Conflict of Laws .net

FACULTY OF LAW, UNIVERSITY OF JOHANNESBURG - INSTITUTE FOR PRIVATE INTERNATIONAL LAW IN AFRICA

Morning seminar on private international law Thursday 17 April 2008

• An African private international law regime (?) – conclusions and lessons from a decade of case law in thirteen African countries Mr R F Oppong (Lancaster University) foppong2000@yahoo.com
• When could a South African court be expected to apply the CISG? Ms M Wethmar-Lemmer (University of South Africa) wethmm@unisa.ac.za
• Constitutional values and the proprietary consequences of marriage in private international law – Sadiku v Sadiku (unreported) (T) Prof J L Neels (University of Johannesburg) jlneels@uj.ac.za

PIL abstracts of law teachers’ conferenceA special session on Private International Law was held at the conference of the Society for Law Teachers of Southern Africa, held in Pretoria from 21 to 24 January 2008.

The following papers were delivered:
• Classification and liberative prescription in private international law by Jan Neels
• The role of Private International Law in International Trade by Eesa A Fredericks
• Could a South African court be expected to apply the CISG by virtue of article 1(1)(b)? by Marlene Wethmar-Lemmer
• The Strict Approach to Party Autonomy and Choice of Law in E-contracts in South Africa: Does the Approach Render South Africa an Unacceptable Jurisdiction? by Omphemetse Sibanda
• Regional organisations and the jurisdiction of their dispute settlement bodies by Thalia Kruger

(Follow the link at the top for the abstracts and contact details of the authors.)

In Bid Industrial Holdings (Pty) Ltd v Strang and another [2007] SCA 144 (RSA) the Supreme Court of Appeal of South Africa has ruled on 23 November 2007 that arresting a person in order to found or confirm (civil) jurisdiction is unconstitutional. Under South African law, when a person not domiciled in South Africa is sued in a South African court, the court’s jurisdiction had to be confirmed either by attachment of property or arrest of the person, unless the foreign defendant submitted to the jurisdiction of the court. The part of this rule permitting the arrest of a person has now been found to infringe the rights to freedom and security of the person, equality, human dignity, freedom of movement, and possibly also the right to a fair civil trial. It could not be said that the rule provided a justifiable limitation to these fundamental rights. The Court stated that arresting a defendant was a profound infringement and had the effect of coercing him or her to submit to the jurisdiction of the court, to make prompt payment, or to provide security.
The Supreme Court of Appeal abolished the rule and adopted a replacement rule to the effect that where attachment was not possible to found or confirm jurisdiction, the South African courts will have jurisdiction if summons is served on the defendant while he or she is in South Africa and there is sufficient connection between the suit and the area of the court.

The July 2007 ICLQ contains an article by Prof Jan Neels on the revocation of wills in South African private international law with reference to other Commonwealth jurisdictions and the provisions of the Hague Convention on the Conflict of Laws Relating to the Form of Testamentary Dispositions (1961). Specific reference is made to section 3bis (1) (d) of the South African Wills Act 7 of 1953, which is partially based on article 2 of the Convention, and to revocation of wills by marriage and divorce.

Those with online access to the ICLQ can download the article.

A cooperation agreement between the Hague Conference on Private International Law and the Institute for Private International Law in Africa, Faculty of Law, University of Johannesburg, came into effect on 28 August 2007. In terms of the agreement the Johannesburg Institute will act as information centre for the Hague Conference and promote the work of the Conference on the African continent. The Conference will provide all their forthcoming publications, as well as all past publications since 1955, to UJ’s law library in order to assist the Institute with the task.

In the case Phelan v Phelan 2007 (1) SA 483 (C) (judgment date 27 July 2006), the High Court of South Africa (Cape Provincial Division) confirmed the conflict of law rule that the place of marriage celebration determines the validity of the marriage. That law applies not only to formal validity, but also to substantial validity, eg whether the parties had the capacity to conclude a valid marriage etc. In this case, the validity of a marriage concluded in New South Wales, Australia was questioned. The parties were ordinarily resident in Ireland at the time of the marriage. One of the spouses had prior to the marriage obtained a divorce order in the Dominican Republic, while neither he nor his ex-spouse had any connection with that country (no domicile, residence, nationality). (It was impossible to divorce in Ireland at the time.) There was no reciprocity regarding the recognition of decrees between the Dominican Republic and Australia. The High Court came to the conclusion that the divorce could therefore not be recognised in Australia and that no valid marriage had come into existence.

The use of the law of the place of marriage celebration to determine validity has the advantage of applying one set of legal rules to both formal and substantive validity. It also reduces the risk of limping marriage, ie the situation where people are married in one country, but divorced in another.

1) Age of majority now 18 in South African law

The entry into force of certain sections of the Children’s Act No 38 of 2005 on 1 July 2007 has changed the age of majority in South African law. It is now 18, while it was 21 before (Sec 17 of the Act). This is relevant for the many young South Africans living abroad, but still domiciled in South Africa or still South African citizens. If the conflict of law rule of the country in which they live points to domicile or nationality for the determination of personal status, these people above 18 will now have full contractual capacity in accordance with South African law.

2) Standard for “best interests of a child”

The Children’s Act also contains a (lengthy) provision on the standard for “best interests of the child”, a concept frequently used in international protection of children, specifically adoption. Such definition is of particular importance in a region which has a growing number of Aids orphans, and where international adoption might increase in future.

