IPR0014/PIL41A0

FACULTY : Law

DEPARTMENT : Private Law

CAMPUS : APK

MODULE : IPR0014 / PIL41A0

PRIVATE INTERNATIONAL LAW

SEMESTER : First semester

EXAM : Main Examination Memorandum

DATE : 13 June 2020 SESSION : 16:30 – 19:30

ASSESSOR(S) : Ms C Johannes

Prof M Wethmar-
MODERATOR :Lemmer

DURATION : 3 hours MARKS : 100

NUMBER OF PAGES: 8 PAGES (INCLUDING THIS PAGE)

INSTRUCTIONS:
1. Your answers must be in ONE TYPED DOCUMENT, or one scanned document (if you have
written your answers) in Word of Pdf format ONLY.
2. Your answer sheets MUST have your INITIALS, SURNAME & STUDENT NUMBER on top
of EACH PAGE.
3. Ensure that if your answers are written that you write neatly and legibly.
4. Read the scenarios carefully and answer the questions that follow.

Please note that this memorandum does not contain model answers but only provides an
indication/guide as to how this particular examination was marked. Students must rely on the
information provided in lectures and in the lecture material, prescribed reading material and must
follow the module outcomes when preparing for future examinations.
IPR0014/PIL41A0

5. You are reminded that all relevant rules and policies of the University and the Faculty
apply to this assessment. This means, for example, that you cannot cut-and-paste material
other than your own work as answers for this assessment.
6. By undertaking this assessment, you will be deemed to have made the following declaration:
“I certify that my submitted answers are entirely my own work and that I have neither
given nor received any unauthorized assistance in this assessment”.
7. Do not make use of the write submission function on blackboard to submit your
examination.
8. You must follow all instructions on the examination paper as well as those provided to you
on blackboard.
9. You must submit before 19:30pm, Saturday, 13 May 2020. Late submissions will not be
accepted.

QUESTION 1

In 2012, Lindiwe (a female, Ethiopian national at all relevant times) met Mpho (a male, Angolan
national at all relevant times) while on holiday in Mozambique. A year later in 2013, Lindiwe and
Mpho married in Zanzibar (Tanzania). Lindiwe and Mpho married in community of property,
excluding the accrual system. At the time when their marriage was concluded Lindiwe was domiciled
in Ghana and habitually resident in Namibia, while Mpho was domiciled in Madagascar and
habitually resident in Namibia. In 2014, Lindiwe donated a painting to Mpho which she inherited
from her grandfather. Mpho is a professional artist and Lindiwe is a school teacher.

Later in 2014, Mpho drafted his first will after a minor car accident while travelling to Botswana for
an oil painting workshop. As soon as Mpho reached his hotel room in Botswana he drafted his first
will. In his first will Mpho instituted Lindiwe as his sole heir.

In 2015, Mpho received a job offer in South Africa to head an art gallery in Maboneng,
Johannesburg. Later that year Mpho and Lindiwe moved to South Africa and they purchased a home
in Bryanston, Johannesburg. In 2016, Lindiwe and Mpho had their first and only child, a little girl
whom they named Kaya. Mpho and Lindiwe lived happily in South Africa until early 2017, when
Lindiwe grew tired of Mpho dedicating all of his time to work and spending very little time with her
and Kaya. This caused them to separate. In March 2017, the parties obtained a divorce in the
Gauteng Local Division of the High Court of South Africa, Johannesburg.

Following the divorce in January 2018, Mpho travelled to Cairo (Egypt) for an Egyptian art exhibition.
While in Egypt Mpho decided to draft his second will, which expressly revokes his first will. In his
second will Mpho elected his best friend Steven as his sole heir because Mpho and Steven entered
into a pactum successorium (an agreement for Steven to inherit Mpho’s property) 3 months prior.

