Study On South African Private International Law

The Republic of South Africa is an important developing country in Africa as well as a typical mixed jurisdiction. During the recent years there are more and more civil and commercial communications between South Africa and China and it has become the the greatest trade partner of China in Africa. As the result of the civil and commercial communications between them,a large amount of civil and commercial disputes will unavoidably arise,therefore,it is of great academic and practical significance to study South African private international law.An analysis of the history,name,scope and sources of South African private international law is made in Chapter One of the thesis.South Africa was once the colony of the Netherlands and Great Britain whose legal systems have an immense influence on the creation and growth of its private international law, the result of which is that South African private international law becomes the mixture of civil law and common law. Hereby, the sources of South African private international law contain not only statutes and precedents but also the legal literatures, especially the legal literatures of the Roman-Holland jurists in 17 and 18 centuries. On the name of the subject just discussed, the South African private international lawyers also have two options: the Anglo-American version of the conflict of laws and the civil law version of the private international law or international private law. The scholars of private international law in South Africa generally accept the view of the Anglo-American private international lawyers on the scope of the subject including the jurisdicational rules, choice of law rules as well as the rules of recognition and enforcement of foreign judgments and arbitral awards.The systems of domicile and residence in South African private international law are wholly discussed in the second chapter. Domicile and residence play a vital role in South African private international law which are not only connecting factor of jurisdiction and choice of law but also the import grounds on which the recognition and enforcement of foreign judgments are sought. Prior to the 1992 Domicile Act, the judgment of the acquisition and loss of one's domicile are based on South African common law, according to which the domicile includes the domicile of choice, the domicile of dependence and the domicile of origin. While just two kinds of domicilesare stipulated in the Domicile Act and they are the domicile of choice and the assigned domicile. The Domicile Act brings great changes to the system of domicile in South African private international law, however, to the matters that are not provided in it such as the judgment of factum and animum in the acquisition of a domicile of choice South African common law are still applied. Though residence also holds an important status in South African private international law, the precise definition of it has not been made by the South African courts in which the rules about it have been developed through cases. Such concepts as habitual residence and ordinary residence are also used in South African legislations which are not definited either.Then the discussion of three specific areas of South African private international law, that is to say, the systems of jurisdiction, choice of law as well as the recognition and enforcement of foreign judgments and arbitral awards, are made in the following chapters.In the part of the jurisdiction (Chapters Three, Four and Five), the evolution the structure of South African courts and their jurisdiction are first discussed and then the basic principles and other principles as well as systems that South African courts must follow in the exercise of their jurisdiction are explored, and finally the jurisdiction^ rules for some kinds of special claims of South African courts are dealt with in detail.When deciding whether to exercise jurisdiction over a private international law case, South African courts once based their jurisdiction on the doctrine of effectiveness or the doctrine of the division of actions separately and at last they base their jurisdiction on the account of both of them.In the case that one of the parties of the foreign-related claims is a foreign state or its head,an international organization^ diplomats, unless they are involved in the commercial transactions,the South African courts will not exercise jurisdiction over them according to South African law on immunity-Iii the case of Us alibi pendens or res judicata,if the same party brings a claim on the base of the same subject matter in a South African court,or one of the parties brings a claim in the breach of the jurisdiction or the arbitration agreement in a South African court,the court may stay the proceedings brought in it.There are some debates in South African scholars of private international law on whether there exists the principle of forum non conveniens in South Africa.Moreover,if a South African court has jurisdiction over part of a cause,it can exercise jurisdiction over the whole cause according to the doctrine of causae continentia in South African common lawand the jurisdiction will not lose due to the later non-existence of the jurisdictional grounds if it has jurisdiction at the commencement of the proceeding.South African courts will also take into different situations of various cases in the exercise of jurisdiction over individual claim to decide whether exist the jurisdictional bases,accordinglyjurisdictional rules for claims sounding in money,claims relating to property and marriage and family as well as jurisdictional rules for declaratory orders and interdicts are probed into at length.In the part of the choice of law system (Chapters Six, Seven, Eight, Nine andTen),the author first made a study about the basic problems in the field of choice oflaw in South African private international law which includecharacterisation,renvoi,the incidental question,substance and procedure,proof offoreign law as well as the change and exclusion of foreign law.There is no statutestipulating the resolution of the conflict of characterisation in South Africa and theSouth African courts adopted the via media approach in their judicial practice.As torenvoi and the incidental question, South African courts shoul also adopt anon-mechnical approach according to private international law scholars in SouthAfrica.The judgment on whether a matter is substance or procedure is made by the lexfori in South African courts.Generally, the onus of proof,quantum of damages and thedefence of estoppel are characterised as substance while the means ofproof,competency of the witnesses,and the defence of Us alibi pendens and res iudicataand the question of priority are characterised as procedure in South African courts inpractice. South Africa is deeply influenced by English law on the proof of foreign lawand the foreign law is regarded as facts that should be proved by the party.If theforeign law cannot be proved the South African courts will apply the lexfori.ln. casethe lex causae changed, South African courts will apply the new and retrospectivelaw.If the application of foreign law contravenes South African public policy,or one ofthe parties evades the law that should have been applied,or the foreign law is excludedby a South African statutes,the foreign law will not be applied.The part of choice oflaw rules is of great importance in South African private international law and theauthor makes a detailed discussion of the choice of law rules inproperty,obligation,marriage and family,and succession in the following four chapters.In the part of the recognition and enforcement of foreign judgments and arbitral awards (Chapter Eleven),the general requirements for the recognition and enforcementof foreign judgments are first discussed which are (1) the foreign courts that made the judgment should have international competence;(2) the foreign judgments are final and conclusive;(3) the recognition and enforcement will not contravene the public policy of South Africa and (4) the recognition and enforcement will not be in contradiction with Section 1 of the Protection of Business Act in South Africa.The author also makes an exploration about the recognition and enforcement of foreign abitral awards in South African common law and statutes, and at present they are usually done according to the Recognition and Enforcement of Foreign Arbitral Awards Act which was enacted to implement the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards,but it have some loopholes in their provisions.In the final part of Conclusions simple generalization of the features of South African private international law and a primary analysis of its development trend as well as a brief discussion of the enlightment that it brings to China's private international law are made.As is pointed out by the author,South Africa,as a mixed jurisdiction,has some features of its own in the basic problems and sepecific systems in the private international law compared with those in the civil law and common law countries,especially in the fields of sources,domicile,proof of foreign law,and so on.Since its return to the international community,South Africa began to concern itself with the regional and global unification movement of private international law.Considering the reality of its foreign civil and commercial transactions,it pays more attention to the international unification movement of private international law.In regard to the mode of future legislation of South African private international law,there exist two different viewpoints,one is that South African private international law should be codified,the other not.In comparison with South African private international law,some provisions of China's private international law should be furthur improved, and in the legilative and judicial practice the legislators and judges should have international horizon,pay more attention to the research achievements made by the private international law scholars as well.