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

LJU4804 Assignment 2 (DETAILED ANSWERS) Semester 2 2025 - DISTINCTION GUARANTEED - DISTINCTION GUARANTEED - DISTINCTION GUARANTEED Answers, guidelines, workings and references ,... Maria Petrus and John Paulus met at high school in Windhoek, Namibia in 1979. They got married in December 1982 while on holiday in Botswana. At the time of entering into the marriage, both Mr and Mrs Paulus were Namibian citizens and Mrs Paulus was domiciled in Namibia as well. Mr Paulus established a domicile of choice in Sheffield, England in 1980 when he assumed permanent employment at a steel factory. He was domiciled there at the time of concluding his marriage to Maria as well. Mr and Mrs Paulus stayed in England until 1990 when Mr Paulus obtained a full-time position at a factory in Rosslyn, South Africa. In January 1991, the parties immigrated to Pretoria, South Africa, and established a domicile there. Two children were born from the marriage and Mrs Paulus stayed at home to look after them. In 2017, Mrs Paulus instituted divorce proceedings against Mr Paulus in the North Gauteng High Court. 1.1 Which legal system applies to the inherent validity of the parties’ marriage in terms of the South African rules of private international law? (2) 1.2 Assume that Maria was 17 years old at the time of entering into the marriage and that the parties went to Botswana to evade the rules of Namibian law that required parental consent for a minor to enter into a marriage. Would your answer to question 1.1 be the same? (5) Assume for purposes of questions 1.3 – 1.6 that the marriage is found to be inherently and formally valid. 1.3 Assume that redistribution of assets is classified as a divorce matter in English law and that divorce matters are also governed by the law of the forum in terms of the rules of English private international law. As you know, redistribution is classified as a proprietary consequence of marriage under South African law. Which legal system should be applied to the redistribution of the parties’ assets if via media classification is followed? (Note: you have to explain what via media classification is; provide the classification tables and reach a conclusion as to the applicable law). (15) 1.4 Mr Paulus executed a will in Germany in which he granted a power of appointment of a final beneficiary to Mrs Paulus. At the time of execution of the will, he was domiciled in England He retained his Namibian citizenship throughout his life. Mrs Paulus executed this power of appointment in a will drafted in England while also domiciled there. Mrs Paulus’s will was formally invalid in terms of all its possible testing systems, but formally valid in terms of German law. Was the power of appointment validly executed in terms of the Wills Act 7 of 1953? (4) 1.5 Which legal system would govern a maintenance claim by Mrs Paulus? (2) 1.6 The connecting factor for proprietary consequences of marriage needs reform. This point was also raised in the case of Sadiku v Sadiku (Case 30498/06 unreported). Discuss this case and proposals for reform of the connecting factor with reference to your prescribed reading material in this regard. (12) [40] QUESTION 2 Telefax (Pty) Ltd, a telecommunications company incorporated in South Africa, and Graphics Ltd, a company incorporated in England, concluded an international sales contract in January 2020. The contract contained a clause directing all disputes arising from it to settlement by means of arbitration, in Sandton, South Africa under the AFSA International Arbitration Rules. The contract contained no choice of law clause. A dispute arose between the parties in June 2020 and Graphics instituted a claim against Telefax in the South Gauteng High Court. 2.1 Advise Telefax on the relevant provisions of the International Arbitration Act 15 of 2017 and its Schedules in respect of Graphics’ conduct in contravention of the arbitration clause. 2.1 If the court follows the objective approach, how would it go about determining the proper law of the contract? (Note: also refer to the prescribed article by Fredericks 2003 SA Merc LJ 63). (10) Assume that Japanese law is found to be the proper law of the contract. Japan is a CISG contracting state. Should the court apply the CISG to the parties’ dispute? (Note: refer to your prescribed article by Wethmar-Lemmer 2008 De Jure 419) (5) = Discuss the primary responsibilities of the buyer and seller under the Incoterm as included in the contract. (Note: refer to your relevant prescribed reading material from Van Niekerk and Schulze). (5) (7) 2.2 How would an arbitral tribunal establish the substantive law to be applied to the dispute in compliance with the Arbitration Act and its Schedules? Discuss the relevant provision(s). (3) [10] QUESTION 3 Instructions: Read the set of facts and answer the questions that follow. Fish and More (Pty) Ltd is a South African company with its principal place of business in Durban. Sushi (Ltd) is a company incorporated in terms of the laws of New Zealand with its principal place of business in Auckland. Fish and More purchased a large consignment of mussels from Sushi. The parties never gave any thought to the governing law of their contract. Their contract