (→Contractual obligations; →Proper law (doctrine)). The proper law may be indicated by an express →choice of law (contained in a clause in the contract) or a tacit choice may be implied/inferred from the terms of the contract and the surrounding circumstances (Guggenheim v Rosenbaum (2) 1961 (4) SA (W)).

Where there is no clear choice of law (express or tacit), it falls to the court to determine the proper law of the contract. Despite the authority of Standard Bank of South Africa v Efroiken and Newman (1924 AD 171), which adopted a presumed intention theory, it is submitted that a completely objective approach, focusing on the legal system that has the closest and most real connection to the contract, should be followed (Improvair (Cape) (Pty) Ltd v Establissements Neu 1983 (2) SA 138 (C)). This would be in step with current trends in private international law theory and practice. The objective approach was applied in a case concerning an antenuptial contract (Ex parte Spinazze and Another NNO 1985 (3) SA 650 (A)) and there is no reason why it should not apply in relation to commercial contracts as well.

Once the proper law of the contract has been established, it governs most aspects of that contract, subject to some exceptions and qualifications. Regarding formal validity, it seems as if the lex loci contractus, proper law or lex rei sitae (for contracts concerned with immovables) may be applicable. To determine whether a contract has come into existence at all is problematic, because the proper law can only be established once a contract has been formed. It is submitted that the putative proper law (the legal system that would be the proper law if a contract had come into existence) should govern this issue. Regarding contractual capacity, the lex loci contractus, the lex domicilii (especially in relation to non-commercial contracts), the lex rei sitae (in relation to immovables) and the objective proper law (in the sense of the most significantly connected legal system) are all potentially applicable leges causae. Due to some of these leges causae overlapping in the decided cases, it is difficult to formulate a general rule. While the performance of a contract is governed by the proper law, the manner of performance is governed by the lex loci solutionis. A contract that is illegal according to its proper law will not be enforced by a South African court. However, a contract, which is perfectly legal under its proper law, may be denied enforcement by a South African court due to the effect of an overriding forum statute, or if the contract contravenes the public policy of the forum.

b) Delict

There is scant case authority on →choice of law in cross-border delictual claims (→Torts). Academic writing supports a variety of leges causae: the lex fori; the lex loci delicti; the English double actionability rule; and the proper law of the delict. The latest decision on this point, Burchell v Anglin (2010 (3) SA 48 (ECG)), rejected the English double actionability rule, but it is not absolutely clear whether the lex loci delicti or the proper law of the delict, or a combination of the two was preferred. The judge stated that despite weighing ‘heavily in the balancing scale’, the locus delicti was in the final instance ‘only to be used as a factor in a balancing test to decide which jurisdiction would have the most real or significant relationship with the defamation and the parties’ (Burchell v Anglin 2010 (3) SA 48 (ECG) paras 124 and 128). It is submitted that the lex loci delicti should be the general rule with the option of displacement in instances where the lex loci delicti is clearly inappropriate.

c) Unjust enrichment

There is no case authority in this area, but scholarly opinion seems to favour the lex causae condictionis (the law of the relationship in terms of which the enriching performance took place) as a general rule (→Unjust enrichment (restitution)).

2. p. 1Property

The rules governing corporeal property distinguish between movable and →immovable property (→Property and proprietary rights). The lex rei sitae determines whether property is to be classified as movable or immovable. Generally speaking, the lex situs governs all matters relating to immovable property. Historically, the lex domicilii was applied to movable property (according to the fiction mobilia sequuntur personam), but case-law and academic opinion favour the lex situs in respect of movable property as well (Standard Bank of SA Ltd v Ocean Commodities Inc 1983 (1) SA 276 (A)), with the possible exception in some cases of the lex loci expeditionis (the law of the place of dispatch) applying in respect of the validity of transfer of movables in transit.

The rules governing corporeal property also apply, mutatis mutandis, to incorporeal property with the same distinction between movable and immovable property. The crucial issue is to decide whether incorporeal property is to be classified as movable or immovable. Most incorporeal rights are linked to a res, for example, a mortgage over immovable property, but they do not necessarily assume the movable/immovable character of the res they pertain to. Mortgages over land have been classified as movable or immovable depending on whether the issue related to the bond as an acknowledgement of a debt or whether it related to the bond as an instrument of title to a real right in the land (Lief NO v Dettmann 1964 (2) SA 252 (A); →Bonds and loans). It has been suggested that the lex rei sitae of the res should determine whether the incorporeal right pertaining to the res is to be classified as movable or immovable (Christopher F Forsyth, Private International Law (5th edn, Juta 2012) 376–377).

3. Intellectual property

Intellectual property rights are territorial by nature. As such, the Patents Act of 26 April 1978 (Public Act No 57, available at <www.cipro.gov.za>) and the Copyright Act of 20 June 1978 (Public Act No 98, available at <www.acts.co.za>) regulate all matters pertaining to patents and copyright respectively in South Africa. These rights are regarded as immovable incorporeal property and, as such, are governed by the lex rei sitae (→Intellectual property, applicable law).