Please note that this memorandum does not contain model answers but only provides an
indication/guide as to how this particular examination was marked. Students must rely on the
information provided in lectures and in the lecture material, prescribed reading material and must
follow the module outcomes when preparing for future examinations.
IPR0014/PIL41A0

In June 2019, Mpho moved to Mauritius, where he purchased a home on the beachfront. Every
morning before breakfast Mpho would go for a swim in the ocean. On the morning of 15 March
2020, while swimming Mpho got caught in a rip current and drowned.

At the time of his death Mpho left behind immovable property located in Mauritius and money in a
bank account in Madagascar. According to the law of Madagascar Lucinda Mpho’s sister is his sole
intestate heir. According to the law of South Africa Kaya is Mpho’s sole intestate heir. According to
the law of Mauritius Mpho’s parents Thabisa and Mandla are his sole intestate heirs.

1.1 Determine the legal system which would be applied to the inherent validity of Mpho and
Lindiwe’s marriage. [1]
✓ LLC which students must identify from the set of facts.

1.2 Refer to question 1.1 above. How could renvoi be used by the court in this instance. [2]

✓ Renvoi can be used to render a marriage that is invalid according to the LLC valid;
✓ can be used to bring about a fair result.

1.3 The legal system of which country determines Kaya’s domicile, and where would Kaya be
domiciled according to that legal system? [3]
✓ LF determines the content of the concept of domicile.
✓ Place of closest connection (presumption it is the parents’ home) students must identify
the place of closest connection from the set of facts.
1.4 The legal system of which country would govern Lindiwe’s domicile immediately after her
marriage to Mpho? [2]

✓ She retains her domicile which students must identify.

✓ Or she can acquire a domicile of choice.

1.5 With reference to Stoll & Visser’s proposal, discuss Lindiwe’s prospects of success of claiming in
terms of s7 (9) of the Divorce Act 70 of 1979. [3]

✓ Marks were awarded for any of the following points;

✓ Namibia = HR at time of marriage.
✓ therefore, Namibia is the LDM, governs a claim in terms of s7(9)
✓ Namibia as her LDM will determine whether she has a claim for redistribution.
✓ Students must discuss the powers of the SA court to grant redistribution ito of the law of
the LDM.

1.6 If Lindiwe instituted a claim for maintenance against Mpho simultaneously with a claim in terms
of s7 (9) Divorce Act 70 of 1979, which legal system would govern her claim for maintenance.

[3]
✓ Ordinarily maintenance is governed by the LF, but if ;

Please note that this memorandum does not contain model answers but only provides an
indication/guide as to how this particular examination was marked. Students must rely on the
information provided in lectures and in the lecture material, prescribed reading material and must
follow the module outcomes when preparing for future examinations.
IPR0014/PIL41A0

✓ maintenance closely linked to redistribution governed by the LDM.

✓ Bell, Hassan, Heaton & Schoeman.

1.7 The legal system of which country would determine whether Lindiwe is entitled to claim back
the painting she donated to Mpho at the time of divorce? [1]

✓ Mpho’s LD at the time of making the donation which students must identify from the set
of facts.

1.8 Refer to question 1.7 above. Discuss the influence the doctrine of renvoi could play in
determining the legal system applicable to Lindiwe’s claim for the donation of the painting. [3]
✓ The doctrine of renvoi cannot be applied.
✓ One of the statutory exclusions are present. Students must identify the correct statutory
exclusion applicable in respect of a claim for the donation made by Lindiwe at the time of
divorce. [2]

1.9 Identify which conflicts methodology was employed in your answer to question 1.7 and explain
why? [3]
✓ Von Savigny / multilateral /bilateral rules.
✓ Looked for a connecting factor (nexus);
✓ to find the applicable law (legal system).

1.10 Assume that Mpho and Lindiwe obtained a divorce in 2015, before a Namibian court and
thereafter moved to South Africa separately. Would the divorce order obtained in a Namibian
court be recognised and enforced by a South African court? [2]

✓ International jurisdiction is present;

✓ both parties HR in Namibia.
✓ Yes, it will most likely be recognised.

