International marriages – which law applies to international marriages?
Marriages between persons from different countries have increased over the years and certainly in recent times.
An important aspect to understand is which country’s law applies to the marriage and in the event of the death of one of the spouses or divorce. eg. one of the most important differences in South African law in comparison with the Law of England is, namely, that in English law a marriage entered into is by default out of community of property while in South Africa the default is in community of property and profit and loss unless an antenuptial contract is entered into and registered by the spouses.
In terms of the rules of conflict of laws (also known as international choice-of-laws), the international principles of legal systems governing cross-border legal events are applied to international marriages depending on the relevant factual circumstances and provided the court in question has jurisdiction.
In South African law, the lex causae common law principles of conflict of laws apply to international marriages and the various legal consequences thereof. We mention a few in this regard.
The formal validity of the marriage is governed by the lex loci celebrationis. This is subject to the statutory exception and the law pertaining to consular marriages.
The lex loci celebrationis also governs the essential/intrinsic or material validity of the marriage. The narrow exceptions are in respect of firstly, the Prohibition of Mixed Marriages Act 55 of 1949 (repealed by the Immorality and Prohibition of Mixed Marriages Amendment Act 72 of 1985), secondly public policy considerations and thirdly the fraus legis doctrine applying the lex domicilii as the lex fori.
The lex domicilii of the spouses determines the personal legal consequences of the marriage at the date of the transaction. The lex fori may be applicable in narrow circumstances and override the lex domicilii, for example, in circumstances which fall peculiarly within the ambit of public policy.
The lex domicilii matrimonii (ie. the matrimonial domicile is the law of the domicile of the spouses at the date of the marriage) determines the proprietary/patrimonial consequences of the marriage. If the spouses have different domiciles, then the domicile of the husband will be the lex domicilii matrimonii, despite the application of the amendment to the Domicile Act 3 of 1992 which abolished the wife’s domicile of dependence. The doctrine of immutability will not affect the position or indeed an intention to assume a new domicile.
It is thus imperative that when entering into an ‘international marriage’ that the would-be spouses secure sound legal advice in regard to their marriage, the validity thereof and the consequences thereof.
In our next article, we shall focus on conflicts of law pertaining to the Law of Succession, Wills and Deceased Estates.
SEARCH & SEIZURE LAWS? WHAT CONSTITUTES A LEGAL SEARCH & SEIZURE?
ASHLEY SLAMAT ATTORNEYS – no games, JUST LAW™
(PART 2 OF 2)
Search & seizure laws in terms of the South African Police Service Act 68 of 1995 (PSA)
In terms of section 13(6) of the PSA a police official may search without a warrant any person, premises, other place, vehicle, vessel or aircraft or any receptacle, and seize any article that is found and may lawfully be seized.
The apparent aim of such a search is to exercise control over the illegal movement of people or goods across the borders of South Africa. The search may be conducted:
at any place in South Africa within 10 kilometres, or any reasonable distance from any border between South Africa and any foreign state;
in the territorial waters of South Africa;
inside South Africa within 10 kilometres of or any reasonable distance from such territorial waters; or
at any airport or within any reasonable distance from such an airport.
Section 13(7) of the PSA provides for searches in an area cordoned off for purposes of public order or safety.
The National or a Provincial Commissioner may, “where it is reasonable in the circumstances to restore public order or to ensure the safety of the public in a particular area”, authorize inwriting that a particular area be cordoned off, specifying the period (which may not exceed 24 hours), the area and the object of the cordoning off.
On the strength of this authorization, a police official may, “where it is reasonably necessary” to achieve the objective of the authorization, conduct a search without a warrant (and presumably without reasonable grounds) of any person, premises, vehicle or receptacle or “any object of whatever nature” and seize any article that may afford evidence of the commission of an offence.
On the basis of such a broad purpose of the search, there may be substantial insufficient safeguards to achieve the necessary balance between the rights of citizens and law enforcement objectives.
The requirement of reasonable grounds for the search of individual premises may be abandoned, but the cordoning off of a particular area should be based on reasonable grounds.
