PSR 110

CHAPTER 3:
DOMICILE
LECTURE 1
Domicile as the connecting factor:
 In SA:
 Domicile determines a person’s private law status
 Nationality determines a person’s public law status
o Other countries: persons private law is determined by the law of the country
in which legal subject is a national citizen
 Lex loci domicilii determines whether a person has the capacities of a minor (under
the age of 18) or major(over the age of 28), married or unmarried, parent or child,
and determines whether a person is sane or not.
 The law of the country determines the private law status of a legal subject
 Legal question: whether the person has been domiciled in that country
o Domicile is then the connecting factor between a person and a legal system
 SA LAW: persons private law status is determined by the law of place/ country
where a person is domiciled
o Known as a person’s lex loci domicilii
 Each country has their own legal system therefore determining a person’s private
status becomes difficult therefore we run the golden rule:
o persons private law status is determined by the law of the place/ country
where the person is domiciled
 exceptions to the SA rule regarding the domicile of a person
1. when a juristic act involves immoveable property (land/ house) a
person’s status (inc capacity to act) is determined by the law of the
place where the immoveable property Is situated
a. known as lex loci rei sitae
2. when persons capacity to act concerns his capacity to conclude a
commercial contract (purchase items), the status is determined by
the law of the place where the contract is concluded
a. known as lex loci contractus

 Golden rules regarding lex loci domicilii:

1. No one can be without a domicile: domicile is obtained at birth and is
maintained unless changed by choice or by law
 2. No person can have more than one domicile at a time

Domicile definition:

 Domicile: (Mason v Mason) place which is considered by law to be a person’s home

 Domicile: (Textbook) place where, in terms of the law, a person is deemed to reside
for the purpose of exercising his or her rights and duties
o Domicile refers to a person’s legal home

Relevance of Domicile:

 Legal subjects domicile plays an important role in private law

Marital affairs: determining Matrimonial property system of a marriage

 Rule: determined by the law of the place where the man is domiciled at the time of
marriage
o Rule does not change
o Even if man changes his domicile
o Frankel’s Estate v The Master: rule must apply even if the parties had
already agreed at the time of marriage to settle elsewhere
 Problem with this rule:
I. Only heterosexual parties to a civil union are accommodated. Does
not accommodate same-sex spouses. This unfairly discriminates
against same-sex spouses on the grounds of their sexual orientation
II. Case of heterosexual spouses, the rule unfairly discriminates against
woman on the grounds of sex. Rule should be declared
unconstitutional and the; legislature must enact an acceptable rule.

Law of succession:

 The law in which moveable property (lex loci rei sitae), Domicile determines:

Intestate succession (lex loci domicilii)

How a person’s intestate estate should be divided:

 Rule: the law of the place where the deceased was domiciled at time of death
determines how his intestate estate should be divided
Testate succession (lex loci domicilii)

Whether a person has capacity to draft (execute) a will or whether a will is valid or not:

 Rule: the law of the place where the testator was domiciled at the time of drafting
(execution) the will determines a person’s capacity to draft a will or whether the
will is valid or not

How a will should be interpreted:

 Rule: The law of place where the testator was domiciled at the time of drafting
(execution) of will unless stated otherwise in the will

Domicile and its effect on jurisdiction of the court:

 Domicile plays an important role in procedural law

 Domicile of the defendant determines the jurisdiction of the court in cases
 Status mattes must be heard by the court that has jurisdiction in the area where the
person is domiciled

Divorce matters:

 Before Domicile Act:

o Married woman could not acquire a domicile of choice
o Principle of unity: wife accepts domicile of her husband and persists
throughout duration of marriage
o Divorce cases: s.2 of the Divorce Act- wife must sue husband for divorce in
the court within the area where the husband is domiciled even if she has
never set foot into the country
 Section 6 of the Domicile Act 3 of 1992:
o Came into effect 1 August 1992
o Places parties in divorce proceedings in equal footing when determining the
jurisdiction of the court
o A court has jurisdiction in a divorce action of the parties or either of them:
I. is Domiciled in the courts area of jurisdiction on the date when the
action was instituted
II. is an ordinary resident in the courts area of jurisdiction on the date
the action is instituted and has been an ordinary resident within the
republic of that country for at least a year immediately prior to the
date of filed divorce
  Section 6 of the Domicile Act 3 of 1992 accepts 1) the residency of either party
in the area of jurisdiction for period of at least 1 year prior to the present action
to determine court jurisdiction
 Domicile Act: unseated unity principle and determines that all persons over the
age of 18, irrespective of age or marital status can acquire a domicile of choice

 Court also have jurisdiction in regards to guardianship if 1) child is domiciled in

courts area of jurisdiction 2) is a resident in the area 3) present at time the action
is instituted.

