, QUESTION 1
1.1. In terms of South African private international law, the material validity of a marriage is
governed by the lex domicilii of each party at the time of marriage—that is, the law of the country
where each party was domiciled when the marriage was contracted (Forsyth 2012: 274). Since both
Patrick and Ruth Mulenga were domiciled in Zambia at the time of their marriage, Zambian law
governs the material validity of their marriage. Therefore, the South African courts would apply
Zambian law to determine whether their marriage was materially valid.
1.2. If it is shown that the parties married in Zanzibar to evade the mandatory requirements of
Zambian law, such as the need for parental consent for minors, the South African courts would
likely treat the marriage as invalid in terms of the principle against evasion of the lex domicilii
(Forsyth 2012: 276). According to this principle, if parties intentionally go to another jurisdiction to
avoid the legal impediments imposed by their domiciliary law, South African courts may refuse to
recognize the validity of such a marriage (Scholtz v Scholtz 1953 (1) SA 689 (O)). In this case, since
Mrs Mulenga was a minor (seventeen years old) and Zambian law required parental consent,
marrying in Zanzibar to avoid this requirement would constitute an evasion of the Zambian law,
rendering the marriage materially invalid in South African law. Therefore, the answer to 1.1 would
differ, as the marriage could be considered invalid due to fraudulent evasion of Zambian law.
1.3. The formal validity of an antenuptial contract is governed by the lex loci actus, meaning the
law of the place where the contract was executed (Forsyth 2012: 288). The material validity—which
includes the capacity of the parties and the substantive legality of the contract—is governed by the
lex domicilii of each party at the time of contracting (Van Niekerk 2013: 102). Therefore, the formal
validity of Patrick and Ruth’s antenuptial contract would be determined by Zanzibari law (the place
of conclusion), while its material validity would be determined by Zambian law, since both were
domiciled in Zambia at the time of entering into the contract.
1.4. Mrs Ruth Mulenga’s capacity to conclude an antenuptial contract depends on the law of her
domicile at the time of contracting—in this case, Zambian law (Forsyth 2012: 291). Since she was
only seventeen years old, her contractual capacity must be determined according to Zambian legal
provisions on minority and marital capacity. If Zambian law required parental or guardian consent
for minors to enter into contracts, Mrs Mulenga would not have had the necessary capacity to
validly conclude the antenuptial contract without such consent. Therefore, her contractual capacity
is governed by Zambian law, and under that system, she likely lacked full contractual capacity due
to her minority.
1.1. In terms of South African private international law, the material validity of a marriage is
governed by the lex domicilii of each party at the time of marriage—that is, the law of the country
where each party was domiciled when the marriage was contracted (Forsyth 2012: 274). Since both
Patrick and Ruth Mulenga were domiciled in Zambia at the time of their marriage, Zambian law
governs the material validity of their marriage. Therefore, the South African courts would apply
Zambian law to determine whether their marriage was materially valid.
1.2. If it is shown that the parties married in Zanzibar to evade the mandatory requirements of
Zambian law, such as the need for parental consent for minors, the South African courts would
likely treat the marriage as invalid in terms of the principle against evasion of the lex domicilii
(Forsyth 2012: 276). According to this principle, if parties intentionally go to another jurisdiction to
avoid the legal impediments imposed by their domiciliary law, South African courts may refuse to
recognize the validity of such a marriage (Scholtz v Scholtz 1953 (1) SA 689 (O)). In this case, since
Mrs Mulenga was a minor (seventeen years old) and Zambian law required parental consent,
marrying in Zanzibar to avoid this requirement would constitute an evasion of the Zambian law,
rendering the marriage materially invalid in South African law. Therefore, the answer to 1.1 would
differ, as the marriage could be considered invalid due to fraudulent evasion of Zambian law.
1.3. The formal validity of an antenuptial contract is governed by the lex loci actus, meaning the
law of the place where the contract was executed (Forsyth 2012: 288). The material validity—which
includes the capacity of the parties and the substantive legality of the contract—is governed by the
lex domicilii of each party at the time of contracting (Van Niekerk 2013: 102). Therefore, the formal
validity of Patrick and Ruth’s antenuptial contract would be determined by Zanzibari law (the place
of conclusion), while its material validity would be determined by Zambian law, since both were
domiciled in Zambia at the time of entering into the contract.
1.4. Mrs Ruth Mulenga’s capacity to conclude an antenuptial contract depends on the law of her
domicile at the time of contracting—in this case, Zambian law (Forsyth 2012: 291). Since she was
only seventeen years old, her contractual capacity must be determined according to Zambian legal
provisions on minority and marital capacity. If Zambian law required parental or guardian consent
for minors to enter into contracts, Mrs Mulenga would not have had the necessary capacity to
validly conclude the antenuptial contract without such consent. Therefore, her contractual capacity
is governed by Zambian law, and under that system, she likely lacked full contractual capacity due
to her minority.