Where it is reasonable in the circumstances in order to exercise a power or perform a function referred to in the Constitution, section 13(8)(a) of the PSA provides that the National or Provincial Commissioner may authorize a police official in writing to set up:
a roadblock(s) on any public road in a particular area; or
a checkpoint(s) at any public place in a particular area.
Section 13(8)(c) empowers a police official who is so authorized, to set up such a roadblock or checkpoint, as the case may be.
In terms of section 13(8)(g)(i) a police official who sets up such a roadblock or checkpoint may:
search without a warrant any person or vehicle that is stopped or any receptacle or object of whatever nature that is in the possession or in, on or attached to such a vehicle, and
seize any article referred to in section 20 of the CPA, that is found in the possession of the person or in, on or attached to the receptacle or vehicle.
The police official must, on demand of any person whose rights are or have been affected by the search and seizure, exhibit a copy of the written authorization to hold the roadblock or checkpoint.
In Sithonga v Minister of Safety and Security 2008 (1) SACR 376 the court maintained that section 13(8) restricted the setting up of checkpoints in public places. However, the Act did not define what a public place was. It was further held that an authorization in terms of the Act must describe the place where the checkpoint was to be set up with sufficient particularity and thus not be vague and ambiguously framed.
Section 13(8)(d) of the PSA, provides that a police official may set up a roadblock for the purposes of seizing ‘certain articles’ without written authorization from the National or a Provincial Commissioner, if such a police official reasonably believes that:
there is an object which is concerned in, or may afford evidence of, or is intended to be used in the commission of an offence listed in Schedule 1 of the CPA, and
such an object is present in or is about to be transported in a motor vehicle in a particular area, and
a search warrant will be issued to him or her under section 21(1)(a) of the CPA if he or she has reason to believe that the object will be transported in a specific vehicle and he or she has applied for a search warrant, and
the delay that will be caused by obtaining the authorisation in terms of section 13(8)(a) (from the National or Provincial Commissioner) will defeat the purpose of the roadblock.
In such circumstances a roadblock can be set up by such a police official on any public road or roads in that area in order to determine if a vehicle is in fact carrying such an object.
The requirement that a Commissioner may exercise this power only where it is “reasonable in the circumstances” imposes an objective test to be applied in law. The purpose of the roadblock should be reasonable.
A specified objective for the roadblock should be determined, the objective of which can be assessed.
A general crime prevention roadblock grants police officers unstructured search powers which are open to abuse and arbitrary, corrupt action, while a limited objective, such as the search for weapons or drugs, should result in focused and confined police actions which respect the rule of law and constitutional rights of citizens.
The legalization of cannabis use and possession in South Africa will undoubtedly bring all the above search and seizure laws into play.
Search and seizure in terms of the Criminal Procedure Act 51 of 1977 (CPA)
In South African law the terms ‘search’ and ‘seizure’ are not clearly defined.
Undoubtedly, the legalization of cannabis use and possession in South Africa will test the current search and seizure laws to the fullest extent.
The consideration of what is a ‘search’ is dealt with while understanding that there is an inevitable physical intrusion in regard to a person or property which is necessary to establish a search. This causes a clash between criminal law principles and the Constitutionally guaranteed rights of every citizen.
It is important to understand that where a word is not defined in a particular piece of legislation that word then bears its ordinary meaning in law and hence in court proceedings.
Various sections of the CPA deal with search and seizures, we touch on a few in this article. It is critical to understand that significant legal principles and case law decisions qualify and/or delineate the black-letter of these sections of the CPA.
Search of arrested persons
Section 23 of the CPA provides for the search of arrested persons and the seizure of articles pursuant to the arrest, but clearly not for any other purpose, reason or event.
On the arrest of any person, the person effecting the arrest may:
if s/he is a peace officer, search the person arrested and seize any article referred to in section 20, which is found in the possession of or in the custody or under the control of the person arrested, and where such a peace officer is not a police official, s/he shall forthwith deliver any such article to a police official; or
if s/he is not a peace officer, seize any article referred to in section 20 which is in the possession of or in the custody or under the control of the person arrested and shall forthwith deliver any such article to a police official.