1.11 Assume that both will 1 and will 2 are formally valid in terms of the law of Madagascar only.
Who would inherit the money in Mpho’s bank account in Madagascar? [4]

✓ Will 2 is invalid in terms of the legal systems applicable to its formal validity.
✓ The revocation is valid (can be saved) because will 2 is valid in terms of a legal system
applicable to the formal validity of will 1 in terms of which will 1 is also valid. / Both will 1
& will 2 are valid in terms of a legal system applicable to the formal validity of will 1
✓ Remainder of will 2 invalid & will 1 revoked = Mpho dies intestate.
✓ LUD applicable to movables = According to SA law Kaya inherits.

1.12 Assume that will 1 is formally valid in terms of the law of Egypt only and the second will is
formally valid in terms of the law of Botswana only. Who would inherit Mpho’s immovable
property? [3]

Please note that this memorandum does not contain model answers but only provides an
indication/guide as to how this particular examination was marked. Students must rely on the
information provided in lectures and in the lecture material, prescribed reading material and must
follow the module outcomes when preparing for future examinations.
IPR0014/PIL41A0

✓ Will 2 is invalid in terms of legal systems applicable to its formal validity & revocation
clause cannot be saved.
✓ Will 1 is invalid in terms of legal systems applicable to its formal validity. Since both wills
invalid = Mpho dies intestate.
✓ LS applicable to immovables = According to Thabisa & Mandla inherit.

1.13 Assume that both will 1 and will 2 are formally valid in terms of the law of Mauritius only. Who
would inherit Mpho’s immovable property? [2]

✓ Will 2 is valid according to the lex situs;

✓ Steven would therefore inherit Mpho’s immovable property.

1.14 Assume that both will 1 and will 2 are formally valid in terms of the law of Egypt only. Identify
who would inherit Mpho’s property and whether such beneficiary(ies) would be entitled to
inherit Mpho’s property in light of public policy considerations? [4]

✓ Will 2 is valid according to one of the legal systems applicable to its formal validity,
namely Egypt (LLA);
✓ Therefore, Steven would inherit.
✓ Pactum successorium is against internal public policy, but not external public policy.
✓ Since not flagrantly against public policy Steven may still be permitted/ able to inherit
Mpho’s property.

1.15 For the next questions assume that in Mpho’s second will he did not elect a beneficiary to
inherit his estate but instead appointed his best friend Steven (a Namibian national) to
nominate a beneficiary. In Steven’s will he nominates his son Luyanda as the beneficiary to
inherit Mpho’s property. Steven drafted his will while visiting Mpho in South Africa, at the time
of drafting his will he was domiciled in Algeria and habitually resident in Mauritius.

1.15.1 Assume that Steven’s will is formally invalid in terms of all of the legal systems that apply to
its formal validity but is formally valid in terms of the law of Angola. Would Luyanda inherit
Mpho’s property? [3]

✓ Steven’s will is invalid, but the POA can be saved if it is valid in terms of the LLA of Will
1 (Mpho’s 2nd will).
✓ Angola is not the LLA of Mpho’s second will (Will 1) therefore the POA is invalid.
✓ Since POA = invalid Luyanda was not validly appointed as a beneficiary and cannot
inherit Mpho’s property.

1.15.2 Assume that Steven’s will is formally invalid in terms of all of the legal systems that apply to
its formal validity, but formally valid in terms of the law of Egypt. Would Luyanda inherit
Mpho’s property? [2]

✓ Steven’s will is invalid, but the POA can be saved because it is valid in terms of the LLA
of Will 1 (Mpho’s 2nd will) namely Egypt.
Please note that this memorandum does not contain model answers but only provides an
indication/guide as to how this particular examination was marked. Students must rely on the
information provided in lectures and in the lecture material, prescribed reading material and must
follow the module outcomes when preparing for future examinations.
IPR0014/PIL41A0

✓ Therefore, Luyanda is validly appointed as a beneficiary & can inherit Mpho’s

property.

