Read the following text and answer the questions that follow:
In 2020, Jason (a Nigerian national) died leaving behind money in a bank account in South Africa. Jason was domiciled and habitually resident in Namibia all his life, until 2017 when he became domiciled and habitually resident in Tanzania. He remained domiciled in Tanzania until he passed away. According to South African private international law the lex ultimi domicilii governs the intestate succession of Jason’s money (movable property), making the law of Tanzania applicable. According to the law of Tanzania a surviving spouse is regarded as the sole intestate heir. If there is not a surviving spouse, the deceased’s children (if any) are regarded as the intestate heirs. Jason has two known children, a daughter named Mia and a son named Liam whom he had with his childhood sweetheart Melanie. A woman named Elna claims that she is entitled to the money in Jason’s bank account, because of a marriage ceremony she concluded with Jason in Algeria.
The internal law of South Africa regards the marriage between Jason and Elna as valid. The internal law of Algeria regards the marriage between Jason and Elna as valid. According to the private international law of Algeria, the lex domicilii of the husband at the time of the marriage, Namibia, determines the validity of the marriage. According to the internal law of Namibia the marriage between Jason and Elna is not regarded as valid.
The internal law of Tanzania regards the marriage between Jason and Elna as valid. According to the
private international law of Tanzania, the lex patriae of the husband at the time of the marriage,
Nigeria, determines the validity of a marriage. According to the internal law of Nigeria, the marriage
between Elna and Jason is not regarded as valid.
3.1 Identify and apply the approach followed in the decision of Phelan v Phelan 2007 1 SA 483 (C) to
answer the incidental question. Which legal system would be applicable to the incidental question? [2]
3.2 Apply the approach followed in the decision of Phelan v Phelan 2007 1 SA 483 (C) to answer the incidental question. Who will inherit the money in Jason’s bank account in South Africa? [1]
3.3 Identify the approach, which according to South African conflicts authors, should have governed the incidental question in Phelan v Phelan 2007 1 SA 483 (C). [1]
3.3.1 Which legal system would be applicable to the incidental question if the approach identified in question 3.3 is followed? [1]
3.3.2 Who will inherit the money in Jason’s bank account in South Africa if the approach identified in question 3.3 is followed? [1]
3.4 Identify the type of incidental question present in the set of facts, does this type of incidental question differ from the incidental question in Dhansay v Davids 1991 4 SA 200 (C) and how? [3]
3.5 What type of renvoi is the reference from South African private international law to Algerian Law, and the onward reference from Algerian private international law to Namibian law. [1]
3.6 Refer to the reference in question 3.5. Would the marriage between Elna and Jason be regarded as valid if the no renvoi approach were applied? [1]
3.7 Refer to the reference in question 3.5. Who would inherit Jason’s property if the partial renvoi approach were applied? [1]
3.8 Refer to the reference in question 3.5. Would the marriage between Elna and Jason be regarded as valid if the partial renvoi approach were applied? [1]
3.9 Refer to the reference in question 3.5. Would Elna inherit Jason’s property if the total renvoi approach were applied?
3.1 The approach followed in the decision of Phelan v Phelan 2007 1 SA 483 (C) is the renvoi approach. The legal system applicable to the incidental question would be South African private international law.
3.2 Applying the renvoi approach, if the South African law is applied, then the marriage between Jason and Elna would not be regarded as valid. Therefore, the heirs to inherit the money in Jason's bank account in South Africa would be his surviving spouse or children according to the Tanzanian law.
3.3 According to South African conflicts authors, the approach that should have governed the incidental question in Phelan v Phelan 2007 1 SA 483 (C) is the proper law of the legal system approach.
3.3.1 If the proper law of the legal system approach is followed, the legal system applicable to the incidental question would be Tanzanian law.
3.3.2 Applying the proper law of the legal system approach, the inheritance of the money in Jason's bank account in South Africa would go to his surviving spouse (Elna) according to Tanzanian law.
3.4 The type of incidental question present in the set of facts is a renvoi incidental question. This type of incidental question does differ from the incidental question in Dhansay v Davids 1991 4 SA 200 (C) in that Dhansay deals with a partial renvoi question while Phelan v Phelan deals with a total renvoi question.
3.5 The reference from South African private international law to Algerian Law and the onward reference from Algerian private international law to Namibian law is a total renvoi.
3.6 If the no renvoi approach were applied, the marriage between Elna and Jason would be regarded as valid as per South African law.
3.7 If the partial renvoi approach were applied, the inheritance of Jason's property would depend on the internal law of Namibia.
3.8 If the partial renvoi approach were applied, the marriage between Elna and Jason would be regarded as valid under Namibian law.
3.9 If the total renvoi approach were applied, Elna would inherit Jason's property as per the internal law of Namibia.