LJU4804 October November Portfolio (ANSWERS) Semester 2 2025 - DISTINCTION GUARANTEED

Well-structured LJU4804 October November Portfolio (ANSWERS) Semester 2 2025 - DISTINCTION GUARANTEED. (DETAILED ANSWERS - DISTINCTION GUARANTEED!)..... Oct / Nov 2025 PRIVATE INTERNATIONAL LAW PORTFOLIO LJU4804 EXAMINERS: FIRST: PROF MM WETHMAR-LEMMER SECOND: DR NS SIPHUMA EXTERNAL: PROF E SCHOEMAN (University of Pretoria / University of Canterbury) This paper consists of 6 pages. The paper counts 80 marks. The portfolio runs from 10 – 17 October 2025. PLEASE READ THE FOLLOWING INSTRUCTIONS CAREFULLY BEFORE ANSWERING THE EXAMINATION QUESTIONS. How would the arbitral tribunal determine the law applicable to the merits of the dispute? Note: refer to the relevant provisions of the International Arbitration Act 15 of 2017. This portfolio must be submitted before 08:00 on 17 October 2025 (CAT). Students have to submit this portfolio via myUnisa, therefore no e-mailed portfolios may be accepted. No extensions will be granted. It is the responsibility of the student to ensure that the file submitted is not corrupted and can be opened for marking. No scanned portfolios may be submitted. 2. You must therefore submit this portfolio as Assessment 3 via myUnisa. When you receive the portfolio, check whether your submission portal is open/available and let your lecturers know immediately if your submission portal is not open. 3. The Declaration of Academic Honesty button must be clicked when submitting the portfolio examination. Explain what the CIF INCOTERM entails. Note: Your discussion must be based on your prescribed reading material by Van Niekerk and Schulze. Proper footnote referencing must be used. This entails that every argument or idea taken from another source, or any piece of information utilised from another source, needs to be provided with a separate footnote reference. Please note that in-line referencing in the text may NOT be used. 5. This is a research portfolio and as such, an open-book examination. When answering questions, students are expected to make use of the study guide as well LJU4804 OCT NOV 2025 2 as all prescribed readings relevant to the question. The study guide must be referenced like any other book. PLEASE DO NOT COPY AND PASTE ANSWERS FROM ANY SOURCE. When answering the questions, you must provide footnote references to the relevant source(s) for every statement made. You must make use of the Unisa School of Law referencing style. Guidelines are available under Additional Resources on myUnisa. Do not make use of long quotations, rephrase the arguments in your own words. When you have to provide a case discussion, refer to the relevant page and paragraph numbers of the case in corresponding footnotes for every statement made. It is imperative to refer to the prescribed sources, where relevant. Describe the basic operation of a documentary letter of credit as payment method in an international sales contract. Note: Your discussion must be based on your prescribed reading material by Van Niekerk and Schulze.Unreferenced portfolio content will not be credited with marks. Consider the information in the paragraph below and provide a properly referenced essay-answer. Make use of numbered headings and sub-headings and provide footnote references for every statement made. It is universally recognised that arbitration is the preferred dispute settlement mechanism for international commercial disputes. The recognition and enforcement of foreign arbitral awards are of paramount importance for arbitration to function as an effective dispute settlement regime. The South African International Arbitration Act 15 of 2017 represents best practice in in respect of the recognition and enforcement of foreign arbitral awards. The 1958 New York Convention is incorporated into the Act as well as the UNCITRAL Model Law on International Commercial Arbitration. In addition to the New York Convention, the Model Law also contains provisions on recognition and enforcement. As a guideline, a 5 mark question should be at least a ½ typed page (1.5 spacing with standard margins); a 10 mark question should contain at least 1 full typed page answer; a 15 mark answer should be about 2 typed pages long and a 20 mark question should be about 3 typed pages. The portfolio should therefore not contain more than 12 pages of substantive content. In addition to the 12 pages of content, you should add the title page and a full bibliography. Note: You do NOT have to attach the Declaration of Academic Honesty in your portfolio document. 