LJU4804 PORTFOLIO MEMO - MAY/JUNE 2023 - SEMESTER 1 - UNISA (DETAILED MEMO WITH FOOTNOTES- DISTINCTION GUARANTEED!)

LJU4804 PORTFOLIO MEMO - MAY/JUNE 2023 - SEMESTER 1 - UNISA (DETAILED MEMO WITH FOOTNOTES- DISTINCTION GUARANTEED!) QUESTION 1 Instructions: Read the set of facts and answer the questions that follow. Mr John Wick married Mrs Mary Wick in April 2003 while on vacation in Bridgetown, Barbados. At the time of entering into the marriage, John and Mary Wick were both domiciled in New York (United States of America), but were Irish citizens. A year prior to this marriage to Mary, John Wick obtained a divorce in the Cayman Islands from his first wife, Jane (an Irish citizen domiciled in Ireland at all relevant times), while he was employed there on a two year fixed term contract. At the time of entering into the marriage, John and Mary were planning to relocate to South Africa, since John was negotiating a contract for the purchase of a private security company in Johannesburg. Shortly after returning from their honeymoon, John and Mary immigrated to South Africa and established a domicile in Johannesburg. Three children were born from the marriage and Mary stayed at home to look after them. In June 2015, Mary instituted divorce proceedings against John in the South Gauteng High Court. LJU4804 MAY JUNE 2023 6. When answering questions, students are expected to make use of the study guide as well as all prescribed readings relevant to the question. The study guide must be referenced like any other source. 7. As a guideline, a 5 mark question should be at least a 1⁄2 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, declaration of academic honesty and a short bibliography. Students will be penalised for exceeding 12 pages of substantive content. 8. Use proper language and grammar and make use of full sentences. 9. Due to certain system instabilities recently, students are requested to e-mail a pdf and “word” copy of their portfolio after submission on myUnisa to and . Please note that students have to submit via myUnisa in order for the portfolio to be formally registered as submitted. This back up measure does not alter the rule that no formal exam submissions may be done via e-mail. 2 1.1 Which legal system applies to the formal validity of John and Mary’s marriage in terms of the South African rules of private international law? (2) 1.2 Mary’s lawyer would like to argue that the parties’ matrimonial property regime should be governed by South African law, since the parties intended to establish a domicile here at the time of entering into the marriage. Advise them on their chances of success based on the relevant prescribed case on this topic. Your answer should also include a brief, properly referenced case discussion. (8) 1.3 During John and Mary’s divorce proceedings in the South Gauteng High Court, a question arose surrounding the validity of John and Jane’s divorce in the Cayman Islands. Refer to and discuss the relevant South African statutory provisions in this regard. (3) 1.4 In terms of the principles of private international law, what do we call this matter that needs to be determined before the primary matter may be adjudicated upon? Discuss. (7) 1.5 Mrs Mary Wick executed a will in France in which she appointed Mr John Wick as her sole heir. At the time of execution of the will, she was domiciled in New York (US) and an Irish citizen. She retained her Irish citizenship throughout her life. After her divorce from Mr John Wick was finalised, Mrs Mary Wick executed a second will in Germany that expressly revoked her first will and appointed her three children as her heirs. At the time of its execution, she was domiciled in South Africa. Mrs Mary Wick’s first will was formally valid in terms of French law (only). Mrs Mary Wick’s second will was formally invalid in terms of all its possible testing systems, but formally valid in terms of French law. In terms of the rules of intestate succession of France, Germany, America, Ireland and South Africa, her three children would be her intestate heirs. Mrs Mary Wick died in a car accident in 2020. Who would inherit her estate? (5) 1.6 Which legal system would govern a maintenance claim against Mr Wick by Mrs Mary Wick? (2) 1.7 Assume that the rules of private international law of the country whose legal system governs the inherent validity of the Wicks’ marriage, refers the determination of inherent validity to the country of matrimonial domicile. If a South African court follows a partial renvoi LJU4804 MAY JUNE 2023 3 approach, which legal system would it apply to determine the inherent validity of their marriage? (3) 1.8 In the recent case of Greyling v Minister of Home Affairs and 4 others (2022) ZAGPPHC 3, it was found that limiting a claim for redistribution of assets to spouses who got married prior to 1 November 1984, constituted unfair discrimination. Assume that this has been confirmed by the Constitutional Court and that all spouses, regardless of their date of marriage, may institute a claim for redistribution of assets if they comply with all the requirements in s 7 of the Divorce Act 70 of 1979. Would Mrs Mary Wick be successful with a claim under s 7(3) of the Divorce Act if the dictum in Esterhuizen v Esterhuizen 1999 (1) SA 492 (W) was followed? QUESTION 2 A German buyer enters into an international sales contract with a South African seller. The standard terms of the contract refer disputes to settlement by means of arbitration. Advise the buyer on whether he/she may be confident that a South African court will respect a valid arbitration clause. [5] QUESTION 3 Instructions: Read the set of facts and answer the questions that follow. Mega Mines (Pty) Ltd is a South African company with its principal place of business in Johannesburg. Outback (Ltd) is a company incorporated in terms of the laws of Australia with its principal place of business in Mackay, Queensland. Outback purchased a large consignment of mining equipment from Mega Mines. The contract was concluded by the managing directors of the companies at Mega Mines’ manufacturing plant in Johannesburg. The contract included a choice of law clause indicating Australian law (a CISG contracting state) as the proper law of the contract. Delivery of the goods had to take place FOB (Durban) and payment had to be effected into Mega Mines’ bank account held at RMB, Johannesburg. The contract contained an arbitration clause, directing that all disputes had to be referred to arbitration by the London Court of International Arbitration (LCIA). The mining equipment is delivered as per agreement, but Outback fails to make payment, claiming that the goods do not conform to the contract specifications. LJU4804 MAY JUNE 2023 (10) [40] 4 3.1 A dispute arises in respect of the formal validity of the contract. Assume that, according to South African law, the lex loci contractus is to be applied to formal validity. Assume further, that the proper law of the contract applies to formal validity of the contract under Australian law. Which legal system should be applied to formal validity if the court follows the via media approach to classification? Provide the classification tables and reach a properly motivated conclusion. (15) 3.2 Explain how the FOB Incoterm operates. (5) 3.3 If Outback were to obtain an arbitral award in its favour from the LCIA, what are its chances of having it recognised and enforced against Mega Mines in South Africa? (5) 3.4 Would Outback be able to claim interest on sums awarded under the arbitral award? Refer to the relevant provisions of the CISG. (10) [35] TOTAL: [80]