provided that the goods had to be delivered CIF (Incoterms 2010) Durban and payment had to be effected into Sushi’s bank account held at ASB Bank, Auckland. The contract contained an arbitration clause, directing that all disputes had to be referred to arbitration by the London Court of International Arbitration (LCIA). Upon inspection of the goods shortly after arrival at their warehouse, Fish and More found that they contained higher levels of cadmium than mussels of other suppliers they frequently ordered from. Fish and More refused payment for the goods and Sushi delivered its notice of arbitration. Catch (Pty) Ltd is a company incorporated in South Africa with its central administration and principal place of business in Johannesburg. Catch imports seafood and sells it to many upmarket restaurants across South Africa. Sakana (KK) is a company incorporated in Japan with its central administration and principal place of business in Tokyo, Japan. Sakana exports seafood worldwide. Catch and Sakana concluded an international sales contract in terms of which Catch purchased a large consignment of bluefin tuna from Sakana for the purchase price of € 1 million. Payment had to be effected by means of an electronic funds transfer into Sakana’s bank account held at Norinchukin Bank, Tokyo. The goods had to be shipped FOB (ICC Incoterms 2020) Tokyo. The goods were shipped as per the agreement. Catch arranged for transport of the fish to their cold storage facility in Johannesburg. Upon inspection of the goods, Catch found that the fish was rotten. Catch refused to make payment for the fish, arguing that the fish was not adequately packed. However, upon further inspection, it transpired that the shipping freezer container was not kept cold enough while the fish was shipped. Sakana made several further demands for payment and thereafter instituted a claim against Catch in the South Gauteng High Court. 3.1 New Zealand is a CISG contracting state. Should the court apply the CISG to the parties’ dispute if the law of New Zealand is found to be the proper law of the contract? (5) 3.2 What is the method of payment that affords both parties to an international sales contract the best protection? Explain your answer. (5) 3.3 Assume that the CISG is indeed found to be applicable. Advise Fish and More on whether they would possibly be successful in arguing that Sushi committed a fundamental breach of contract due to the non-conformity of goods. (8) 3.4 Explain the parties’ responsibilities in terms of the Incoterm included in the contract. (5) 3.5 If Sushi were successful in obtaining an arbitral award against Fish and More, what would their chances be of its successful recognition and enforcement of the award in South Africa? Explain. (7) Maria Petrus and John Paulus met at high school in Windhoek, Namibia in 1979. They got married in December 1982 while on holiday in Botswana. At the time of entering into the marriage, both Mr and Mrs Paulus were Namibian citizens and Mrs Paulus was domiciled in Namibia as well. Mr Paulus established a domicile of choice in Sheffield, England in 1980 when he assumed permanent employment at a steel factory. He was domiciled there at the time of concluding his marriage to Maria as well. Mr and Mrs Paulus stayed in England until 1990 when Mr Paulus obtained a full-time position at a factory in Rosslyn, South Africa. In January 1991, the parties immigrated to Pretoria, South Africa, and established a domicile there. Two children were born from the marriage and Mrs Paulus stayed at home to look after them. In 2017, Mrs Paulus instituted divorce proceedings against Mr Paulus in the North Gauteng High Court. 1.1 Which legal system applies to the inherent validity of the parties’ marriage in terms of the South African rules of private international law? (2) 1.2 Assume that Maria was 17 years old at the time of entering into the marriage and that the parties went to Botswana to evade the rules of Namibian law that required parental consent for a minor to enter into a marriage. Would your answer to question 1.1 be the same? (5) Assume for purposes of questions 1.3 – 1.6 that the marriage is found to be inherently and formally valid. 1.3 Assume that redistribution of assets is classified as a divorce matter in English law and that divorce matters are also governed by the law of the forum in terms of the rules of English private international law. As you know, redistribution is classified as a proprietary consequence of marriage under South African law. Which legal system should be applied to the redistribution of the parties’ assets if via media classification is followed? (Note: you have to explain what via media classification is; provide the classification tables and reach a conclusion as to the applicable law). (15) 1.4 Mr Paulus executed a will in Germany in which he granted a power of appointment of a final beneficiary to Mrs Paulus. At the time of execution of the will, he was domiciled in England He retained his Namibian citizenship throughout his life. Mrs Paulus executed this power of appointment in a will drafted in England while also domiciled there. Mrs Paulus’s will was formally invalid in terms of all its possible testing systems, but formally valid in terms of German law. Was the