Read the following text and answer the questions that follow:
In 2012, Lindiwe (a female, Ethiopian national at all relevant times) met Mpho (a male, Angolan national at all relevant times) while on holiday in Mozambique. A year later in 2013, Lindiwe and Mpho married in Zanzibar (Tanzania). Lindiwe and Mpho married in community of property, excluding the accrual system. At the time when their marriage was concluded Lindiwe was domiciled in Ghana and habitually resident in Namibia, while Mpho was domiciled in Madagascar and habitually resident in Namibia. In 2014, Lindiwe donated a painting to Mpho which she inherited from her grandfather. Mpho is a professional artist and Lindiwe is a school teacher.
Later in 2014, Mpho drafted his first will after a minor car accident while travelling to Botswana for an oil painting workshop. As soon as Mpho reached his hotel room in Botswana he drafted his first will. In his first will Mpho instituted Lindiwe as his sole heir.
In 2015, Mpho received a job offer in South Africa to head an art gallery in Maboneng, Johannesburg. Later that year Mpho and Lindiwe moved to South Africa and they purchased a home in Bryanston, Johannesburg. In 2016, Lindiwe and Mpho had their first and only child, a little girl whom they named Kaya. Mpho and Lindiwe lived happily in South Africa until early 2017, when Lindiwe grew tired of Mpho dedicating all of his time to work and spending very little time with her and Kaya. This caused them to separate. In March 2017, the parties obtained a divorce in the South Gauteng High Court, Johannesburg.
Following the divorce in January 2018, Mpho travelled to Cairo (Egypt) for an Egyptian art exhibition. While in Egypt Mpho decided to draft his second will, which expressly revokes his first will. In his second will Mpho elected his best friend Steven as his sole heir because Mpho and Steven entered into a pactum successorium (an agreement for Steven to inherit Mpho’s property) 3 months prior.
In June 2019, Mpho moved to Mauritius, where he purchased a home on the beachfront. Every morning before breakfast Mpho would go for a swim in the ocean. On the morning of 15 March 2020, while swimming Mpho got caught in a rip current and drowned.
At the time of his death Mpho left behind immovable property located in Mauritius and money in a bank account in Madagascar. According to the law of Madagascar Lucinda Mpho’s sister is his sole intestate heir. According to the law of South Africa Kaya is Mpho’s sole intestate heir. According to the law of Mauritius Mpho’s parents Thabisa and Mandla are his sole intestate heirs.
1.1 Determine the legal system which would be applied to the inherent validity of Mpho and Lindiwe’s marriage. [1]
1.2 Refer to question 1.1 above. How could renvoi be used by the court in this instance. [2]
1.3 The legal system of which country determines Kaya’s domicile, and where would Kaya be domiciled according to that legal system? [3]
1.4 The legal system of which country would govern Lindiwe’s domicile immediately after her marriage to Mpho? [2]
1.5 With reference to Stoll & Visser’s proposal, discuss Lindiwe’s prospects of success of claiming in terms of s7 (9) of the Divorce Act 70 of 1979. [3]
1.6 If Lindiwe instituted a claim for maintenance against Mpho simultaneously with a claim in terms of s7 (9) Divorce Act 70 of 1979, which legal system would govern her claim for maintenance. [3]
1.7 The legal system of which country would determine whether Lindiwe is entitled to claim back the painting she donated to Mpho at the time of divorce? [1]
1.8 Refer to question 1.7 above. Discuss the influence the doctrine of renvoi could play in determining the legal system applicable to Lindiwe’s claim for the donation of the painting. [3]
1.9 Identify which conflicts methodology was employed in your answer to question 1.7 and explain why? [3]
1.10 Assume that Mpho and Lindiwe obtained a divorce in 2015, before a Namibian court and thereafter moved to South Africa separately. Would the divorce order obtained in a Namibian court be recognised and enforced by a South African court? [2]
1.11 Assume that both will 1 and will 2 are formally valid in terms of the law of Madagascar only. Who would inherit the money in Mpho’s bank account in Madagascar? [4]
1.12 Assume that will 1 is formally valid in terms of the law of Egypt only and the second will is formally valid in terms of the law of Botswana only. Who would inherit Mpho’s immovable property? [3]
1.13 Assume that both will 1 and will 2 are formally valid in terms of the law of Mauritius only. Who would inherit Mpho’s immovable property? [2]
1.14 Assume that both will 1 and will 2 are formally valid in terms of the law of Egypt only. Identify who would inherit Mpho’s property and whether such beneficiary(ies) would be entitled to inherit Mpho’s property in light of public policy considerations?
