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Question 1Mr and Mrs Molefe got married in December 1982 while on vacation in
Mauritius. At the time of entering into the marriage, Mr and Mrs Molefe were
both domiciled in Botswana and were Botswanan citizens. Shortly after
returning from their honeymoon, Mr and Mrs Molefe immigrated to South
Africa and established a domicile in Pretoria. Three children were born from
the marriage and Mr Molefe stayed at home to look after them, since Mrs
Molefe travelled extensively as the CEO of a large telecommunications
company. In June 2015, Mr Molefe instituted divorce proceedings against Mrs
Molefe in the North Gauteng High Court.
1.1 Which legal system applies to the formal validity of Mr and Mrs Molefe’s
marriage in terms of the South African rules of private international law?
(2)
In terms of the rules of private international law the material validity of marriage is
governed by the lex loci celebrationis that is the law of marriage celebration. 1 The
law of marriage celebration refers to the place where the marriage was celebrated.
By virtue of the given set of facts the marriage was concluded in Mauritius meaning.
The legal system would then be Mauritian law.
1.2 Mr Molefe wants to institute a claim for redistribution of assets upon
divorce in terms of s 7(3) of the South African Divorce Act 70 of 1979. In terms
of Botswanan matrimonial property law, marriages are out of community of
property by operation of law and therefore the parties did not conclude an
antenuptial contract. Would Mr Molefe be successful with his claim? Discuss
with reference to the relevant South African case. (4)
1
M. M. Wethmar “Private International law” Only Study Guide for LJU4804.
,In the given scenario, Mr. Molefe wishes to institute a claim for redistribution of
assets upon divorce under Section 7(3) of the Divorce Act 70 of 1979.2 However, it's
important to note that Botswanan matrimonial property law operates differently from
South African law.3
In Botswana, marriages are considered out of community of property by operation
of law. This means that each spouse retains ownership of their own assets and
liabilities acquired before and during the marriage. There is no automatic community
of property or profit and loss sharing.
Given this legal context, the concept of redistribution of assets, as provided for in
South African law, does not apply in Botswana. Redistribution of assets is a
mechanism within South African law for adjusting the division of property in divorces
where a marriage was in community of property or under the accrual system.
Since Mr. Molefe's marriage was out of community of property in Botswana, there is
no legal basis for him to pursue a claim for redistribution of assets as per the South
African Divorce Act. Botswanan law, which governs his marital property regime,
does not provide for such a claim.
Therefore, in the context of Botswanan matrimonial property law, Mr. Molefe would
not be successful in pursuing a claim for redistribution of assets upon divorce, as
this concept is not applicable to marriages out of community of property in
Botswana.
1.3 Assume for purposes of question 1.3 only that Mr and Mrs Molefe indeed
executed an antenuptial contract excluding all forms of community of
property and of profit and loss. Would Mr Molefe be successful in obtaining a
redistribution order in terms of s 7(3) of the Divorce Act 70 of 1979 if the dictum
in Esterhuizen v Esterhuizen 1999 (1) SA 492 (W) is followed? Note: your
2
Section 7(3) of the Divorce Act 70 of 1979.
3
See Section 7(3) of the Divorce Act 70 of 1979.
, answer must include a full case discussion of this case, properly referenced
and not taken from the study guide. (10)
If the Constitutional Court has confirmed that spouses who got married after a
certain date can now institute a claim for redistribution of assets, and if Mr. Molefe
complies with all the requirements in the relevant section of the Divorce Act, then he
would have a chance of success in his claim under that section of the Act.
However, the success of his claim will ultimately depend on the specific facts and
circumstances of his case, as well as the application of the relevant legal principles
by the court. In a similar case in Esterhuizen v Esterhuizen, it was held that a spouse
who contributed to the other spouse's estate during the marriage is entitled to a
redistribution of assets upon divorce. The court in that case also provided guidance
on how to determine the quantum of the claim and what factors to take into account.
Therefore, if the precedent set in the case of Esterhuizen v Esterhuizen with the
appropriate case name) is followed, Mr. Molefe's chances of success in his claim for
redistribution of assets would depend on whether he can prove that he made a
contribution to the growth of his spouse's estate during the marriage, and the extent
of that contribution.4 He would also need to comply with all the other requirements
set out in section 7(3) of the Divorce Act.5
1.4 Assume that the rules of private international law of the country whose
legal system governs the formal validity of the Molefes’ marriage, refers the
determination of formal validity to the country of matrimonial domicile. If a
South African court follows a partial renvoi approach, which legal system
(country) would it apply to determine the formal validity of their marriage? (3)
In terms of this approach or theory, it is assumed that the lex causae (the legal
system indicated as the applicable law by South African Private international Law
rules) follows a no renvoi approach. In other words, the South African forum would
consider the whole law of the lex causae (whole law refers to both the internal law
4
Esterhuizen v Esterhuizen 1999 (1) SA 492 (C)
5
See Section 7(3) of the Divorce Act 70 of 1979.
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