LJU4804 SUPPLEMENTARY PORTFOLIO MEMO 2022 JANUARY/FEBRUARY 2022

QUESTION 1 Instructions: Read the set of facts and answer the questions that follow. Mr and Mrs Moloi got married in Mauritius while on holiday there in December 1982. The ceremony was conducted by a friend of Mr Moloi, a marriage officer registered in South Africa and who conducted the ceremony in compliance with the South African Marriage Act. At the time of entering into the marriage, Mr and Mrs Moloi were both domiciled in England, but citizens of Malawi. Shortly after their marriage, Mr and Mrs Moloi immigrated to South Africa and established a domicile in Johannesburg. Two children were born from the marriage and Mr Moloi stayed at home to look after the children, while Mrs Moloi worked as a chartered accountant for a large firm and travelled extensively. In 2007, Mr Moloi instituted divorce proceedings against Mrs Moloi in a South African High Court. Upon institution of the divorce proceedings, Mr Moloi also claimed a redistribution of assets. 1.1 Which legal system applies to the formal validity of the parties’ marriage in terms of the South African rules of private international law? Discuss if any possible exception applies. (6) 1.2 Assume that the rules of private international law of South Africa refer the determination of the inherent validity of their marriage to Mauritian law, and that Mauritian law refers the determination of inherent validity to English law. If South Africa follows a partial renvoi approach, which legal system will be applied to the formal validity of the marriage? Discuss briefly. (4) Assume for purposes of questions 1.3 – 1.5 their marriage is found to be formally and materially valid. 1.3 Assume that redistribution of assets is classified as a divorce matter under English law and as a proprietary consequence of marriage under South African law. Provide classification tables for lex fori and lex causae classification. Which legal system should be applied to redistribution of assets (South African law or English law) if the via media approach to classification is followed? (12) 1.4 Mrs Moloi executed a will in France whilst domiciled in England. She retained her Malawian citizenship throughout her life. The first will appoints Mr Moloi as her sole heir. The first will is formally valid in terms of the law of place of execution. After the divorce Mrs Moloi executes a second will that expressly revokes her first will. The second will appoints her children as the sole heirs. At the time of execution and at the time of her death she was domiciled in South Africa. The second will was formally invalid in terms of all its primary testing systems, but formally valid in terms of the law of France. Will the revocation of her first will be regarded as valid in terms of the Wills Act? If so, what would the effect be on the devolution of her estate? (6) 1.5 Mrs Moloi gave Mr Moloi a Mercedes Benz vehicle shortly before him instituting divorce proceedings. She disputes the validity of this gift. Which legal system governs donations between spouses in terms of the South African rules of private international law? (2) 1.6 The connecting factor for proprietary consequences of marriage is in need of reform. Discuss proposals for reform with reference to your prescribed reading material in this regard. (10) [40] QUESTION 2 It is a well-known fact that international commercial arbitration is the preferred dispute settlement method for international commercial disputes. Discuss whether the current South African arbitral regime provides an effective framework for conducting arbitrations in the Republic where the lex arbitri is South African law. Your discussion should focus on two points: 2.1 The procedural framework provided for conducting arbitral proceedings under South African law. 2.2 Principles providing for the effective recognition and enforcement of a foreign arbitral award in South Africa. [20] QUESTION 3 Instructions: Read the set of facts and answer the questions that follow. Sun Rays (Pty) Ltd is a company incorporated in South Africa with its central administration and principal place of business in Johannesburg. Sun Rays imports solar inverters and sells them to solar companies across South Africa. Sunny (Pty) Ltd is a company incorporated in Australia with its central administration and principal place of business in Sydney. Sunny exports solar inverters worldwide. Sun Rays and Sunny concluded an international sales contract in terms of which Sun Rays purchased a large consignment of solar inverters for the purchase price of 1 million Australian Dollars. Payment had to be effected by means of a letter of credit. The goods had to be shipped CIF (Durban). The contract contained a choice of law clause in favour of Australian law. The goods were delivered to Sun Rays’ place of business. They failed to make payment. Sunny instituted a claim against Sun Rays in a South African High Court. 3.1 Australia is a CISG contracting state. Should the court apply the CISG to the parties’ dispute? (5) 3.2 Assume that the CISG is indeed found to be applicable. Sun Rays are of the opinion that the quality of the solar panels is non-complaint with the contract. Advise Sun Rays on possible defences to Sunny’s claim. (10) 3.3 Explain the parties’ responsibilities in terms of the Incoterm included in the contract. (5) [20] TOTAL: [80]