1.15 For the next questions assume that in Mpho’s second will he did not elect a beneficiary to inherit his estate but instead appointed his best friend Steven (a Namibian national) to nominate a beneficiary. In Steven’s will he nominates his son Luyanda as the beneficiary to inherit Mpho’s property. Steven drafted his will while visiting Mpho in South Africa, at the time of drafting his will he was domiciled in Algeria and habitually resident in Mauritius.
1.15.1 Assume that Steven’s will is formally invalid in terms of all of the legal systems that apply to its formal validity but is formally valid in terms of the law of Angola. Would Luyanda inherit Mpho’s property? [3]
1.15.2 Assume that Steven’s will is formally invalid in terms of all of the legal systems that apply to its formal validity, but formally valid in terms of the law of Egypt. Would Luyanda inherit Mpho’s property? [2]
1.16 Assume that following her divorce from Mpho, Lindiwe wishes to adopt a little boy named Kenzo who is from Japan. Kenzo’s parents do not have the financial means to care for him. During the adoption process Lindiwe offers Kenzo’s biological parents an all-expense paid holiday to Kruger National Park (South Africa) and buys them clothing and groceries. Lindiwe prepares a room for Kenzo at her home in South Africa & arranges for him to go to a dual language Japanese and English school to ease his adjustment in South Africa. Discuss the prospects of Lindiwe successfully adopting Kenzo.
1.1 The legal system that would be applied to the inherent validity of Mpho and Lindiwe’s marriage would be the legal system of Zanzibar, Tanzania, where the marriage took place.
1.2 Renvoi could be used by the court in this instance if the Zanzibar court decides to refer back the matter to the law of another country, such as Namibia or Ghana, where either party was domiciled at the time of the marriage.
1.3 Kaya’s domicile would be determined by the legal system of South Africa, where she was born and where her parents were residing at the time of her birth. According to South African law, Kaya would be domiciled in South Africa.
1.4 Lindiwe’s domicile immediately after her marriage to Mpho would be determined by the legal system of Namibia, where she was habitually resident at the time of the marriage.
1.5 In terms of Stoll & Visser’s proposal, Lindiwe's prospects of success of claiming in terms of s7 (9) of the Divorce Act 70 of 1979 would depend on various factors such as the length of the marriage, financial contributions made by each party, and the best interests of the child.
1.6 If Lindiwe instituted a claim for maintenance against Mpho simultaneously with a claim in terms of s7 (9) Divorce Act 70 of 1979, the legal system that would govern her claim for maintenance would be South African law, where they were residing at the time of the divorce.
1.7 The legal system of South Africa would determine whether Lindiwe is entitled to claim back the painting she donated to Mpho at the time of divorce.
1.8 The doctrine of renvoi could play a role in determining the legal system applicable to Lindiwe’s claim for the donation of the painting if the South African courts decided to refer back to the law of Zanzibar, Tanzania, where the marriage took place and the painting was initially donated.
1.9 The conflicts methodology employed in determining Lindiwe's claim for the donation of the painting would be based on the principles of private international law and choice of law rules in South Africa.
1.10 If Mpho and Lindiwe obtained a divorce in Namibia and later moved to South Africa separately, the South African court would recognize and enforce the divorce order obtained in Namibia, as Namibia is also a common law jurisdiction.
1.11 If will 1 and will 2 are formally valid in terms of the law of Madagascar only, Mpho’s sister Lucinda would inherit the money in Mpho’s bank account in Madagascar according to Malagasy law.
1.12 If will 1 is formally valid in terms of the law of Egypt only and will 2 is formally valid in terms of the law of Botswana only, the inheritance of Mpho’s immovable property would depend on the laws of the respective jurisdictions, with different beneficiaries inheriting based on the laws of each country.
1.13 If both will 1 and will 2 are formally valid in terms of the law of Mauritius only, Mpho’s parents Thabisa and Mandla would inherit his immovable property according to Mauritian law.
1.14 If both will 1 and will 2 are formally valid in terms of the law of Egypt only, the beneficiaries nominated in the wills would inherit Mpho’s property according to Egyptian law, unless there are public policy considerations that would prevent such inheritance.
1.15.1 If Steven’s will is formally invalid in all legal systems except Angola, Luyanda would inherit Mpho’s property according to Angolan law.
1.15.2 If Steven’s will is formally invalid in all legal systems except Egypt, Luyanda would inherit Mpho’s property according to Egyptian law.
1.16 Lindiwe’s prospects of successfully adopting Kenzo would depend on various factors such as the consent of Kenzo's biological parents, the best interests of the child, and compliance with adoption laws and regulations in South Africa. Lindiwe's efforts to provide for Kenzo's needs and ensure his well-being would likely strengthen her case for adoption.