LJU4804
May June PORTFOLIO Semester 1 2026
Unique number:
Due Date: 21 May 2026
QUESTION 1
1.1 Incidental question in the Mubanga matter
The court was faced with an incidental question properly so-called, also known as a true
incidental question. An incidental question arises where a court must first decide a
subsidiary issue before it can decide the main issue.1 In this matter, the main issue was
whether the South African High Court could grant a divorce between Mr and Mrs Lynn
Mubanga. However, before granting a divorce, the court first had to determine whether their
Mauritian marriage was valid. That, in turn, depended on whether Mr Mubanga‟s earlier
Cayman Islands divorce from Bertha was valid.1
The question is “properly so-called” because the main question is governed by a foreign lex
causae. Under South African private international law, the validity of a marriage is generally
governed by the law of the place where the marriage was celebrated, the lex loci
celebrationis.1 Since the Mubangas married in Mauritius, the validity of their marriage points
to Mauritian law. The Cayman Islands divorce is therefore a preliminary question arising
within a main question governed by foreign law.1
Terms of use
By making use of this document you agree to:
Use this document as a guide for learning, comparison and reference purpose,
Terms of use
Not to duplicate, reproduce and/or misrepresent the contents of this document as your own work,
By making use of this document you agree to:
Use this document
Fully accept the consequences
solely as a guide forshould you plagiarise
learning, reference,or and
misuse this document.
comparison purposes,
Ensure originality of your own work, and fully accept the consequences should you plagiarise or misuse this document.
Comply with all relevant standards, guidelines, regulations, and legislation governing academic and written work.
Disclaimer
Great care has been taken in the preparation of this document; however, the contents are provided "as is" without any express or
implied representations or warranties. The author accepts no responsibility or liability for any actions taken based on the
information contained within this document. This document is intended solely for comparison, research, and reference purposes.
Reproduction, resale, or transmission of any part of this document, in any form or by any means, is strictly prohibited.
, +27 81 278 3372
QUESTION 1
1.1 Incidental question in the Mubanga matter
The court was faced with an incidental question properly so-called, also known as a
true incidental question. An incidental question arises where a court must first decide
a subsidiary issue before it can decide the main issue.1 In this matter, the main issue
was whether the South African High Court could grant a divorce between Mr and Mrs
Lynn Mubanga. However, before granting a divorce, the court first had to determine
whether their Mauritian marriage was valid. That, in turn, depended on whether Mr
Mubanga‟s earlier Cayman Islands divorce from Bertha was valid.2
The question is “properly so-called” because the main question is governed by a
foreign lex causae. Under South African private international law, the validity of a
marriage is generally governed by the law of the place where the marriage was
celebrated, the lex loci celebrationis.3 Since the Mubangas married in Mauritius, the
validity of their marriage points to Mauritian law. The Cayman Islands divorce is
therefore a preliminary question arising within a main question governed by foreign
law.4
This is similar to Phelan v Phelan, where the main question concerned the validity of
a marriage concluded in Australia, while the incidental question concerned whether a
previous Dominican Republic divorce should be recognised.5 Neels explains that
where the incidental question concerns recognition of a foreign divorce order, the
court may have to choose between the recognition rules of the forum and those of
the lex causae.6 In the Mubanga facts, the court would therefore have to consider
whether the Cayman Islands divorce should be recognised either according to South
African private international law or according to the private international law rules of
Mauritius.7
1
M M Wethmar-Lemmer Private International Law: Only Study Guide for LJU4804 (Unisa 2020) 36.
2
Phelan v Phelan 2007 (1) SA 483 (C) 486–487.
3
Wethmar-Lemmer (n 1) 68.
4
Wethmar-Lemmer (n 1) 37.
5
Phelan v Phelan 2007 (1) SA 483 (C) 486–488.
6
J L Neels „External public policy, the incidental question properly so-called and the recognition of
foreign divorce orders‟ 2010 TSAR 671, 681.
7
Neels (n 6) 681–682.
Disclaimer
Great care has been taken in the preparation of this document; however, the contents are provided "as is"
without any express or implied representations or warranties. The author accepts no responsibility or
liability for any actions taken based on the information contained within this document. This document is
intended solely for comparison, research, and reference purposes. Reproduction, resale, or transmission
of any part of this document, in any form or by any means, is strictly prohibited.