4. Family matters

a) Validity of marriage

The validity of →marriage is governed by the lex loci celebrationis, subject to a few exceptions. Section 10 of the Marriage Act of 19 April 1961 (Public Act No 25, available at <www.saflii.org>) makes special provision for marriages solemnized overseas by a designated marriage officer, for example, an officer or employee in the diplomatic or consular service. The Act applies to marriages between South African citizens who are domiciled in South Africa and these marriages are deemed to have been celebrated in the province of the Republic of South Africa where the husband is domiciled. In terms of the fraus legis (→Evasion of laws (fraus legis)) doctrine, a South African court will apply its own law as the lex domicilii of one or both of the parties to the validity of their marriage if a couple had their marriage deliberately solemnized abroad in order to escape an essential requirement of the lex domicilii (which is the lex fori). The →public policy exclusionary rule also plays an important role in relation to marriage. Though a marriage may be valid according to the foreign lex loci celebrationis, certain marriages will be refused recognition on the basis of public policy, for example, incestuous marriages and marriages lacking consent.

b) Personal consequences

Personal consequences of marriage, which include the duty of conjugal fidelity, the right and duty of support, the legal capacity of the parties to enter into transactions (→Capacity and emancipation) or alienate or acquire property and legal transactions between the parties, are governed by the lex domicilii at the time of the relevant act or transaction. It is not clear which legal system governs should the parties have different domiciles at that time. Where the validity of a commercial transaction between one of the spouses and a third party is at issue, that spouse should not be able to rely on contractual incapacity in terms of the lex domicilii – in these cases the lex loci contractus should apply.

c) Proprietary consequences

Proprietary consequences include all matters pertaining to the estates of the parties and, most significantly, whether →matrimonial property is held in or out of community of property. The current choice-of-law rule p. 1determines that, in the absence of an antenuptial contract, the proprietary consequences of a →marriage are governed by the law of the matrimonial domicile (lex domicilii matrimonii), which is defined as the husband’s domicile at the time of marriage (Frankel’s Estate and Another v The Master and Another 1950 (1) SA 220 (A)). This rule applies to all movable and immovable property, thus supporting the unitary doctrine. Furthermore, South African conflicts law adheres to the immutability doctrine – the law applicable to the proprietary consequences is fixed at the time of marriage and this cannot be altered by a change in the domicile of the husband. However, changes in the content of the law of the matrimonial domicile may be given effect, provided that they are not against public policy (Sperling v Sperling 1975 (3) SA 707 (A)).

Clearly, the current choice-of-law rule for proprietary consequences in the absence of an antenuptial contract is in need of reform. A wife no longer takes her husband’s domicile upon marriage (so the matrimonial domicile is no longer necessarily a shared one); favouring the husband’s domicile infringes upon the principle of gender equality embodied in the Constitution; and, in its current form, the rule cannot be applied to same-sex unions.

Where the parties have entered into an antenuptial contract, a number of private international law issues may arise. The position regarding essential validity of an antenuptial contract is uncertain: there is support for the law of the husband’s domicile at marriage to govern essential validity in respect of movable property (→Property and proprietary rights) and the lex situs in respect of →immovable property. However, the splitting of movable and immovable property seems odd bearing in mind that the unitary doctrine applies in respect of proprietary consequences in the absence of an antenuptial contract. Again, similar to the conflict rule for proprietary consequences in the absence of an antenuptial contract, reference to the husband’s domicile at marriage as the →connecting factor raises the same issues in respect of the Equality Clause in the Constitution, as well as problems in relation to same-sex unions.

In a groundbreaking case, canvassing at least ten other legal systems, the Appellate Division decided that an antenuptial contract will be formally valid if it conforms to the lex loci contractus or the proper law of the antenuptial contract (Ex parte Spinazze and Another NNO 1985 (3) SA 650 (A)).

d) Divorce

In terms of s 2(3) of the Divorce Act, the →lex fori, as the fictional domicile, governs all issues relating to divorce (→Divorce and personal separation): a court which has jurisdiction in terms of this section in a case where the parties are or either of the parties is not domiciled in the Republic shall determine any issue in accordance with the law which would have been applicable had the parties been domiciled in the area of jurisdiction of the court concerned on the date on which the divorce action was instituted. Since divorce jurisdiction could be based on the domicile or ordinary residence of one of the parties to the divorce action (s 2(1) of the Divorce Act), the fictional domicile could in fact be the domicile or ordinary residence of one of the parties. ‘Any issue’ also includes the grounds of divorce, spousal maintenance and custody of minor children (→Guardianship, custody and parental responsibility).

Section 7 of the Divorce Act, which deals with orders for the division of the parties’ assets and maintenance upon divorce, has given rise to a conflict between the categories of divorce and proprietary consequences of marriage in the past. Sub-section (9) now determines that:

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.

e) Children

The parents’ duty to support their children is best governed by the lex domicilii of the child, as are all issues relating to guardianship (→Guardianship, custody and parental responsibility). Any change in the status of a child – for example, adoption – should be governed by the lex domicilii of the child at the relevant point in time. South Africa has acceded to both the Hague Child Abduction Convention and the Hague Adoption Convention.

