Common Law in Southern Africa: Conflict of Laws and Torts Precedents

By Peter B. Kutner | Go to book overview

5
FAMILY LAW

JURISDICTION IN MATRIMONIAL CAUSES

Actions for divorce, judicial separation, restitution of conjugal rights and declarations of nullity present jurisdictional questions that have arisen in a number of Southern African cases. Nullity actions of course differ from the others in having the premiss that no marriage exists. There is a line of nullity cases in which the court assumed jurisdiction on the basis that one of the parties was domiciled in the court's area of jurisdiction when the action was instituted.1 With one exception, the marriages had been celebrated in foreign states.

In Ex parte Oxton,2 Oxton married his "wife" in England and resided with her there. He later discovered that she previously had married another man in Northern Ireland and this marriage had not been dissolved. Oxton and his "wife" separated and he emigrated to the Cape Province, where he sought an order declaring the marriage null and void. The court held that it had jurisdiction by virtue of the plaintiff's domicile, notwithstanding that the defendant (the "wife") had never been domiciled or resident in the Cape and the marriage had not been celebrated there.

The court reasoned that it was firmly established that in all matters affecting status, the exercise of jurisdiction was (in the

____________________
1
See generally Forsyth, 203-07, and Kahn, Husband and Wife, 559-65, which include the celebration of the marriage within the court's area of jurisdiction as a ground for the exercise of jurisdiction in nullity cases.
2
1948 (1) S.A. 1011 (C).

-111-

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Common Law in Southern Africa: Conflict of Laws and Torts Precedents
Table of contents

Table of contents

  • Title Page iii
  • Contents v
  • Preface ix
  • Introduction 1
  • I - Southern African Precedents for the Conflict of Laws 9
  • 1 - Domicile 11
  • 2 - Jurisdiction 31
  • 3 - Recognition of Foreign Money Judgments 41
  • 4 - Choice of Law 61
  • 5 - Family Law 111
  • II - Southern African Precedents for the Law of Torts 155
  • 6 - Negligence 157
  • 7 - Defences and Apportionment of Damages 181
  • 8 - Vicarious Liability 209
  • 9 - Assessment of Damages 229
  • 10 - Nuisance and Trespass to Land 251
  • 11 - Misrepresentation 255
  • 12 - Economic Loss 267
  • 13 - Passing Off 283
  • 14 - Unlawful Competition 297
  • 15 - Defamation 307
  • 16 - Privacy 341
  • Bibliographic Note 347
  • Principal Works Cited and Abbreviations 349
  • Table of Statutes 353
  • Table of Cases 355
  • Conflict of Laws Index 365
  • Torts Index 369
  • About the Author 373
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