May June PORTFOLIO Semester 1 2026
Unique number:
Due Date: 21 May 2026
QUESTION 1
1.1 Incidental question in the Mubanga matter
The court was faced with an incidental question properly so-called, also known as a true
incidental question. An incidental question arises where a court must first decide a
subsidiary issue before it can decide the main issue.1 In this matter, the main issue was
whether the South African High Court could grant a divorce between Mr and Mrs Lynn
Mubanga. However, before granting a divorce, the court first had to determine whether their
Mauritian marriage was valid. That, in turn, depended on whether Mr Mubanga‟s earlier
Cayman Islands divorce from Bertha was valid.1
The question is “properly so-called” because the main question is governed by a foreign lex
causae. Under South African private international law, the validity of a marriage is generally
governed by the law of the place where the marriage was celebrated, the lex loci
celebrationis.1 Since the Mubangas married in Mauritius, the validity of their marriage points
to Mauritian law. The Cayman Islands divorce is therefore a preliminary question arising
within a main question governed by foreign law.1
Terms of use
By making use of this document you agree to:
Use this document as a guide for learning, comparison and reference purpose,
Terms of use
Not to duplicate, reproduce and/or misrepresent the contents of this document as your own work,
By making use of this document you agree to:
Use this document
Fully accept the consequences
solely as a guide forshould you plagiarise
learning, reference,or and
misuse this document.
comparison purposes,
Ensure originality of your own work, and fully accept the consequences should you plagiarise or misuse this document.
Comply with all relevant standards, guidelines, regulations, and legislation governing academic and written work.
Disclaimer
Great care has been taken in the preparation of this document; however, the contents are provided "as is" without any express or
implied representations or warranties. The author accepts no responsibility or liability for any actions taken based on the
information contained within this document. This document is intended solely for comparison, research, and reference purposes.
Reproduction, resale, or transmission of any part of this document, in any form or by any means, is strictly prohibited.
, +27 81 278 3372
QUESTION 1
1.1 Incidental question in the Mubanga matter
The court was faced with an incidental question properly so-called, also known as a
true incidental question. An incidental question arises where a court must first decide
a subsidiary issue before it can decide the main issue.1 In this matter, the main issue
was whether the South African High Court could grant a divorce between Mr and Mrs
Lynn Mubanga. However, before granting a divorce, the court first had to determine
whether their Mauritian marriage was valid. That, in turn, depended on whether Mr
Mubanga‟s earlier Cayman Islands divorce from Bertha was valid.2
The question is “properly so-called” because the main question is governed by a
foreign lex causae. Under South African private international law, the validity of a
marriage is generally governed by the law of the place where the marriage was
celebrated, the lex loci celebrationis.3 Since the Mubangas married in Mauritius, the
validity of their marriage points to Mauritian law. The Cayman Islands divorce is
therefore a preliminary question arising within a main question governed by foreign
law.4
This is similar to Phelan v Phelan, where the main question concerned the validity of
a marriage concluded in Australia, while the incidental question concerned whether a
previous Dominican Republic divorce should be recognised.5 Neels explains that
where the incidental question concerns recognition of a foreign divorce order, the
court may have to choose between the recognition rules of the forum and those of
the lex causae.6 In the Mubanga facts, the court would therefore have to consider
whether the Cayman Islands divorce should be recognised either according to South
African private international law or according to the private international law rules of
Mauritius.7
1
M M Wethmar-Lemmer Private International Law: Only Study Guide for LJU4804 (Unisa 2020) 36.
2
Phelan v Phelan 2007 (1) SA 483 (C) 486–487.
3
Wethmar-Lemmer (n 1) 68.
4
Wethmar-Lemmer (n 1) 37.
5
Phelan v Phelan 2007 (1) SA 483 (C) 486–488.
6
J L Neels „External public policy, the incidental question properly so-called and the recognition of
foreign divorce orders‟ 2010 TSAR 671, 681.
7
Neels (n 6) 681–682.
Disclaimer
Great care has been taken in the preparation of this document; however, the contents are provided "as is"
without any express or implied representations or warranties. The author accepts no responsibility or
liability for any actions taken based on the information contained within this document. This document is
intended solely for comparison, research, and reference purposes. Reproduction, resale, or transmission
of any part of this document, in any form or by any means, is strictly prohibited.