1.16 Assume that following her divorce from Mpho, Lindiwe wishes to adopt a little boy named
Kenzo who is from Japan. Kenzo’s parents do not have the financial means to care for him.
During the adoption process Lindiwe offers Kenzo’s biological parents an all-expense paid
holiday to Kruger National Park (South Africa) and buys them clothing and groceries. Lindiwe
prepares a room for Kenzo at her home in South Africa & arranges for him to go to a dual
language Japanese and English school to ease his adjustment in South Africa. Discuss the
prospects of Lindiwe successfully adopting Kenzo. [3]

✓ Students must identify that if the child is adopted from a member state of the Hague
Convention on Intercountry Adoption, then the requirements of the Convention will apply
because SA is a member state of the Convention.
✓ Students must identify the requirements in the convention and correctly apply the
requirements to the factual scenario. Where students list the requirements without
application only half a mark is awarded.
✓ The holiday, clothing & groceries can be seen as compensation which affects free consent –
may affect successful adoption.
✓ Although she may be able to provide a suitable home & made provision for Kenzo, all the
requirements must be satisfied.

SUB -TOTAL: [44]

QUESTION 2

In December 2019, “Quality Leather” (seller) a company with its usual place of business and
incorporated in Paris (France) entered into a sales agreement with “Bags of Style” (buyer) a
company with its usual place of business and incorporated in Johannesburg, South Africa. According
to the agreement Quality Leather sold 1000 leather handbags to Bags of Style, to be sold at Bags of
Style’s new store in Milan (Italy). The agreement between the parties was concluded in Milan (Italy)
at a leather goods exhibition. The bags were manufactured and stored at Quality Leather’s
warehouse in Paris, France. According to the contract delivery had to take place in Milan (Italy),
while payment had to be made to one of Quality Leather’s bank accounts in Rome (Italy). Assume
that a dispute between Bags of Style (plaintiff) and Quality Leather (defendant) arises in respect of
short delivery, because Quality Leather only delivered 800 leather handbags. The parties did not
choose a legal system to govern their agreement. Assume that Bags of Style institutes proceedings
against Quality Leather in the Gauteng Local Division of the High Court of South Africa,
Johannesburg.

2.1 Identify the legal system that would most likely be applicable to the contractual dispute
between Bags of Style (plaintiff) and Quality Leather (defendant) in respect of the breach of
contract (short delivery). [4]

Please note that this memorandum does not contain model answers but only provides an
indication/guide as to how this particular examination was marked. Students must rely on the
information provided in lectures and in the lecture material, prescribed reading material and must
follow the module outcomes when preparing for future examinations.
IPR0014/PIL41A0

✓ No agreement.
✓ LLS most important factor / place of performance is most important.
✓ Italy place of delivery & place of payment.
✓ law of Italy applies.

2.2 Refer to your answer in question 2.1. The legal system of which country would govern following:

2.2.1 the onus of proof; [1]

✓ Italy or LC.
2.2.2 whether a counterclaim by the defendant may be entertained? [1]
✓ South Africa or LF.

2.3 To which aspects of the contract (not the contractual dispute in question 2.1) could the law of
Italy apply? In your answer you must explain why. [3]

✓ Italy is the lex loci contractus so it can be applicable to;

✓ formal validity (Ex Parte Spinazze);
✓ contractual capacity (Kent v Salmon).
✓ As the proper law of the contract, it could also be applied to contractual disputes in respect
of contractual capacity (Tesoriero v Bhyjo Investments Share Block (Pty) Ltd).

2.4 Assume that Quality Leather and Bags of Style concluded the contract via email. Bags of Style
communicated its offer to purchase the bags by way of email and Quality Leather accepted the
offer by way of email. Quality Leather communicated its acceptance in an email sent to the
Director of Bags of Style, Isabella Russo. The email acceptance was sent to Isabella Russo while
she was on holiday in Mykonos, Greece. Assume that a dispute between Bags of Style (plaintiff)
and Quality Leather (defendant) still arises in respect of short delivery. Which legal system
would be applicable to the contractual dispute? [3]

✓ LLC is applicable, place where contract concluded;

✓ LLC deemed to be the place of habitual residence / ordinary (regular) place of business;
✓ Students must be able to identify the LLC from the set of facts.