7. Use proper language and grammar and make use of full sentences. 8. Note that all portfolios will be scrutinised for plagiarism through the use of Turnitin. Any information provided that is not in your own words and properly referenced, will be flagged by Turnitin. Be reminded that Turnitin also compares all student assignment submissions with each other and instances of academic dishonesty or students copying from each other, will also be identified. Instances of AI writing are also det ected by Turnitin. Cases of plagiarism or academic dishonesty will be dealt with in accordance with the University's policies. Mr and Mrs Mubanga got married in Mauritius in December 1982. At the time of concluding the marriage they were both Zambian citizens and domiciled there as well. They concluded an antenuptial contract that excludes community of property and all forms of profit sharing. Early in January 1983, the parties relocated to Pretoria (South Africa) and established a domicile there. The reason for the relocation was that Mrs Mubanga took up an offer as senior executive of a large retail company based in South Africa. Mrs Mubanga was already involved in negotiations in respect of this lucrative employment opportunity some months prior to the marriage. Two children were born from the marriage and Mr Mubanga looked after them full-time. In 2017, Mr Mubanga instituted divorce proceedings against Mrs Mubanga in the North Gauteng High Court. LJU4801 1 In 1984, Mrs Mubanga gave Mr Mubanga a very expensive Rolex watch as a gift. The question of the validity of donations between spouses arose during the divorce proceedings. In terms of South African law, donations between spouses are regarded as a personal consequence of marriage. Suppose that donations between spouses are regarded as a proprietary consequence of marriage under Zambian law. 1.1 Which legal system governs personal consequences of marriage in terms of the rules of South African private international law? (1) 1.2 Which legal system governs the proprietary consequences of marriage in terms of the rules of South African private international law? (1) Discuss the relevant recognition and enforcement provisions contained in the International Arbitration Act 15 of 2017 (IAA) itself and in the UNCITRAL Model Law as well as the 1958 New York Convention (as incorporated). 1.3 Which legal system will the South African court apply to the validity of the donation between the spouses if it follows the via media approach to classification? 2 Mr Mubanga’s legal representatives plan to argue that the parties intended to immigrate to South Africa at the time of entering into the marriage, since Mrs Mubanga was already involved in negotiations with the retail group in respect of her appointment. Advise his legal team on 3 their chances of successfully arguing in favour of intended matrimonial domicile as alternative connecting factor for determining the law applicable to the proprietary consequences of marriage. Your ans wer should be based on a proper discussion of the prescribed case Sadiku v Sadiku Case no 30498/06 (unreported) [2007] JOL 19342 (T). Mr and Mrs Hendricks got married in Madagascar in December 1999. At the time of entering into the marriage they were both Namibian citizens, domiciled in England. Mrs Hendricks moved to London, England in 1997 to pursue a modelling career. Mr Hendricks took up a permanent position as an engineer in London in 1998 and established a domicile there. In 2001, the parties relocated to Pretoria (South Africa) and became domiciled there. The reason for the relocation was that Mrs Hendricks was offered a long-term modelling contract by a large South African clothing company. In 2017, Mr Hendricks instituted divorce proceedings against Mrs Hendricks in the North Gauteng High Court. 1.1 Which legal system applies to the material validity of the marriage according to the principles of South African private international law? (2) This study source was downloaded by from CourseH on :08:32 GMT -05:00 2 1.2 Mrs Hendricks gave Mr Hendricks a BMW X5 vehicle (fully paid in cash by Mrs Hendricks) in 2016. After the divorce proceedings were instituted, Mrs Hendricks disputed the validity of this gift / donation. In terms of English law, donations between spouses are regarded as a proprietary consequence of marriage but in terms of South African law, donations between spouses are classified as a personal consequence of marriage. 