, QUESTION 1
1.1. The Incidental Question in the Mubanga Divorce Case
Upon the institution of divorce proceedings by Mrs Lynn Mubanga, Mr Mubanga argued that the
parties were never legally married, since the divorce obtained in the Cayman Islands was not valid.
Before the court may proceed with adjudicating over the divorce between the parties, it needs to
determine the validity of the Cayman Islands divorce. The court faces an incidental question
properly so-called (egte insidentele vraag).
An incidental question arises when a court, in order to decide the main issue before it, must first
resolve a preliminary or subsidiary issue that involves a foreign element.¹ The main question
(hoofvraag) is whether the Mubangas are entitled to a divorce under South African law. However,
before answering this, the court must determine the preliminary question of whether Mr
Mubanga’s Cayman Islands divorce from his first wife, Bertha Mubanga, was valid. If the Cayman
Islands divorce is invalid, then Mr Mubanga was still married to Bertha at the time of the Mauritian
ceremony, rendering his subsequent marriage to Mrs Lynn Mubanga void.²
According to the prescribed article, there are two types of incidental questions: the “incidental
question properly so-called” and the “incidental question as a causa causans”.³ The former (the
egte insidentele vraag) arises where the main question and the incidental question each have their
own separate choice-of-law rules, and the court must decide which connecting factor should
prevail.⁴ The latter (the onegte insidentele vraag) arises where the incidental question is merely a
factual or logical antecedent, not requiring its own independent choice-of-law rule.⁵
In this case, the court faces an incidental question properly so-called. The validity of the Cayman
Islands divorce (the incidental question) is governed by its own choice-of-law rule, separate from
the rule governing the main divorce between Mr and Mrs Mubanga. South African private
international law determines the recognition of a foreign divorce by reference to the law of the
domicile of the husband at the time of the divorce proceedings, or the principle of the “real and
substantial connection” of the parties with the foreign court’s jurisdiction.⁶
Footnotes:
¹ J L R Neels, ‘The Incidental Question in South African Private International Law’ (2016) 133 South African Law Journal 402
at 405.
² Neels (2016) 406.
³ Neels (2016) 407–408.
⁴ Neels (2016) 408.
⁵ Neels (2016) 409.
⁶ Neels (2016) 410–412, citing Sperling v Sperling 1975 (3) SA 707 (A).
, The prescribed article discusses the Phelan v Phelan approach, where the court had to determine
the validity of a foreign divorce as a preliminary issue before deciding whether a subsequent
marriage was valid.⁷ In Phelan, the court held that the incidental question must be determined by
the proper law of the issue, applying South African choice-of-law rules independently to the foreign
divorce.⁸ Similarly, the Mubanga court must apply South African private international law to
ascertain whether the Cayman Islands divorce should be recognised. If it is not recognised, then Mr
Mubanga’s marriage to Mrs Lynn Mubanga is void ab initio, and the court cannot grant a divorce
because there is no marriage to dissolve.⁹
Thus, the incidental question is dispositive: only if the Cayman Islands divorce is recognised as valid
can the court proceed to adjudicate the divorce between Mr and Mrs Mubanga and consider Mrs
Mubanga’s claim for redistribution of assets under section 7(3) of the Divorce Act 70 of 1979.¹⁰
Footnotes:
⁷ Phelan v Phelan 1965 (2) SA 556 (C), discussed in Neels (2016) 413.
⁸ Neels (2016) 413–414.
⁹ Neels (2016) 415.
¹⁰ Section 7(3) of the Divorce Act 70 of 1979; Neels (2016) 416.
1.1. The Incidental Question in the Mubanga Divorce Case
Upon the institution of divorce proceedings by Mrs Lynn Mubanga, Mr Mubanga argued that the
parties were never legally married, since the divorce obtained in the Cayman Islands was not valid.
Before the court may proceed with adjudicating over the divorce between the parties, it needs to
determine the validity of the Cayman Islands divorce. The court faces an incidental question
properly so-called (egte insidentele vraag).
An incidental question arises when a court, in order to decide the main issue before it, must first
resolve a preliminary or subsidiary issue that involves a foreign element.¹ The main question
(hoofvraag) is whether the Mubangas are entitled to a divorce under South African law. However,
before answering this, the court must determine the preliminary question of whether Mr
Mubanga’s Cayman Islands divorce from his first wife, Bertha Mubanga, was valid. If the Cayman
Islands divorce is invalid, then Mr Mubanga was still married to Bertha at the time of the Mauritian
ceremony, rendering his subsequent marriage to Mrs Lynn Mubanga void.²
According to the prescribed article, there are two types of incidental questions: the “incidental
question properly so-called” and the “incidental question as a causa causans”.³ The former (the
egte insidentele vraag) arises where the main question and the incidental question each have their
own separate choice-of-law rules, and the court must decide which connecting factor should
prevail.⁴ The latter (the onegte insidentele vraag) arises where the incidental question is merely a
factual or logical antecedent, not requiring its own independent choice-of-law rule.⁵
In this case, the court faces an incidental question properly so-called. The validity of the Cayman
Islands divorce (the incidental question) is governed by its own choice-of-law rule, separate from
the rule governing the main divorce between Mr and Mrs Mubanga. South African private
international law determines the recognition of a foreign divorce by reference to the law of the
domicile of the husband at the time of the divorce proceedings, or the principle of the “real and
substantial connection” of the parties with the foreign court’s jurisdiction.⁶
Footnotes:
¹ J L R Neels, ‘The Incidental Question in South African Private International Law’ (2016) 133 South African Law Journal 402
at 405.
² Neels (2016) 406.
³ Neels (2016) 407–408.
⁴ Neels (2016) 408.
⁵ Neels (2016) 409.
⁶ Neels (2016) 410–412, citing Sperling v Sperling 1975 (3) SA 707 (A).
, The prescribed article discusses the Phelan v Phelan approach, where the court had to determine
the validity of a foreign divorce as a preliminary issue before deciding whether a subsequent
marriage was valid.⁷ In Phelan, the court held that the incidental question must be determined by
the proper law of the issue, applying South African choice-of-law rules independently to the foreign
divorce.⁸ Similarly, the Mubanga court must apply South African private international law to
ascertain whether the Cayman Islands divorce should be recognised. If it is not recognised, then Mr
Mubanga’s marriage to Mrs Lynn Mubanga is void ab initio, and the court cannot grant a divorce
because there is no marriage to dissolve.⁹
Thus, the incidental question is dispositive: only if the Cayman Islands divorce is recognised as valid
can the court proceed to adjudicate the divorce between Mr and Mrs Mubanga and consider Mrs
Mubanga’s claim for redistribution of assets under section 7(3) of the Divorce Act 70 of 1979.¹⁰
Footnotes:
⁷ Phelan v Phelan 1965 (2) SA 556 (C), discussed in Neels (2016) 413.
⁸ Neels (2016) 413–414.
⁹ Neels (2016) 415.
¹⁰ Section 7(3) of the Divorce Act 70 of 1979; Neels (2016) 416.
