LJU4804
PORTFOLIO 2026
DUE DATE: 21 MAY 2026
,LJU4804 MAY JUNE PORTFOLIO 2026
DUE 21 MAY 2026
QUESTION 1
1.1 The incidental question faced by the court
The court faces an incidental question properly so-called (true incidental question).
An incidental question arises where it is necessary to settle a subsidiary or preliminary
question before the main question can be decided. In this case, the main question is the
validity of the marriage between Mr John and Mrs Lynn Mubanga. However, before the
court can determine the validity of that marriage, it must first determine the validity of
the Cayman Islands divorce that Mr Mubanga obtained from his first wife, Bertha
Mubanga. If the Cayman Islands divorce is invalid, then Mr Mubanga was still married to
Bertha at the time he married Lynn, rendering the second marriage void for bigamy.
According to the prescribed article by Neels JL "External public policy, the incidental
question properly so-called and the recognition of foreign divorce orders" 2010 TSAR
671, an incidental question is properly so-called when the main question is governed by
a foreign legal system (the lex causae) and the incidental question requires the
application of a different legal system. In the present case, the main question validity of
the marriage is governed by a foreign legal system, but the incidental question validity
of the divorce requires the application of South African rules for the recognition of
foreign divorces.¹
The court must determine which legal system applies to the incidental question.
The four potentially applicable legal systems are:²
the internal lex fori (South African internal law);
(b) the legal system indicated by the private international law of the forum (i.e., which
, legal system would determine divorce validity under South African PIL);
(c) the internal lex causae (the legal system applicable to the main question, which
would be the law of the place where the marriage was celebrated or the law of
domicile); and
(d) the legal system indicated by the private international law of the lex causae.
In Phelan v Phelan 2007 (1) SA 483 (C), a true incidental question arose where a South
African court had to determine the validity of a foreign divorce before it could determine
the validity of a subsequent marriage. The court held that the validity of the foreign
divorce had to be determined in accordance with South African rules of private
international law relating to the recognition of foreign divorce orders.³
¹ Neels JL "External public policy, the incidental question properly so-called and the recognition of foreign
divorce orders" 2010 TSAR 671 at 672-674
² LJU4804 Study Guide, Study Unit 4, p 37
³ LJU4804 Study Guide, Study Unit 4, p 38
1.2 Legal system applying to formal validity of the marriage
The formal validity of the marriage is governed by the lex loci celebrationis the law of
the place where the marriage was celebrated.⁴
In this case, Mr and Mrs Lynn Mubanga were married in Mauritius. Therefore, the formal
validity of their marriage must be determined according to Mauritian law.
Authority: Ngqobela v Sihele (1893) 10 SC 356; Seedat's Executors v The Master
(Natal) 1917 AD 302; Ochberg v Ochberg's Estate 1941 CPD 15.⁵
PORTFOLIO 2026
DUE DATE: 21 MAY 2026
,LJU4804 MAY JUNE PORTFOLIO 2026
DUE 21 MAY 2026
QUESTION 1
1.1 The incidental question faced by the court
The court faces an incidental question properly so-called (true incidental question).
An incidental question arises where it is necessary to settle a subsidiary or preliminary
question before the main question can be decided. In this case, the main question is the
validity of the marriage between Mr John and Mrs Lynn Mubanga. However, before the
court can determine the validity of that marriage, it must first determine the validity of
the Cayman Islands divorce that Mr Mubanga obtained from his first wife, Bertha
Mubanga. If the Cayman Islands divorce is invalid, then Mr Mubanga was still married to
Bertha at the time he married Lynn, rendering the second marriage void for bigamy.
According to the prescribed article by Neels JL "External public policy, the incidental
question properly so-called and the recognition of foreign divorce orders" 2010 TSAR
671, an incidental question is properly so-called when the main question is governed by
a foreign legal system (the lex causae) and the incidental question requires the
application of a different legal system. In the present case, the main question validity of
the marriage is governed by a foreign legal system, but the incidental question validity
of the divorce requires the application of South African rules for the recognition of
foreign divorces.¹
The court must determine which legal system applies to the incidental question.
The four potentially applicable legal systems are:²
the internal lex fori (South African internal law);
(b) the legal system indicated by the private international law of the forum (i.e., which
, legal system would determine divorce validity under South African PIL);
(c) the internal lex causae (the legal system applicable to the main question, which
would be the law of the place where the marriage was celebrated or the law of
domicile); and
(d) the legal system indicated by the private international law of the lex causae.
In Phelan v Phelan 2007 (1) SA 483 (C), a true incidental question arose where a South
African court had to determine the validity of a foreign divorce before it could determine
the validity of a subsequent marriage. The court held that the validity of the foreign
divorce had to be determined in accordance with South African rules of private
international law relating to the recognition of foreign divorce orders.³
¹ Neels JL "External public policy, the incidental question properly so-called and the recognition of foreign
divorce orders" 2010 TSAR 671 at 672-674
² LJU4804 Study Guide, Study Unit 4, p 37
³ LJU4804 Study Guide, Study Unit 4, p 38
1.2 Legal system applying to formal validity of the marriage
The formal validity of the marriage is governed by the lex loci celebrationis the law of
the place where the marriage was celebrated.⁴
In this case, Mr and Mrs Lynn Mubanga were married in Mauritius. Therefore, the formal
validity of their marriage must be determined according to Mauritian law.
Authority: Ngqobela v Sihele (1893) 10 SC 356; Seedat's Executors v The Master
(Natal) 1917 AD 302; Ochberg v Ochberg's Estate 1941 CPD 15.⁵