1.2.1 Which legal system will be applied to the validity of the gift if the via media approach to classification is used? Motivate your answer, but you do NOT have to provide the classification tables. (3) 1.2.2 Assume for purposes of 1.2.2 that gifts between spouses are classified as a personal consequence under English law and as a proprietary consequence under South African law. If the via media approach to classification is followed once again, which legal system would be applied to the validity of the gifts between the spouses? PROVIDE CLASSIFICATION TABLES (12) 1.3 Assume that the rules of private international law of the lex loci celebrationis of the Henricks’ marriage refer the determination of formal validity of the marriage to the lex domicilii matrimonii (domicile of the husband at the time of entering into the marriage) and that the lex domicilii matrimonii refers the determination of the formal validity back to the place of marriage celebration. If the South African court follows a partial renvoi approach, which legal system will it apply to the formal validity of the marriage in question? (3) [20] Oct / Nov 2025 PRIVATE INTERNATIONAL LAW PORTFOLIO LJU4804 EXAMINERS: FIRST: PROF MM WETHMAR-LEMMER Fashion First (Pty) Ltd (FF) is a company incorporated in South Africa with its central administration and principal place of business in Durban. Mode GmbH (Mode) is a company incorporated in Germany with its central administration and principal place of business in Hamburg. FF and Mode conclude an international sales contract in terms of which FF purchases a large consignment of leather shoes and handbags from Mode for the purchase price of € 200 000. Payment had to be effected by means of a documentary letter of credit issued by Rand Merchant Bank (RMB) in Durban and payable into Mode’s bank account held at Deutsche LJU4804 OCT NOV 2025 5 Bank in Hamburg (Germany). The goods had to be shipped CIF (ICC Incoterms 2020) from the Hamburg harbour to the Durban harbour. The contract was concluded during July 2023 by duly authorised representatives of both companies while attending a conference in France. Delivery and payment had to take place in October 2023. The contract included an arbitration clause assigning all disputes arising from the contract or matters connected thereto to ad hoc arbitration in Johannesburg, South Africa. However, no choice of law clause was included in the contract. Delivery took place as per the agreement, but FF refused to pay the purchase price, arguing that the leather shoes were defective. Mode insisted that the shoes complied with the description in the contract. On 3 February 2024, Mode sent a request to FF to refer the dispute to arbitration. EXTERNAL: PROF E SCHOEMAN (University of Pretoria / University of Canterbury) This paper consists of 6 pages. The paper counts 80 marks. The portfolio runs from 10 – 17 October 2025. PLEASE READ THE FOLLOWING INSTRUCTIONS CAREFULLY BEFORE ANSWERING THE EXAMINATION QUESTIONS. 1. This portfolio must be submitted before 08:00 on 17 October 2025 (CAT). Students have to submit this portfolio via myUnisa, therefore no e-mailed portfolios may be accepted. No extensions will be granted. It is the responsibility of the student to ensure that the file submitted is not corrupted and can be opened for marking. No scanned portfolios may be submitted. 2. You must therefore submit this portfolio as Assessment 3 via myUnisa. When you receive the portfolio, check whether your submission portal is open/available and let your lecturers know immediately if your submission portal is not open. 3. The Declaration of Academic Honesty button must be clicked when submitting the portfolio examination. Patrick and Ruth Mulenga got married in Zanzibar (Tanzania) in December 1982. At the time of entering into the marriage they were both Zambian citizens and domiciled in Zambia. Mrs Mulenga was seventeen years old and Mr Mulenga was thirty years old when they got married. They entered into an antenuptial contract excluding community of property and all forms of profit sharing. Shortly after concluding the marriage, the parties relocated to Johannesburg (South Africa) and established their domicile there. The reason for the relocation was that Mr Mulenga took up an offer as a senior executive of a large retail company based in South Africa. Two children were born of the marriage and Mrs Mulenga cared for them full time. In 2022, Mrs Mulenga instituted divorce proceedings against Mr Mulenga in the South Gauteng High Court. Proper footnote referencing must be used. This entails that every argument or idea taken from another source, or any piece of information utilised from another source, needs to be provided with a separate footnote reference. Please