In South African law a peace officer may without a warrant effect a search of an arrested person and seize any article found in the possession, custody or control, of the arrested person, which may afford evidence of the commission of an offence of which such person is suspected.
Furthermore, the peace officer may place in safe custody (which implies that a documented chain of evidence record be kept) any object found on the person of the arrested person, which the arrested person may use to cause bodily injury to the arrested person or other persons.
Search of premises (does not necessarily include vehicles, animals, out houses, tents, barns or other separate structures on the land or premises)
Section 24 of the CPA provides for the search of premises.
Any person who is lawfully in charge or occupation of any land and who reasonably suspects that stolen stock or produce, as defined in any law relating to the theft of stock or produce, is on any premises upon that land, or that any article has been placed on such premises or is in the custody or possession of any person upon such premises in contravention of any law relating to intoxicating liquor, dependence-producing drugs, arms and ammunition or explosives, may at any time, if a police official is not readily available, enter such premises with the purpose of searching such premises and any such person thereon, and if any such stock, produce or article is found, he shall take possession thereof and forthwith deliver it to a police official.
State security – Power of the police to enter premises
Section 25 of the CPAempowers a police official to enter premises in connection with state security. This must be treated with caution and circumspection.
If it appears to a magistrate on oath that there are reasonable grounds for believing that the internal security of the Republic or the maintenance of law and order is likely to be endangered by or in consequence of any meeting which has been held or is to be held in or upon any premises within his area of jurisdiction, or that an offence has been or is likely to be committed or that preparations for the commission of any offence are being made or are likely to be made upon any premises within his area of jurisdiction, he may issue a warrantauthorizing a police official to enter the premises at any reasonable time for the purposes of carrying out such investigations and taking such steps as such a police official may consider necessary for the preservation of law and order or the prevention of crime.
Entering of premises for purposes of obtaining evidence
Section 26 of the CPA provides for the entering of premises by a police official for the purposes of obtaining evidence.
If a police official who is investigating an offence or alleged offence reasonably suspects that a person who may furnish information with reference to such an offence is on any premises, such a police official may enter such premises without a warrant for the purposes of interrogating such a person and obtaining a statement from him, provided that such a police official shall not enter any private dwelling without the consent of the occupier thereof.
Search and other affected rights
Since a search may also infringe upon, inter alia, the rights to dignity and to bodily security the search must be conducted in harmony with and with respect for those rights at all times. In terms of section 29 of the CPA the search of a person must be conducted with strict regard to decency and order.
Seizure
In Ntoyakhe v Minister of Safety and Security 2000 (1) SA 257 the court held that the word ‘seize’ encompasses not only the act of taking possession of an article, but also the subsequent detention thereof (but not indefinite detention thereof), failing which the right to seize would be rendered worthless.
Seizure under or in terms of a search warrant
It is critical to know that in terms of section 21 of the CPA, unless the circumstances set out in section 22, 24 and 25 of the CPA exist, an article may be seized only in terms of a search warrant.
If it appears to a magistrate or justice of the peace that there are grounds for believing that such an article is in the possession or under the control of a person or upon any premises, and such information is provided to him or her under oath, a search warrant may be issued. In order for the search to be lawful, the premises to be searched must be clearly and properly identified in the warrant.
A search warrant must be executed during daylight hours unless the police official is specifically authorized therein to execute it at night.
Objective grounds for the search must exist.
The protection against an unjustified interferences with citizens’ right to privacy and other fundamental rights include prior judicial authorization and an objective standard, that is whether there are reasonable grounds (also known as reasonable suspicion or reasonable belief) to believe or suspect based on information obtained under oath that an offence has been or is likely to be committed, that the articles sought or seized may provide evidence of the commission of the offence and that the articles are likely to be on the premises to be searched.[1]
The essence of reasonable grounds is that such grounds or beliefs must be objective and reviewable by a court of law. Reasonable suspicion can be obtained through the utilization of the human senses of a police official in the course of duty.
