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LJU4804 October/November 2024. All questions answered with references. QUESTION 1
Instructions: Read the set of facts below and answer the questions that follow. John and Mary Smith got married in Hawaii in December 1983. At that time, they were British citizens and Mary was domiciled in London, while John was working in New York on a two-year fixed term contract with the possibility of further renewal. However, just before the marriage, John was offered a very senior permanent position with a South African retail brand and he had entered into negotiations with the company at that stage.
They relocated to Johannesburg, South Africa shortly after getting married and established a domicile there. Two children were born from the marriage and Mary stayed at home to look after them full-time.
In 2022, Mary filed for divorce in the South Gauteng High Court. She also applied for a redistribution of assets.
1.1 Which legal system applies to the formal validity of John and Mary’s marriage in terms of the South African rules of private international law? (2)
1.2 How would the South African court determine where John was domiciled at the time of entering into the marriage? Note: The court must determine where he was domiciled in December 1983. (3)
1.3 Mary’s legal counsel would like to argue that the proprietary consequences of the parties’ marriage are governed by South African law as the intended matrimonial domicile when the parties got married. Advise her legal team on their prospects of success considering relevant case law. Your answer must include a properly referenced, full case discussion of Sadiku v Sadiku 30498/06 (unreported) as well as the relevant points in this regard from the prescribed article by Neels and Wethmar-Lemmer 2008 TSAR 587 – 596. (15)
1.4 Assume for purposes of this question that John was found to be domiciled in England at the time of entering into the marriage. Would Mary be successful in obtaining a redistribution order in terms of s 7(3) of the Divorce Act 70 of 1979? Discuss the different views with reference to case law in this regard. (10)
1.5 Mary executed a will in Hawaii in which she appointed John as her sole heir. At the time of execution of the will, she was domiciled in England and a British citizen. She retained her British citizenship throughout her life. After her divorce from John was finalised, Mary executed a second will in France that expressly revoked her first will and appointed her two children as her heirs. At the time of its execution, she was domiciled in South Africa. Mary’s first will was formally valid in terms of Hawaiian law (only). Mary’s second will was formally invalid in terms of all its possible testing systems, but formally valid in terms of Hawaiian law. In terms of the rules of intestate succession of Hawaii, France and South Africa, her two children would be her intestate heirs. Mary died from a heart attack in May 2023. Who would inherit her estate? Note: You have to apply the relevant provision of the Wills Act 7 of 1953. (5)
1.6 John gave Mary a BMW motor as a gift in February 1984. During the divorce proceedings, the court had to determine the validity of the donation. Assume that, in terms of English law, donations between spouses are regarded as a personal consequence of marriage, but that under South African law, it falls under proprietary consequences of marriage.
1.6.1 Under which legal category (or categories) will the two potentially applicable legal rules be placed if lex fori classification is followed? (2)
1.6.2 Under which legal category (or categories) will the two potentially applicable legal rules be placed if lex causae classification is followed? Explain your answer. (3)
[5]
[40]
QUESTION 2
A French international wine trading company, VIN SARL, is considering concluding a contract with a South African co-operative winery for the purchase of a large consignment of South African wines.
Advise the CEO of VIN on the following:
2.1 If an arbitration clause is inserted into the contract electing all disputes arising out of same to be settled by means of arbitration administered by the London Court of International Arbitration (LCIA), would VIN have a reasonable chance of having the award being recognised and enforced in South Africa? (Note: Discuss the relevant provisions of the International Arbitration Act 15 of 2017 (IAA) and the 1958 New York Convention as incorporated.) (8)
2.2 If South Africa is elected as the seat of arbitration, is there enabling legislation in place that provides an effective procedural framework for international arbitrations? (Note: discuss the most important procedural provisions in the IAA and the UNCITRAL Model Law as incorporated.) (12)
[20]
QUESTION 3
Instructions: Read the set of facts and answer the questions that follow.
Aqua (Pty) Ltd is a South African company with its principal place of business in Durban. Wasser GmbH is a company incorporated in terms of the laws of Germany with its principal place of business in Hamburg. In January 2023, Aqua purchased a large consignment of filtered water from Wasser. Payment had to take place by means of a confirmed letter of credit issued by RMB (Durban) and confirmed by Hamburg Commercial Bank AG. The goods were to be shipped FOB (Hamburg).
The contract included a choice of law clause indicating German law (a CISG contracting state) as the proper law of the contract.
3.1 Explain the difference between a confirmed and unconfirmed letter of credit. (2)
3.2 Describe and contrast the FOB and CIF INCOTERMS. Note: Your discussion must be based on your prescribed reading material by Van Niekerk and Schulze. (8)
3.3 May contractual parties opt out of the application of the CISG under circumstances where it would apply to their contract? Note: refer to the relevant provision of the CISG. (2)
3.4 When non-conformity of goods is alleged by the buyer, what are the duties of the buyer and seller? What remedies are available to the buyer? Note: Discuss and apply the relevant provisions of the CISG. (8)
[20]
TOTAL: [80]
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