, PLEASE USE THIS DOCUMENT AS A GUIDE ONLY
1. Discuss how the judgment in Hassan v Hassan 1998 (2) SA 589 (D) departs from the rule
enunciated above and engage with Neels’s critique of this judgment.
Departure from the Lex Fori Principle: A Critical Analysis of Hassan v Hassan (1998) and
Neels's Critique
1. Introduction
The classification of legal issues in private international law determines whether a court applies its
own domestic law (lex fori) or a foreign legal system (lex causae). According to established South
African principles, maintenance obligations belong to the domain of the lex fori.¹ This rule reflects
the procedural characterisation of maintenance as a matter concerning the forum's public policy and
social order. However, the judgment in Hassan v Hassan 1998 (2) SA 589 (D) represents a
significant departure from this orthodox position, prompting scholarly critique from Jan Neels in his
seminal article 'Classification as an Argumentative Device in International Family Law' (2003) SALJ
883.
This discussion examines the factual matrix and reasoning of Hassan v Hassan, analyses how the
Durban court deviated from the established lex fori rule, and engages critically with Neels's
evaluation of this judgment.
2. The Established Rule: Maintenance as Lex Fori
In South African private international law, the proper law of a maintenance obligation has
traditionally been the law of the forum. Neels articulates this position unequivocally: maintenance
belongs to the domain of the lex fori.² The rationale for this rule is twofold. First, maintenance
proceedings are viewed as procedural in nature, concerned with the forum's mechanisms for
enforcing support obligations rather than with substantive rights. Second, maintenance touches upon
public policy considerations, including the protection of vulnerable parties resident within the
forum's jurisdiction.
This characterisation aligns with the broader distinction between substantive and procedural matters
in conflict of laws. Matters of procedure are governed exclusively by the lex fori, while substantive
rights may be determined by the lex causae. By classifying maintenance as procedural, South
African courts historically avoided the complexities of applying foreign maintenance laws.
¹ Jan Neels, ‘Classification as an Argumentative Device in International Family Law’ (2003) South African Law Journal 883
at 888.
² Neels (2003) SALJ 883 at 888.
1. Discuss how the judgment in Hassan v Hassan 1998 (2) SA 589 (D) departs from the rule
enunciated above and engage with Neels’s critique of this judgment.
Departure from the Lex Fori Principle: A Critical Analysis of Hassan v Hassan (1998) and
Neels's Critique
1. Introduction
The classification of legal issues in private international law determines whether a court applies its
own domestic law (lex fori) or a foreign legal system (lex causae). According to established South
African principles, maintenance obligations belong to the domain of the lex fori.¹ This rule reflects
the procedural characterisation of maintenance as a matter concerning the forum's public policy and
social order. However, the judgment in Hassan v Hassan 1998 (2) SA 589 (D) represents a
significant departure from this orthodox position, prompting scholarly critique from Jan Neels in his
seminal article 'Classification as an Argumentative Device in International Family Law' (2003) SALJ
883.
This discussion examines the factual matrix and reasoning of Hassan v Hassan, analyses how the
Durban court deviated from the established lex fori rule, and engages critically with Neels's
evaluation of this judgment.
2. The Established Rule: Maintenance as Lex Fori
In South African private international law, the proper law of a maintenance obligation has
traditionally been the law of the forum. Neels articulates this position unequivocally: maintenance
belongs to the domain of the lex fori.² The rationale for this rule is twofold. First, maintenance
proceedings are viewed as procedural in nature, concerned with the forum's mechanisms for
enforcing support obligations rather than with substantive rights. Second, maintenance touches upon
public policy considerations, including the protection of vulnerable parties resident within the
forum's jurisdiction.
This characterisation aligns with the broader distinction between substantive and procedural matters
in conflict of laws. Matters of procedure are governed exclusively by the lex fori, while substantive
rights may be determined by the lex causae. By classifying maintenance as procedural, South
African courts historically avoided the complexities of applying foreign maintenance laws.
¹ Jan Neels, ‘Classification as an Argumentative Device in International Family Law’ (2003) South African Law Journal 883
at 888.
² Neels (2003) SALJ 883 at 888.