2.5 Refer to your answer in question 2.1. How would your answer differ if Bags of Style instituted a
claim for unjustified enrichment against Quality Leather instead of a claim for breach of
contract. [1]
✓ Italy (the proper law of the contract applies to unjustified enrichment in respect of a
contract).

2.6 Assume that Bags of Style obtained judgement in its favour in an Italian court and not a South
African court. Assume that the Italian court awarded punitive damages and specific
performance. During the proceedings Quality Leather entered an appearance only to contest the
jurisdiction of the Italian court. Following the decision, Quality Leather appealed the Italian

Please note that this memorandum does not contain model answers but only provides an
indication/guide as to how this particular examination was marked. Students must rely on the
information provided in lectures and in the lecture material, prescribed reading material and must
follow the module outcomes when preparing for future examinations.
IPR0014/PIL41A0

court’s judgment and the appeal is pending. Identify whether the South African court would
recognise and enforce the Italian court’s judgement? [8]

✓ Students must identify and apply the requirements applicable to the recognition &
enforcement of foreign judgements in South Africa – international jurisdiction, final &
conclusive judgment, not against public policy, the judgment must not involve the
enforcement of a penal (punitive) or revenue (related to tax of income) law of the foreign
state, the judgment must not be obtained by fraudulent means, the judgment must be in
line with (must not be precluded by) the Protection of Businesses Act 99 of 1978.
✓ Each requirement must be applied, and students must identify whether the requirement
has been met. Only half a mark is awarded for identifying the requirement without
application.
✓ Applicable case law must be identified.
✓ Students must conclude that the judgment will most likely not be recognised & enforced in
South Africa because not all the requirements appear to be met.

½ mark awarded for listing a requirement only without application.

2.6.1 On which party rests the onus to prove that the Italian court had international
jurisdiction? [1]
✓ Bags of Style.

2.7 Assume that Quality Leather sold raw leather to Bags of Style in order for them to manufacture
their own leather bags. If Bags of Style obtained judgement in its favour in an Italian court and
not a South African court could the judgement be recognised and enforced in a South African
court? [4]
✓ Protection of Businesses Act would be applicable;
✓ Permission of the minister required in order for the judgement to be recognised;
✓ Italy is not a designated country, to date only Namibia has been designated;
✓ therefore, the judgement will most likely not be recognised and enforced in SA.

2.8 The legal system of which country would govern the transfer of ownership of the bags from
Quality Leather to Bags of Style? [2]

✓ Lex situs at the time of transfer which students must identify from the set of facts.
✓ Lex situs as it changes which students must identify from the set of facts.
SUB -TOTAL: [28]
QUESTION 3

In 2020, Jason (a Nigerian national) died leaving behind money in a bank account in South Africa.
Jason was domiciled and habitually resident in Namibia all his life, until 2017 when he became
domiciled and habitually resident in Tanzania. He remained domiciled in Tanzania until he passed
away. According to South African private international law the lex ultimi domicilii governs the
intestate succession of Jason’s money (movable property), making the law of Tanzania applicable.
Please note that this memorandum does not contain model answers but only provides an
indication/guide as to how this particular examination was marked. Students must rely on the
information provided in lectures and in the lecture material, prescribed reading material and must
follow the module outcomes when preparing for future examinations.
IPR0014/PIL41A0

According to the law of Tanzania a surviving spouse is regarded as the sole intestate heir. If there is
not a surviving spouse, the deceased’s children (if any) are regarded as the intestate heirs. Jason has
two known children, a daughter named Mia and a son named Liam whom he had with his childhood
sweetheart Melanie. A woman named Elna claims that she is entitled to the money in Jason’s bank
account, because of a marriage ceremony she concluded with Jason in Algeria.