note that in-line referencing in the text may NOT be used. 5. This is a research portfolio and as such, an open-book examination. When answering questions, students are expected to make use of the study guide as well LJU4804 OCT NOV 2025 2 as all prescribed readings relevant to the question. The study guide must be referenced like any other book. PLEASE DO NOT COPY AND PASTE ANSWERS FROM ANY SOURCE. When answering the questions, you must provide footnote references to the relevant source(s) for every statement made. You must make use of the Unisa School of Law referencing style. Guidelines are available under Additional Resources on myUnisa. Do not make use of long quotations, rephrase the arguments in your own words. When you have to provide a case discussion, refer to the relevant page and paragraph numbers of the case in corresponding footnotes for every statement made. It is imperative to refer to the prescribed sources, where relevant. Unreferenced portfolio content will not be credited with marks. 6. As a guideline, a 5 mark question should be at least a ½ typed page (1.5 spacing with standard margins); a 10 mark question should contain at least 1 full typed page answer; a 15 mark answer should be about 2 typed pages long and a 20 mark question should be about 3 typed pages. The portfolio should therefore not contain more than 12 pages of substantive content. In addition to the 12 pages of content, you should add the title page and a full bibliography. Note: You do NOT have to attach the Declaration of Academic Honesty in your portfolio document. 7. Use proper language and grammar and make use of full sentences. 8. Note that all portfolios will be scrutinised for plagiarism through the use of Turnitin. Any information provided that is not in your own words and properly referenced, will be flagged by Turnitin. Be reminded that Turnitin also compares all student assignment submissions with each other and instances of academic dishonesty or students copying from each other, will also be identified. Instances of AI writing are also det ected by Turnitin. Cases of plagiarism or academic dishonesty will be dealt with in accordance with the University's policies. Mr and Mrs Mubanga got married in Mauritius in December 1982. At the time of concluding the marriage they were both Zambian citizens and domiciled there as well. They concluded an antenuptial contract that excludes community of property and all forms of profit sharing. Early in January 1983, the parties relocated to Pretoria (South Africa) and established a domicile there. The reason for the relocation was that Mrs Mubanga took up an offer as senior executive of a large retail company based in South Africa. Mrs Mubanga was already involved in negotiations in respect of this lucrative employment opportunity some months prior to the marriage. Two children were born from the marriage and Mr Mubanga looked after them full-time. In 2017, Mr Mubanga instituted divorce proceedings against Mrs Mubanga in the North Gauteng High Court. LJU4801 1 In 1984, Mrs Mubanga gave Mr Mubanga a very expensive Rolex watch as a gift. The question of the validity of donations between spouses arose during the divorce proceedings. In terms of South African law, donations between spouses are regarded as a personal consequence of marriage. Suppose that donations between spouses are regarded as a proprietary consequence of marriage under Zambian law. 1.1 Which legal system governs personal consequences of marriage in terms of the rules of South African private international law? (1) 1.2 Which legal system governs the proprietary consequences of marriage in terms of the rules of South African private international law? (1) 1.3 Which legal system will the South African court apply to the validity of the donation between the spouses if it follows the via media approach to classification? 2 Mr Mubanga’s legal representatives plan to argue that the parties intended to immigrate to South Africa at the time of entering into the marriage, since Mrs Mubanga was already involved in negotiations with the retail group in respect of her appointment. Advise his legal team on 3 their chances of successfully arguing in favour of intended matrimonial domicile as alternative connecting factor for determining the law applicable to the proprietary consequences of marriage. Your ans wer should be based on a proper discussion of the prescribed case Sadiku v Sadiku Case no 30498/06 (unreported) [2007] JOL 19342 (T). Mr and Mrs Hendricks got married in Madagascar in December 1999. At the time of entering into the marriage they were both Namibian citizens, domiciled in England. Mrs Hendricks moved to London, England in 1997 to pursue a modelling career. Mr Hendricks took up a permanent position as an engineer in London in 1998 and established a domicile there. In 2001, the parties relocated to Pretoria (South Africa) and became domiciled there. The reason for the relocation was that Mrs Hendricks was offered a long-term modelling contract by a large South African clothing company. In 2017, Mr Hendricks instituted divorce proceedings against Mrs Hendricks in the North Gauteng High Court. 