NOTES
In the field of private international law, we are concerned with establishing the lex
causae, that is, the legal system applicable to the matter at hand.
The lex fori is the law of the forum, or the law of the court where the legal dispute is
instituted. In South African private international law, the lex fori is South African law.
5 five steps to find the applicable legal system and solve the
matter:
Suppose H (husband) and W (wife) marry in Scotland. At the time of the marriage, H was a citizen of Spain and
domiciled in France; and W was a German citizen and domiciled in Australia. After the conclusion of the marriage,
the parties moved to South Africa and both established a domicile here. Ten years later, W filed an action for divorce
in a South African High Court. Which legal system would govern the proprietary consequences of the marriage?
1. Find jurisdiction of the court
a. High Court in whose area of jurisdiction the defendant is domiciled will
have jurisdiction to hear the matter.
2. Classification
a. lex fori
i. consequences of marriage
ii. governed by lex domicilii matrimonii
iii. law of the domicile of the marriage, interpreted as the domicile of
the husband at the time of the conclusion of the marriage
3. Determining the connecting factor(s)
Example - domicile of the husband at the time of the marriage.
4. Determining the lex causae
a. lex causae is the legal system of France.
5. Ascertainment of the content of the lex causae
Types of PIL
Unilateral conflict rules Multilateral conflict rules
does not indicate which legal system is applicable two aspects, namely a category and a
connecting factor.
provide when the legal system of which it forms part
will apply. Connecting factor = applicable legal system.
1
, e.g. section 63(1) of the Insurance Act 27 of 1943. conflict rule in our example above is a classic
subsection (1), when an owner of a domestic example of a multilateral conflict rule: the legal
insurance policy enforces his/her rights against the category is proprietary consequences of
insurer in South Africa, South African law will be marriage and the connecting factor is the
applied. domicile of the husband at the time of
marriage.
» rules of law are classified - Laconian Maritime Enterprises Ltd v
Agromar Lineas Ltd
» How classification is done?
Lex fori classification Lex causae classification
The legal categories of the lex fori (fori is always South The categories employed for classification are those from
African law) are employed to classify both the South which the potentially applicable legal rule comes.
African and the potentially applicable foreign legal rule.
South African legal rule is classified ito the categories of
Most South African cases decided before 1980 employed South African law, whereas a potentially applicable rule of
lex fori classification. English law is classified in terms of English legal categories.
Lex causae classification was employed - Anderson v The
Master 1949 (4) SA 660 (E).
2 Two alternative approaches to above
Enlightened lex fori classification. (Kahn-Freund )
Classification is done in terms of the categories of the lex fori, but the results of lex causae classification are also
considered and a decision is then made whether the categories of the lex fori should be developed in the light of the lex
causae and on the basis of policy considerations.
Via media classification (Falconbridge )
Laurens v Von Höhne
classification is done in terms of the categories of the lex fori and lex causae, the results are compared and a clear
choice between the two is made.
Via media promotes individual fairness/justice (in each case, the classification method that would result in the most
equitable decision is chosen), but this has a negative impact on legal certainty. Therefore, some authors advocate using
the enlightened lex fori approach instead of the via media approach, since the former potentially maintains a better
balance between individual fairness and legal certainty.
2
, Prescription rules of the lex causae are regarded as substantive according
to both the lex fori and the lex causae
Kuhne & Nagel AG Zurich v APA Distributors = Proper law of the contract (lex causae) was Swiss
law. The question was whether Swiss law or South African law should govern
prescription.
Laurens NO v Von Hohne 1993 (2) SA 104 (W). The proper law of the contract (lex causae) was
German law. The question was whether German or South African prescription rules should be
applied to determine whether the claim had become prescribed or not. Answer: In terms of lex
causae classification, German law is applicable to prescription.
Laurens case, via media = a choice is made between lex fori and lex causae classification, based
on policy grounds.
The policy considerations in favour of this choice are as follows:
Lex fori classification leads to a gap.
Application of the lex causae to prescription promotes international harmony of decision.
Most jurisdictions apply the lex causae to matters of prescription.
It accords with the legitimate expectations of the parties. They would expect that the same
legal system that governs their contract (the proper law of the contract, or the lex causae)
would also govern prescription of a claim based on the contract.