A police official may without a search warrant search any person or container or premises for the purpose of seizing any article referred to in section 20:
if the person concerned consents to the search for and seizure of the article in question;
if the police official on reasonable grounds believes that a search warrant will be issued to him under section 21 of the CPA and that the delay in obtaining such a warrant would defeat the object of the search.
Undoubtedly, the legalization of cannabis use and possession in South Africa will test the above laws to the fullest extent.
[1] In Rajah v Chairperson: North West Gambling Board 2006 3 All SA 172 (T) 394 the high court held that for a search and seizure to be valid in terms of s 21 of the Criminal Procedure Act, “a warrant may only be issued by a magistrate or judicial officer where it appears from information on oath that there are reasonable grounds for believing that an article is in possession or under the control of or at a premises within the area of jurisdiction of that particular officer”… further that the high court had a wide discretion to interfere with the magistrate’s decision if the court a quo had not applied its mind to the matter.”
Couples mediation – is your relationship worth saving?
It is said that a divorce is a post mortem of a dead marriage.
Many couples find themselves in a position where it is apparent that there is no more romance or other feelings left in a relationship but one or both spouses or partners do not have the will or inclination to find a solution to the apparent issues or problems experienced.
For those who choose not to take the brave step to seek help in their relationship a divorce or uncoupling will be the likely outcome invariably with heartache and the unpleasantness of a post mortem.
However, for those couples who do want help to assist them in rekindling the romance or lost feelings, then there is help when you need it. Couples mediation is available for those who wish to save their relationship or resolve problems holding them back.
Experience shows that taking the first step in looking for help in troubled relationships is the most difficult. Thereafter once you’ve engaged in a process with an experienced attorney the possibilities of rediscovering the romance and lost feelings turn into probabilities by engaging in open and frank discussions towards finding the solutions which both parties seek. At the outset of the process it is best to determine if both parties actually want to try to save the relationship, and if so the chances of doing so are greatly enhanced.
If it transpires that there is no joint inclination to save the relationship then experience shows that it is best to move on with your respective lives so as to improve your prospects of rehabilitating yourselves and not wasting time by losing years of your lives in a dead marriage.
After all, in the final analysis, is there anything worse than lost time?
An interesting question in South African law is whether private arbitration should be the forum for private matters.
This would typically be a question in regard to sexual harassment cases, breaches of confidentiality agreements, breaches of non-disclosure agreements, disciplinary proceedings and matters pertaining to the misconduct or otherwise of executives and senior employees of companies.
In the USA, former President Donald Trump’s attorneys filed a motion to put this question before a federal judge in order to seek an order for private arbitration to proceed in a case brought by a porn actress, Stormy Daniels, who claimed she had an affair with him.
Trump, who denied having the affair, filed papers in federal court in Los Angeles asking a judge to rule that Stormy Daniels’ case involving a non-disclosure agreement should be heard by an arbitrator instead of a jury. Daniels, whose real name is Stephanie Clifford, was seeking to invalidate the non-disclosure agreement she signed days before the 2016 presidential election. She has offered to return the $US130,000 she was paid as she tries to “set the record straight”. Daniels’ attorney said she would oppose the motion to have the case heard in private arbitration, “hidden from the American public”. He tweeted that “This is a democracy and this matter should be decided in an open court of law owned by the people”.
In the South African context, it is possible for parties to agree that private or sensitive matters be heard in private arbitration, as opposed to in open court or tribunals like the CCMA, and this can be done in terms of litigation processes.
However, it is preferable to do so in terms of contractual terms which are incorporated into employment agreements, companies’ agreements and rules in regard to the behaviour of shareholders, executives and/or senior managerial employees, in employer conduct manuals and in regard to disciplinary procedures.
It is also preferable to include private arbitration terms in non-disclosure agreements and confidentiality agreements this is simply because private arbitration is for private matters, and privacy matters in law.
ASHLEY SLAMAT ATTORNEYS – Success is the Only option™
