LJU4804 Assignment 1 (DETAILED ANSWERS) Semester 2 2025 - DISTINCTION GUARANTEED

LJU4804 Assignment 1 (DETAILED ANSWERS) Semester 2 2025 - DISTINCTION GUARANTEED - DISTINCTION GUARANTEED - DISTINCTION GUARANTEED Answers, guidelines, workings and references... Mrs Musonga, an Malawi citizen, married her husband, at British citizen, in December 1982, while they were on holiday in Paris, France. At the time of entering into the marriage, both were domiciled in London, England. They concluded an antenuptial contract, excluding all forms of community of property and of profit and loss. In 1984, they moved to Johannesburg, South Africa, and established a domicile there. Two children, Peter and Sarah, were born from the marriage. Jane took up a position as marketing manager for a large retail firm and travelled extensively for her profession. They decided that Mrs Musonga would stay at home to look after the children and household. In 2003, Mrs Musonga instituted divorce proceedings against Jane in a South African High Court. He also instituted a claim for redistribution of assets in terms of s 7(3) of the Divorce Act 70 of 1979. The divorce was finalised in December 2004. Jane tragically died in a car accident in 2005, while domiciled in South Africa. She executed a will in Germany in 1982, while domiciled in England, in which she appointed Mrs Musonga as her sole heir. After the divorce was finalised, she executed a second will in Namibia in 2005, while domiciled in South Africa. The second will revoked her first will and appointed her children Peter and Sarah as her sole heirs. In terms of the South African law of intestate succession, Peter and Sarah are Jane’s intestate heirs. 1.1 The court has to determine which legal system should be applied to Mrs Musonga’s claim for redistribution of assets. Assume for purposes of this question that redistribution of assets is classified as a divorce matter under English law, but as a proprietary consequence of marriage under South African law. Which legal system will the court apply to the redistribution of assets if the via media approach to classification is applied? Note: You have to provide the classification tables for both lex fori and lex causae classification and base your answer on policy considerations as per the via media approach. (12) 1.2 If the decision in Esterhuizen v Esterhuizen 1999 (1) SA 492 (W) was followed by the court in this case, would Mrs Musonga qualify for redistribution of assets in terms of s 7(3) of the Divorce Act 70 of 1979? Provide a brief motivation. (3) Mrs Musonga’s first will was formally valid in terms of the law of the place of execution only. Her second will is found to be formally invalid in terms of all the possible testing systems as per section 3 bis (1)(a) of the Wills Act, but valid in terms of Malawian law. Who inherits Mrs Musonga’s estate? Discuss. (Note: You have do discuss s 3 bis (1)(d) of the Wills Act 7 of 1953). Assume that Jane’s second will was formally invalid in terms of all its relevant testing systems, but formally valid in terms of German law. Her first will was formally valid in terms of German law only. Who inherits Jane’s estate in terms of s 3 bis of the South African Wills Act 7 of 1953? 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 In terms of which legal systems may the formal validity of Mrs Musonga’s first will be tested? Provide the names of the relevant countries Which legal system applies to the material validity of the marriage according to the principles of South African private international law? 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) The executors of Mrs Musonga’s estate instituted a delictual claim against the company that the truck driver who caused her death is employed by. The claim is instituted in a South African High Court, 4 years after commission of the delict. Assume for purposes of this question that the South African court finds English law applicable to the delictual claim and that the prescription period is 6 years under English law. The prescription period under South African law is 3 years. The defendant company raises the defence of prescription against the claim. Which legal system should be applied to determine whether the claim has prescribed or not if the via media approach to classification is followed? Instructions: - Provide the lex fori and lex causae classification tables to apply the via media approach. - Draw a conclusion based on policy considerations. 3 - Make use of the headings and structure of the classification tables as per the study unit, therefore: Rule Category SA PIL Rule (connecting factor) Which system applicable? Rule applicable? - Remember that South African prescription rules are classified as substantive; and English prescription rules as procedural (according to both English and South African law) Mrs Musonga, an Malawi citizen, married her husband, at British citizen, in December 1982, while they were on holiday in Paris, France. At the time of entering into the marriage, both were domiciled in London, England. They concluded an antenuptial contract, excluding all forms of community of property and of profit and loss. In 1984, they moved to Johannesburg, South Africa, and established a domicile there. Two children, Peter and Sarah, were born from the