power of appointment validly executed in terms of the Wills Act 7 of 1953? (4) 1.5 Which legal system would govern a maintenance claim by Mrs Paulus? (2) 1.6 The connecting factor for proprietary consequences of marriage needs reform. This point was also raised in the case of Sadiku v Sadiku (Case 30498/06 unreported). Discuss this case and proposals for reform of the connecting factor with reference to your prescribed reading material in this regard. (12) [40] QUESTION 2 Telefax (Pty) Ltd, a telecommunications company incorporated in South Africa, and Graphics Ltd, a company incorporated in England, concluded an international sales contract in January 2020. The contract contained a clause directing all disputes arising from it to settlement by means of arbitration, in Sandton, South Africa under the AFSA International Arbitration Rules. The contract contained no choice of law clause. A dispute arose between the parties in June 2020 and Graphics instituted a claim against Telefax in the South Gauteng High Court. 2.1 Advise Telefax on the relevant provisions of the International Arbitration Act 15 of 2017 and its Schedules in respect of Graphics’ conduct in contravention of the arbitration clause. 2.1 If the court follows the objective approach, how would it go about determining the proper law of the contract? (Note: also refer to the prescribed article by Fredericks 2003 SA Merc LJ 63). (10) Assume that Japanese law is found to be the proper law of the contract. Japan is a CISG contracting state. Should the court apply the CISG to the parties’ dispute? (Note: refer to your prescribed article by Wethmar-Lemmer 2008 De Jure 419) (5) = Discuss the primary responsibilities of the buyer and seller under the Incoterm as included in the contract. (Note: refer to your relevant prescribed reading material from Van Niekerk and Schulze). (5) (7) 2.2 How would an arbitral tribunal establish the substantive law to be applied to the dispute in compliance with the Arbitration Act and its Schedules? Discuss the relevant provision(s). (3) [10] QUESTION 3 Instructions: Read the set of facts and answer the questions that follow. Fish and More (Pty) Ltd is a South African company with its principal place of business in Durban. Sushi (Ltd) is a company incorporated in terms of the laws of New Zealand with its principal place of business in Auckland. Fish and More purchased a large consignment of mussels from Sushi. The parties never gave any thought to the governing law of their contract. Their contract provided that the goods had to be delivered CIF (Incoterms 2010) Durban and payment had to be effected into Sushi’s bank account held at ASB Bank, Auckland. The contract contained an arbitration clause, directing that all disputes had to be referred to arbitration by the London Court of International Arbitration (LCIA). Upon inspection of the goods shortly after arrival at their warehouse, Fish and More found that they contained higher levels of cadmium than mussels of other suppliers they frequently ordered from. Fish and More refused payment for the goods and Sushi delivered its notice of arbitration. Catch (Pty) Ltd is a company incorporated in South Africa with its central administration and principal place of business in Johannesburg. Catch imports seafood and sells it to many upmarket restaurants across South Africa. Sakana (KK) is a company incorporated in Japan with its central administration and principal place of business in Tokyo, Japan. Sakana exports seafood worldwide. Catch and Sakana concluded an international sales contract in terms of which Catch purchased a large consignment of bluefin tuna from Sakana for the purchase price of € 1 million. Payment had to be effected by means of an electronic funds transfer into Sakana’s bank account held at Norinchukin Bank, Tokyo. The goods had to be shipped FOB (ICC Incoterms 2020) Tokyo. The goods were shipped as per the agreement. Catch arranged for transport of the fish to their cold storage facility in Johannesburg. Upon inspection of the goods, Catch found that the fish was rotten. Catch refused to make payment for the fish, arguing that the fish was not adequately packed. However, upon further inspection, it transpired that the shipping freezer container was not kept cold enough while the fish was shipped. Sakana made several further demands for payment and thereafter instituted a claim against Catch in the South Gauteng High Court. 3.1 New Zealand is a CISG contracting state. Should the court apply the CISG to the parties’ dispute if the law of New Zealand is found to be the proper law of the contract? (5) 3.2 What is the method of payment that affords both parties to an international sales contract the best protection? Explain your answer. (5) 3.3 Assume that the CISG is indeed found to be applicable. Advise Fish and More on whether they would possibly be successful in arguing that Sushi committed a fundamental breach of contract due to the non-conformity of goods. (8) 3.4 Explain the parties’ responsibilities in terms of the Incoterm included in the contract. (5) 3.5 If Sushi were successful in obtaining an arbitral award against Fish and More, what would their chances be of its successful recognition and enforcement of the award in South Africa? Explain. (7)