The internal law of South Africa regards the marriage between Jason and Elna as valid. The internal
law of Algeria regards the marriage between Jason and Elna as valid. According to the private
international law of Algeria, the lex domicilii of the husband at the time of the marriage, Namibia,
determines the validity of the marriage. According to the internal law of Namibia the marriage
between Jason and Elna is not regarded as valid.

The internal law of Tanzania regards the marriage between Jason and Elna as valid. According to the
private international law of Tanzania, the lex patriae of the husband at the time of the marriage,
Nigeria, determines the validity of a marriage. According to the internal law of Nigeria, the marriage
between Elna and Jason is not regarded as valid.

3.1 Identify and apply the approach followed in the decision of Phelan v Phelan 2007 1 SA 483 (C) to
answer the incidental question. Which legal system would be applicable to the incidental
question? [2]
✓ PIL of the lex causae which students must identify from the set of facts.

3.2 Apply the approach followed in the decision of Phelan v Phelan 2007 1 SA 483 (C) to answer the
incidental question. Who will inherit the money in Jason’s bank account in South Africa? [1]
✓ Mia and Liam will inherit.

3.3 Identify the approach, which according to South African conflicts authors, should have governed
the incidental question in Phelan v Phelan 2007 1 SA 483 (C). [1]
✓ lex fori / South Africa / policy considerations.

3.3.1 Which legal system would be applicable to the incidental question if the approach
identified in question 3.3 is followed? [1]

✓ lex fori/ PIL of lex fori;

3.3.2 Who will inherit the money in Jason’s bank account in South Africa if the approach
identified in question 3.3 is followed? [1]

✓ Elna will inherit.

3.4 Identify the type of incidental question present in the set of facts, does this type of incidental
question differ from the incidental question in Dhansay v Davids 1991 4 SA 200 (C) and how? [3]

✓ Incidental question properly so-called, the main question refers to foreign law.
✓ It differs from Dhansay v Davids;
Please note that this memorandum does not contain model answers but only provides an
indication/guide as to how this particular examination was marked. Students must rely on the
information provided in lectures and in the lecture material, prescribed reading material and must
follow the module outcomes when preparing for future examinations.
IPR0014/PIL41A0

✓ where the main question refers to the lex fori (not properly so-called).

3.5 What type of renvoi is the reference from South African private international law to Algerian
Law, and the onward reference from Algerian private international law to Namibian law. [1]

✓ Transmission.

3.6 Refer to the reference in question 3.5. Would the marriage between Elna and Jason be regarded
as valid if the no renvoi approach were applied? [1]

✓ Yes.

3.7 Refer to the reference in question 3.5. Who would inherit Jason’s property if the partial renvoi
approach were applied? [1]

✓ Mia and Liam.

3.8 Refer to the reference in question 3.5. Would the marriage between Elna and Jason be regarded
as valid if the partial renvoi approach were applied? [1]

✓ No.

3.9 Refer to the reference in question 3.5. Would Elna inherit Jason’s property if the total renvoi
approach were applied? [1]

✓ No or unworkable.
SUB -TOTAL: [14]
QUESTION 4

In 2013, Chidi (a male Zambian national) and Hannah (a female Kenyan national) married in the
Seychelles. They did not conclude an ante-nuptial contract. At the time that their marriage was
concluded Chidi and Hannah were domiciled in Mozambique. The law of Mozambique therefore
governs the proprietary consequences of their marriage according to South African private
international law. In terms of the law of Mozambique, marriage automatically revokes one’s
previous wills. This rule is classified as a personal consequence of marriage in the law of
Mozambique, governed by the lex domicilli of the testator at the time of the marriage.

In 2018, 5 years after the wedding, Chidi and Hannah moved to South Africa, where Chidi also
acquired domicile and they both became habitually resident. That same year Hannah was diagnosed
with terminal cancer. The following year in November 2019, Hannah passed away. Hannah left
behind money in a bank account in South Africa. She left behind one will, instituting her mother
Marina as her sole heir. The will was executed before she married Chidi. Chidi is her (Hannah’s) sole
intestate heir according to the law of South Africa and Mozambique. Marina and Chidi are still alive.
Marina is domiciled in Kenya and Chidi remains domiciled in South Africa.