1.1 Which legal system applies to the material validity of the marriage according to the principles of South African private international law? (2) This study source was downloaded by from CourseH on :08:32 GMT -05:00 2 1.2 Mrs Hendricks gave Mr Hendricks a BMW X5 vehicle (fully paid in cash by Mrs Hendricks) in 2016. After the divorce proceedings were instituted, Mrs Hendricks disputed the validity of this gift / donation. In terms of English law, donations between spouses are regarded as a proprietary consequence of marriage but in terms of South African law, donations betweenV spouses are classified as a personal consequence of marriage. The connecting factor for the proprietary consequences of marriage is in urgent need of reform in order to conform to constitutional imperatives. The South African Law Reform Commission initiated Project 100E which includes an investigation into this connecting factor. Discuss the analysis and recommendations in this regard as contained in Discussion Paper 160 (2023). 1.2.1 Which legal system will be applied to the validity of the gift if the via media approach to classification is used? Motivate your answer, but you do NOT have to provide the classification tables. (3) 1.2.2 Assume for purposes of 1.2.2 that gifts between spouses are classified as a personal consequence under English law and as a proprietary consequence under South African law. If the via media approach to classification is followed once again, which legal system would be applied to the validity of the gifts between the spouses? PROVIDE CLASSIFICATION TABLES (12) 1.3 Assume that the rules of private international law of the lex loci celebrationis of the Henricks’ marriage refer the determination of formal validity of the marriage to the lex domicilii matrimonii (domicile of the husband at the time of entering into the marriage) and that the lex domicilii matrimonii refers the determination of the formal validity back to the place of marriage celebration. If the South African court follows a partial renvoi approach, which legal system will it apply to the formal validity of the marriage in question? (3) [20]1.1 Which legal system applies to the material validity of Patrick and Ruth’s marriage in terms of the South African rules of private international law? (2) 1.2 Would your answer to 1.1 above be different if it emerged that the parties married in Zanzibar to evade the mandatory requirements of Zambian law concerning parental consent for minors to enter into marriage? Discuss. (8) 1.3 Which legal system(s) govern the formal and material validity of an antenuptial contract according to the principles of South African private international law? (5) 1.4 Did Mrs Ruth Mulenga have the necessary capacity to conclude an antenuptial contract? In terms of which legal system must her contractual capacity be ascertained? (5) 1.5 Patrick executed a will in Zanzibar in which he appointed Ruth as his sole heir. At the time of execution of the will, he was domiciled in Zambia and remained a Zambian citizen throughout his life. After his divorce from Ruth was finalised, Patrick executed a second will in France that expressly revoked his first will and appointed his children as his sole heirs. At the time of execution of the second will, he was domiciled in South Africa. Patrick’s first will was formally valid only in terms of Tanzanian law. Patrick’s second will was formally invalid in terms of all its possible testing systems, but formally valid in terms of Tanzanian law. In terms of the rules of intestate succession of Tanzania, France and South Africa, his children would be his intestate heirs. Patrick died in a car accident in May 2025. Who would inherit his estate? Note: You must apply the relevant provision of the Wills Act 7 of 1953. Assume that the arbitral tribunal finds German law applicable to the merits of the dispute. Germany is a CISG contracting state. Discuss the provisions of the CISG relating to conformity of goods in order to address FF’s claim. (