DOMICILE
LECTURE 2:
KINDS OF DOMICILE
Kinds of domicile:

 persons domicile is determined by common law

 to determine domicile of a person there are two main groups
o those who choose their domicile- domicile of choice
o those who are unable to choose their domicile- domicile by operation of the
law
 regulated by the domicile act
o Act has no retrospective force- does not affect the right/capacity that was
acquired by domicile before Domicile act was set in place and does not affect
the legality of any act performed prior to the institution of the Act

Domicile of choice

 Section 1 of the Domicile Act:

o The domicile a person who is competent and able to be chosen by himself
or herself
o S 1(1) Domicile Act- Any person 1) over the age of 18 2) or any person under
the age of 18 who by law has the status of a major on condition that the
 person concerned has the 1) mental capacity to make a rational choice 2)
regardless of a person’s sex or marital status

 Requirements for domicile of choice S 1(2) Domicile Act

I. Lawful presence- illegal immigrant may not acquire domicile
of choice if residence is unlawful
II. Physical presence (factum req in common law)-
a. person must be living in a place him or herself
b. No minimum period for residence is required
c. Duration of stay indicates persons intention
d. Temporary absence does not rule out domicile of
choice
III. Intention to settle at a particular place for an indefinite
period of time (animus manendi req in common law)
Case: before Domicile Act
Elion v Elion- person had to have intention to settle permanently at a place to qualify for
Domicile of choice. (majority judgement in case ruled by Potgieter)
Facts:
Elions worked as teachers in SA however they still had Israeli citizenship and immovable
property in Israel. Complications as he married in SA but cheated and wife instituted
divorce, but Court appealed that it needed to be done in Domicile of Husband, therefore
Israel.
Legislature provided thar in s 1(2) of the Domicile Act- that a person must have the
intention to settle at a particular place for an indefinite period of time.
Ruling:
A person satisfies req even if he forsees the possibility that he/she might have to leave the
place within the foreseeable future persons current intention is taken into account)
Domicile Act has brought about certainty with regards to intention within S 1(2) of the
Domicile Act

Domicile by operation of law

 Domicile is assigned by law to persons who are not capable to acquire domicile of
choice:
o Unmarried children
o Mentally disabled person
  Before Act: Domicile of these persons determined by other people, child of married
parents get domicile of father, unmarried acquire domicile of mother, mentally
disabled person acquires domicile of his/her guardian)

 S2(1) of Domicile Act- person who can’t choose domicile are domiciled at the place
with which they are most closely connected
o Domicile is lined to a place of residence, not a person

Unmarried children
 Domicile is acquired at birth
 Domicile can change in certain circumstances (divorce or child moves with a certain
parent)

 S 2(1)- Child will be domiciled at the place with which he/she is most closely
connected

 S 2(2)- If child has residence with his parent or one parent it shall be presumed that
the parental home is the child’s domicile
o Only applies if child lives with parent

 Divorce- domicile will be with parent who has day-today care of child
 Domicile remains with caring parent regardless of residence being in stepparent’s
house
o Include adoptive and unmarried parents

Mentally Disabled Persons

 S2(1) applicable- domiciled at the place with which they are mostly connected
o Act includes unconscious persons

Domicile of origin
 Now known as domicile by operation of law
 Domicile the law confers on a person at birth
o First domicile a person acquires and he/she keeps util it is replaced by
another domicile (domicile of choice)
  Domicile of origin determined through S2(1)- determining the place is factual and is
done on circumstances of a particular case

 Domicile of origin NB before act:

o Domicile of origin revived if a person abandoned his domicile of choice
without assuming a new domicile (doctrine of revival of domicile of origin)
 Domicile Act disposed of the doctrine
o S 3(2)- Domicile of origin does not revive
o S 3(1)- No one loses their domicile until they acquire a new one (person
retains their domicile until a new one is acquired)

DOMICILE
LECTURE 3:
PROBLEM CASES AND STANDARD OF PROOF

Problem Cases
Members of armed forces, diplomats and people working at a
particular place on the instructions of the employer

 Members of armed forces, diplomats and illegal immigrants are capable of acquiring
a domicile of choice but are unable to exercise a free choice as to where to reside

Members of armed forces and diplomats:

 Before the Domicile Act:
o Do not acquire a domicile of choice where they are stationed as they are not
free to choose where they will be stationed/employed
o Foreign diplomats- could acquire a domicile in SA even though they were
employed by a foreign country
o Government officials and persons transferred by employers- cannot acquire
a domicile in the place they are in employment because they are not free to
choose where they live
 After the Domicile Act:
 o Argued that all the above-mentioned persons can acquire a domicile if the
requirements of S 1(2) of the Act (legality, physical presence and intention
to settle for an indefinite period of time) are met
o Animus was changed by the act from settling permanently to settling for an
indefinite period contributed to clarification

Illegal immigrants and persons who find themselves unlawfully present in a particular
place (SA):
 Requirement for domicile of choice is lawful presence
 Person who enters SA illegally will not acquire a domicile of choice in SA
 Illegal person can obtain permission from the government (work/residential permit)
to remain in SA
o Person can then obtain a domicile of choice if he/she intends to stay
indefinitely
 Person lives in SA legally and is deported, his/her domicile of choice is terminated as
the moment of deportation, his/her presence becomes illegal.
 Refugee status in SA-
o He/she not treated as an illegal alien while refugee status is being considered
o Person is therefore lawfully present in SA while the application is being
considered