Process: Solving PIL Problem

Question 1

What is the first step?

Answer 1

Jurisdiction: courts jurisdiction to hear matter

• argued out courts be open to everyone
• but court must be most appropriate court to hear mater
• forum shopping discouraged
• close connection with litigants or COA

Question 2

What is the second step?

Answer 2

Classification/ characterisation.

• type of problem dealing with = category
• classification tells you which conflict rules apply
• lead to step 3

Question 3

What is the third step?

Answer 3

Determining the lex causae

• which legal system is applicable
• use connecting factor to determine legal system
• connecting factor problems= renvoi
• Forsyth example: letter posted, settled in SA look at lex fori & use postal theory determine contract concluded

Question 4

What is the fourth step?

Answer 4

If other countries laws must apply, what is the substantive rules applicable? look at expert evidence

Question 5

What is the role of procedural law in PIL?

Answer 5

Its regulated by Lex Fori. Because unreasonable expect judge apply legal/technical rules of another country on ad hoc basis. Hierarchy differs from court to court. Impractical run whole dispute & regulate procedural aspects ito country and decide at end not applicable to matter

Question 6

What are the guideline for dealing with procedural law?

Answer 6

Where there is serving of papers; admissibility of evidence, questioning of witnesses, right to appeal; presumptions but this does not include presumption of death; execution of judgements; taxation of costs

Question 7

What does substantive law entail?

Answer 7

It is regulated by Lex causae.
Tregea v Godart: what must be proved is a question of substantive law, manner of proving it is the concern of the rules of evidence
Lourens v Van Hohne: question of onus regarded as substantive law, not procedural, it is determined by lex causae not fori

Question 8

Is legislation determining prescription substantive or procedural?

Answer 8

Kuhne & Nagal v APA Distributors: prescriptive period of lex causae and not lex fori. confirmed that matters by law of procedure is governed by law of place where matter brought is the lex fori, if by substance then lex causae. After a certain period then can no longer enforce right then procedural, but if the remedy is barred as well as the existing right all together then matter of substance

Question 9

What about quantum of damages?

Answer 9

Falls under lex causae, it is a matter of substance