3
In the field of private international law, we are concerned with establishing the lex
causae, that is, the legal system applicable to the matter at hand.
The lex fori is the law of the forum, or the law of the court where the legal dispute is
instituted. In South African private international law, the lex fori is South African law.
5 five steps to find the applicable legal system and solve the
matter:
Suppose H (husband) and W (wife) marry in Scotland. At the time of the marriage, H was a citizen of Spain and
domiciled in France; and W was a German citizen and domiciled in Australia. After the conclusion of the marriage,
the parties moved to South Africa and both established a domicile here. Ten years later, W filed an action for divorce
in a South African High Court. Which legal system would govern the proprietary consequences of the marriage?
1. Find jurisdiction of the court
a. High Court in whose area of jurisdiction the defendant is domiciled will
have jurisdiction to hear the matter.
2. Classification
a. lex fori
i. consequences of marriage
ii. governed by lex domicilii matrimonii
iii. law of the domicile of the marriage, interpreted as the domicile of
the husband at the time of the conclusion of the marriage
3. Determining the connecting factor(s)
Example - domicile of the husband at the time of the marriage.
4. Determining the lex causae
a. lex causae is the legal system of France.
5. Ascertainment of the content of the lex causae
Types of PIL
Unilateral conflict rules Multilateral conflict rules
does not indicate which legal system is applicable two aspects, namely a category and a
connecting factor.
provide when the legal system of which it forms part
will apply. Connecting factor = applicable legal system.
1
, e.g. section 63(1) of the Insurance Act 27 of 1943. conflict rule in our example above is a classic
subsection (1), when an owner of a domestic example of a multilateral conflict rule: the legal
insurance policy enforces his/her rights against the category is proprietary consequences of
insurer in South Africa, South African law will be marriage and the connecting factor is the
applied. domicile of the husband at the time of
marriage.
» rules of law are classified - Laconian Maritime Enterprises Ltd v
Agromar Lineas Ltd
» How classification is done?
Lex fori classification Lex causae classification
The legal categories of the lex fori (fori is always South The categories employed for classification are those from
African law) are employed to classify both the South which the potentially applicable legal rule comes.
African and the potentially applicable foreign legal rule.
South African legal rule is classified ito the categories of
Most South African cases decided before 1980 employed South African law, whereas a potentially applicable rule of
lex fori classification. English law is classified in terms of English legal categories.
Lex causae classification was employed - Anderson v The
Master 1949 (4) SA 660 (E).
2 Two alternative approaches to above
Enlightened lex fori classification. (Kahn-Freund )
Classification is done in terms of the categories of the lex fori, but the results of lex causae classification are also
considered and a decision is then made whether the categories of the lex fori should be developed in the light of the lex
causae and on the basis of policy considerations.
Via media classification (Falconbridge )
Laurens v Von Höhne
classification is done in terms of the categories of the lex fori and lex causae, the results are compared and a clear
choice between the two is made.
Via media promotes individual fairness/justice (in each case, the classification method that would result in the most
equitable decision is chosen), but this has a negative impact on legal certainty. Therefore, some authors advocate using
the enlightened lex fori approach instead of the via media approach, since the former potentially maintains a better
balance between individual fairness and legal certainty.
2
, Prescription rules of the lex causae are regarded as substantive according
to both the lex fori and the lex causae
Kuhne & Nagel AG Zurich v APA Distributors = Proper law of the contract (lex causae) was Swiss
law. The question was whether Swiss law or South African law should govern
prescription.
Laurens NO v Von Hohne 1993 (2) SA 104 (W). The proper law of the contract (lex causae) was
German law. The question was whether German or South African prescription rules should be
applied to determine whether the claim had become prescribed or not. Answer: In terms of lex
causae classification, German law is applicable to prescription.
Laurens case, via media = a choice is made between lex fori and lex causae classification, based
on policy grounds.
The policy considerations in favour of this choice are as follows:
Lex fori classification leads to a gap.
Application of the lex causae to prescription promotes international harmony of decision.
Most jurisdictions apply the lex causae to matters of prescription.
It accords with the legitimate expectations of the parties. They would expect that the same
legal system that governs their contract (the proper law of the contract, or the lex causae)
would also govern prescription of a claim based on the contract.
3
