Chapter 3- Exclusion Of Foreign Law

Question 0

How is foreign law excluded in penal law/tax law?

Answer 0

• Foreign law is excluded

* So… if have a foreign tax judgment against your name – foreign country cannot enforce such judgment in SA

Question 1

In what ways is foreign law excluded?

Answer 1

Statutory exclusion of foreign law

1) Exclusion of foreign law based on public policy
2) Penal/ tax law
3) Fraus legis
4) Foreign state not recognised in terms of SA public international law

Question 2

How is foreign law excluded in terms of fraus Legis?

Answer 2

• Act in fraudem legis

Kassim case:
Foreign law is excluded – apply the law of the country which the parties tried to circumvent

Question 3

What if a foreign state isn’t recognised in SA?

Answer 3

• If SA law does recognise the foreign state (in terms of public international law) where the marriage was concluded – then the foreign law cannot be applied (Standard Bank case)
• However, Sperling case ignored the Standard Bank case and applied the foreign legal system even though the foreign state was not recognised

Question 4

What are the forms of statutory exclusion of foreign law?

Answer 4

The 2 main forms of statutory exclusion are:

1)• Mandatory rules:
 Ie: the rules of the lex fori (SA law)

2)• Scope rules:
 Rules that indicate when SA legislation is applicable
 Even in a foreign related type of scenario

Question 5

What is the common law presumption in terms of statutory exception?

Answer 5

• Common law presumption:
 Comitas is NOT excluded
 Ie: the traditional/common law rules of PIL are not excluded

• However, such rules can be excluded either expressly or tacitly

Question 6

What are examples of express statutory exclusion of foreign law (comitas)?

Answer 6

1)• Sea Transport Document Act
 Deals with bills of lading
 Has specific provisions relating to certain scenarios (ie: it provides that this Act applies in the following scenarios…)
 \ Is a mandatory rule that excludes comitas in as far as the Act applies (lex fori applies)

2)• Electronic Communications and Transactions Act:
 Also = a mandatory rule
 Certain chapter dealing with consumer protection and states that in ALL cases of consumer protection in SA the rules of the Act apply
 Thus lex fori applies and comitas is excluded

3)• National Credit Act and Consumer Protection Act:
 Both have scope rules
 Ie: have specific provisions telling us when they apply
 Eg: both Acts provide that if the contract was concluded in SA – then these Acts apply
 \ Comitas is exluded

Question 7

How can the tacit exclusion of foreign law take place?

Answer 7

1) Statutes protecting the socio-economically weaker party:
 Labour legislation – there is no specific provisions when it applies
 Short-term Insurance Act – Classic Sailing Case
 PIE Act – Sadiku case

2) Constitution

Question 8

When does public policy require us to exclude foreign law?

Answer 8

Bell case:
Court held that public policy MUST be excluded if it infringes on fundamental principle of justice, good morals and public policy (values can be found in the Constitution)

Question 9

What are reasons that are NOT sufficient to exclude the foreign law?

Answer 9

Bell case:
Held that cannot exclude the foreign law
1) Merely because the court prefers the lex fori
2) Merely because the foreign law is not similar to the lex fori
(It was argued that the lex fori should be applied because the foreign law was not similar to lex fori – rejected by court)

Sperling case:
Held that cannot exclude the foreign law
1) Merely based on retrospective changes in the foreign law - as such changes does not mean it is against public policy
2) Merely because the foreign law was inspired by socialism (this was the situation at the time the case was heard – so it can be extended to the opposite – ie: cannot be excluded merely that the foreign law was inspired by capitalism – so foreign law still applies irrespective from which ideology the legal system is founded)

Question 10

Why must a distinction be made between internal and external public policy?

Answer 10

• To determine whether foreign law should be excluded based on public policy we must look at external public policy and internal public policy

1)• External public policy:
 Foreign law can be excluded if it is DRASTICALLY in conflict with public policy

2)• Internal public policy:
 Cannot exclude foreign law merely because it is conflict with our internal public policy

EXAMPLES:

• Pactum successorium:
 Contract between A and B stating that if one of the parties dies the other one becomes the owner of the deceased’s property
 So… if A dies, B gets his property
 Invalid in SA law – succession must be done by way of a will or ante-nuptial contract but not by way of a contractual agreement between parties
 Assume = valid in terms of the proper law of the contract (eg: German law)
 What will SA courts do?
 Court will enforce the contract because it only infringes on internal SA policy
 Does not drastically infringe on internal public policy – nor does it drastically infringe on external public policy

Cheni v Cheni:
UK case
Case involved a foreign marriage between an uncle and a niece.
Marriage was valid in terms of the LLC – but was not valid in terms of English law (so infringed on internal public policy)
Court held that the marriage was valid as it did not drastically infringe on external public policy
(Consequence if was deemed invalid – wife would not have any claim against the husband’s estate at his death/ divorce)

Banubhai case:
Case involved a foreign marriage between a 9yrs old girl and a 10yrs old boy
Marriage was valid in terms of the LLC (India) – but was not recognised in terms of SA law
Court held that the marriage was valid as it did not drastically infringe on external public policy