Exam (elaborations)
LJU4804 PORTFOLIO MEMO
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- University Of South Africa (Unisa)
LJU4804 PORTFOLIO MEMO
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LJU4804PORTFOLIO MEMO
OCT 2022
,QUESTION 1
Read the set of facts and answer the questions that follow. Mr and Mrs Tembo met in
London, England in 1981 while Mr Tembo was working for an international accounting
company on a two year fixed term contract. They got married in December 1982 while
on holiday in Mauritius. Before departing for London in February 1981, Mr Tembo was
domiciled in Zambia at all relevant times. At the time of entering into the marriage, both
Mr and Mrs Tembo were Zambian citizens and Mrs Tembo was domiciled in Zambia as
well.
Aware of the fact that his contract of employment was about to come to an end in
February 1983, Mr Tembo entered into negotiations in November 1982 with the South
African subsidiary of his employer in England and secured a full-time position. In
January 1982, the parties immigrated to Johannesburg and established a domicile
there. Two children were born from the marriage and Mrs Tembo stayed at home to look
after them. In 2015, Mrs Tembo instituted divorce proceedings against Mr Tembo in the
South Gauteng High Court.
1.1 Which legal system applies to the inherent validity of the parties’ marriage in terms
of the South African rules of private international law? (2)
In terms of the rules of private international law the material validity of marriage is governed
by the lex loci celebrationis that is the law of marriage celebration. The law of marriage
celebration refers to the place where the marriage was celebrated. By virtue of the
given set of facts the marriage was concluded in Mauritius meaning. The legal system
would then be Mauritian law. 1
We have pointed out above that material validity of a marriage is governed by the lex loci
celebrationis. However this general rule has two exceptions which are doctrine of fraus
legis and the principle of public policy. Our main focus is on the former since it is the most
relevant to our hypothetical case.
In terms of the doctrine of fraus legis if it is established that parties to marriage
deliberately celebrated their marriage somewhere else to avoid the parental consent
1 Friedman v Friedman’s Executors and Others 1922 43 NLR 259.
, requirement they are consequently held to have acted in fraudem legis and consequently the
validity of their marriage will then be tested by the local law as the lex domicilii.
In the Kassim decision the court held that since Kassim was a minor she needed the
consent of her legal guardians (parents in this regard) for the marriage to be valid. 2 The
court further reiterated that since the parents refused to give consent it renders the marriage
concluded between Kassim and Ghumran invalid.
If the application of the lex loci celebrationis is in conflict with the principles of public policy
of the forum, the forum will not recognise the law of the place of celeb ration of the
marriage. For instance, a South African court will not recognise an incestuous marriage.
For many years, (foreign) polygamous marriages were regarded as contrary to South African
public policy and, therefore, not recognised as valid. In this regard, refer to Seedat's Executors
v The Master (Natal) 1917 AD 302. With the dawn of the constitutional dispensation in
South Africa, this rule in respect of polygamous marriages was also reformed.
Firstly, the courts recognised de facto monogamous marriages – see Ryland v Edros 1997
(2) SA 690 (C). Secondly, in the case of Hassam v Jacobs NO and Others 2009 (5) SA
572 (CC), polygamous marriages were recognised by the Constitutional Court. Although
this case did not have a foreign element, this approach should extend to future conflict cases
involving foreign polygamous marriages.
1.2 The South African court seized of the divorce matter would have to ascertain where
Mr Tembo was domiciled at the time of entering into the marriage. Discuss the relevant
principles in respect of determining Mr Tembo’s domicile at the time of concluding the
marriage in London.
Mr Tembo is domiciled in Zambia at the time of the marriage because that is where he was
domiciled in zambia at all relevant times. He was in London only for a two year fixed contract.
According to common law, he is domiciled in Zambia as a domicile of choice and he is over
the age of 21 years to choose his place of domicile. However, the Domicile Act 3 of 1992 came
into operation after Mr. Tembo entered a marriage in 1983. However, according to the
2 Kassim v Ghumran and Another 1981 Zimbabwe LR 227.
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