Section 7 of the Act states:

(1) Whenever a provision of this Act requires the best interests of the child standard to be applied, the following factors must be taken into consideration where relevant, namely-
(a) the nature of the personal relationship between-
(i) the child and the parents, or any specific parent; and
(ii) the child and any other care-giver or person relevant in those circumstances;
(b) the attitude of the parents, or any specific parent, towards-
(i) the child; and
(ii) the exercise of parental responsibilities and rights in respect of the child;
(c) the capacity of the parents, or any specific parent, or of any other care-giver or person, to provide for the needs of the child, including emotional and intellectual needs;
(d) the likely effect on the child of any change in the child’s circumstances, including the likely effect on the child of any separation from-
(i) both or either of the parents; or
(ii) any brother or sister or other child, or any other care-giver or person, with whom the child has been living;
(e) the practical difficulty and expense of a child having contact with the parents, or any specific parent, and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with the parents, or any specific parent, on a regular basis;
(f) the need for the child-
(i) to remain in the care of his or her parent, family and extended family; and
(ii) to maintain a connection with his or her family, extended family, culture or tradition;
(g) the child’s-
(i) age, maturity and stage of development;
(ii) gender;
(iii) background; and
(iv) any other relevant characteristics of the child;
(h) the child’s physical and emotional security and his or her intellectual, emotional, social and cultural development;
(i) any disability that a child may have;
(j) any chronic illness from which a child may suffer;
(k) the need for a child to be brought up within a stable family environment and, where this is not possible, in an environment resembling as closely as possible a caring family environment;
(l) the need to protect the child from any physical or psychological harm that may be caused by-
(i) subjecting the child to maltreatment, abuse, neglect, exploitation or degradation or exposing the child to violence or exploitation or other harmful behaviour; or
(ii) exposing the child to maltreatment, abuse, degradation, ill-treatment, violence or harmful behaviour towards another person;
(m) any family violence involving the child or a family member of the child; and
(n) which action or decision would avoid or minimise further legal or administrative proceedings in relation to the child.
(2) In this section ‘parent’ includes any person who has parental responsibilities and rights in respect of a child.

South African academics welcome the outcome of the decision of the Supreme Court of Appeal in Society of Lloyd’s v Price; Society of Lloyd’s v Lee 2006 5 SA 393 (SCA) (which may be downloaded from www.supremecourtofappeal.gov.za). See Forsyth “’Mind the gap’ part 2: The South African Supreme Court of Appeal and characterisation” 2006 Journal of Private International Law 425-431 and Neels “Tweevoudige leemte: Bevrydende verjaring en die internasionale privaatreg” 2007 Tydskrif vir die Suid-Afrikaanse Reg [TSAR] / Journal of South African Law 178-188.

The case dealt with the scenario that the limitation rules of the lex causae (English law) were of a procedural nature according to both the lex causae and the lex fori, the prescription rules of the lex fori being of a substantive nature (according to the lex fori). The court applied the rules of the lex causae. The court a quo, the Transvaal High Court, applied the rules of the lex fori: see Society of Lloyd’s v Price; Society of Lloyd’s v Lee 2005 3 SA 549 (T). In a similar case, the Cape High Court applied the lex causae: Society of Lloyd’s v Romahn 2006 4 SA 23 (C).

Forsyth welcomes the court’s adoption of Falconbridge’s via media characterisation technique but Neels is in favour of a simple rule that liberative prescription is a substantive issue governed by the lex causae, irrespective of how the lex causae classifies its own liberative prescription or limitation rules (including such characterisation in terms of the domestic lex causae and such classification in terms of the private international law of the lex causae).

In a recent decision, Richman v Ben-Tovim 2007 2 SA 283 (SCA); [2007] 2 All SA 234 (SCA), the Supreme Court of Appeal of South Africa decided that the mere physical presence of the defendant in the foreign jurisdiction at the time process was served is a sufficient basis for international jurisdiction in the context of the recognition and enforcement of foreign judgements sounding in money. (The judgement under neutral citation [2006] SCA 148 (RSA) may be downloaded from www.supremecourtofappeal.gov.za. The decision of the court a quo was reported as Richman v Ben-Tovim 2006 2 SA 591 (C) (per Van Zyl J).)

There was some uncertainty in this regard as in Purser v Sales; Purser v Sales 2001 3 SA 445 (SCA) it was stated by the same court that South African private international law only accepted domicile or residence within the foreign jurisdiction and submission to the jurisdiction of the foreign court as grounds for international jurisdiction in this context. But in the Richman case, it was held: “There are compelling reasons why…, in this modern age, traditional grounds of international competence should be extended, within reason, to cater for itinerant international businessmen” (par 9; per Zulman JA). “[P]ublic policy would require the recognition by a South African court of a lawful judgment given by default by an English court where personal service in England had taken place” (par 12; per Zulman JA). Reading the Purser and Richman decisions together, it may be stated that the following grounds for international jurisdiction in respect of judgements sounding in money are recognised in South African private international law today: (1) domicile, residence or physical presence of the defendant within the foreign jurisdiction at the commencement of the proceedings; and (2) submission to the jurisdiction of the foreign court.