5. p. 1Succession

South African law adopts a scission principle in relation to →succession: a distinction is made between movable and immovable property. However, all movable property is treated as a single unit, while immovable property is treated as separate units in accordance with the situs of each property.

a) Intestate succession

Intestate succession occurs where the deceased leaves no valid will, or parts of his or her will are invalid. As a general rule, matters relating to movable property are governed by the lex ultimti domicilii (law of the last domicile) of the deceased and matters relating to immovable property are governed by the lex situs.

b) Testate succession

The lex situs governs matters relating to →immovable property, while matters relating to movable property are governed by the lex domicilii of the testator – the testator’s domicile at the time of making the will in respect of capacity to make a will, and the testator’s last domicile in respect of essential validity (→Domicile, habitual residence and establishment). In relation to capacity to take under a will, the lex domicilii of the beneficiary at the time of the execution of the will seems to be the better rule. The interpretation of a will is normally governed by the lex domicilii of the testator at the time of the making of the will, though the testator may have chosen a different legal system by using technical language from that legal system. The lex situs may apply in respect of immovable property should the testator’s lex domicilii produce a result that is illegal or impossible to give effect to in terms of the lex situs.

South Africa acceded to the Hague Testamentary Dispositions Convention (→Succession) and s 3bis of the Wills Act of 25 February 1953 (Public Act No 7, available at <www.saflii.rog>) implements the provisions of the Convention in respect of formal validity. In terms of s 3bis of the Wills Act, a will made in writing and disposing of movable and/or immovable property will be valid if it complies with the internal law of any of the following leges causae: the lex loci actus; the lex domicilii of the testator at the time of making the will or at the time of death; the law of the habitual residence of the testator at the time of making the will or at the time of death; or the law of the state or territory of which the testator was a citizen at the time of making the will or at the time of death. In respect of immovable property, an additional lex causae is provided – the lex situs.

6. Companies

The Companies Act of 8 April 2008 (Public Act No 71, available at <www.acts.co.za>) contains provisions in respect of the registration of foreign →companies that carry on business or non-profit activities in South Africa (these are ‘external companies’ in terms of the Act) and the maintenance of at least one registered office by such an external company in South Africa. According to s 23(2) of the Companies Act, a foreign company will be regarded as ‘conducting business, or non-profit activities’ within South Africa if it is a party to one or more employment contracts in South Africa, or has acted in such a way over a period of at least six months that ‘would lead a person to reasonably conclude that the company intended to continually engage in business or non-profit activities within the Republic’.

VI. Recognition and enforcement of judgments

The recognition and enforcement of judgments are governed by common law and statute in South Africa (→Recognition and enforcement of judgments (common law)). At common law, a judgment will be recognized (and enforced if required) if the foreign court was vested with international competence in terms of South African law and if the foreign judgment was final. A foreign judgment will be final despite it being subject to appeal or if an appeal is in fact pending in the foreign court (Jones v Krog 1995 (1) SA 677 (A)). A defendant may raise a number of defences against the recognition and enforcement of a foreign judgment, namely that the judgment is contrary to the public policy of the forum, it was obtained fraudulently, it will amount to the enforcement of a foreign penal or revenue law, or that it does not comply with the rules of natural justice. Certain foreign judgments, for example, those directing the payment of multiple or punitive →damages, may be refused recognition or enforcement in terms of the Protection of Businesses Act of 20 June 1978 (Public Act No 99, available at <www.acts.co.za>).

p. 1A number of statutes facilitate the enforcement of foreign judgments. The Enforcement of Foreign Civil Judgments Act of 24 March 1988 (Public Act No 32, available at <www.justice.gov.za>) applies to foreign money judgments given in civil proceedings; s 13 of the Divorce Act contains provisions for the recognition of foreign divorce orders, as well as orders for annulment or judicial separation; and the Reciprocal Enforcement of Maintenance Orders Act of 28 June 1963 (Public Act No 80, available at <www.justice.gov.za>) governs the enforcement of foreign maintenance orders.

VII. Arbitration

South Africa has acceded to the New York Convention – the Recognition and Enforcement of Foreign Arbitral Awards Act of 25 March 1977 (Public Act No 40, available at <www.justice.gov.za>) gives effect to the Convention. In terms of s 2 of the Recognition and Enforcement of Foreign Arbitral Awards Act, a foreign arbitral award may be made an order of the court and enforced as such. A court may refuse to enforce the award on a number of grounds, set out in s 3 of the Recognition and Enforcement of Foreign Arbitral Awards Act, for example: if enforcement would be against South Africa’s public policy; if there was a failure to comply with the rules of natural justice; or if the award exceeds the scope of the reference to arbitration.

Elsabe Schoeman


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