LJU4804 PORTFOLIO MEMO - MAY/JUNE 2024 - SEMESTER 1 - UNISA - (DETAILED ANSWERS - FULLY REFERENCED - DISTINCTION GUARANTEED!)

LJU4804 PORTFOLIO MEMO - MAY/JUNE 2024 - SEMESTER 1 - UNISA - (DETAILED ANSWERS - FULLY REFERENCED - DISTINCTION GUARANTEED!) WORD DOCUMENT AVAILABLE! QUESTION 1 Instructions: Read the set of facts below and answer the questions that follow. Mr Sibanda and his first wife, Jane, obtained a divorce order in the Caymen Islands in 1998 while Jane was domiciled there. Mr and Mrs Mary Sibanda got married in December 2000 while on vacation in Zanzibar. They executed an ante-nuptial contract excluding all forms of community of property and of profit and loss. At the time of entering into the marriage, Mr and Mrs Mary Sibanda were both Malawian citizens, whilst Mr Sibanda was working and residing in London, England, on a two-year fixed term contract, with the prospect of a further renewal. LJU4804 MAY JUNE 2024 3 However, shortly after returning from their honeymoon, Mr and Mrs Mary Sibanda immigrated to South Africa and established a domicile in Johannesburg. Three children were born from the marriage and Mrs Mary Sibanda stayed at home to look after them, since Mr Sibanda travelled extensively as the CEO of a large retail company. In October 2018, Mrs Mary Sibanda instituted divorce proceedings against Mr Sibanda in the South Gauteng High Court, Johannesburg. 1.1 Which legal system applies to the material validity of Mr and Mrs Sibanda’s marriage in terms of the South African rules of private international law? (2) 1.2 Explain what the doctrine of fraus legis entails and how it impacts on the legal system applicable to the material validity of a marriage. (5) 1.3 Where was Mr Sibanda domiciled at the time of entering into the marriage with Mary according to the relevant principes of South African law? (4) 1.4 Assume for purposes of this question that Mr Sibanda was domiciled in England at the time of entering into the marriage. Would Mrs Sibanda be successful in obtaining a redistribution order in terms of s 7(3) of the Divorce Act 70 of 1979 if the dictum in Esterhuizen v Esterhuizen 1999 (1) SA 492 (W) were followed? Note: your answer must include a full case discussion of this case, properly referenced and not taken from the study guide. (10) 1.5 Mr Sibanda’s legal team is considering the argument that his marriage to Mary was not valid, since his divorce from Jane may not be recognised under South African law. Advise his legal team on the chances of success of this argument considering the relevant provisions of the Divorce Act 70 of 1979. (3) 1.6 Mrs Mary Sibanda executed a will in England in which she granted a power of appointment of a final beneficiary to Mr Sibanda. At the time of execution of the will, she was domiciled in South Africa and a Malawian citizen. Mr Sibanda executed the power of appointment in a will drafted in South Africa. At the time of its execution, he was also domiciled in South Africa. Mrs Mary Sibanda’s will was formally valid in terms of English, South African and Malawian law. Mr Sibanda’s will was formally invalid in terms of all its primary testing systems, but indeed formally valid in terms of English law. Is the execution of the power of appointment formally valid in terms of the Wills Act 7 of 1953? Discuss. (5) 1.7 In 2019, Mr Sibanda tragically died in a motor vehicle accident while on a business trip in Namibia. At the time of his death, he was still domiciled in Johannesburg and a Malawian citizen. The accident was caused by a negligent truck driver employed by a multinational courier company with depots in all the SADC countries. The lawyers representing Mr LJU4804 MAY JUNE 2024 4 Sibanda’s heirs plan to sue the truck company on the basis of delict. If the action is instituted in the South Gauteng High Court, which legal system will be applied to the matter? (6) [35] QUESTION 2 Instructions: Read the statements below and provide a properly referenced essay-answer. Make use of numbered headings and sub-headings and provide footnote references for every statement made. On 9 April 2024, the Arbitration Foundation of Southern Africa (AFSA) and representatives of the ministries of Justice of ten SADC countries signed the AFSA SADC Alliance Charter which aims to harmonise the rules pertaining to the regulation of international arbitration within this economic bloc. The South African International Arbitration Act 15 of 2017 represents best practice in respect of the provisions governing the procedural aspects of international arbitrations as well as in respect of the recognition and enforcement of foreign judgments and may provide valuable insights for the regional integration of international arbitration rules. Discuss these statements in detail. [25] QUESTION 3 Instructions: Read the set of facts and answer the questions that follow. Knit (Pty) Ltd is a South African company with its principal place of business in Rosslyn (Pretoria). Wool (Pty) Ltd is a company incorporated in terms of the laws of Lesotho with its principal place of business in Maseru. In January 2022, Knit purchased a large consignment of wool for purposes of manufacturing knitwear for various South African clothing retailers. Payment had to take place by means of a confirmed letter of credit issued by RMB (Johannesburg) and confirmed by Nedbank Lesotho (Maseru). The contract was concluded by the managing directors of the companies at Wool’s factory in Maseru. The contract included a choice of law clause indicating the law of Lesotho (a CISG contracting state) as the proper law of the contract. Upon receiving a consignment of wool in October 2022, Knit gave notice to Wool that it does not comply with the standard agreed upon in the contract. Knit sent a letter of demand to Wool, indicating that the goods do not conform to the contract and requesting specific performance LJU4804 MAY JUNE 2024 5 of the wool as per the contract specifications. Wool did not respond. Knit instituted action against Wool in the Lesotho High Court. 3.1 Is Knit entitled to claim specific performance in terms of the provisions of the CISG? Explain the relevant provisions. (5) 3.2 How does a confirmed letter of credit operate? Provide an analysis with reference to your prescribed reading material by Van Niekerk and Schulze. (5) 3.3 Advise Knit on their chances of success with their argument of non-conformity of goods in light of the applicable law. (10) [20] TOTAL: [80]