marriage. Jane took up a position as marketing manager for a large retail firm and travelled extensively for her profession. They decided that Mrs Musonga would stay at home to look after the children and household. In 2003, Mrs Musonga instituted divorce proceedings against Jane in a South African High Court. He also instituted a claim for redistribution of assets in terms of s 7(3) of the Divorce Act 70 of 1979. The divorce was finalised in December 2004. Jane tragically died in a car accident in 2005, while domiciled in South Africa. She executed a will in Germany in 1982, while domiciled in England, in which she appointed Mrs Musonga as her sole heir. After the divorce was finalised, she executed a second will in Namibia in 2005, while domiciled in South Africa. The second will revoked her first will and appointed her children Peter and Sarah as her sole heirs. In terms of the South African law of intestate succession, Peter and Sarah are Jane’s intestate heirs. 1.1 The court has to determine which legal system should be applied to Mrs Musonga’s claim for redistribution of assets. Assume for purposes of this question that redistribution of assets is classified as a divorce matter under English law, but as a proprietary consequence of marriage under South African law. Which legal system will the court apply to the redistribution of assets if the via media approach to classification is applied? Note: You have to provide the classification tables for both lex fori and lex causae classification and base your answer on policy considerations as per the via media approach. (12) 1.2 If the decision in Esterhuizen v Esterhuizen 1999 (1) SA 492 (W) was followed by the court in this case, would Mrs Musonga qualify for redistribution of assets in terms of s 7(3) of the Divorce Act 70 of 1979? Provide a brief motivation. (3) Mrs Musonga’s first will was formally valid in terms of the law of the place of execution only. Her second will is found to be formally invalid in terms of all the possible testing systems as per section 3 bis (1)(a) of the Wills Act, but valid in terms of Malawian law. Who inherits Mrs Musonga’s estate? Discuss. (Note: You have do discuss s 3 bis (1)(d) of the Wills Act 7 of 1953). Assume that Jane’s second will was formally invalid in terms of all its relevant testing systems, but formally valid in terms of German law. Her first will was formally valid in terms of German law only. Who inherits Jane’s estate in terms of s 3 bis of the South African Wills Act 7 of 1953? 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 In terms of which legal systems may the formal validity of Mrs Musonga’s first will be tested? Provide the names of the relevant countries Which legal system applies to the material validity of the marriage according to the principles of South African private international law? 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) Mrs Musonga executed a will in Malawi in 2006 whilst domiciled in Zambia. In terms of this will, she appointed her husband as her sole heir. In 2010, she divorced her husband and moved to South Africa where she established a domicile in Johannesburg. She purchased three properties in Gauteng between 2011 and 2014. In 2011, she executed a second will while on a business trip in Germany. The second will expressly revoked the first will and appointed her mother as her sole heir. In 2019, Mrs Musonga died in a car accident in Bristol, England. The accident that led to her death was caused by a drunk truck driver who works for an international transport company incorporated in and with its principal place of business in Cape Town, South Africa. From 2010 until her death in October 2019, Mrs Musonga was domiciled in South Africa, but retained her Zimbabwean citizenship throughout her life. In terms of the law of Zimbabwe, P and K are her intestate heirs; in terms of German law, R and S are her intestate heirs and in terms of South African law, M and L are her intestate heirs. 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) The executors of Mrs Musonga’s estate instituted a delictual claim against the company that the truck driver who caused her death is employed by. The claim is instituted in a South African High Court, 4 years after commission of the delict. Assume for purposes of this question that the South African court finds English law applicable to the delictual claim and that the prescription period is 6 years under English law. The prescription period under South African law is 3 years. The defendant company raises the defence of prescription against the claim. Which legal system should be applied to determine whether the claim has prescribed or not if the via media approach to classification is followed? Instructions: - Provide the lex fori and lex causae classification tables to apply the via media approach. - Draw a conclusion based on policy considerations. 3 - Make use of the headings and structure of the classification tables as per the study unit, therefore: Rule Category SA PIL Rule (connecting factor) Which system applicable? Rule applicable? - Remember that South African prescription rules are classified as substantive; and English prescription rules as procedural (according to both English and South African law) 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