LJU4804
Assignment 1 Semester 1 2025
Detailed Solutions, References & Explanations
Unique number: 147566
Due Date: 28 March 2025
LJU4804
Assignment 1 Semester 1 2025
Detailed Solutions, References & Explanations
Unique number: 147566
Due Date: 28 March 2025
,QUESTION 1
1.1
In terms of South African private international law, the personal consequences of
marriage are governed by the lex domicilii of the spouses at the date of the
transaction. In this case, since Mr. and Mrs. Mubanga were domiciled in Pretoria
(South Africa) at the time of the gift (in 1984), South African law would govern the
personal consequences of their marriage, including issues like the validity of
donations between spouses. Therefore, South African law would apply to determine
the validity of the donation made by Mrs. Mubanga to Mr. Mubanga.
1.2
The proprietary consequences of marriage in terms of South African private
international law are generally governed by the lex domicilii matrimonii, which
refers to the law of the matrimonial domicile. Since Mr. and Mrs. Mubanga were
domiciled in Pretoria (South Africa) at the time of their relocation, South African law
would govern the proprietary consequences of their marriage. This would include the
validity of their antenuptial contract and the division of property upon divorce, despite
the fact that donations between spouses are regarded as a proprietary consequence
under Zambian law.
1.3.
1. Lex Fori Classification (South African Law Approach)
Since the North Gauteng High Court (a South African court) is deciding the case, it
will first classify the issue according to South African legal categories.
Rule Category SA PIL Rule Which system Rule
(connecting applicable? applicable?
factor)
South Personal Domicile of South Africa Yes
African consequences of relevant party
Law marriage
, Zambian Personal Domicile of South Africa Yes
Law consequences of relevant party
marriage
According to South African private international law (PIL), donations between
spouses are classified as a personal consequence of marriage and are governed by
the law of domicile of the relevant party at the relevant time. Since both spouses
were domiciled in South Africa at the time of the donation (1984), South African law
applies.
2. Lex Causae Classification (Zambian Law Approach)
Under Zambian law, donations between spouses are considered a proprietary
consequence of marriage. In South African private international law, proprietary
consequences of marriage are governed by the lex domicilii matrimonii (law of the
matrimonial domicile at the time of marriage).
Rule Category SA PIL Rule Which system Rule
(connecting applicable? applicable?
factor)
Zambian Proprietary Matrimonial Zambia Yes
Law consequences of domicile
marriage (Zambia)
South Personal Domicile of the South Africa Yes
African consequences of relevant party
Law marriage
According to Zambian law, donations between spouses fall under proprietary
consequences of marriage. Since the parties were domiciled in Zambia at the time of
marriage (1982), Zambian law applies under this classification.
Conclusion Based on the Via Media Approach
Under the via media approach, the South African court would compare the results of
both the lex fori and the lex causae classifications and then choose between them
based on policy considerations. Since both legal systems (South African and
Zambian) apply different classifications (personal consequences under South African
law and proprietary consequences under Zambian law), the court needs to evaluate
Assignment 1 Semester 1 2025
Detailed Solutions, References & Explanations
Unique number: 147566
Due Date: 28 March 2025
LJU4804
Assignment 1 Semester 1 2025
Detailed Solutions, References & Explanations
Unique number: 147566
Due Date: 28 March 2025
,QUESTION 1
1.1
In terms of South African private international law, the personal consequences of
marriage are governed by the lex domicilii of the spouses at the date of the
transaction. In this case, since Mr. and Mrs. Mubanga were domiciled in Pretoria
(South Africa) at the time of the gift (in 1984), South African law would govern the
personal consequences of their marriage, including issues like the validity of
donations between spouses. Therefore, South African law would apply to determine
the validity of the donation made by Mrs. Mubanga to Mr. Mubanga.
1.2
The proprietary consequences of marriage in terms of South African private
international law are generally governed by the lex domicilii matrimonii, which
refers to the law of the matrimonial domicile. Since Mr. and Mrs. Mubanga were
domiciled in Pretoria (South Africa) at the time of their relocation, South African law
would govern the proprietary consequences of their marriage. This would include the
validity of their antenuptial contract and the division of property upon divorce, despite
the fact that donations between spouses are regarded as a proprietary consequence
under Zambian law.
1.3.
1. Lex Fori Classification (South African Law Approach)
Since the North Gauteng High Court (a South African court) is deciding the case, it
will first classify the issue according to South African legal categories.
Rule Category SA PIL Rule Which system Rule
(connecting applicable? applicable?
factor)
South Personal Domicile of South Africa Yes
African consequences of relevant party
Law marriage
, Zambian Personal Domicile of South Africa Yes
Law consequences of relevant party
marriage
According to South African private international law (PIL), donations between
spouses are classified as a personal consequence of marriage and are governed by
the law of domicile of the relevant party at the relevant time. Since both spouses
were domiciled in South Africa at the time of the donation (1984), South African law
applies.
2. Lex Causae Classification (Zambian Law Approach)
Under Zambian law, donations between spouses are considered a proprietary
consequence of marriage. In South African private international law, proprietary
consequences of marriage are governed by the lex domicilii matrimonii (law of the
matrimonial domicile at the time of marriage).
Rule Category SA PIL Rule Which system Rule
(connecting applicable? applicable?
factor)
Zambian Proprietary Matrimonial Zambia Yes
Law consequences of domicile
marriage (Zambia)
South Personal Domicile of the South Africa Yes
African consequences of relevant party
Law marriage
According to Zambian law, donations between spouses fall under proprietary
consequences of marriage. Since the parties were domiciled in Zambia at the time of
marriage (1982), Zambian law applies under this classification.
Conclusion Based on the Via Media Approach
Under the via media approach, the South African court would compare the results of
both the lex fori and the lex causae classifications and then choose between them
based on policy considerations. Since both legal systems (South African and
Zambian) apply different classifications (personal consequences under South African
law and proprietary consequences under Zambian law), the court needs to evaluate
