Domicile and jurisdiction as criteria in external conflict of laws with particular reference to aspects of the South African law of persons

摘要

This thesis explores the use of domicilium as a criterion in choice of law andjurisdiction in South African law with special reference to private-law status. In this areaof the law adherence to the status theory has, in the recent past, resulted in the useof domicile as an exclusive ratio jurisdictionis. This has impacted negatively on choiceof law issues in status matters: since domicile constituted the sole jurisdictionalcriterion, little attention was devoted to choice of law. Even though the lex domiciliiwas, in actual fact, applied to choice of law issues concerning private-law status, ithappened only as a result of the assumption of jurisdiction by the forum domicilii. Withthe emergence of alternative jurisdictional criteria, such as ordinary residence, choiceof law issues will have to be addressed from a conflict of laws perspective, since thejurisdictional criteria will no longer ensure the application of the appropriate lex causae.In this regard recognition of the functional diversification of jurisdictional and conflictsconnecting factors is crucial: different principles and policies underlie the fields ofjurisdiction 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 inregard to the interpretation and ascertainment of domicile, especially the domicile ofchoice, is investigated within the context of the Domicile Act 3 of 1992 and with a viewto future reform. It is submitted that the subjective animus requirement for theacquisition of a domicile of choice remains uncertain and undefined. Since domicileconstitutes such an important connecting factor in issues pertaining to private-lawstatus, as well as other non-status matters, it is essential that it should be readily andeasily ascertainable. In this regard certain concrete proposals for future reform areadvanced. Ultimately the domicile of an individual should indicate the community towhich he/she truly belongs: only then will domicile constitute a conflicts connecting factor which satisfies the demands of conflicts justice.