Please note that this memorandum does not contain model answers but only provides an
indication/guide as to how this particular examination was marked. Students must rely on the
information provided in lectures and in the lecture material, prescribed reading material and must
follow the module outcomes when preparing for future examinations.
IPR0014/PIL41A0

According to South African Private International Law the ex lege revocation of a will is regarded as a
proprietary consequence of marriage. The ex lege revocation of a will by marriage is not part of the
internal (domestic law) of South Africa.

4.1 The legal system of which country must be applied to determine whether Hannah’s will was
revoked by her marriage to Chidi if classification lege fori were applied and why? [2]

✓ If classification lex fori applies, then the rule is regarded as proprietary consequence of the
marriage governed by the LDM.
✓ Students must identify the LDM from the set of facts and indicate that according to the
LDM Hannah’s will was revoked by her marriage to Chidi.

4.2 The legal system of which country must be applied to determine whether Hannah’s will was
revoked by her marriage to Chidi if classification lege causae were applied and why? [3]

✓ If the Mozambican rule is classified according to the lex causae then it is a personal
consequence of marriage governed by the LD at the time of the marriage;
✓ Students must identify the LD at the time of the marriage from the set of facts.
✓ Students must indicate that according to the LD at the time of the marriage Hannah’s will was
revoked by her marriage to Chidi.

4.3 Who would inherit Hannah’s property if classification lege fori were applied? [1]
✓ Chidi.

4.4 Assume that the parties were domiciled in South Africa at the time of the wedding;

4.4.1 The legal system of which country must be applied to determine whether Hannah’s will
was revoked by her marriage to Chidi if classification lege causae were applied? [1]
✓ South Africa.

4.4.2 Who inherits Hannah’s assets if classification lege fori were applied? [1]
✓ Marina.

SUB -TOTAL: [8]

QUESTION 5

Husband and wife, Lwazi and Lorraine (who are domiciled and habitually resident in South Africa),
drove from South Africa as passengers in their friend Anele’s car to a holiday resort at the Victoria
Falls in Zimbabwe. Anele is also domiciled and habitually resident in South Africa. While driving to
their holiday destination in Zimbabwe, Anele picked up speed while overtaking another car causing a
car accident in Botswana, close to the Zimbabwean border. Lorraine is injured in the car accident
and is transported to the nearest hospital, Bulawayo Central Hospital in Zimbabwe, where she is

Please note that this memorandum does not contain model answers but only provides an
indication/guide as to how this particular examination was marked. Students must rely on the
information provided in lectures and in the lecture material, prescribed reading material and must
follow the module outcomes when preparing for future examinations.
IPR0014/PIL41A0

treated for her injuries. Lorraine spends a week in hospital, with Lwazi by her side. After Lorraine is
released from hospital her and Lwazi travel home to South Africa by bus. Lorraine then institutes a
delictual claim against Anele in South Africa.

5.1 Predict which legal system would be applied to Lorraine’s delictual claim by a South African
Court with jurisdiction. [2]
✓ LLD – place where the direct consequences of the delict are felt;
✓ Most likely Zimbabwe where damage if suffered (hospital expenses are incurred).

5.2 Discuss how your answer would differ if a South African Court with jurisdiction applied the law
of Canada or New York. [4]
✓ Canada – LLD, place where accident occurred (Tolofson v Jensen);
✓ Botswana.
✓ New York – proper law of the contract which is most likely common habitual residence of
the parties;
✓ South Africa.

SUB -TOTAL: [6]

TOTAL: 100
**************************

Please note that this memorandum does not contain model answers but only provides an
indication/guide as to how this particular examination was marked. Students must rely on the
information provided in lectures and in the lecture material, prescribed reading material and must
follow the module outcomes when preparing for future examinations.