This thesis explores the use of domicilium as a criterion in choice of law and
jurisdiction in South African law with special reference to private-law status. In this area
of the law adherence to the status theory has, in the recent past, resulted in the use
of domicile as an exclusive ratio jurisdictionis. This has impacted negatively on choice
of law issues in status matters: since domicile constituted the sole jurisdictional
criterion, little attention was devoted to choice of law. Even though the lex domicilii
was, in actual fact, applied to choice of law issues concerning private-law status, it
happened only as a result of the assumption of jurisdiction by the forum domicilii. With
the emergence of alternative jurisdictional criteria, such as ordinary residence, choice
of law issues will have to be addressed from a conflict of laws perspective, since the
jurisdictional criteria will no longer ensure the application of the appropriate lex causae.
In this regard recognition of the functional diversification of jurisdictional and conflicts
connecting factors is crucial: different principles and policies underlie the fields of
jurisdiction and choice of law and this must be borne in mind when a connecting factor is selected. In view of the prominence of domicilium as a connecting factor, problem areas in
regard to the interpretation and ascertainment of domicile, especially the domicile of
choice, is investigated within the context of the Domicile Act 3 of 1992 and with a view
to future reform. It is submitted that the subjective animus requirement for the
acquisition of a domicile of choice remains uncertain and undefined. Since domicile
constitutes such an important connecting factor in issues pertaining to private-law
status, as well as other non-status matters, it is essential that it should be readily and
easily ascertainable. In this regard certain concrete proposals for future reform are
advanced. Ultimately the domicile of an individual should indicate the community to
which he/she truly belongs: only then will domicile constitute a conflicts connecting factor which satisfies the demands of conflicts justice. / Private Law / LL. D. (Law)
| Identifer | oai:union.ndltd.org:netd.ac.za/oai:union.ndltd.org:unisa/oai:uir.unisa.ac.za:10500/17682 |
| Date | 01 1900 |
| Creators | Schoeman, Elsabe |
| Contributors | Edwards, A. B. |
| Source Sets | South African National ETD Portal |
| Language | English |
| Detected Language | English |
| Type | Thesis |
| Format | 1 online resource (vii, 343 leaves) |
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